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Finding Aid for the Richard Lipsitz Papers, 1964-1967

MS 5

State University of New York at Buffalo. University Archives


420 Capen Hall
Buffalo, New York 14260
United States
Phone: 716-645-2916
Fax: 716-645-3714
Email: lib-archives@buffalo.edu
URI: http://library.buffalo.edu/archives

Finding aid prepared by Archives staff.
Finding aid encoded in EAD by Sheryl Saxby, 2006..
Finding aid written in English.
Finding aid prepared using local best practices.

Please use the following URL when citing this document:
http://purl.org/net/findingaids/view?docId=ead/archives/ubar_ms0005.xml

© 2006. State University of New York at Buffalo. All rights reserved.


Collection Overview

Title: Richard Lipsitz Papers, 1964-1967
Creator: Lipsitz, Richard
Extent: 2 manuscript boxes (1 linear foot)
Language of Material: Collection material in English.
Repository: State University of New York at Buffalo. University Archives
Abstract: Working papers of Richard Lipsitz, Esq., attorney for plaintiffs in Keyishian et al. vs. Board of Regents et al., 1964, in which four faculty members and a librarian at the State University of New York at Buffalo challenged New York State's Feinberg Law on public employees and subversive activities. Includes correspondence, court documents, notes, press clippings, and background materials.

Administrative Information

Preferred Citation

[Item information and date], Box/Folder #, MS 5, Richard Lipsitz Papers, University Archives, The State University of New York at Buffalo.

See the Archives' preferred citations instructions for additional information.

Acquisition Information

Mrs. Ruth Simmons, then University Archivist, obtained these papers from Richard Lipsitz in 1976.

Terms of Access

The bulk of the Richard Lipsitz Papers are open for research.

Copyright

Copyright of papers in the collection may be held by their authors, or the authors' heirs or assigns. Researchers must obtain the written permission of the holder(s) of copyright and the University Archives before publishing quotations from materials in the collection. Most papers may be copied in accordance with the library's usual procedures unless otherwise specified.

Processing Information

Processed by Archives staff circa 1980. The finding aid was revised in 2006 by Sheryl Saxby.

Accruals and Additions

No further accruals are expected to this collection.


Biographical Note

Richard Lipsitz, founder of Buffalo's fourth largest law firm (Lipsitz, Green, Fahringer, Roll, Salisbury and Cambria), graduated from University at Buffalo Law School in 1943. Among his many accolades are those from the New York Civil Liberties Union in October 1988, the Industrial Relations Research Association in May 1997, the American Arbitration Association in June 1989, and the Buffalo AFL-CIO (American Federation of Labor Congress of Industrial Organizations) Council Lifetime Achievement Award in 2003.

Over 53 years of practice in the labor field, his cases covered many areas including arbitration, National Labor Relation Board appearances, equal employment opportunity commission proceedings, Public Employment Relations Board and other administrative agencies. He has appeared for clients in New York Supreme Court, Appellate Division and Court of Appeals, Federal District Courts, United States Courts of Appeals and the United States Supreme Court.

-Taken from Buffalo News, May 7, 2003 and the law firm web site, http://www.lipsitzgreen.com/attorneys-34.html


Historical Note

The Feinberg Law of 1949 amended both the State of New York Education and Civil Service Laws to contain provisions barring employment of persons by the state for subversive activity or background and made the public schools responsible for policing themselves against subversive employees. In 1953 the statute was extended to faculty members and other personnel of state operated institutions of higher education. The Board of Regents of the State University of New York established the signing of the Feinberg Certificate as a condition of employment in order to fulfill the requirements of the Feinberg Law.

The certificate states:

Anyone who is a member of the Communist Party or of any organization that advocates the violent overthrow of the Government of the United States or of the State of New York or any political subdivision thereof cannot be employed by the State University. Anyone who was previously a member of the Communist Party or of any organization that advocates the violent overthrow of the Government of the United States or of the State of New York or any political subdivision thereof is directed to confer with the President before signing this certificate. […] This is to certify that I have read the publication of the University of the State of New York, 1959, entitled Regents Rules on Subversive Activities together with the instructions set forth above and understand that these rules and regulations as well as the laws cited therein are part of the terms of my employment. I further certify that I am not now a member of the Communist Party and that if I have ever been a member of the Communist Party I have communicated that fact to the President of the State University of New York.

