by Jim Newton
With a small but important minority of the faculty unalterably opposed to the oath and Neylan and his allies insistent that they take it or leave, the two sides dug in for a destructive debate. Across the nation, the loyalty oath debate in California became a kind of ideological touchstone, reminiscent of Point Lobos, Tom Mooney, or the IWW trials: Supporters of the faculty saw their opponents as dim ideologues hunting for reds among professors who had given no hint of disloyalty; supporters of the oath viewed at first with suspicion and then alarm the intransigence of elitist academics unwilling to state simply that they were faithful to the government that paid their salaries. Thus what started over a few sentences in an annual university contract expanded into a larger debate over freedom, Communism, and security, with a notable class subtext—tweedy academics and their allies against frightened working people.
Warren entered that debate tentatively. Twice before he had been squeezed by imperatives of security and freedom—once in the early prosecutions of IWW members and once in the debate over removal and internment of the Japanese. Both times he had opted for security and sacrificed liberty. But he was governor now, a veteran of the 1942 and 1946 campaigns, of the health care and highway tax debates. More and more, his friends and allies were liberals, his opponents to his right. And yet he deplored Communism and recognized a duty to defend his state against what he believed to be a genuine enemy. Moreover, Lieutenant Governor Goodwin Knight, also a member of the regents and, in late 1949, openly a candidate for governor, supported the oath and threatened to make an issue of it in a Republican primary if Warren opposed it.
The tension between those competing impulses was evident in Warren’s actions. Although he would recall his participation in the loyalty oath debate as unequivocal, in fact it rarely was, at least viewed in the ideological and philosophical terms under which it played out—terms Warren himself accepted in retrospect. Writing in his memoirs, Warren portrayed opponents of the oath as devoted believers in academic freedom and constitutionally protected speech. Having done that, and writing then from the perspective of an internationally acclaimed standard-bearer for civil liberties, he reflected that he had consistently supported the faculty views against the shrill anti-Communism of Neylan and his allies. Warren also portrayed his own actions as swift and unambiguous. Noting, for instance, that he had not been present at the meeting where the oath first was presented to the regents, Warren added, “[A]t the next meeting I pointed out that it could do nothing but create dissension in the university and was unenforceable.”11
Warren’s analysis of the debate was correct—it did pit civil liberties against anti-Communism—but his statement regarding his own actions is false, as are other details of his memory. Warren did not attend the next meeting of the regents after their March 1949 adoption of the oath, nor did he speak out publicly at that time. Indeed, Warren remained physically absent and conspicuously silent on the issue for month after month that year. Not until early 1950 was he drawn to the debate. When he was, it was by his friends.
The fall of 1949 represented a particularly tense period in the oath debate. The regents had required obedience to the oath for employees to return that year and had expected easy compliance. As the fall term began, however, a significant number—around fifteen percent—of the university professors still had not signed. Their holdout enraged Neylan. He wanted compliance, and he determined to secure it, even at the cost of firing dozens of faculty members. On the other side, some of the university’s finest professors resisted the encroachment of the regents on university tenure, and questioned their legal right to impose an oath that made political fidelity a precondition of university employment. The fall of 1949, Gardner writes, “had been a period of retreat from the stability of common resolve, harmony of purpose, and respectful goodwill which had for so long characterized relations within the University.”12
It was out of the fear of what that meant for the university’s future that three key players in the debate sat down on November 22 in San Francisco. Over lunch in the elegant dining room of the Palace Hotel—the same hotel where Earl Warren had launched his statewide political career as the Republican Party chief during the campaign to defeat and destroy Upton Sinclair—regents Edward Heller and Farnham Griffiths warned Sproul that they felt the debate was getting out of hand. Agreeing, Sproul said he would call Warren and urge him to join the matter. Less than two months later, Warren also received a visit from another friend, Berkeley economics professor Frank L. Kinder, who had served as an economic adviser to Warren and who became an important part of the faculty opposition to the oath.13
Those overtures turned Warren’s head. Kinder was an admired economist who had lent his thoughts to Warren’s presidential effort. Sproul was a longtime friend. And in Griffiths, Warren had yet another trusted ally, one who had backed Warren politically and helped him as a young politician gain entrance into California’s most elite social circle. Eight years before the oath controversy erupted, it was Griffiths who had proposed Warren for membership at the Bohemian Club and who had helped steer his application toward acceptance. Warren’s campmates at the Isle of Aves now included Griffiths and Sproul. 14 Still, Warren hesitated. Not until Knight gave up his thoughts of running for governor did Warren move.
Only then, with his right flank secure, did Warren join the debate. He attended his first regents meeting on the matter in January 1950, and the following month made his first public comments regarding it. The oath, said Warren, was unfairly intended to single out university employees on the suspicion of disloyalty and was suspect under California law, which permitted only one oath for all public employees—the same oath Warren had sworn upon becoming attorney general and later governor. Finally, Warren was paraphrased as saying that the oath was one “any Communist would take with a laugh.”15
From that point forward, Warren was the most important opponent of the oath among the regents. He was, in that sense, a principled defender of the faculty and its president, as he remembered in his memoirs. But Warren’s public comments on the issue do not suggest that he was stirred by the call of academic freedom or the civil liberties concerns raised by the administration of a political oath. At the time, he focused on the aspects of the oath that seemed most to offend him: that it singled out the university and that it contravened state law that required a single oath of all public employees.
