In late summer 1940, as war spread across Europe and as the nation pulled itself out of the Great Depression, an anticommunist hysteria convulsed New York City. Targeting the city’s municipal colleges and public schools, the New York state legislature’s Rapp-Coudert investigation dragged hundreds of suspects before public and private tribunals to root out a perceived communist conspiracy to hijack the city’s teachers unions, subvert public education, and indoctrinate the nation’s youth.
Drawing on the vast archive of Rapp-Coudert records, Bad Faith provides the first full history of this witch-hunt, which lasted from August 1940 to March 1942. Anticipating McCarthyism and making it possible, the episode would have repercussions for decades to come.
In recapturing this moment in the history of prewar anticommunism, Bad Faith challenges assumptions about the origins of McCarthyism, the liberal political tradition, and the role of anticommunism in modern American life. With roots in the city’s political culture, Rapp-Coudert enjoyed the support of not only conservatives but also key liberal reformers and intellectuals who, well before the Cold War raised threats to national security, joined in accusing communists of “bad faith” and branded them enemies of American democracy.
Exploring fundamental schisms between liberals and communists, Bad Faith uncovers a dark, “countersubversive” side of liberalism, which involved charges of misrepresentation, lying, and deception, and led many liberals to argue that the communist left should be excluded from American educational institutions and political life. This study of the Rapp-Coudert inquisition raises difficult questions about the good faith of the many liberals willing to aid and endorse the emerging Red scare, as they sacrificed principles of open debate and academic freedom in the interest of achieving what they believed would be effective modern government based on bipartisanship and a new and seemingly permanent economic prosperity.
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When the Rapp-Coudert hearings opened in December, the front pages of the daily newspapers were filled with accounts of dogfights over England, German submarines sinking British merchant ships, and the Greek army routing the Italians in Albania. A whole new kind of war was unfolding across the Atlantic, riveting public attention. Even Ralph Ingersoll's politically sophisticated progressive weekly PM fixated on events at the front, discussing such details of combat as the relative merits of British and German fighter planes. The public hearings on subversion in the schools, scheduled for the afternoon of Monday, December 2, would have to reach a comparable pitch to attract the attention of a public sated on sensation. Thanks to Paul Windels, the Rapp-Coudert committee's chief of staff, they did.
It was Windels, a liberal Republican, who set the public hearings on their course for the next three days, and he, with a young and largely liberal staff, shaped the entire investigation. His role in the process underscores how mistaken the assumption is that the repression we call "McCarthyism" was a right-wing movement on which liberals merely tagged along in the chill of the Cold War. These proceedings were run and supported by liberal reformers who well before 1940 had acquired a stake in repressing communism.
In many respects, this public role suited Windels perfectly. Fifty-five years old, born and bred in Brooklyn, Paul Windels was "a tall, stocky man, with thinning graying hair atop a strong head." By 1940 he was a prominent fixture in New York City politics. Now he is largely forgotten. Like many of the era's reform-minded Republicans, he had impeccable liberal credentials. He was a key player in the bipartisan Fusion movement that had been attempting since the 1890s to depose the Tammany Hall political machine, which had run city government like a cash box since before the Civil War. Windels earned his reputation in part by managing the electoral campaigns of celebrated reform mayor Fiorello La Guardia, beginning with his unsuccessful run for president of the New York City Board of Aldermen in 1919. A solid loyalist, Windels masterminded La Guardia's successful bid for Congress the next year by mobilizing Italian and other ethnic voters in East Harlem and effectively maneuvering financial support from the national GOP. After that, according to Windels's son, the two "were absolutely inseparable." Windels stuck with the "Little Flower" through congressional, city council, and mayoral campaigns, and he and his family remained close friends with the La Guardias (they vacationed together at adjacent homes in Westport, Connecticut, and shared spaghetti dinners) until a falling out over the Mayor's support for Franklin Delano Roosevelt in the 1940 presidential elections. When La Guardia took over city hall in 1934, Windels agreed to serve as his first corporation counsel (the city's chief lawyer), sweeping the accumulation of grafters and Tammany drones out of the office of legal affairs and shaping La Guardia's legislative agenda in Albany, including the rewriting of the city charter in 1936. "The housecleaning was swift and complete," Windels recalled of his initial impact as corporation counsel. "Even the offices themselves were filthy and had to be cleaned." Windels also had a major hand in building New York City's transportation infrastructure, and thus its modern geography, a rival to the more notorious (and more powerful) Robert Moses, whom he opposed in GOP and Fusion circles. In this role, Windels crafted the landmark legislation and interstate agreements that enabled the construction of the Holland Tunnel and the creation of the Port Authority in the 1920s.