When in 1962 the University of Buffalo merged with the State University of New York the faculty and staff became State employees and faculty who held tenure in University at Buffalo were accorded tenure in the State University system. The certificates were not distributed for signing until December, 1963 and it was not clear at that time whether the 1962 merger agreement made explicit or implied the Feinberg Law requirement, or that faculty would be asked to sign the Regent's certificate. The Civil Service and Education Law requirements could have been fulfilled verbally or by affirmative oath as became the case for teachers in July 1965 when President Gould of the State University of New York announced the abolition of the Feinberg Certificate. However, the fundamental objection to the Feinberg Law on the grounds that it violated the First and Fourteenth amendment, remained.

When the certificates were first distributed in December 1963, the State University of New York at Buffalo chapter of the American Association of University Professors requested an extension of the deadline on signing for "purposes of study and clarification." The American Association of University Professors objected specifically to a memorandum of State Education Commissioner Allen in Regents Rules on Subversive Activities which it felt was unclear and ambiguous. The memorandum dealt with the use of communistic material in the classroom.

Late in January 1964, the American Association of University Professors Buffalo chapter passed a resolution protesting the disclaimer requirement and further resolved to protect the rights of those who would not sign.

The first challenge to the Feinberg Law on the grounds that it violated the First and Fourth Amendment came from the poet George Starbuck who was hired in the Acquisitions department of the State University of New York at Buffalo library in October 1963. He was not informed at the time that he would be required to answer a State Civil Service Commission questionnaire which included the following question:

Have you ever advised or taught or were you ever a member of any society or group of persons which taught or advocated the doctrine that the Government of the United States or any political subdivision thereof should be overthrown or overturned by violence or any unlawful means?

When he received the questionnaire in November, Starbuck answered in substance: "I prefer not to answer, at least until the pertinence and necessity of such a question are properly explained to me."

He was shortly thereafter notified by the university that he would be discharged as of February 7, 1964. He was not given a hearing as guaranteed to permanent or tenured employees under the rules of the Board of Regents and Trustees.

On February 5, 1964, Starbuck, with his attorney Richard Lipsitz, went to Federal Court and won a temporary restraining order barring the state from firing him until the trial of his complaint. In addition to the constitutional issues Starbuck charged the Board of Regents et al with breach of contract.

There was contention as to Starbuck's status (temporary or permanent) and as to the status of his job (classified or unclassified). For full discussion of this question see folder 1.15: affidavit of Joseph Tammany.

On June 18, 1964 Judge John O. Henderson ruled that the loyalty question was "relevant and constitutionally permissible," and that Starbuck's civil rights would not be violated by the dismissal.

Starbuck then joined with four State University of New York at Buffalo faculty members who had refused to sign the Feinberg certificate. Keyishian et al (Hochfield, Garver, Maud, Starbuck) filed a complaint in Federal Court in July 1964. A motion for a preliminary injunction that would have halted enforcement of the Board of Regents' loyalty procedures and preserved their jobs was denied by Judge Henderson. In February 1964 Keyishian was denied reappointment. The Judge also denied Lipsitz's request for a special 3 Judge Court to rule on the constitutionality of the statutes.

The case then went to the United States Court of Appeals, New York, in September 1964 and the appeal was won in May 1965. In November 1964, President Gould of the State University of New York directed that non-signers should not be prejudiced as to normal employment rights and, on the eve of the convening of the 3 Judge Court in June 1965, announced the abolition of the Feinberg certificate. The case was not substantially affected by the latter action as it merely altered the procedures of implementing the Feinberg Law.

In January 1966, the three Judge Court upheld the constitutionality of the Feinberg Law and this decision was appealed to the United States Supreme Court the following month. The Supreme Court agreed to hear the case and Lipsitz presented his argument before the court in November 1966. The American Association of University Professors and the United Civil Liberties Union submitted briefs as amici curiae.

In January 1967, the Justices of the Supreme Court declared unconstitutional the Feinberg Law, the Board of Regents' Feinberg certificate, the Civil Service Law amendment covering subversive activities and that section of the Feinberg Law which disqualified a Communist Party member for public employment.

Keyishian et al ended on April 27, 1967 with a Federal Court order directing the Board of Regents et al to pay the plaintiffs for their financial losses.


