Ernst Kantorowicz: The Fundamental Issue: Documents and Marginal Notes on the University of California Loyalty Oath

The Fundamental Issue: Documents and Marginal Notes on the University of California Loyalty Oath:The Fundamental Issue was already printed and ready to be sent to interested parties, in the fall of 1950, when the lawyers for the group of tenured non-signers of the loyalty oath advised against making the essay public while the case was being litigated.Kantorowicz had resigned from UC Berkeley and joined the faculty of the Institute for Advanced Study, in Princeton, when the court decision was finally rendered; with his cause vindicated he saw no reason to distribute the pamphlet, and so the whole lot was thrown away.Although published a few years ago in German translation, the 1999 reprint of the 1950 original thus amounts to the public debut of the work in English, prepared for the benefit of those attending the 50th Anniversary Retrospective of the loyalty oath.—-PREFATORY NOTE”If you are not a Communist, why can’t you sign the oath?” How often has this question been asked and still is asked? The answer is that from the very beginning it was true that “The issue is not Communism; it is the welfare and dignity of our University” (Alumni Letter, August 17, 1950). The forcibly imposed oath with its economic sanctions and encroachments on tenure, rejected almost unanimously by the Faculties of the University of California, was at first one of the most thoughtless and wanton, later one of the most ruthless attacks on the academic profession at large. In order to enforce the oath which “is not required by Law” (Governor Warren: February 28, 1950), the faction of the Board of Regents headed by Regent Neylan has not only violated the rules of tenure; bit by bit they have succeeded in virtually abolishing the very idea of tenure as well as that of trial by jury. Finally those gentlemen, victors pro tempore, could allow themselves to put their foot on the prostrate body of what has been one of the world’s proudest and most renowned Faculties. They could assume the power to dictate what was crime and what not, demand of the Faculty unconditional obedience to the Board of Regents even in matters of conscience, and crush non-conformists by an open “breach of faith” (Governor Warren and his group: August 24, 1950).Why I did not sign the oath-‑although, or because, I am not and never have been a Communist, and although, or because, I am genuinely conservative and never have been taken for anything else–I shall indicate in the following pages. This is not intended to be the history of “The Year of the Oath.” This subject has been admirably dealt with by Professor George R. Stewart. I merely wish to illustrate, by a few documents and a few marginal notes, some aspects of the oath controversy and its fundamental problems.What the fundamental issue is has been obvious to me from the minute the controversy started. Perhaps I have been sensitive because both my professional experience as an historian and my personal experience in Nazi Germany have conditioned me to be alert when I hear again certain familiar tones sounded. Rather than renounce this experience, which is indeed synonymous with my “life,” I shall place it, for what it is worth, at the disposal of my colleagues who are fighting the battle for the dignity of their profession and their university.  Nothing would have been easier for me than to sign, sit back, tend my garden, books, and manuscripts, and be that “naïve professor” that has been caricatured once more during the oath controversy. However, where a human principle, where Humanitas herself is involved I cannot keep silent. I prefer to fight.The true nature of the problem has since been recognized by many individuals as well as learned societies of the country. The American Psychological Association has recommended that its members not accept positions at the University of California “until such time as tenure conditions meet acceptable standards.” Other professional associations have announced, or are ready to announce, similar actions, and the haze shrouding the affair is about to vanish. With the present paper I wish to support also our supporters.The first of my documents is my own warning to my colleagues, delivered to the Academic Senate on the first meeting in connection with the oath. It is, so to speak, an expression of my convictions as a historian. The second illustrates, if in shorthand, my personal experience. The third, a letter from my friend Walter W. Horn, Acting Chairman of the Department of Art, who kindly agreed to its publication, illustrates the grave conflict of conscience and savage economic coercion to which, after fifteen months of pressure and struggle, he had finally to yield. He shared the fate of hundreds of colleagues, highly respectable and upright men, who for the sake of their families and for lack of economic independence could not afford to hold out to the last.In the “Marginal Notes” I shall try to bring into focus what appears to me as “The Fundamental Issue.” They do not exhaust the matter. The documents in the “Appendix” speak for themselves. They refer to the problem of tenure.The quotes reproducing the words used at the meeting of the Board of Regents on August 25, 1950, are taken from the transcript printed as Appendix VI of the “Petition for Writ of Mandate” filed by Mr. Stanley A. Weigel, Attorney for the “Non‑Signers,” at the District Court of Appeal, State of California, Third Appellate District, in Sacramento, California.For the reader’s convenience I give here the names of the Regents. The Board is divided into two groups, one led by Governor Warren, the other by Regent Neylan.Governor Earl Warren, Earl J. Fenston, Farnham P. Griffiths, C. J. Haggerty, Victor R. Hansen, Edward H. Heller, William G. Merchant, Chester W. Nimitz (absent at August meeting), Roy E. Simpson, Robert Gordon Sproul (President of the University), Jesse Steinhart;John Francis Neylan, Brodie E. Ahlport, John E. Canaday, Sam L. Collins, Edward A. Dickson, Sidney M. Ehrman, Maurice E. Harrison, Fred Moyer Jordan, Goodwin J. Knight (Lieutenant Governor), Arthur J. McFadden, Edwin W. Pauley, Norman F. Sprague.Berkeley, California, October 8, 1950.—-DOCUMENTSI. STATEMENT READ BEFORE THE ACADEMIC SENATE NORTHERN SECTIONJune 14, 1949As a historian who has investigated and traced the histories of quite a number of oaths, I feel competent to make a statement indicating the grave dangers residing in the introduction of a new, enforced oath, and to express, at the same time, from a professional and human point of view, my deepest concern about the steps taken by the Regents of this University.1. Both history and experience have taught us that every oath or oath formula, once introduced or enforced, has the tendency to develop its own autonomous life. At the time of its introduction an oath formula may appear harmless, as harmless as the one proposed by the Regents of this University.1 But nowhere and never has there been a guaranty that an oath formula imposed on, or extorted from, the subjects of an all‑powerful state will, or must, remain unchanged. The contrary is true. All oaths in history that I know of, have undergone changes. A new word will be added. A short phrase, seemingly insignificant, will be smuggled in. The next step may be an inconspicuous change in the tense, from present to past, or from past to future. The consequences of a new oath are unpredictable. It will not be in the hands of those imposing the oath to control its effects, nor of those taking it, ever to step back again.2. The harmlessness of the proposed oath is not a protection when a principle is involved. A harmless oath formula which conceals the true issue, is always the most dangerous one because it baits even the old and experienced fish. It is the harmless oath that hooks; it hooks before it has undergone those changes that will render it, bit by bit, less harmless. Mussolini Italy of 1931, Hitler Germany