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Published in: Society 6/2020

01-12-2020 | Culture and Society

The Firing of Angela Davis at UCLA, 1969–1970: Communism, Academic Freedom, and Freedom of Speech

Author: Daniel Gordon

Published in: Society | Issue 6/2020

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Abstract

In 1969, the Board of Regents of the University of California fired Angela Davis for her membership in the Communist Party. The subsequent legal case illustrates an apparent paradox: the legal system’s protection of her First Amendment rights did not preclude dismissing her for her speech. Broadly speaking, since the 1960s, the Supreme Court has been consistent in upholding freedom of speech as a central constitutional value. What remains contested and unresolved is the scope of academic freedom--something which universities, not the courts, are responsible for defining. The Davis case, which was saturated with competing conceptions of academic freedom, can serve as a textbook for understanding the structure of debate about this topic.
Footnotes
1
“Press Release Issued by Miss Angela Y. Davis,” Sept. 23, 1969, in “Angela Y. Davis Academic Freedom Case at UCLA (Leon Letwin file),” https://​leonletwin.​files.​wordpress.​com/​2016/​02/​1969-1970-angela-davis-ucla-academic-freedom-battle-prof-leon-letwin-file.​pdf. This is a collection of documents compiled by UCLA Law professor Leon Letwin. Cited hereafter as Letwin Collection. The collection is not paginated continuously but the documents appear in chronological order.
 
2
Ibram X. Kendi, Stamped from the Beginning: The Definitive History of Racist Ideas in America (New York: Hachette Book Group, 2016), p. 8.
 
3
Bernice McNair Barnett, “Angela Davis and Women, Race, and Class: A Pioneer in Integrative RGC Studies,” Race, Gender, & Class (vol. 10, no. 3; 2003), pp. 9–22; Angela Y. Davis, Women, Race, and Class (New York: Vintage, 1983) and Are Prisons Obsolete? (New York: Seven Stories Press, 2011). For a bibliography of writings by and about Davis through 2003, see John L. Novak, “Angela Davis: A Bibliography,” http://​docplayer.​net/​184315036-Angela-davis-a-bibliography-compiled-by-john-l-novak.​html.
 
4
“Academic Freedom and Tenure: The University of California at Los Angeles,” AAUP Bulletin (vol. 57, no. 3; Sept., 1971), p. 385. Cited afterward as “AFT,” this is the American Association of University Professors’ report on the dismissal of Davis, which I will analyze in detail later in the article. It provides background on the hiring of Davis as well as her dismissal.
 
5
Angela Davis, An Autobiography (New York: International Publishers, 1974) discusses growing up under segregation and the death of her friends in the bombing of the 16th Street Baptist Church in 1963.
 
6
Stephen J. Whitfield, “A Radical in Academe: Herbert Marcuse at Brandeis University,” Journal for the Study of Radicalism (vol. 9, no. 2; fall, 2015), p. 101.
 
7
Ibid, p. 102. See also Angela Davis, “Preface: Marcuse’s Legacies,” in Herbert Marcuse: The New Left and the 1960s, vol. 3., ed. Douglas Kellner (London: Routledge, 2005), p. xi.
 
8
This essay underscores common points between Marcuse and Davis on the subject of free speech and academic freedom. But Davis’s focus on race was a major addition to the “critical theory” of Marcuse and the Frankfurt School. For a provocative criticism of the “whiteness” of the Frankfurt School, see Charles W. Mills, Black Rights/White Wrongs: The Critique of Racial Liberalism (Oxford: Oxford University Press, 2017), pp. 203–204.
 
9
Kenneth Reich and William Trombley, “Explosive Academic Freedom Case Confronts UC Regents,” Los Angeles Times (Sept. 10, 1969), p. 1.
 
10
Elfbrandt v. Russell, 384 U.S. 11 (1966), pp. 15, 19. The phrase “guilt by association” was the subject of widespread debate in the 1950s and 1960s. See Sidney Hook, “What is ‘Guilt by Association’“? Heresy, Yes--Conspiracy, No (New York: John Day Company, 1953), pp. 84–93 for a discussion of some competing viewpoints. Hook took the position that membership in the Communist Party was prima facie evidence that one is a hardened conspirator; according to Hook, the Party had “control” commissions that expelled non-compliant members. I discuss below how Robert H. Jackson and other Supreme Court justices in the 1950s agreed with this. The Elfbrandt case profoundly redefined the meaning of membership in the Party.
 