Scope and Content Note

Working papers of Richard Lipsitz, Esq., attorney for plaintiffs in Keyishian et al vs. Board of Regents et al, 1964-1967. The collection is unique in that consist of the attorney's working files of the case: background material on each of the plaintiffs regarding their employment at the State University of New York at Buffalo, correspondence, court documents and Lipsitz own notes. The collection also includes the plaintiffs' correspondence with Lipsitz, the university administration (Buffalo and Albany), colleagues and groups such as the American Civil Liberties Union and the American Association of University Professors, who gave them legal and financial support.


Arrangement

The papers are divided into two series, one for each case. Each series contains correspondence and court documents. The court documents are filed chronologically according to court, with detailed information on the folder covers. The overall method of organization is a preservation of Richard Lipsitz's working order.

I. Starbuck v. Board of Regents et al.

II. Keyishian et al v. Board of Regents et al, Feb 1964-Feb 1967


Container List

I.     Starbuck v. Board of Regents et al.

This series contains correspondence related to Starbuck's employment at State University of New York and Lipsitz's correspondence regarding legal arrangements and American Association of University Professors Academic Freedom Funds, etc.

I is divided into two sections, correspondence and court documents. The correspondence section is arranged chronologically, followed by miscellaneous related materials. The court document section is arranged in rough chronological order.

I.A     Correspondence
Box-folder Contents
1.1
Starbuck, August 1963 - February 1964
1.2
January 1964
1.3
February 1964
1.4
March 1964
1.5
April 1964
1.6
May 1964
1.7
July 1964
1.8
Related materials including: Lipsitz personal notes, bills, receipts, etc., American Civil Liberties Union booklet on Academic Freedom, State University of New York Department of Education booklet, Regents Rules on Subversive Activities
I.B     Court documents from the United States District Court for the Western District of New York. Starbuck vs. Board of Regents.
Box-folder Contents
1.9
Complaints, February 5, 1964.
1.10
Order to show cause; temporary restraining order; Starbuck's affidavit; Silverman's affidavit, February 6, 1964.
1.11
Undertaking for injunction, February 6, 1964.
1.12
Order to give testimony and to produce documents, February 20, 1964.
1.13
Randall's affidavit in opposition to motion for temporary injunction, March 24, 1964 and Civil subpoena to Connolly and Silverman; subpoena to produce document or object to Poppey, March 23, 1964.
1.14
Board of Regents Answer; Defendants other then Board of Regents, March 23, 1964; and Civil subpoena to produce documents or object to Silverman, March 27, 1964.
1.15
Decision and order; order joining Department of Civil Service as Party Defendant; undated order to show cause and complaint, April 17, 1964 and Tammary's affidavit in opposition to plaintiff's motion for preliminary injunction, April 24, 1964.
1.16
Lipsitz's note on Rule 41(a)(2); stipulation, May 8, 1964; order, May 11, 1964; answer Department of Civil Service, May 26, 1964.
1.17
Order denying motion for preliminary injunction, June 18, 1964; notice of motion - defendants, notice of motion - plaintiffs, June 23, 1964.
II.     Keyishian et al v. Board of Regents et al, February 1964-February 1967

This series contains plaintiff's correspondence with the university administration regarding employment at the State University of New York at Buffalo, documents and records of salary and promotion prior to and in the first stages of legal action: with the American Association of University Professors Academic Freedom Fund; with members of the American Civil Liberties Union and other unaffiliated lawyers regarding this and other loyalty oath cases; with counsel for the defendants, presiding judges, court clerks, law printers, etc.

II is divided into four sections: plaintiff's correspondence, Lipsitz correspondence, court documents, and additional Feinberg Loyalty Oath papers.

II.A     Plaintiff's correspondence
Box-folder Contents
1.18
Harry Keyishian
1.19
George Hochfield
1.20-1.22
Newton Garver
1.23-1.25
Ralph Maud
1.26
George Starbuck
1.27
Jack Roach
[Mr. Roach later decided against joining the class action]
II.B     Lipsitz's correspondence
Box-folder Contents
1.28
February-March 1964
1.29
June-July 1964
1.30
August-September 1964
1.31
October 1964
1.32
November-December 1964

[includes President Gould's policy statement regarding non-signers]

1.33
January 1965
1.34
February-March 1965
1.35
April-May 1965
1.36
June 1965
1.37
July 1965
1.38
August 1965
1.39
September 1965
1.40
October 1965
1.41
November-December 1965
1.42
January 1966
1.43
February 1966
1.44
March 1966
1.45
April 1966
1.46
May 1966
1.47
June 1966
1.48
July 1966