of 1933, are terrifying and warning examples for the harmless bit-by-bit procedure in connection with political enforced oaths.3. History shows that it never pays to yield to the impact of momentary hysteria, or to jeopardize, for the sake of temporary or temporal advantages, the permanent or eternal values. It was just that kind of a “little oath” that prompted thousands of non-conformists in recent years, and other thousands in the generations before ours, to leave their homes and seek the shores of this Continent and Country. The new oath, if really enforced, will endanger certain genuine values the grandeur of which is riot in proportion with the alleged advantages. Besides, this oath, which is invalid anyhow because taken under duress, may cut also the other way: it may have the effect of a drum beating for Communist and Fascist recruits.4. The new oath hurts, not merely by its contents, but by the particular circumstances of its imposition. It tyrannizes because it brings the scholar sworn to truth into a conflict of conscience. To create alternatives–“black or white”–is a common privilege of modern and bygone dictatorships. It is a typical expedient of demagogues to bring the most loyal citizens, and only the loyal ones, into a conflict of conscience by branding non‑conformists as un-Athenian, un-English, un-German, and–what is worse–by placing them before an alternative of two evils, different in kind but equal in danger. The crude method of “Take it or leave it”–“Take the oath or leave your job”–creates a condition of economic compulsion and duress close to blackmail. This impossible alternative, which will make the official either jobless or cynical, leads to another completely false alternative: “If you do not sign, you are a Communist who has no claim to tenure.” This whole procedure is bound to make the loyal citizen, one way or another, a liar and untrue to himself because any decision he makes will bind him to a cause which in truth is not his own. Those who belong, de facto or at heart, to the ostracized parties will always find it easy to sign the oath and make their mental reservation. Those who do not sign will be, now as ever, also those that suffer–suffer, not for their party creed or affiliations, but because they defend a superior constitutional principle far beyond and above trivial party lines.5. I am not talking about political expediency or academic freedom, nor even about the fact that an oath taken under duress is invalidated the moment it is taken, but wish to emphasize the true and fundamental issue at stake: professional and human dignity. There are three professions which are entitled to wear a gown: the judge, the priest, the scholar. This garment stands for its bearer’s maturity of mind, his independence of judgment, and his direct responsibility to his conscience and to his God. It signifies the inner sovereignty of those three interrelated professions: they should be the very last to allow themselves to act under duress and yield to pressure. It is a shameful and undignified action, it is an affront and a violation of both human sovereignty and professional dignity that the Regents of this University have dared to bully the bearer of this gown into a situation in which–under the pressure of a bewildering economic coercion-‑he is compelled to give up either his tenure or, together with his freedom of judgment, his human dignity and his responsible sovereignty as a scholar.—-II. October 4, 1949. President Robert G. Sproul University of California Berkeley 4, Calif.Dear President Sproul:Dante, quoting Aristotle, has remarked that “every oblique action of government turns good men into bad citizens.” I deeply deplore that under the impact of the recent events I feel compelled to reckon myself–perhaps self-righteously–among the “bad academic citizens,” since I cannot conform to the demands of the Board of Regents to sign a political oath.My political record will stand the test of every investigation. I have twice volunteered to fight actively, with rifle and gun, the left-wing radicals in Germany; but I know also that by joining the white battalions I have prepared, if indirectly and against my intention, the road leading to National-Socialism and its rise to power.I shall be ready at any moment to produce sworn evidence before the court of the Federal Bureau of Investigation, which has admitted me to citizenship during the war. But my respect for the University of California and its tasks is such that I cannot allow myself to believe that the base field of political inquisition, which paralyzes scholarly production, should be within the range of its activities.Yours very respectfullyERNST H. KANTOROWICZ Professor of History—-III. August 23, 1950.President Robert G. Sproul                                                                                 University of California Berkeley, Calif Dear President Sproul:In compliance with your directive of August 4th to Chairmen and Administrative Officers requesting information as to prospects of reactivation of members of their staff who have Reserve status in the Armed Services, I am communicating to you that I was reactivated, on August 21, for the purpose of a final physical examination and that I expect to receive a call for active duty as Captain, Infantry, for a minimum period of 21 months as soon as my physical examination report has been reviewed.Being thus confronted a second time with a disruption of my academic career, and feeling unable to expose my wife and my son to the consequences of being denied continuance of my civilian occupation upon return from military duty, it is with profound regret that I find myself compelled to yield to the pressure which the Regents saw fit to exercise in order to extort from me a declaration concerning my political beliefs. I am enclosing the requested statement, signed.I should like to make known that, in doing so, I am acting against the better precepts of my conscience and for no other reason than that of protecting my family against the contingencies of economic distress. In a letter addressed to you on May 12th, I have set forth as one of my essential reasons for opposing the oath and its contractual equivalent the fact that their imposition has coerced, under the threat of dismissal, hundreds of honorable men and women to lend their signatures to a form of employment which they consider detrimental to the welfare of the University and an insult to the academic profession at large. It was in avoidance of pressures of this type that I left Germany in 1938 and came to this country. And it was in the desire of contributing to the eradication of such methods that I volunteered during the last war to take up arms against the country of my birth.I am expecting my recall to active duty in the present conflict with the bitter feeling that, this time, I shall be fighting abroad for the defense and propagation of Freedoms which I have been denied in my professional life at home.A report on the department as a whole with regard to expected enlistments and reactivations will follow prior to September 1st and as soon as the last answers have been received from members who are out of town.Yours sincerelyWALTER W. HORN Acting Chairman Art Department.