11
Keyishian v. Board of Regents of the State of New York, 385 U.S. 589 (1967), pp. 597–598.
 
12
Vogel v. Los Angeles County, 68 Cal.2d (1967). The text of the oath is at pp. 2–3. The oath originated with the Levering Act of 1950, which superseded the highly controversial oath of 1949 that applied only to faculty at the University of California. The Levering oath did not mention communism explicitly; the university oath did. In 1952, the California Supreme Court ruled that the university oath was unconstitutional because it singled out academics for a loyalty test; but the Court also ruled that the Levering oath was constitutional because it applied equally to all public employees. See Tolman v. Underhill, 39 Cal.2d 708 (1952) and Pockman v. Leonard, 39 Cal.2d 267 (1952). The Vogel case thus set a new course by invalidating all oaths for public employees in California that banned membership in subversive organizations.
 
13
Superior Court of the State of California for the County of Los Angeles, No. 962388 (Oct. 24, 1969), xxiv; accessed as Appendix B in Regents of California v. Karst, Petition for a Writ of Certiorari, United States Supreme Court No. 71–1609 (October term 1971); the Petition for Certiorari, containing Judge Pacht’s decision as an appendix, is the principal document in the Making of Modern Law pamphlet entitled Regents of the University of California v. Karst, ed. Thomas J. Cunningham, John T. McTernan, and Charles H. Phillip (n.p.: Gale, 2011). There is no continuous pagination in the volume. Page numbers are internal to specific documents.
 
14
“Report of the Regents’ Committee of the Whole” (June 19, 1970), in University Bulletin: A Weekly Bulletin for Staff of the University of California (vol. 18, no. 37; June 29, 1970), p. 200; cited hereafter as “RRCW.”
 
15
On Saxon, who became President of the UC system in 1975, see Bob Blauner, Resisting McCarthyism: To Sign or Not to Sign California's Loyalty Oath (Redwood City: Stanford University Press, 2009), pp. 88, 109, 157; and Ellen W. Schrecker, No Ivory Tower: McCarthyism and the Universities (New York: Oxford University Press, 1986), p. 118.
 
16
“AFT,” p. 389.
 
17
29 U.S. 245 (1934), p. 256.
 
18
“RRCW,” p. 200 (italics added).
 
19
Ibid, p. 199.
 
20
Herbert Marcuse, “Repressive Tolerance,” in A Critique of Pure Tolerance, by Robert Paul Wolff, Barrington Moore, Jr., and Herbert Marcuse (Boston: Beacon Press, 1969; first pub. 1965), p. 80.
 
21
“Angela Davis and Herbert Marcuse at UC Berkeley, 1969,” https://​www.​youtube.​com/​watch?​v=​HuyWj8BtjKc, starting at 20:07. I use italics when Davis puts a strong emphasis on a word.
 
22
Richard Hofstadter and Walter P. Metzger, The Development of Academic Freedom in the United States (New York: Columbia University Press, 1955), is a valuable general history, but it is a linear account of the achievement of academic freedom, as if academic freedom is a fixed point toward which the history moves.
 
23
Stanley Fish, Versions of Academic Freedom: From Professionalism to Revolution (Chicago: University of Chicago Press, 2014), p. x. For a similar view, i.e., that academic freedom is a professional norm, not a legal concept, see Robert Post, “Discipline and Freedom in the Academy,” Arkansas Law Review (vol. 65, no. 2; 2012), pp. 203–216. For a contrary view, i.e., that academic freedom is a subset of the First Amendment, see William W. Van Alstyne, “Academic Freedom and the First Amendment in the Supreme Court of the United States: An Unhurried Historical View,” Law and Contemporary Problems (vol. 55, no. 3; summer, 1990), pp. 79–154.
 
24
Keyishian v. Board of Regents, p. 603. The “multitude of tongues” clause is a reference to Judge Learned Hand’s decision in U.S. v. Associated Press, D.C., 52 F. Supp. 362 (1943), p. 372.
 
