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>> 87 5 Insubordination and “Conduct Unbecoming” Early Victories The Supreme Court’s First Amendment decisions in the 1930s and ’40s gave encouragement to the Teachers Union in its challenge to the Feinberg Law. The TU’s attorneys filed suit in Brooklyn, with union president Abe Lederman as the lead plaintiff and dozens of others joining, among them parents, parent-teacher associations, a social worker, the head of a religious group, teachers, taxpayers, and other unions.1 This diversity made a political point, but the trial judge, Murray Hearn, soon ruled that only the taxpayers faced sufficient harm from the law’s enforcement (based on costs the state would incur) to entitle them to sue. Although Judge Hearn thought the teachers also had standing and, given the chilling effect of the law, should not have to wait until it actually went into effect to bring a legal challenge, he was bound by a Supreme Court case that had held the opposite.2 Some of the taxpayers were also teachers, though; among them was Irving Adler, a math teacher, dedicated communist, and leader in the union’s efforts to reform the curriculum . Adler eventually gave his name to the case. He had little interest in the legal strategy; he simply considered the lawsuit one among many means for pushing back against the oncoming purge.3 The Communist Party had already filed its challenge to the Feinberg Law in the state capital of Albany, and a third suit, also in Albany, was initiated by state senator Fred Morritt on behalf of four teachers, a principal, and a former member of the Board of Education. The principal in question was Abraham Lefkowitz, head of the Teachers Guild and a bitter foe of the TU. Lefkowitz and Morritt no doubt wanted to show the courts that patriotic liberals , unthreatened directly by the Feinberg Law, were nevertheless worried about its repressive effect. But the trial judge in Albany, Harry Schirick, consolidated Morritt’s case with the suit brought by the CP, thereby muddying the political point. The consolidated challenges to the Feinberg Law attracted several friendof -the-court briefs at the trial court level. (Such amicus curiae briefs are 88 > 89 such universal and well-merited contempt among free men.” But it would be “small service, indeed, to our democracy” to emulate “the tactics of communism ” and thereby destroy political freedom.8 Two weeks later, on December 14, 1949, Judge Hearn in Brooklyn reached the same result. Like Schirick, he emphasized the “preferred place” that the Supreme Court over the previous 20 years had accorded the First Amendment . Especially in schools, “the atmosphere must be one which encourages able independent men [sic] to enter the teaching profession” and, once there, to help students think for themselves.9 As it turned out, Hearn and Schirick were ahead of their time—or, more precisely, behind it: that is, they relied on Supreme Court precedents that were increasingly ignored as the Red hunt intensified. In March 1950, the appellate division of the New York courts made short work of their studious opinions. The law was not a bill of attainder, the appellate division said, because it did not specifically condemn communists without trial; the Party was only named in the preamble. As for the First Amendment, “one does not have a constitutional right to be a public employee except upon compliance with reasonable conditions.” The judges relied on Supreme Court decisions from the World War I era and on that old warhorse, Justice Holmes’s oneliner about the policeman.10 The Board of Education Cannot Wait Judges Harry Schirick and Murray Hearn had temporarily stopped the New York State Board of Regents from implementing the Feinberg Law, but the city Board of Education did not want to wait. A partial explanation for its impatience was the pressure brought to bear by a subcommittee of the House of Representatives, which had come to town in the fall of 1948 to investigate the Teachers Union. The owners of a private school of radio electronics, embroiled in a union battle with their teachers, had asked the committee to come. The TU was not particularly interested in organizing the teachers at these private trade schools; it had enough other challenges on its plate.11 But poor working conditions had spurred the teachers to seek the union’s help, and it had negotiated contracts with several of the schools. In June 1948, a TU organizer wrote to the Radio Electronics School in Manhattan that...

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