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Richard Lipsitz, Sr. papers

 Collection — Multiple Containers
Identifier: MS 5
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.

Dates

  • 1964-1967

Creator

Language of Materials

Collection material in English.

Terms of Access

The bulk of the Richard Lipsitz, Sr. 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.

Extent

1 Linear Feet (2 manuscript boxes)

Overview

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.

Biographical Note

Richard Lipsitz, Sr. was born November 25, 1920. A graduate of Lafayette High School (Buffalo, NY) at the age of 15, he attended the University of Buffalo one year later. By age 18 he earned his Bachelor's degree and enrolled in UB Law School.

In 1942, Lipsitz was drafted into the army and served as lieutenant under Douglas MacArthur during WWII. Post-war, he worked for the National Labor Relations Board before returning to Buffalo, where he formed a law firm with Carl Green (Lipsitz, Green, Fahringer, Roll and James).

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 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.

An ardent supporter of civil rights, Lipsitz's most famous case was as 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. The case was heard by the Supreme Court in 1967. Lipsitz won the decision, which ended the Feinberg Law,* protecting academic freedom and freedom of association under the First Amendment. The University at Buffalo archives holds his papers relating to the case: Richard Lipsitz papers, MS 5.

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. Although he retired in 1992, Lipsitz maintained clients for the next two decades and practiced law into his 90s.

Richard Lipsitz, Sr. died in Buffalo, New York on May 18, 2018 at age 97.

*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.

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.

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.
The series are: I. Starbuck v. Board of Regents et al. and II. Keyishian et al v. Board of Regents et al, Feb 1964-Feb 1967.

Acquisition Information

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

Materials in Series III were gifted to University Archives by Richard Lipsitz, Jr. on July 2, 2018.

Accruals and Additions

No further accruals are expected to this collection.

Related Resources

3/1/289
American Association of University Professors. Buffalo Chapter records, 1926-1973
16/4F/128
Thomas E. Connolly papers, 1955-1968
22/5F/190
Newton Garver papers, 1963-1991
16/4F/383
George Starbuck papers regarding the Feinberg Oath
16/4F/1333
Harry Keyishian papers, 1952-1997 (bulk 1964-1970)

Processing Information

Processed by Archives staff circa 1980. The finding aid was revised in 2006 by Sheryl Saxby.
Finding aid encoded by Danielle White, January 2015.

Creator

Source

Title
Finding Aid for the Richard Lipsitz, Sr. papers
Status
completed
Author
Finding aid prepared by Archives staff.
Date
2006
Description rules
dacs
Language of description
und

Repository Details

Part of the University Archives Repository

Contact:
420 Capen Hall
Buffalo New York 14260-1674 US
716-645-2916
716-645-3714 (Fax)