[1] The original text of the so-called Loyalty Oath, as suggested in June, 1949, read: “. . . I do not believe in and am not a member of, nor do I support any party or organization that believes in, advocates, or teaches the overthrow of the United States Government by any illegal, unconstitutional means.” —-MARGINAL NOTESI. Sanior Pars. Mediaeval Canon Law has developed a curious theory of evaluating votes, that of the maior vel sanior pars. Usually the majority (maior pars) would decide an issue. A minority, however, had nevertheless some chance to defeat a nonsensical decision if that minority proved to be the “saner part” (sanior pars). The votes, in that case, were not counted but, so to speak, “weighed.” They were weighed according to the prestige and authority (auctoritas) of the voter, his intellectual faculties (ratio), his moral qualities (pietas), the purity of his motives (bonus zelus), and the fairness of his judgment (aequitas).Much can be said against this principle; but had it prevailed at the meeting of the Board of Regents of the University of California on August 25, 1950, the group headed by Governor Warren, including Admiral Nimitz and President Sproul, would probably have carried the day by auctoritas as the “saner part.” Since, however, votes in a democracy are not weighed but counted, which has its great advantages too, the faction headed by Regent John Francis Neylan decided the issue. Thirty-one professors were ousted by a 12‑10 majority, thus reversing the decision of Governor Warren’s 10-9 majority in July. Had Admiral Nimitz been present at the August meeting, the majority would have been 12-11; for he wired he would have cast his vote with Governor Warren–as it were, with the “saner part.”[2]If “sanity” in the sense of Canon Law has anything to do with logic and consistency, those qualities were heavily clouded on many occasions at the August meeting. “Gentlemen, that does not make sense,” said Governor Warren. “While it is inconsistent, I shall vote for it,” declared President Sproul. “You are asking me to vote for a motion now that reaffirms the policy that I have voted against,” complained Regent Steinhart. The lack of “sanity,” it seems, was very obvious to the “saner part.”Communism Not the Issue.For fifteen months the oath controversy had been carried on. The battle-cry was to purge the University of California of Communists. Various methods were subsequently applied to implement that clearly expressed purpose: a Loyalty Oath, a treacherous “Equivalent,” a Faculty declaration expressing itself against the appointment of Communists, finally a statement inserted in the annual “contract” and, as an alternative for that statement, a hearing of non-signers before a jury of equals, the Faculty Committee on Privilege and Tenure.As might have been expected, Communists have not been found on the Faculty, either among the non-signers or, so far, among the signers. Thus, when Regent Heller, at the August meeting, repeatedly asked the crucial question whether “it is understood by all Regents that there is no accusation of Communism made against any of the thirty-two that we are about to fire,” even the most adamant members of the majority group agreed or kept silent. Regent Neylan himself, on another occasion, could even heckle: “Does anybody here want to–Regent Heller, or anybody–want to charge them with being Communists?””Obedience.” The matter of Communism and the fiction of screening Communists, which so long had befogged the fundamental issue as well as public opinion, was quite cynically dismissed from further discussion. “Whether they are Communists or not is now a secondary matter,” said Regent Ehrmann. “No Regent has ever accused any member of the Faculty of being a Communist,” echoed Regent McFadden. “There is no longer an impugning of those individuals as Communists,” summarized Regent Haggerty of Governor Warren’s group and, clarifying the stand of his opponents, continued: “It is now a matter of demanding obedience to the law of the Regents.””Obedience” of the Faculty to the Board of Regents, “discipline,” and “conformity” to the Regents became the new issue. Governor Warren described it correctly: “We are discharging these people because they are recalcitrant and won’t conform.”Conformity. Vice-President and Provost emeritus Monroe E. Deutsch, in a letter to the Regents of July 17th, has emphasized that the issue rests on the one point: “Is he a Communist?” On August 25th, however, the issue changed completely when the old charge, or implicit accusation, of “Suspect of Communism without self-signed affidavit” had to be dropped. Instead a new charge was introduced, “Non-conformity to the Board of Regents.” The crime of being one of a non-conforming minority was considered grave enough to justify dismissal without trial or hearing, to justify the suspension of the autonomous rights of the Faculty and the elimination of jury trial before the Faculty Committee on Privilege and Tenure.”Conformity” To Whom? What the Regents demanded was conformity in view of a highly controversial matter. The Presidents of practically all the great Universities of the country, also Phi Beta Kappa, the American Association of University Professors and innumerable other highly respectable individuals and associations have publicly taken a stand with Governor Warren and his group. But to conform with The Board of Regents of the University of California is a next to impossible task. The present Board of Regents is hopelessly divided, and since the split goes right down the middle, the Board’s working ability may be seriously questioned. The Board is ready to reverse its decisions monthly, and the August decision may be challenged in October or November. There will, perforce, always be non-conformity to either one or the other faction. In that situation it is extremely difficult to tell what “conformity” means, or to tell why conformity to Governor Warren and the sanior pars should be deemed morally so inferior to conformity with Regent Neylan’s one-vote majority group that it furnishes a reason for dismissal.Conformity in Controversial Matters a Condition of Appointment. To what, so we may ask, does that see-saw nonsense of everchanging one-vote majorities lead except to destruction? A professor can be legally dismissed for “gross incompetence,” which is not the issue here, or for “moral turpitude.” Are we now urged to acknowledge that non0-conformity to Regent Neylan (= conformity to Governor Warren) is “moral turpitude”? The Regents’ August majority had obviously not thought the matter to its proper conclusion when they decided to make, implicitly, conformity a condition of appointment, and non-conformity a reason for dismissal. Nor have they, with regard to “conformity in a matter of conscience,” drawn the ultimate consequence of their verdict which would suggest that only a conscience forced to conformity with some faction, or otherwise violated and perjured, promises to produce the ideal teacher and to guarantee the proper amount of “impartial scholarship and free pursuit of truth” which the Regents themselves demand. Are we going to introduce again subscription to the Thirty-Nine Articles or to some political faith as a requisite to taking a university degree? Do we need again a “University Test Act” to abolish such outmoded customs? Experience has shown long ago that a university forced to conform to a factional orthodoxy is in danger to end in sterility.Legislature. Things become rather involved for the majority group once they themselves have admitted that “Communism is not the issue.” In fact, it has never been the true issue. It has been suggested that without a loyalty oath the legislature would threaten to refuse to vote the budget or that, were the non-signers retained, the legislature would not appropriate money for the University. To others this suggestion appeared as highly improbable (Max Radin in The American Scholar, July, 1950).Propaganda. The real issue was, from the very beginning, an irresponsible exploitation of the true and genuine dangers of Communism for propaganda purposes of politicians with, unfortunately, the University of California as the victim. The “purge” of the University, resulting in the detection of not a single Communist on the Faculty, was not important. What was important was the advertising campaign, the propaganda value of the purging activity itself–important, obviously, for political, and not academic, purposes although the statutes wisely demand that the University be kept clear from political interference and machinations.To anyone who has lived through the bitter experience of Hitler Germany, the use and abuse of the Communist menace for political and propaganda purposes is a familiar device. It leads, whether