Copyright © 2012 Lisa Harbatkin
Someone at the Board of Education, likely one of the early investigators, had a busy 2 days in Washington on January 24-25, 1951. A copy of the January 26, 1951 draft report on the visit in New York City’s Municipal Archives has a lot of detail and was “Respectfully submitted,” but there is no indication who “respectfully submitted” it or to whom it was addressed. Even so, it drops a bunch of names while describing visits to a who’s who of federal agencies and congressional committees engaged in the ever-expanding hunt for communists. It gives more than a hint of the incestuous relationships among local, state, and federal investigators as Cold War politics ginned up the New York investigations.
Saul Moskoff entered the picture a half-year later, over the summer. Records in the city’s archives make it clear that he wasted no time in building relationships with congressional committees, state troopers, New York police undercovers, and of course the FBI. I recently got almost 1,000 pages of FBI records via the National Archives some 4 or 5 years after I put in a FOIA request for them to the FBI. References to Moskoff, and working with him, are scattered through the pages.
Also in the Municipal Archives, there’s a “Dear Saul” letter from FBI agent Leo Conroy in August 1953, when he’d been assigned to FBI headquarters after working on anti-communist and security cases in New York. “I am sorry I didn’t get to see you before I left, however I do want to say it was a pleasure to work with you and John,” Conroy wrote. (“John” is likely John A. Dunne, Moskoff’s main investigator for most of his time at the Board.)
Conroy was 103 on the investigators’ Source Code list of police undercovers, FBI agents, and assorted informers, including teachers. Other specific FBI agents had source codes 101,102, 104, 105, and 106; 100 was labeled “genl,” and perhaps used to reference FBI information that didn’t come from specific agents the New York investigators worked with.(The Source Code list is in the Municipal Archives.)
By asserting third-party privacy for the teachers investigated by the Board of Education, the Municipal Archives succeeded in making the issue, and my court case, about names. And New York’s Court of Appeals fell for it, ruling that records of teachers promised “confidentiality” when they were questioned by investigators can remain hidden. Indefinitely, apparently.
Now, unlike today’s researchers, investigators back then were really just after names, after more teachers they could toss out of the schools. “Promising” not to name those called in encouraged alleged or actual communists to resign, getting them out of the schools. An added bonus was saving the city the costs of departmental trials.
Confidentiality was a tactic, not a long-term promise.
The proof is in the Municipal Archives records – those that contain no names or the names of teachers whose names were all over the newspapers during the investigations. These records are open. Let’s take a look.
Saul Moskoff jotted down a few notes to himself, likely in the spring of 1955 as HUAC was preparing to hear testimony from New York undercover detective Mildred Blauvelt. He was especially concerned that committee members not ask Blauvelt to publically reveal any teachers’ names. His handwritten notes were essentially an outline for two memos that preceded Blauvelt’s HUAC appearance. Point by point:
“Success of invest. thus far has been due to secrecy.
Won’t resign if they know names are to be made public.
Difficulty of presenting legal proof.” *
The follow-on memos, in April and May, and other items in the Municipal Archives and the National Archives follow the script. So in an April 21, 1955 memo to the corporation counsel, Moskoff wrote: “We have found that if Communist teachers know that they will be the subject of publicity they will use every device to thwart dismissal but will resign if no publicity is given. We encourage resignation because it dispenses with the expense and difficulties of trials and at the same time protects the identities of other teachers who, while once Party members, have since demonstrated their complete loyalty to our democratic institutions and spares them from the smear and pillory of the Communists who would denounce them as rats, stool pigeons, and spies.” * He concluded by asking that the CC urge the committee not to require Blauvelt to name “teachers either now under investigation or who have resigned while under investigation. Of course, we would be willing to reveal the names of those who stood trial and were dismissed.” * This, of course, this was a spectacularly meaningless offer, since the names of the teachers subjected to the departmental trials were regularly in the newspapers.