25
Stephen H. Aby discusses the Davis case in “Angela Davis and the Changing Paradigm of Academic Freedom in the 1960s,” American Educational History Quarterly (vol. 34, no 2; Fall, 2007), pp. 289–301.Unfortunately, the author confuses the Regents’ June 1970 report on Davis’s dismissal with a different document, the report of the UCLA faculty committee in April 1970. Hence, his discussion of the reasons for Davis’s termination contains errors. J.A. Parker, Angela Davis the Making of a Revolutionary (New Rochelle: Arlington House), pp. 104–130, covers the UCLA dismissal; the analysis is biased by the author’s frequent assertions to the effect that communists should never be allowed to teach.
 
26
Bettina Aptheker, The Morning Breaks: The Trial of Angela Davis (Ithaca: Cornell University Press, 1999), p. 21.
 
27
Ibid, p. 11. For Davis’s account of the relationship as “very close,” see her 1971 interview on the Thames TV program “This Week,” https://​www.​youtube.​com/​watch?​v=​fnJPwdKsIjc at minute 9.
 
28
Angela Davis, The Prison Industrial Complex (CD, Chico: AK Press, 1971); “Masked Racism: Reflections on the Prison Industrial Complex,” Color Lines (Sept. 10, 1998), https://​www.​colorlines.​com/​articles/​masked-racism-reflections-prison-industrial-complex.
 
29
Thomas Haskell, “Justifying the Rights of Academic Freedom in the Era of ‘Power/Knowledge’“, in The Future of Academic Freedom, ed. Louis Menand (Chicago: University of Chicago Press, 1996), 57 (on authorship of the 1915 text).
 
30
“General Report of the Committee on Academic Freedom and Tenure: General Declaration of Principles,” Indiana Law Journal (vol. 91, no. 1; Winter, 2015; first pub. 1915), p. 66.
 
31
Arthur Lovejoy, “Academic Freedom,” Encyclopedia of the Social Sciences, ed. R.A. Seligman (New York: Macmillan, 1937), vol. 1, p. 384. The AAUP’s 1940 “Statement of Principles on Academic Freedom” also spoke of “special obligations,” including the obligation to be reserved in one’s political utterances. See http://​www.​magna-charta.​org/​resources/​files/​1940StatementofP​rinciplesonAcade​micFreedomandTen​ure.​pdf, p. 3.
 
32
David M. Rabban, “The First Amendment in Its Forgotten Years,” Yale Law Journal (vol. 90, no. 3; Jan. 1981), pp. 514–595.
 
33
Akhil Amar, The Bill of Rights: Creation and Reconstruction (New Haven: Yale University Press, 2000); William J. Brennan, Jr., “The Supreme Court and the Meiklejohn Interpretation of the First Amendment,” Harvard Law Review (vol. 79, no. 1; November 1965), pp. 1–20.
 
34
Rabban’s article, “The First Amendment in Its Forgotten Years,” is primarily about the “bad tendency” test. Holmes first referred to “clear and present danger” in Schenk v. United States (1919).
 
35
Alexander Meiklejohn, “Should Communists Be Allowed to Teach?” New York Times (March 27, 1949), pp. 10, 64–66; “The First Amendment and Evils that Congress Has a Right to Prevent,” Indiana Law Journal (vol. 26, no. 4; Summer, 1951), pp. 477–493; “The Teaching of Intellectual Freedom,” Bulletin of the American Association of University Professors (vol. 38, no. 1; Spring, 1952), pp. 10–25. A fine study is Adam R. Nelson, Education and Democracy: The Meaning of Alexander Meiklejohn 1872–1964 (Madison: University of Wisconsin Press, 2001).
 
36
Fish, Versions of Academic Freedom, pp. x-xi, 6, characterizes the present-day spectrum of viewpoints on academic freedom in terms of how strong the accent is on either the “academic” or “freedom” part.
 
37
“Press Release Issued by Miss Angela Y. Davis,” Sept. 23, 1969.
 
38
Lisa McGirr, Suburban Warriors: The Origins of the New American Right (Princeton: Princeton University Press, 2001); Max Felker-Kantor, Policing Los Angeles: Race, Resistance, and the Rise of the LAPD (Chapel Hill: University of North Carolina Press, 2018).
 