so contemplated or not, almost automatically to the establishment of absolute power, to totalitarian management and the demand for unconditional obedience in the name of anti-Communism. It leads, which is worse, to fictitious “victories” over Communism and entails a dangerous and frivolous underestimation of the true power and genuine danger of Communism.Naïveté The non-signers, it has been said repeatedly, are distinguished by “a naïve ignorance of what Communism is” because as scholars they are “inexperienced in the ways of the world.” This is the old pattern of lampooning the “professor” of bygone times. It is an insult to the historian whose knowledge of the ideological conflicts of the past gives him a rather clear insight into the ideological conflicts of the present. The argument of “naiveté” moreover, has a rather stupid ring in the ears of one who has lived in Communist occupied cities and areas and has actively fought against, and been wounded by, those very radicals about whom allegedly he knows nothing. The matter which indeed is often not recognized distinctly enough is what generation of vipers can originate from “White Battalions,” once they don the brown shirt.On the other hand, talking about naïveté, is there anything more naïve than the belief of those Regents allegedly “experienced in the ways of the world” that by means of tom-fooleries and mummeries a danger so grave as Communism can effectively be fought? “Children are to be deceived with toys, men with oaths” (Plutarch).II. Religious Scruples and Conscience. At the August meeting some Regents made statements to the effect that the hearings before the Committee on Privilege and Tenure were intended only for non-signers whose religious scruples made them conscientious objectors. Utterly inaccurate though these statements are with regard to the general purpose of both the hearings and the Committee, they imply a fallacy worth exposing.Conscience is not the private property of any particular denomination. It is inter-denominational, and its violation is painful no matter whether that conscience belongs to a Lutheran or Roman Catholic, to a Quaker or Unitarian, or even to a scholar who may claim to have a professional conscience. It is obvious that the scholar’s conscience, though non-denominational, is as “religious” as the professional conscience of the judge and the minister; and it should be equally obvious that it is his conscience which makes the scholar what he is, and that to act according to his professional conscience is indeed the function of the University professor.A Debate. Functions and rights of the university professor were the subject of a somewhat heated debate at the same August meeting of the Regents. The discussion, mainly between Regent Ehrman and Governor Warren, is so crucial and the clash of opinions so illuminates the general problem that some rather lengthy excerpts from the transcript are warranted here. The argument pivoted around the question whether the analogy of a legal case–MacAlister vs. Baker–as relevant to the case of the thirty-one professors.Regent Ehrman: I want to point out that it seems to me . . . that there is this point of distinction: Firstly, the professors, employees, or whoever they are, recommended under the President’s motion to be accepted for employment, are not officers, in any sense of the word, of the university. They are employees. . . . In the second place, it seems to me that if we assume that they have been employed, what does that mean? Do they have any vested rights to the position? It merely means that they have the right to enjoy the salary for the year . . .They [the dismissed professors] would be entitled to their salary, and that is all, if they had a vested right in the appointment, which I doubt very much because they are merely employees of the Board of Regents and they are not officers . . . The Baker case refers to people who are entitled to a public office. It has no reference whatsoever to people who are employed.If this doctrine of the Baker case applied to the university, it would mean that a man who was employed as a gardener on the grounds, a janitor in the buildings, would have a vested right to the office. I cannot see [that], whether a man is employed in one capacity, such as I have used for purpose of illustration, [or is] employed as a professor or an instructor, that there is any distinction between them.Governor Warren: Regent Ehrman, as far as I am concerned, I am of the opinion that whether these people are public officers, or whether they are executing a public trust, is a distinction without difference. We recognize that these people are performing important public functions. That is the reason we are having this discussion today; and the importance of the appointment of a President of this University, or a Vice President, or a Dean, or the head of a department, or a professor or even an instructor, it seems to me, is of equal importance to the public as the appointment or election of any other public officer; and I don’t believe that we have the right to consider here that these people don’t rise to the dignity of a City Councilman or a constable or other public officers who come under this rule. They are performing a public function just as much as I am as Governor of this State. And I believe that their rights and their prerogatives and their status before this Board should be treated with equal solemnity and consideration.We cannot, I think, be grateful enough to Governor Warren for his fine defense of the status of the profession. But our thanks should go also to Regent Ehrman, who, being himself the founder of a professorship (and not a janitorship) on the Berkeley campus, has certainly given many a thought to the academic profession and to whose generosity the present writer personally is greatly indebted. We are grateful to him for having made his views so perfectly clear.Janitors and Professors. Regent Ehrman said he cannot see that there is any distinction between janitors and professors, since both are “employees of the Regents.” With all due respect for the duties of gardeners and janitors, we may ask whether there is really no difference between their occupation and that of university professors. Are they really undistinguishable and equally exposed to being “hired and fired” at the will of the Regents?Unions. One great difference between janitors and professors stood out very distinctly during the recent strike of the janitors at the University of California: the janitors, who have no annual contracts and may claim “permanent tenure,” are unionized and therefore can press their demands against the Regents almost to the last penny. But there is no union of university professors to back up even the loudest outcries and most unanimous protests of a Faculty. Nor, for that matter, is there a union of judges or of ministers and priests.Why have unions of those professions not been formed? Is that omission due only to the naiveté of those professions, or are they too conceited to join organized labor? Why should not the judges form the Honorable Union of Court Employees, and the ministers establish themselves as the Holy Union of Church Employees, followed by the professors’ Enlightened Union of University Employees? Why is it so absurd to visualize the Supreme Court justices picketing their court, bishops picketing their churches, and professors picketing their university?The answer is very simple: because the judges are the Court, the ministers together with the faithful are the Church, and the professors together with the students are the University. Unlike ushers, sextons, and beadles, the judges, ministers, and professors are not Court employees, Church employees, and University employees. They are those institutions themselves, and therefore they have certain prerogative rights to and within their institutions which ushers, sextons, and beadles or janitors do not have.Accessory and Essence. Moreover, the comparison between gardener-janitor