A long May 2, 1955 memo summarizing a conversation he had with HUAC chief clerk Thomas W. Beale, Sr. about the need to withhold names during Blauvelt’s planned appearance (apparently written by Moskoff but referring to himself as SM), contained another little gem: “…and in some of the cases the legal proof sufficient to sustain the charges was not present although for all practical purposes membership in the Communist Party was apparent.” *
We can also go back further. In a November 30, 1953 letter, Moskoff wrote to New York Daily Mirror columnist Edward Zeltner thanking him for something he’d written about Moskoff and the teacher investigations: “I am particularly appreciative …that you as a newspaper man recognize the effectiveness of the policy of my investigation to retain in confidence the names of those under investigation. It might interest you to know that this policy has led to a financial saving to the city in that teachers who might otherwise face charges and trial with the accompanying expense have instead resigned to avoid the publicity.” *
Confidentiality was a tactic, not a long-term promise.
* Accessed at New York City’s Municipal Archives
…to make the point that government agencies holding important historical records shouldn’t be allowed to violate the First Amendment by inventing contrived reasons to keep them secret. The records at issue are the New York Board of Education McCarthy-era Anti-Communist Series investigation files. The government agency involved is the city’s Municipal Archives.
In an earlier post (https://snoopsandsecrets.com/2012/08/19/whos-afraid-of-the-first-amendment/), I noted that New York’s three court levels had refused to deal with the First Amendment issue raised in my case, filed back in 2009, calling for the Municipal Archives to fully open the Anti-Communist Series records.
The state’s highest court, the Court of Appeals, issued a confusing opinion which nevertheless did open more, probably most, of the records under New York’s Freedom of Information Law (FOIL). Specifically, the court ruled that all records except those of teachers promised confidentiality should be open.* At this posting, though, the Municipal Archives has apparently not understood that and is apparently not complying with the CoA ruling.
The Supreme Court hears perhaps 1 percent of the cases appealed to it, so its refusal to grant certiorari on the First Amendment question raised by my appeal was not exactly surprising. But the denial represents a loss on two fronts: the First Amendment issue and the refusal of New York’s courts to address it, plus just the simple point that it’s way past time for government files from this difficult period to be fully open. (Oh – and that goes for FBI files too – another agency that’s been really annoying on the open records front. Although in some ways less annoying than the Municipal Archives.) Fifty to 70 years after the McCarthy years, in the middle of more crackdowns on civil liberties, we (the people) should be able to do our own investigations into why and how our government goes on these mindless rampages every few decades or so.
The First Amendment question centered on the Municipal Archives’ requirement that requesters asking to see the full range of the records should agree to prior restraint on what they could say and write. Specifically, the archives requires them to sign its Form D, which has gone through a few versions. The current version:
I agree that I will not record, copy, disseminate or publish in any form any names or other
identifying information that I obtain from the restricted materials, concerning those school
personnel who were interviewed relating to alleged support of or association with the
Communist Party, and who received a promise and/or assurance of confidentiality. This
confidentiality agreement is being made pursuant to the New York State Court of Appeals’
ruling in Harbatkin v. New York City Department of Records and Information Services et a!.,
decided on June 5, 2012.
Form D also cautions (warns?) :
Researchers are cautioned that violation of the terms of the agreement set out below may result
in possible legal action against them and the organization, if any, that they represent.
Think about your average professor or grad student or citizen confronting those words. A wee bit threatening, no?
Archives, and archivists, are supposed to make the past available, not hide it. Would be nice if the Municipal Archives got that point. They claim they’re protecting the privacy of the 1,000-plus teachers investigated by the Board of Education back in the 1940s-1960s. They’re not protecting the privacy of these teachers – they’re denying them their voices.
Court briefs and decisions are posted at http://www.dreamersandfighters.com/current.aspx#court.
* The so-called “confidentiality promise” was manipulated by the investigators to increase pressure on the teachers questioned to cooperate. More on this in a future post.
Well, to start with, all three court levels in New York, topped off by the Court of Appeals decision in my case calling on New York City’s Municipal Archives to fully open the Anti-Communist Series records in its Board of Education holdings. News coverage reflected the decisive indecisiveness inherent in the opinion: Court grants partial access… Historian can’t access…Court orders release of names…Etc.
The Court of Appeals decision opened all records except those with the names of informers and of teachers promised confidentiality. But the court’s outright refusal to deal with the First Amendment issue, and its FOIA holding, essentially falling for the manipulative “privacy” promise made to the teachers, backed away from the key issues at stake.
Now, admittedly, I’m a First Amendment junkie. And a FOIA junkie. But you don’t have to be either one to take offense at the different versions of the form the Archives has been requiring researchers to sign before they can gain full access to Series 591.