39
Arthur Danto, Analytical Philosophy of History (Cambridge: Cambridge University Press, 1965).
 
40
William Tuilio Divale, “FBI Student Spy in CPUSA Answers Criticisms,” UCLA Daily Bruin, July 1, 1959, p. 5.
 
41
Ed Montgomery, “Maoist Prof Poses Problems for Regents,” San Francisco Examiner, July 9, 1969, 14.
 
42
Letter from Saxon to Davis, July 16, 1969, Letwin Collection (the first document in the collection).
 
43
“A Statement of Facts Concerning the Appointment and Threatened Dismissal of Angela Davis, Provided by the Department of Philosophy,” September 29, 1969, pp. 4–5. University of California Archives, Bancroft Library: http://​content.​cdlib.​org/​view?​docId=​hb1x0nb4kq&​brand=​oac4.
 
44
On Che-Lumumba and Davis’ participation in it, see Beth Slutsky, Gendering Radicalism: Women and Communism in Twentieth-Century California (Lincoln: University of Nebraska Press, 2015), pp. 155–164.
 
45
The three resolutions are in Cunningham et al., Regents of the University of California v Karst (there is no continuous pagination but see xxvii-xxxvi of the Regents’ petition for certiorari; the resolutions are included as appendices). The reference to a faculty vote against admitting CP members as professors is accurate. The UC faculty responded to a survey asking them to vote for or against a proposition stating that Party members “are not acceptable as members of the Faculty.” 90% of faculty at all campuses voted and 79% were for the proposition. At UCLA it was 83%. For the text of the ballot, which included a statement by Arthur Lovejoy for the proposition and a statement by the AAUP again, see “Letter, March 13, 1950: Memorandum on Proposition 1 and Proposition 2,” Online Archive of California, https://​oac.​cdlib.​org/​view?​docId=​hb0199p04j&​brand=​oac4&​doc.​view=​entire_​text. For results of the ballot, see Blauner, Resisting McCarthyism, p. 108.
 
46
“AFT,” p. 386.
 
47
William J. Drummond, “First Lecture: Paradoxes in Society Cited by Miss Davis,” Los Angeles Times, Oct. 7, 1969, p. 8. On the same day, the Times included a front-page story on Davis’s lecture: Kenneth Reich, “2000 Jam UCLA Hall to Hear First Lecture by Davis,” pp. 1, 29. Reich’s article outlined the political controversy, while Drummond focused on the content of the lecture.
 
48
Brad Snyder, “Angela Davis Laments Her Legacy as a ‘Hair-Do.” Baltimore Sun, Dec. 4, 1994. https://​www.​baltimoresun.​com/​news/​bs-xpm-1994-12-04-1994338067-story.​html.
 
49
Angela Davis, “Lectures on Liberation,” in A Political Companion to Frederick Douglass, ed. Neil Roberts (Lexington: University of Press of Kentucky, 2018), pp. 110–134 (the first two lectures from Davis’s 1969 course, apparently unaltered).
 
50
Drummond, “First Lecture,” p. 8.
 
51
“AFT,” 407–408.
 
52
I return to the question of extramural speech in Davis’s case later in the essay. Some notable recent controversies are the Drexel University professor who tweeted, “All I want for Christmas is white genocide” (after being placed on leave, the professor resigned); the University of Pennsylvania Law professor who wrote an op-ed stating that “All cultures are not equal” (the professor was barred from teaching mandatory first-year courses); and the University of Louisiana professor who posted a racial slur about President Barack Obama (the professor was put on leave and further action is pending). Readers can easily find news reports on these cases. For a brief article that references several other cases and captures the unresolved nature of the principles at stake, see Emily Bohatch, “Professors Walk Tight Rope When Posting to Web,” USA Today (June 26, 2017): https://​www.​usatoday.​com/​story/​news/​2017/​06/​26/​professors-walk-tight-rope-when-posting-web/​429486001/​.
 
53
Thomas Blackwell, “Constitutionality of Dismissal Based on Membership in the Communist Party,” The College Law Digest (January,1970), p. 6.
 
54
Judge Alport (dissenting), Regents of University of California v. Karst, 2 Civil No. 38,410 (Jan. 26, 1972) in Cunningham et al. (eds), ix-x (Appendix A of the Regents petition for certiorari).
 