and professor is misleading because it is fundamentally wrong. A university could exist without gardeners and janitors, who are accessory; it could hardly exist without professors and students, who are essential, actually the only essential part of a university. According to the oldest definitions, which run back to the thirteenth century, “The University” is the universitas magistrorum et scholarium, “The Body Corporate of Masters and Students.” Teachers and students together are the University regardless of the existence of gardens and buildings, or care-takers of gardens and buildings. One can envisage a university without a single gardener or janitor, without a single secretary, and even–a bewitching mirage–without a single Regent. The constant and essence of a university is always the body of teachers and students.Why Not a Professors’ Union? This answers also the question why there is not a union of university professors. The professors, hitherto, did not need to form a protecting professional organization because, similar to judges and ministers, they–were a corporation anyhow–a corporation which in this case was identical with the body corporate which they served, the University. This again distinguishes them from gardeners and janitors whose unions are bodies which do not coincide with the corporation they happen to serve.Vested Rights. For the same reason the professors have certain vested rights in the institution which they both serve and constitute. They have certain rights which gardeners and janitors, who serve the comforts of the institution, have not. The fact that gardeners and janitors as well as professors receive their wages from the same public purse and through the agency of the same trustees of the People of California does not reflect upon absence or presence of vested rights.Employees of the Regents. Above all, it would be putting the cart before the horse to maintain that the professors do not serve the University but serve the Regents, and that consequently they are not officers of the University but employees of the Regents. Has a spectre or has megalomania wrought havoc with proportions and contours? Does the University exist for the sake of the Regents, or do the Regents exist for the sake of the University, of a public institution constituted by the body of teachers and students?In a private business corporation it might be said that the Board of Directors constitutes also the corporation especially if the Directors are also the shareholders. In a State University, however, the Regents are neither shareholders nor paid directors. They are unpaid trustees. They are the intermediaries and administrative agents of something they are not identical with–the People of California–and for something they are not identical with either the body of teachers and students. These agents honoris causa can never claim, nor do they normally claim, to constitute “The University.” They are those who, along with many other functions, have to protect the University against attacks and keep unrest from their “ward.” They are, in that respect, the police of the University. But where, except in the caricature of the Prussian “Police State,” does the police constitute The State or The People?Public Institution. Moreover, the University of California is a public institution. The professors serve a public institution. They receive their salaries mainly from public funds, from the People, if through the agency of the People’s trustees, called Regents. And they receive their salaries in fulfilment of public functions or of functions for the public, but not to fulfil under a private contract private functions for the private benefit of the Regents. They do not serve a private whim of “employers” who might hire and fire, for their private stage, actors and clowns as they please. The Faculty members are, one way or other, public officers, or officers of a public institution and public trust, but not the private employees of the Regents. And therefore the right to “hire and fire” those officers cannot be an undisputed prerogative of the Regents alone. “What touches all shall be approved by all.” The Faculty will not accept an inept teacher forced upon them by the Regents without or against Faculty approval, and they cannot allow the dismissal of an able teacher without or against Faculty approval, because either action would mean an infringement from without upon their own body corporate; and because, to quote President Harold E. Stassen, “the faculty is the judge of its own membership” (San Francisco Chronide, October 7, 1950)Business Corporation. The great confusion of these complicated relations, which need clarification by the law courts, apparently derives from the superficial similarity of modern business corporations with the very much older corporational structure of a University. Governor Warren has obviously felt those difficulties when, distinguishing also between employees and Faculty members,” he defined the University of California very ably as “a quasi-public institution with practically all the attributes of a private corporation organized for a public purpose” (Oakland Tribune, Sept. 22, 1950). In the case of an ordinary business corporation the hiring and firing, within the limitations of the law of contracts, is indeed completely at the will of the Directors. If, for example, the manager of the gambling casino “Cal-Neva,” on the Nevada-California border, sees fit to require all his employees–“dealers, pit bosses, waitresses, janitors, and even the nude model who poses in a champagne glass for the customers” (San Francisco Chronicle, Sept. 9, 1950, p. 2)–to take an anti-Communist loyalty oath before a Reno judge, telling them in a truly Regential fashion “Sign or get out,” he is acting doubtless within his legal competences. However, the “employer-employee” relationship does not apply to the teaching staff of a university, least of all to that of a State University.Dangers. In fact the application of business analogies to a University has some socially serious aspects, and I wish to state most emphatically that the radicals among the Regents, who are trying to undercut the traditional structure and the prerogatives of the University of California, are playing a very dangerous game damaging what politically they wish to preserve.The hitherto unquestioned University structure would be overthrown completely if indeed the professors were, by definition, nothing but “employees” of the Regents and the Regents their “bosses.” For only so long as certain vested and autonomous rights of the body of teachers and students are respected can the professors refrain from forming a “union.” If the professors are nothing but hirable lecture machines and firable employees, who, above anything else, have to obey and conform, regardless of their qualities as men and as teachers; that is, if really they are hired on a business basis, then they will have to organize in a business fashion and establish their union. Actually, the present intransigent and shortsighted policy of the anything but conservative radicals among the Regents of the University of California might very easily touch off a general movement aiming at unionizing the American university professors. But from that moment onward the aspect of American universities would change profoundly. Mass decapitations of professors such as have taken place monthly in California’s academic abattoir (157 + 6 + 31), would unfailingly lead to statewide, perhaps nationwide, refusal to work on the part of the unionized professors, and little opportunity would be left to any Regents to exercise absolute power.However that may be, the Regents’ effort to make teaching a trade is entirely revolutionary. Should they succeed, their inconsiderate experiment would violently transform one of the few remaining conservative institutions, the University, and it would uproot one of the few relatively conservative sectors of modern society, that of university professors.Trade and Profession. It is obvious that in the argument about janitor and professor some fundamentals have been hopelessly confounded, above all the difference between a trade and a profession.  