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>> 209 12 “A Pall of Orthodoxy over the Classroom” Arizona’s Perjury Law The Supreme Court had one more loyalty case on its docket before it decided Keyishian. Since Arizona’s beginnings as a territory, it had a typical affirmative oath for all public employees—to swear to support the U.S. and state constitutions, to “bear true faith and allegiance” to them, and to “defend them against all enemies, foreign and domestic.” Then in 1961, the state legislature enacted an imaginative variation on the anti-subversive test oath: a “Communist Control Act” that created criminal penalties for perjury for anyone who took the affirmative oath and who “knowingly and willfully” became or remained a member of the Communist Party, “any of its subordinate organizations,” or any other group that had as “one of its purposes” the overthrow of the government.1 Barbara Elfbrandt, a Tucson schoolteacher and a Quaker, had political and religious objections to the oath. She did not know what it meant, and the state provided no procedure for seeking an interpretation. She brought a class action suit, but the Arizona trial court dismissed it; and in May 1963, the state supreme court affirmed. Elfbrandt was not fired; she simply was not paid. She continued to teach for five years without salary before her case was resolved.2 The Arizona Supreme Court acknowledged that the oath, combined with the perjury law, might deter “constitutionally protected conduct” and that it “weighs most heavily on those whose scruples are the most sensitive,” but it rejected Elfbrandt’s claim by using the Supreme Court’s vague balancing test from the 1951 Dennis case, which upheld the convictions of CP leaders under the Smith Act: “the gravity of the evil sought to be reached, discounted by its improbability, justifies the invasion.” The state’s chief justice concurred, but only on the assumption that a hearing would be available at which Elfbrandt could explain her objections. If they turned out to be “based not upon a showing of disloyalty, but upon grounds of religion or conscience,” then her punishment would be “arbitrary and discriminatory,” he said, because 210 > 211 racism, and other evils, because they believed that a radical overhaul of existing institutions, not just piecemeal reforms, was needed, and because the Party offered a social and cultural community of fellow rebels. Byron White’s dissent in Elfbrandt—joined by Clark, Harlan, and Stewart —quarreled with Douglas’s distinction between “knowledge” and “specific intent.”7 As the dissenters were well aware, punishments based on guilt by association could not continue if the government had to prove specific intent to further the CP’s allegedly violent aims before prosecuting or firing people on the basis of present or past association with the Party. In that sense, Elfbrandt was a harbinger of the next loyalty case, in which the Supreme Court finally found in the First Amendment concept of academic freedom a reason to end the teacher purges. Keyishian at the Supreme Court Knowing that even a liberal Supreme Court preferred to draw distinctions between cases rather than directly overrule bad precedents, Richard Lipsitz continued relying on academic freedom at the college level as a way of making Keyishian look as different as possible from Adler v. Board of Education, which had upheld the Feinberg Law. His initial brief to the Court focused on whether the convoluted apparatus of the law was unconstitutional as applied to institutions whose “raison d’être,” he said, was intellectual freedom. And he stressed other changes since Adler: additions to the civil service law in 1958 that made membership in the Communist Party a presumptive ground for firing and that repeated the state education law’s disqualification for “treasonable or seditious acts or utterances.”8 But Lipsitz did not ignore the other possibility: if the Court saw fit, it should overrule Adler. This would have the advantage of “at last eliminating the doctrine of guilt by association,” which “represents an aberration on the American scene.”9 The state’s lawyers, for their part, aggressively defended the law but admitted that the five plaintiffs were sincere conscientious objectors : “there is no indication that any of the appellants are, in fact, members of any communist party.”10 In June 1966, the Supreme Court met to discuss whether to hear the case; everyone except Potter Stewart voted yes.11 A new justice, Abe Fortas, whose Washington, D.C., law firm had represented victims of loyalty programs during the ’50s, would presumably join...

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