Apparently current just prior to oral argument in the Court of Appeals, the latest version required those requesting full access to the Anti-Communist Series to pretty much agree to prior restraint, and threatens legal action in case of a violation. You can imagine the impact that could have on students and academics toiling away in those piles of archival paper.
Towards the end of the oral argument in the case (Matter of Harbatkin vs. New York City Department of Records and Information Services), one of the judges asked the city’s lawyer if she would withhold the name of the informant who told General Washington about Benedict Arnold. She said yes.
Yesterday’s New York Times lead story, right up there on the upper right of page 1, reported that just over half – 55% – of New York City teachers eligible for tenure following their probationary periods got it this year. Nearly half – 42% – of those eligible were kept on probation for another year, the Times reported, while 3% were fired. In 2007, 97% gained tenure; in 2010, the number was 89%.
After the obligatory reference to the importance of “really strong teachers organized around a common vision,” Education Department chief academic officer Shael Polokow-Suransky told reporter Al Baker that the idea was to keep “pushing” both the teachers and the kids.
It’s way past time to focus on the real causes, the root causes, of problems in the schools: poverty and its related problems. But it’s so much easier for politicians and education bureaucrats to go after teachers and their unions.
It’s also worth noting that a significant number of the teachers investigated and called in for interrogation sessions, and possibly forced out, in the 1950s were still in training and/or were substitutes who did not yet have permanent appointments. The numbers are uncertain because of the Municipal Archives’ refusal to allow full access to the files it holds. But they appear to be large enough to suggest why tenure matters now as much as it did in the Cold War years. Without it, school administrators can fire teachers for political reasons, for union activity, or just because they don’t like them. Or just because.
Yes, teachers with tenure lost their jobs back then, as the investigations intensified through the early 1950s. But forcing them out involved more complex processes, and for the most part it was harder for the city to get rid of them.
Funny, isn’t it, how things keep repeating…and repeating….and…..
The New York Times article can be accessed at http://www.nytimes.com/2012/08/18/nyregion/nearly-half-of-new-york-city-teachers-are-denied-tenure-in-2012.html?_r=1&hp
I wasn’t sure, at all, what I was getting into when I requested and got my parents’ files from the Anti-Communist Series investigations held by New York City’s Municipal Archives. They were teachers, caught up with over a thousand others in New York’s 1950s drive to get communists out of its public school system.
Thanks to those New York files and my father’s FBI file, I’ve added a lot to my memories of my parents as teachers, and as members of the Teachers Union and the Communist Party. I’ve also gone way beyond my family’s story, as one thing after another led me deeper into the details of what happened to teachers and other civil servants in New York and many other cities in the 1950s.
This blog will be adding to the history at the web site www.dreamersandfighters.com, which also has video clips from a planned documentary and current developments relating to the teacher investigations. The focus at Dreamers & Fighters and here at Snoops & Secrets is on taking a clear look at what happened to thousands of lower and mid-level government employees during the McCarthy years.
Along the way, it will also explore the joys of prying information, on those investigations and others, out of government agencies, especially when the information tends to make the agencies look worse than the people under investigation. That’s the case with the New York teachers. A decade before Freedom of Information legislation (FOIA) the teachers and their supporters were making the case for civil liberties and open records while the Board of Education and the city’s Law Department twisted themselves into pretzels trying to insist they were saving democracy while violating some of its basic tenets.
Fast forward to the 21st century, and a half-century or so of FOIA. You can get a lot of good information by filing FOIA requests, but both federal and state FOIA processes are ludicrously cumbersome. And FOIA exemptions are pretty much designed to let any agency deny you anything it feels like denying you. They gotta let you have something, but if they don’t wanna give it to you, for whatever reason, there’s a FOIA exemption that says you ain’t gonna get it.
That’s proved true in a court case I filed (briefs and decisions at www.dreamersandfighters.com/current.aspx#court ) demanding that the Municipal Archives open full access to that Anti-Communist Series without forcing researchers to sign away their First Amendment rights. For its part, the FBI is equally touchy, especially on identifying informants and other people.
The inherent and unavoidable tension between privacy and open records is no excuse for what government agencies choose to hold back, whether under FOIA exemptions or by trying to impose prior restraint on what researchers can publish.
In any case, there are open materials on the New York teacher investigations at the Municipal Archives and at other archives, along with records on what happened in other cities. We’ll be exploring much of that information here…..