The janitor is paid by the hour. He has his shift during which he is held to perform certain well described duties. His work is clearly defined and definable. Once he has performed his daily duties and has left off work he is a completely free man. Additional work is neither expected nor demanded, except by special agreement and with special pay.The defined duties of a university professor are few. His classwork at the University of California may consist in five hours of lecturing and in a seminar of two hours. In addition, the professor will have to do some committee work, sit on examination boards, have conferences with his students during office hours, guide their work for advanced degrees, and may run through the catalogues of second-hand book dealers to order books for the University Library. If we except the registered classwork, his duties are anything but clearly defined. Nor is he paid merely for the seven hours during which he meets his classes and seminars. The amount of time and effort he wishes to invest in preparing for his classes, is left to his own judgment. Whether it takes him two days to prepare a single lecture, or two hours, or two minutes or less, is left to him. Whether he revises his lectures by integrating his own research work and that of others, or simply rehashes some textbook, is left to him. Whether he devotes much or little of time and care to the M.A. and Ph.D. theses of his pupils, is his own business. It is left to him whether he indulges in research work from which his classes would profit and his university would reap fame. And it is left to him how much time and energy he puts into his committee work, into his conferences with students, or into the aggrandizement of his university’s library. In short, it is entirely up to him how much of his life, of his private life, he is willing to dedicate to the University to which he belongs and which he, too, constitutes. The exact amount of time he invests is bound by no regulations. It is purely a matter of Passion, of Love, and of Conscience.And here there emerges yet another difference between janitor and professor: you can buy labor, but you cannot buy Passion and Love nor the scholarly Conscience. For once there is something that is not marketable, and the poorly informed Regents should know that by trying to make our conscience venal they kill our passion and love for our institution because we cease to be one with it.Conscience. Through the sheer existence of this conscience, which is undefined and undefinable, the scholar ceases also to be an “employee” of the Regents in any sense whatsoever of business language. It is through his conscience that he acquires vested rights in his office. By this conscience, which is inseparable from his genuine duties as member of the academic body corporate, he is clearly distinguished from gardener and janitor. That almost criminal superficiality of the comparison between janitor and professor breaks down at this point. Trade and profession are not identical. A profession, as the word itself would suggest, is based upon conscience, and not upon working hours as in the case of modern trades, or on Time in general. In this respect the scholar resembles the judge whose duties are not disposed of by sitting in court, or the clergyman whose duties are not exhaustively described by the mention of ritual performances and sermons on Sundays. The conscience is actually the essence of the scholars “office” (officium) which he is entrusted with and through which he becomes truly a “public trust.”From whatever angle one may look at the academic profession, it is always, in addition to passion and love, the conscience which makes the scholar a scholar. And it is through the fact that his whole being depends on his conscience that he manifests his connection with the legal profession as well as with the clergy from which, in the high Middle Ages, the academic profession descended and the scholar borrowed his gown. Unlike the employee, the professor dedicates, in the way of research, even most of his private life to the body corporate of the University of which he is the integral part. His impetus is his conscience. Therefore, if you demoralize that scholarly conscience, that love and passion for research and for teaching, and replace all that in a business fashion by strictly defined working hours, prescribed by the “employer,” you have ruined, together with the academic profession, also the University! Only the culpably naïve ignorance on the part of malevolent Regents, not knowing what a scholar’s life and being is, could venture to break the backbone of the academic profession–that is, its conscience in order to “save the University,” nay, –to dismiss a scholar for that very conscience which makes him a scholar.Folly, like the spirit, bloweth where it listeth. All that stupid destruction of genuine values and valuable human beings is carried on for the sake of a hysterical demand the utter folly of which has been attested to nationwide; it has been attested to also by the professors’ new company, the gambling-house nude, who takes her loyalty oath to pose in a champagne glass for the customers. Folly knows no limit. We can only pray with Erasmus: Sancte Socrates, ora pro nobis!Why Reduce the Status of Professors? There remains one last question to be answered: For what reasons did the majority of the Board of Regents try to reduce dignity and self-respect of the Faculty of the University of California and thereby of the academic profession at large? Why did those Regents try to blur the lines of distinction prevailing between janitor and Faculty member and deprive the professor of his vested rights in his own body corporate? After all, those gentlemen have been entrusted with preserving the University, not with revolutionizing and radicalizing it. They as guardians should have been eager to defend their ward and to raise the reputation of the academic profession to the highest possible level instead of doing their best to whittle down the self-respect of the Faculty.The answer, again, is simple: that strange attitude of the majority Regents is the direct outcome of their efforts to enforce high-handedly a special loyalty oath. In order to enforce that oath and to establish that unspeakable alternative “Sign or be fired” two main obstacles had to be removed. The first was constitutional; the second referred to tenure.The Constitutional Obstacle. The additional oath “is not required by law.” It may be even unlawful. The Constitution of the State of California prescribes the taking of an oath to the Constitution of the United States and the State of California, and then continues:”And no other oath, declaration or test shall be required as a qualification for any office or public trust” (Article XX, Section 3).Whether or not an additional oath could be imposed upon the Faculty at all, would depend upon whether or not the term “office or public trust” applied to the members of the Faculty of the State University. It would be, writes Max Radin, “a question of chopping and paring and refining and adjusting verbal symbols. But surely no one who can read can doubt the general purpose of the constitutional inhibition.”On August 25th, Governor Warren held that it was a distinction without difference whether Faculty members are public officers or executing a public trust, but he maintained unambiguously that they “are performing a public function just as much as I am as Governor of the State.” He finally claimed that “their rights and prerogatives and their status before this Board should be treated with equal solemnity and consideration”–that is, “equal” to that of public officers.Governor Warren’s opinion was not shared by his opponents. The loyalty oath, as demanded before April 21, 1950, could be enforced without violation of the