[includes discussion of American Association of University Professors Amicus Curiae Brief]

1.49
August-September 1966
1.50
October 1966
1.51
November-December 1966
1.52
January 1967
1.53
February 1967
1.54
Congratulatory messages, January 1967
1.55
Miscellaneous notes; October issue of "American Opinion" article by Taylor Caldwell
II.C    Court documents
Box-folder Contents
2.1
United States District Court for the Western District of New York, July-September 1964. Order to show cause, Starbuck's affidavit, application for three Judge District Court, July 10, 1964; order to show cause to dismiss complaint, Segel's affidavit, July 22, 1964; Crary's affidavit, correspondence to Judge Henderson, miscellaneous receipts, July 26, 1964; notice of appeal, September 10, 1964; undated appeal bond. [missing July 7, 1964 complaint, undated summons]
2.2
United States Court of Appeals, New York, May-August 1965. Index of papers constituting the record; stipulation, October 19, 1964; stipulation, November 27, 1964; undated motion for leave to appear as friends of the court - James Magavern for American Association of University Professors and American Civil Liberties Union; motion granted, December 8, 1964; stipulation, undated stipulation, December 30, 1964; brief and appendix for the appellants, January 8, 1965; stipulation, January 11, 1965.
2.3
United States District Court for the Western District of New York, May-August 1965. Order certifying pendency of action seeking 3 Judge Court, May 24, 1965; notice and order of hearing, June 1, 1965; reply memorandum for defendants, August 19, 1965; rebuttal brief for plaintiffs, August 20, 1965.
2.4
Supreme Court of United States, October Term 1965. Appellants statement as to jurisdiction; motion and brief to dismiss for appellants and appendix; motion to dismiss appeal by Attorney General of State of New York; answer to motions to dismiss or affirm.
2.5
United States District Court for the Western District of New York, February and June 1966. Notice of appeal to the Supreme Court of the United States, February 14, 1966; designation of portion of record to be printed pursuant to rule 17, June 27, 1966.
2.6
Supreme Court of United States, October Term 1966. Transcript of record, brief for appellants, brief for appellees, brief of American Association of University Professors - Amicus Curiae, brief of American Civil Liberties Union, New York Civil Liberties Union - Amici Curiae. Order reversed with costs, January 23, 1967.
2.7
United States District Court for the Western District of New York, Order, order to show cause, February 20, 1967. Stipulation, April 12, 1967; order and judgement, April 27, 1967.
II.D     Additional Feinberg Loyalty Oath papers
Box-folder Contents
2.8
George Hochfield, 1963-1967
2.9
Byron Koekkoek, 1963
2.10
Bob Rodgers, 1963-1965
2.11
Herbert Schneidau, 1963-1965

Search Terms

The following terms have been used to index the description of this collection in the Library's online catalog.

Contributors

United States. Court of Appeals (2nd Circuit)
United States. District Court (New York)
United States. Supreme Court
University of the State of New York. Board of Regents

Subject Terms

Hochfield, George--Correspondence
Keyishian, Harry--Correspondence
University of the State of New York. Board of Regents
College teachers--Legal status, laws, etc.--New York (State) --Cases
College teachers--New York (State)--Buffalo--Political activity
Garver, Newton, 1928---Correspondence
Maud, Ralph--Correspondence
Roach, Jack L., 1925---Correspondence
Starbuck, George, 1931---Correspondence
State University of New York at Buffalo--Faculty--Civil rights
Academic freedom--New York (State)--Buffalo
Educational law and legislation--New York (State)--Cases
Freedom of association--United States--Cases
Freedom of speech--New York (State)--Buffalo
Loyalty oaths--New York (State)--Cases
New York (State)--Politics and government--1951-
Subversive activities--New York (State)--Cases
Teachers--Legal status, laws, etc.--New York (State)--Cases

Genre Terms

Correspondence
Judicial records

Associated Material

Related Resources

3/1/289
American Association of University Professors. Buffalo Chapter records, 1926-1973

16/4F/128
Connolly, Thomas Edmund, 1918- (author, professor, Department of English)

22/5F/190
Garver, Newton, 1928- (professor, Department of Philosophy)

16/4F/383
Starbuck, George, 1931-