55
Petition for Writ of Certiorari, Regents of University of California v. Karst, in Cunningham et al. (eds.), pp. 6–7.
 
56
Ibid, p. 8 (italics in original).
 
57
American Communications Association v. Douds, 399 U.S. 382 (1950), pp. 390–391; cited in the Regents’ petition (see previous note), p. 8.
 
58
West Virginia State Board of Education v. Barnette, 310 U.S. 624 (1943), p. 642.
 
60
Terminiello v. Chicago, 337 U.S. 1 (1949), p. 37 (italics added).
 
61
Karl Loewenstein, “Militant Democracy and Fundamental Rights, I,” American Political Science Review (vol. 31, no. 3; June, 1937), p. 421.
 
62
Ibid, pp. 423, 431 (italics added).
 
63
Karl Loewenstein, “Militant Democracy and Fundamental Rights, II,” American Political Science Review (vol. 31, no 4; August, 1937), pp. 638, 642, 653 (italics added).
 
64
For the influence of “militant democracy” in European law, see Gregory H. Fox and George Nolte, “Intolerant Democracies,” Harvard International Law Journal (vol. 36, no. 1; winter, 1995), pp. 1–70; and Carlo Invernizzi Acetti and Ian Zuckerman, “What’s Wrong with Militant Democracy,” Political Studies (vol. 54, no. 15; 2017), pp. 182–199.
 
65
Arthur Lovejoy, “Communism versus Academic Freedom,” The American Scholar (vol. 18, no. 3; summer, 1949), p. 334 (italics added to “suicide”).
 
66
American Communications Assn. v. Douds, 339 U.S. 382 (1950), p. 428.
 
67
Keyishian v. Board of Regents, pp. 603–604 for reference to strict scrutiny. A legal irony is that the doctrine of strict scrutiny was developed out of footnote 4, often called the most famous footnote in Supreme Court history, in United States v. Carolene Products Company (1938). In Douds, Jackson cited this case as the source of the “rational basis” test, which it was. The case protected New Deal economic legislation from judicial review. But in the footnote, Justice Stone expressed anxiety about such a limited conception of judicial review; he suggested that in the future it may be necessary to adopt a different standard if basic constitutional liberties were threatened by legislation. Jackson ignored the footnote in Douds, and by relying on Jackson’s opinion in their petition to the Supreme Court, the Regents sounded behind the times in their legal thinking. This is probably why the Supreme Court did not take the case--the court gave no reasons for denying certiorari.
 
68
Brief for Respondent Angela Y. Davis in Opposition to the Petition for a Writ of Certiorari (October term, 1971), in Cunningham et al., eds., Regents of the University of California v. Karst, p. 20 (I note again that pagination in the volume is not continuous; each legal document has its own pagination).
 
69
On the subject of loyalty oaths for state employees, the Supreme Court soon settled on a moderately conservative position which remains in effect today. In Cole v. Richardson (1972), Justice Burger wrote the majority opinion confirming that a state cannot ban employees from membership in any political party, but the opinion upholds the right of the state to require employees to swear allegiance to the U.S. and state constitutions. Today, professors at the University of California must take such an oath--a very faint trace of militant democracy.
 
70
“Angela Davis at UCLA 10/8/1969,” https://​www.​youtube.​com/​watch?​v=​AxCqTEMgZUc. Minutes 27–28, and 32.
 
71
Ibid, minute 11.
 
72
Ibid, minute 5.
 
73
Ibid, minutes 6, 9 (for “institutional racism,” a term whose basic meaning, distinct from psychological racism, she explains to the audience).
 
74
Ibid, minute 4.
 
75
“Herbert Marcuse and Angela Davis at Berkeley,” Oct. 24, 1969, American Archive of Public Broadcasting, https://​americanarchive.​org/​catalog/​cpb-aacip_​28-7d2q52fm0j. Starting at minute 21.
 
76
Arthur Jensen, “How Much Can We Boost IQ and Scholastic Achievement” in the Harvard Education Review (vol. 39, no. 1; April, 1969), p. 79.
 
77
“On Issues of Academic Freedom in Studies Linking Intelligence and Race,” AAUP Bulletin (Vol. 60, no. 2; June., 1974), p. 153; the AAUP first issued the statement in Feb. 1974). See also William T. Kilgore and Barbara Sullivan, “Academic Values and the Jensen-Shockley Controversy,” The Journal of General Education (vol. 27, no. 3; Fall, 1975), pp. 177–187, portraying a spectrum of responses to race-based research on intelligence.
 