International events, meanwhile, conspired to escalate the debate. On March 2, the same day the Los Angeles Times published an interview with Neylan explaining his position, the news from London was that Klaus Fuchs, a British atomic scientist, had pleaded guilty to spying for the Soviet Union. Or as the Times colorfully put it, “Fuchs, 38, Jekyll-Hyde wizard of science, pleaded guilty today and was given the maximum sentence of 14 years in prison for betraying American and British atomic secrets to Soviet Russia.”16 Some in Britain called for a purge of the nation’s intelligence services. In such an atmosphere, it was hard to communicate a defense of professors unwilling to pledge their allegiance. One result is that press coverage within California was notably unsympathetic to the oath opponents, even contemptuous. The position of the Los Angeles Times on March 3 was typical: “To anybody who says that to require such a statement in the given circumstances would infringe academic freedom or reflect on the probity of honest teachers, we say bosh.”17
Warren already had antagonized doctors and oil industry executives. Another jab at conservatives was risky, especially on an issue with national security overtones, however overwrought. So Warren consolidated his position before leaping. Through the early spring, three vacancies opened on the regents’ board. L. Mario Giannini, president of the Bank of America and heir to his family stewardship of that California bank, came to the end of his term. Giannini was no Warren favorite and was Neylan’s chief ally in the oath battle, but to dump him amid the controversy would have caused turmoil and damaged Warren politically. He stayed. In his other appointments, however, Warren strengthened his side. H
e named Cornelius Haggerty, a leader of the California State Federation of Labor with long connections to Warren, to fill one vacancy. For the second, he tapped one of his closest friends, lawyer Jesse Steinhart of San Francisco. The governor was lining up his votes. Or as Neylan saw it, “making appointments to pack the board.”18
Neylan was not yielding, however, and the two sides pushed for a showdown on March 31, when the regents were to take up the “sign or quit” measure designed to force out faculty members who continued to resist the oath.19 At the fateful March meeting, the Warren forces and the Neylan forces bitterly denounced each other. In his comments, Neylan revealed how deeply committed he was to facing down the faculty:
Finally it kept coming back and coming back that evidently all these months this minority was powerful enough to reject the President’s original oath. . . . I was convinced last Saturday night that the minority is still there and is still powerful enough to keep on doing what it has been doing during the last year. Now is the time to find out if that minority is going by threat and menace to run the University of California. 20
If Neylan was typically combative, Warren was disarmingly personal. “I have an added interest in this university,” Warren stated. “I am an alumnus myself and have three youngsters in the university today. God willing, I will have two more in two or three years on one of the campuses of the university.” He continued,
I would cut off my right arm before I would willingly submit my youngsters to the wiles or infamy of a Communist faculty. I don’t believe that the faculty of the University of California is Communist; I don’t believe that it is soft on Communism, and neither am I. I believe that in their hearts the members of the faculty of our university are just as sincere on the things they represent against Communism as any member of this Board, and I want to say here that I have absolute confidence in the faculty of the University of California. 21
After five hours of debate, the roll was called. Warren’s allies stuck with him and he with them. The final tally was 10 to 10 to rescind the oath and to allow the non-signing professors to stay. Since a majority was required to overturn the oath, Warren had fallen one vote short. The professors—sixty-two were holding out as of that day—were given until April 30 to sign or be fired.22
That might have ended the matter, but the faculty nonsigners were stubborn in defense of their view, and Warren was a tenacious friend. Through the spring and early summer, he, with Sproul, continued to seek a way out of firing the nonsigners. That fight took place against a darkening political sky, as the spy cases of early spring gave way to far graver and more immediate evidence of the Communist threat to America. In the hours just before dawn on a rainy Sunday morning, June 25, 1950, North Korean forces stormed across the 38th parallel, the political divide separating them from the South. Confused South Korean troops were quickly overrun, trapped by the North Koreans’ circling maneuvers and lines of tanks. With those antagonists in armed conflict, their patrons—the United States, China, and the Soviet Union—faced one another in their first shooting battle of the Cold War. Secretary of State Dean Acheson reached President Truman at home in Independence, Missouri, with news of the attack; Truman returned to Washington the following day, as the United Nations stirred in anger at the news of an attack on a member state. On July 7, the United Nations, with the Soviet Union absent (the Soviets boycotted the sessions because the UN had refused to seat Communist China), authorized the creation of an international fighting force and directed the United States to name its commander.23 Truman picked General Douglas MacArthur, whose American troops already were in combat with the North Koreans.
