Keyishian v. Board of Regents

Keyishian v. Board of Regents, 385 US 589 (1967)


Keyishian was a professor at the State University of New York at Buffalo. The State of New York required all employees to sign a “loyalty oath” that, in part, required the employee to certify that they had never been a communist and had never committed “treasonable or seditious” utterances or acts. Keyishian refused to sign the oath and was denied a contract to teach. Keyishian filed a suit alleging that the State had violated his First Amendment. The trial court found in favor of the State, and Keyishian appealed to the United States Supreme Court.


Whether a law requiring educators to sign a loyalty oath renouncing communism and “subversion” is an unconstitutional limitation on speech or freedom of association.


5-4 for Keyishian. The law was overbroad, lacking in specificity and definition of “subversion,” and therefore impinged on the constitutional rights of the instructors.


The majority opinion, authored by Justice Brennan and joined by Chief Justice Warren and Justices Black, Douglas, and Fortas, reasoned that the country had a compelling interest in preserving the free speech rights of educators, and those limitations on free speech were both detrimental to the educators as well as the educated. While they noted a compelling interest for the government to exclude those advocating the overthrow of the government from education, the law, as written, was overly broad and vague. The State may only regulate speech with “narrow specificity.”

Opinion and Comments

The majority effectively (but not literally) overturned a prior decision on the same set of New York laws decided in Adler v. Board of Education, 342 US 485 (1952). Justice Brennan, writing for the majority, argued terms such as “seditious” and “treasonous” were ill-defined and could be interpreted in such a way as to quell legitimate speech. Additionally, they noted that mere belonging to a political party was insufficient to imply that the subject was advocating the overthrow of the government, and additional actions or steps would be required to show that intent. Also noted was that the broad language might serve to quash academic freedom, which was a “special concern” of the First Amendment.

In the dissent, written by Justice Clark and joined by Justices Harlan, White and Stewart noted that while some of the issues raised by Keyishian were legitimate, they had effectively been repealed by the State several years before the case at hand and were essentially moot. Their other argument was primarily based on case precedent upholding similar laws for several decades. Noting that the majority had, in one fell swoop, essentially eliminated the right of “self-preservation,” Clark notes that with due process and a full judicial review, if someone is found to have advocated the illegal or violent overthrow of the government, they should not be allowed to teach – and that the key is the due process right. The law should be viewed as facially constitutional, and due process should be followed to determine if it was not complied with and to protect legitimate First Amendment rights.

The challenges, in this case, revolve around the broad definitions of “subversion,” – which could take on a subjective definition designed by the State to suppress legitimate academic freedom and academic speech. The open debate of complex issues and challenging power structures could be seen by a malevolent administrator or authority figure as “subversive” and place the intellectual honesty and openness of the academy at risk. While the headlines will point to the effective overturn of New York’s Feinberg Law and the issues related to Communism and political activity, many of these elements were already moot, as noted in the dissent. Security in the freedom of exploration and expression of ideas within the academy was the true victory in Keyishian.