78
“Herbert Marcuse and Angela Davis at Berkeley,” minutes 23, 27.
 
79
Ibid, minute 15.
 
80
Ibid, minute 17. See also the UCLA speech, in which Davis discussed Marcuse’s Essay on Liberation (1969): “Angela Davis at UCLA 10/8/1969,” starting at 11:30.
 
81
Marcuse, “Repressive Tolerance,” p. 88. For contemporary criticism of Marcuse’s thought on tolerance, see Alisdair MacIntyre, Herbert Marcuse: An Exposition and a Polemic (New York: Viking Press, 1970), pp. 14, 50, 102–103.
 
82
Ibid, p. 109.
 
83
Davis, “Marcuse’s Legacies,” p. ix. In her UCLA speech of Oct. 8, 1969, Davis discussed Marcuse’s Essay on Liberation (1969), and specifically Marcuse’s argument that all knowledge is political. See ‘Angela Davis at UCLA 10/8/1969,” starting at 11:30.
 
84
“AFT,” pp. 383, 387.
 
85
“William F. Smith Elected Board Chairman,” University Bulletin (vol. 13, no. 37; June 29, 1970), p. 197. The Regents’ report on Davis begins on the same page.
 
86
“Report of Chancellor Young’s Ad Hoc Committee,” Addendum A in “AFT,” 412.
 
87
“AFT,” pp. 388, 400.
 
88
“Report of Chancellor Young’s Ad Hoc Committee,”, p. 410.
 
89
Ibid, p. 411.
 
90
Ibid.
 
91
Ibid. The “People’s Park” is a reference to conflict over the development of land near UC Berkeley.
 
92
“AFT,” p. 393.
 
93
See the AAUP’s 1940 “Statement of Principles on Academic Freedom,” p. 6, note 4.
 
94
Mcauliffe v. New Bedford, 155 Mass. 216, p. 220.
 
95
“ATF,” 396. In the late 1960s and early 1970s, the AAUP was active in defending professors disciplined for extramural speech. See “Academic Freedom and Tenure: The University of Florida,” AAUP Bulletin (vol. 56, no 4; Dec. 1970), pp. 405–422 for a particularly complex instance. The case centered on a professor who was denied tenure because his speeches advocated student rebellion and dismissed the democratic process; his language also allegedly led to the suicide of a graduate student.
 
96
Ibid, p. 398.
 
97
Ibid, p. 397.
 
98
Mark Strasser, “Pickering, Garcetti, and Academic Freedom,” Brooklyn Law Review, (vol. 83, no.2; winter, 2018), pp. 579–580. See pp. 587–591 for problems in the employee/citizen distinction.
 
99
For a listing of the Regents who voted on each side, see William Trombley, “UC Regent Set for Firing of Angela Davis,” Los Angeles Times, May 16, 1970, p. 23.
 
100
“Report of the Regents’ Committee of the Whole,” p. 198.
 
101
Ibid, pp. 197–198.
 
102
Ibid, p. 200.
 
103
For example, Michelle Alexander, author of The New Jim Crow (2012), recommends Davis along with Frederick Douglass, Martin Luther King, and James Baldwin. https://​www.​nytimes.​com/​2020/​06/​08/​opinion/​george-floyd-protests-race.​html.
 
104
See Davis, Autobiography, pp. 109–110, where she discusses how reading Marx’s Communist Manifesto struck her like a “bolt of lightning.” She determined to quicken the revolutionary process as Marx described it.
 
105
William J. Drummond, “Angela Davis Outlines Her Views on Teaching,” Los Angeles Times, Oct. 13, 1969, p. 26.
 
106
Ibid.
 
Metadata
Title
The Firing of Angela Davis at UCLA, 1969–1970: Communism, Academic Freedom, and Freedom of Speech
Author
Daniel Gordon
Publication date
01-12-2020
Publisher
Springer US
Published in
Society / Issue 6/2020
Print ISSN: 0147-2011
Electronic ISSN: 1936-4725
DOI
https://doi.org/10.1007/s12115-020-00554-8