Fighting on unfamiliar terrain against a well-supplied enemy, American forces did not fare well. Seoul, the South Korean capital located just a short drive from the 38th parallel, fell four days after the initial invasion.24 Under heavy artillery fire along the Kum River, American troops held North Korean forces at bay for a time, but by July 16, Communist divisions had pushed the Americans back. Dispirited American forces grumbled over their participation in a conflict not even worthy of being called a war as a ferocious enemy, pressing for a quick victory, stormed down the peninsula in heavy tanks. President Truman three days later spoke to the nation. “We are united in detesting Communist slavery,” he said in his radio broadcast on the evening of July 19. “We know that the cost of freedom is high. But we are determined to preserve our freedom, no matter what the cost.”25 Truman asked Congress for $10 billion. Military units were mobilized and readied for action. And on July 20, Warren activated the California Guard.
In such a climate, some of the professors who had held out for more than a year on the oath now capitulated. Still, as the July regents meeting approached, thirty-nine remained unwilling to sign and determined to be fired rather than capitulate.
Warren prepared carefully. An attempt at yet another compromise in April had led to Giannini’s sudden decision to submit his resignation. That gave Warren a one-vote margin, and he also was working stealthily to blunt newspaper demands for the ouster of the professors. Warren’s most significant effort in that regard played out far from public view and was revealed only decades later.
Warren had come to depend upon the editorial support of the Los Angeles Times. Harry Chandler, son-in-law and heir of General Otis, backed Warren in his early races, and Norman Chandler, now the Times’s publisher, had his father’s admiration for the stolid, hardworking governor. Though Warren tended to stand to the paper’s left, the Chandlers understood the value of his Republicanism in a state where Democrats outnumbered Republicans. Still, the Times believed in the loyalty oath and showed no sympathy for the quibbling of academics and their ivory tower objections. That concerned Warren, who faced reelection in 1950. Warren well knew that the Times would never back a Democrat to replace him, but he also was painfully aware that he needed the paper’s enthusiastic support to shore up his southern base, always the most tenuous part of his coalition.
Tipped off by Times political editor Kyle Palmer that Chandler wanted an editorial criticizing the governor for opposing the loyalty oath, Warren asked Chandler to first talk the matter over with him. They agreed to meet in the shadow of the redwoods at the Bohemian Grove, where both were members, Warren a part of the Isle of Aves, Chandler a member of the Lost Angels camp. There, Warren recalled later, the redwoods “added a cathedral-like solemnity”26 to a discussion between California’s two most important Republicans about the merits of the oath and the degree of Communist infiltration into the faculty of their state’s great university. Although Warren recalled the discussion as turning on questions such as the Bill of Rights and its vitality to a free press and a free academy, those recollections were summoned by the retired chief justice, then immersed in the life of the Constitution. It seems more likely that his arguments in 1950 would have been practical ones—the unfairness of singling out the university, the questionable legality of the oath, the unlikelihood that it would ferret out real Communists but rather would only target stubborn, principled faculty members. What is clear is that whatever Warren said that day to his fellow Bohemian Club member, whatever passed between those two veterans of California’s brutal politics, Warren left with the assurance that the Times would not abandon him. He was free to attack the oath without fear that it would cost him his alliance with the paper.27
So he did. On July 21, the regents met on the ninth floor of San Francisco’s Crocker Building. Giannini was absent while Warren dawdled over whether to accept his resignation.28 Neylan continued to demand the firing of the nonsigners, Warren rehashed his arguments for backing down and stressed that not one of the thirty-nine professors at issue had ever been accused of being a Communist; they objected to the oath as an oath, not because of what it would reveal about them. Then Warren called the roll. This time, by a single vote—his own—he won. The regents, voting 10-9, agreed to let the thirty-nine professors keep their jobs.
The victory was short-lived, as Neylan regrouped his forces
for the following meeting, and the regents then fired thirty-one professors (the number kept dwindling as professors signed or resigned) over Warren’s objections. But Warren again prevailed, predicting that the courts would reinstate those fired. He was right, and eventually the oath controversy settled into a standoff. It revealed no Communist infiltration of the faculty, and it established no grand precedent for control of the university. But it left Warren whole politically, and it preserved his central mission: the protection of the university and its faculty. That was no small feat under the circumstances and in the climate of 1950.
Evidence that Warren’s mission was about protecting the university—not about a civil libertarian objection to the oath itself—is what he did next. On September 20, Warren welcomed the California legislature to a special session with a call to emergency action against Communists at home. Warren appealed now to the public’s fear, warning that an atomic attack on the United States was “a possibility.”29 He further warned of the presence of Soviet agents in the United States and called for the creation of a civil defense office to protect Californians from harm. Given such urgency, Warren asked, in his message transmitted to the legislature the following day, that all state employees in effect be deputized as part of the civil defense effort, and that they be required to swear an oath denying affiliation with Communism. In the legislature, Senator Tenney, undoubtedly surprised to find Warren in his camp, took up the call. Within days, Warren had signed and California had adopted the so-called Levering Oath, named for its assembly sponsor. It was passed as an emergency measure, and thus took effect immediately; it was binding on all public employees in California, from the governor to janitors and jail guards—including, notably, university employees.