Constitution only if the professors had no public status whatsoever and if they were like hired hands private “employees” of the Regents, which “merely means that they have the right to enjoy the salary for the year.”The constitutional issue explains sufficiently the endeavors to reduce the status of the professors from men having public functions to private employees. Once the Faculty member has become the private employee of the Board, hired like the nude in the champagne glass for entertaining the customers, probably students, those Regents were free to demand any additional oath, any declaration or color of hair they desired. The Constitution, at least, with its impractical inhibition, no longer barred the way It is not quite impossible that the law courts, at one time or another, will make a decision concerning the status of professors in accord with the view of Governor Warren, meaning that the Constitution (Article XX, Section 3) actually does apply to professors. In that case the Regents would have coerced, by means of economic threats and moral pressure, hundreds of Faculty members to commit an unlawful act. Aggravating would be the fact that acquiescence to the demand of the Regents on the part of those Faculty members might appear as an equivalent of the money paid to a blackmailer for not revealing a discreditable secret, that is, for not divulging the discreditable slander intimating that the non-signer was a Communist.Tenure. The loyalty oath, after it had haunted the Faculty for eleven months, was rescinded on April 21, 1950. It was replaced by the so-called “contractual equivalent.” During that Spring campaign the second obstacle, the problem of tenure–though always active–came to the fore.Where tenure is violated, academic freedom goes. If a professor is not sure of his permanent tenure, if he has to fear dismissal for unorthodox opinions or non-conformity, he loses his freedom of action and speech. The same is true with regard to the judge who loses his conscientious freedom and freedom of prejudice if his judgment were impaired by the fear of losing his job. Hence, there can be no true academic freedom unless tenure is assured.The oath as well as its contractual equivalent could be imposed, and the Faculty forced into submission, only if the rules of tenure were flouted. So long as the rules of tenure prevailed the alternative “Sign or be fired” was meaningless because it could not be put into effect. Therefore tenure had to disappear: a tampering with the so-called contracts began and, at the same time, the Faculty Committee on Privilege and Tenure was frozen out.Rules of Tenure. At all American Universities it is customary to recognize a claim to tenure, in one way or another, of all professors and associate professors, including usually also other instructors who “have attained tenure by reason of length of service” (Manual of the Academic Senate). Many universities, including State Universities, acknowledge explicitly a right to tenure. The State University of Iowa, for example, declares quite specifically in the letter of appointment how many years an instructor or assistant professor has been appointed for; and in the case of an associate or full professor the formula reads: “with tenure extending continuously” (Appendix A).At the University of California the legal right to tenure seems to have been kept vague, nor was it ever so clearly defined as in Mid-Western and Eastern Universities. Nevertheless there were certain rules of tenure. The Manual of the Academic Senate makes it perfectly clear that professors and associate professors possessed a claim to tenure, and that others acquired tenure through length of service, that is, after eight years. The Instructions to Appointment and Promotion Committees, valid in 1943, made it no less clear that tenure was respected for the grade of associate professor and above that rank. The instructions read:”The Committee should bear in mind that normally the University will terminate appointments of assistant professors who do not qualify for promotion after two terms (six years) of service in that grade. Associate professors, however, who do not qualify for further promotion will be retained indefinitely [!] in that grade.”The Committees were held to consider promotion to the grade of associate professor most carefully because that rank implied tenure.Accordingly, in 1940, the Vice-President of the University, Provost Dr. Deutsch, acting for the President, could congratulate a Faculty member on the promotion to associate professorship, and write: “This not only marks an advance in itself but places you on the permanent status which is so important in the academic career” (Appendix E). Similarly, the ninth year of appointment to one of the lower grades of the academic hierarchy was considered of special importance because after eight years a Faculty member acquired tenure “by length of service.”Nothing would be easier than to assemble more material evidencing the existence of tenure de facto. The Manual of the Academic Senate reproduces a Senate resolution to the effect that the tenure members of the Faculty are understood to be appointed “continuously during good behavior and efficient service.” This rule, valid since 1899, was laid down, at the latest, in 1919. It was adopted by the Academic Senate in 1920, and was re-adopted in 1939. The rules of tenure have not been challenged by the Regents and have been generally observed for thirty years or more. There was, to say the least, a “tacit understanding” according to which tenure existed and was observed even though it was not expressed in unambiguous legal terms. However, a “tacit understanding” is as binding among honest men as a legal stipulation; and if a “tacit understanding” remains uncontradicted by either party over a period of thirty years or more, there accrues a moral obligation and an obligation in equity to observe that understanding which is hardly less binding than a legally stipulated obligation.The Faculty, therefore, confident in the fairness and loyalty of the Board of Regents could rightly assume that in view of tenure they were just as secure, and certainly not worse off, than their equals at the other great Universities of the country.Painful Awakening. It was, under those circumstances, a most painful awakening for most professors when, at the meeting of the Academic Senate on April 22, 1950, a furious and indignant Faculty was told quite bluntly by President Sproul that no Faculty member on the University of California’s eight campuses enjoyed any rights of tenure whatsoever. The President declared that even professors and associate professors were appointed for one year only and no more.In other words, to enforce the oath or its equivalent by threat of summary dismissal the Regents had to abolish a, perhaps not legally codified, but morally existing right to tenure guaranteed by custom, tradition, and by certain rulings which had not been contested, or had even been agreed to, by the Regents over a long period, and which were rightly considered a powerful obligation on the part of the Regents. But what are moral obligations! Did not Regent Giannini even wish to organize against the Faculty a gang of “20th century vigilantes” and, contemning the courts, take the law in his own hands Contracts. The Faculty now realized that it was unprotected against any arbitrary action on the part of the Regents. Nor did it take its members very long to learn what the new concept of “non-tenure” was like.Until May, 1950, the Faculty members of putative “tenure status” received annually a salary acceptance form which they had to sign. It read:”At the annual meeting of The Regents of the University of California, your salary for the year ending June 30, 1950, as Professor of . . . was fixed at $ . . .” (Appendix B).This traditional form was changed surreptitiously. The new forms, distributed at the height of the oath controversy, in May, 1950, and now containing the anti-Communist statement, as well as the most recent forms for the year 1950-51, showed the following text:”This is to notify you that you have been appointed Professor of . . . for the period July 1, 1950, to June 30, 1951, with a salary at the rate of $ . . . per annum” (Appendix D).The Confidence-Trick. This new contract form appears as a masterpiece in the art of prestidigitation. While the eyes of the Faculty members receiving that new form were fixed, sadly perhaps and certainly with disgust, on the obnoxious loyalty statement, very few noticed that the true trick was pulled, and the genuine venom found, in the preamble. And very few noticed that they were signing not only a most unpleasant document, but that actually they were signing away their claims to tenure. By acknowledging that they were appointed for the well defined period “July 1 to June 30” with a salary rated explicitly per annum they had put in jeopardy their tenure. Now even the fiction of tenure, that “tacit understanding,” had gone. The Faculty had been taken in by a skilfully managed confidence-trick.But what had actually happened? For a mediaeval historian it is daily bread to study, compare, and handle forged, falsified, garbled, or tampered documents. It did not take the present writer very long to discover the model draft or prototype of the new substitute “contract” and to unravel, on that occasion, the threads of a texture the woof of which was mala fides, “ill faith.”Here are the results of that little investigation in the field of modern diplomatics.Two Forms. The University of California had two letter forms which, at the beginning of the academic year, went out to members of the Faculty. We may call them the “Appointment Form” (Appendix C) and the “Salary Acceptance Form” (Appendix B). The Appointment Form referred to Lecturers, Visiting Professors, with slight variations to Teaching Assistants, and perhaps to others as well who were appointed–as President Sproul termed it repeatedly on August 25th –“on a strictly annual basis” or for one semester only. The Salary Acceptance Form referred to those who were termed by President Sproul as having “Senate status” including tenure, but usually excluding instructors and assistant professors.For those Senate members with tenure the form was used which began: “At the annual meeting, etc.” It seems to have been the form originally used for all Faculty members; around 1914 even a young assistant professor would receive that letter. It is a simple notification about the salary for the coming year; it contained neither the word “appoint” nor “reappoint” and took continuity for granted.For the strictly annual appointees, very reasonably, the “Appointment Form” was used. It began with the words: “This is to notify you that you have been appointed, etc.” It fixed the salary at a rate “per annum” and clearly defined the period “July 1, 19 . . . to June 30, 19 . . ., only.”The difference of forms made it perfectly obvious that there was also a difference of matter and substance involved and expressed. The Salary Acceptance Form (“Your salary for the year ending June 30, 1950, was fixed at . . .”) did not imply an appointment, even less a completely new appointment. As mentioned before, it notified a person permanently attached to the Faculty of the salary he could expect for the coming year. The form itself implied one thing only: Tenure.Tampering with Contracts. When the disruption of tenure, nay, of the semblance of tenure, became imperative in order to enforce the “Sign-or-be-fired” command of the Regential firing squads, the Salary Acceptance Form disappeared completely, and there is no hope for its reappearance under the present régime. Now all Faculty members were treated equally, for now all of them received the Appointment Form hitherto used exclusively for “strictly annual” appointments. So far as the contracts were concerned there was no difference between a professor of 30 years service and a new Teaching Assistant, and only the janitors formed an exception because they receive no annual contracts but enjoy permanent tenure during good behavior and efficient service. The “Appointment Forms” were generally sent out to tenure members of the Faculty after the so-called “Compromise” of April 21, 1950, although in individual cases they had been foisted upon Faculty members throughout the year of the oath. One professor, thinking it was a clerical error, actually returned the “Appointment Form” and asked for the normal “Salary Acceptance Form.”With those manipulations the former “tacit understanding,” based upon mutual confidence, fairness, and good faith, to the effect that tenure existed and was respected, was radically wiped out. And with the old “Form” there went confidence, fairness, and good faith.I do not know whether it is legal to change contracts without notifying the contracting party of the intention–an impossible act as to union members—or whether it is considered fair to substitute for a good contract an inferior one, which cuts out all the prerogatives and privileges of the contracting party, in the hope “to get away with it.” However this may be, it is a clear case in which unbridled absolutistic might bends and deceives moral right. Although I am sure that very much stronger words would stand a libel suit and would be appropriate to characterize that kind of procedure it may suffice here to call it an act of misdemeanor and a breach of faith, perpetrated against unsuspecting honest men now delivered, hopelessly and without protection, to arbitrary will, economic pressure, and implicit bribery.Conditioned Appointments. This, however, is not yet the whole story. Tenure had been, in the golden age of the University, unconditioned “during good behavior and efficient service.” With the new and strictly annual appointments, as many conditions could be inserted into the contracts as pleased the Regents. It was evidently to make possible the insertion of new conditions that the formulae were changed. It would not have made sense to inform a professor politely that his salary for the coming year was fixed at a certain rate, and thereafter to add some novel conditions. They could not be enforced and would have been irrelevant in the face of tenure. It was, therefore, for the sake of inserting the anti-Communist loyalty clause that the normal Salary Acceptance Form was found inappropriate and was supplanted by the Appointment Form. It proved necessary to stress henceforth the fact that every professor, tenure professors included, was quite newly appointed at the beginning of every academic year. Only if tenure was disrupted, a conditional reappointment became possible, allowing also for the insertion of the clause:”I understand that the foregoing statement is a condition of my employment (!) and a consideration of payment of my salary.”It will be noticed that the word “employment” now has crept into the appointment form.The disruption of tenure, as expressed by the new forms, was an act indispensable for the introduction of the new pattern of “conditioned appointment,” conditioned not by the character and professional qualification of the appointee, but by his obedience to the Board of Regents, by his conformity in matters of conscience, and by his willingness to make a completely empty political statement the voidness and wantonness of which have been stressed in recent months–so as to mention only two names–by General Eisenhower and by Archbishop John J. Mitty of San Francisco.Constitutional Oath. The sabotage of the idea of tenure, inseparable from the new form of “contract,” may be gathered from yet another monstrosity contrived by the creative genius of those concerned and responsible. For almost ten years the custom has been observed to let every newly appointed member of the Faculty take the standard oath as prescribed for officers and public trusts by the Constitution of the State of California:”I do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge


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