Once teachers-union attorney William Mulligan had been ejected from the courtroom, Windels launched into his opening statement. High-minded from the start, he assured the public the investigation would not be a smear campaign; it would have none of the indiscriminate naming of suspects on the basis of "gossip, rumor or hearsay" that had been seen in earlier antisubversive investigations such as those run by the Dies committee in Washington, D.C. In the two years of its existence, Congressman Martin Dies's investigation had acquired a reputation for making reckless and unsubstantiated charges against suspected Communists and fascists. Thanks in part to Dies, the threat of communism had been in the national news for most of that year, from the indictment and prosecution of Communist Party leader Earl Browder to FBI raids on party offices in February to the passage of the Smith Act in June. Unlike the grandstanding coming out of Washington, D.C., however, the Rapp-Coudert investigation would operate under "self-imposed limitations" that would allow it "to proceed with complete objectivity." Windels insisted that it would "present only such evidence as may be relevant by legal standards" and "only such evidence as would be accepted in a court of law."
Yet beneath this respectable façade, Windels also harbored a penchant for the theatrical and a reputation for suddenly shifting gears to drive home an argument in a sensationalistic prosecutorial style. While in one breath, he promised to "refrain from making charges in the public press," in the next Windels offered a "résumé" of the committee's accusations against the Communist Party and the teachers suspected of belonging to it, knowing full well that his remarks would appear in the evening papers. "In the case of the pupils," Windels asserted (on the basis of as-yet undisclosed evidence), "the Communist lends the aid of his counsel and guidance to the task of organizing them for the class struggle." As its "basic creed," communism advocated "a forcible and violent revolution by the workers to overthrow the existing form of government." Communists advance that goal by "fostering discontent" through "strategically located members" including those who sought "to undermine American youth by spreading its alien and subversive principles among them."
Windels's performance won over the press. Quoting him at length the next day, a New York Times editorial endorsed his management of the investigation. He "could easily have entered on a typical 'Red hunt,'" the editors noted. Instead he was "willing to draw the line between 'the right of private political beliefs,' which cannot be interfered with in a democratic society, and 'improper methods of political action,' which no democratic society can tolerate, least of all in its schools." Windels aimed "properly" at those who "inject communism 'into their teaching at the least risk of exposure'" and "conduct struggles around the schools in a truly Bolshevik manner." For the editors of the Times, First Amendment rights of speech and association did not take precedence in cases such as this one, even when the association and speech in question belonged to a political party as legal as the Republicans and the Democrats. The line was drawn, they argued, at the schoolhouse door. Moreover, the Times approved the principle on which Windels would rest much of his inquiry — that in practicing bad faith, Communists lost the protection of the First Amendment. As Windels declared in his introduction, "there is no civil liberty to commit a breach of trust; there is no academic freedom to be one thing and pretend to be something else; there is no freedom in this country to poison the rising generation in the name of any political philosophy which practices hypocrisy and deception, as a part of its central and vital doctrine."
The accused teachers, however, were hardly reassured, especially as Windels flagrantly exposed suspects and presented the investigation's findings as foregone conclusions before the public hearings had even taken place. They, their union, and that small part of the press that backed them not surprisingly viewed the conduct of the hearings with dismay. Later that first afternoon, incensed by his treatment at the hands of the committee and shocked by the license Windels was taking with civil liberties, Mulligan described the proceedings as a "totalitarian way of trial." It was a "star chamber proceeding," declared teachers-union president Charles Hendley during his interrogation the following day. Windels was conducting a trial without trial procedure and without constitutional restraint, whose judgments would have real consequences: teachers could be suspended or fired for what was said in the hearings, and yet they would not have the opportunity to defend themselves properly against their accusers, even as those accusations appeared in the daily press. "Despite a pious preliminary statement by Windels that he would rigorously exclude from testimony anything except evidence permissible in a court of law," wrote Simon Gerson in the Communist-affiliated weekly New Masses, "everything except the proverbial kitchen sink has been tossed into the record. ... Far from following the laws of evidence, the committee has permitted surmise, guess, estimate, and hearsay."
Even though Gerson was right, Windels acted within his constitutional authority as it was understood at the time. The Rapp-Coudert investigation was a legislative inquiry, authorized to gather information that supported the writing of more effective laws, among other things. Until the 1960s, when the Supreme Court began imposing stronger constitutional guidelines, such investigations operated with great latitude, which Windels used freely and effectively. He could subpoena witnesses and documents. He could compel those witnesses to testify under threat of punishment (for contempt of the state legislature if they refused). He could indirectly threaten them with prosecution for perjuring themselves under oath. He could deny them the counsel of a lawyer while he was interrogating them. He could draw conclusions from their testimony and make those conclusions public, even though those findings were still, from a legal perspective, mere allegations. Almost the only thing Windels and the Rapp-Coudert committee could not do was convict a suspect of a statutory crime (that is, a crime other than contempt) and impose a punishment on him or her, something allowed only within the powers of a properly constituted court.
At the same time, this lack of judicial authority worked to Windels's advantage. He could, as he did, profess respect for trial procedure and rules of evidence, yet he did not have to observe any trial rules at all. And he in fact did not. To be sure, Windels and his staff — a group of young lawyers, some recently out of law school, others with substantial legal and investigative experience — superficially followed something resembling courtroom process. And Windels conducted the kind of investigation one would expect to find in a well-run district attorney's office, by collecting an enormous amount of evidence that would eventually find its way into legal proceedings of one sort or another, including trials and Supreme Court reviews. At its core were a series of interviews and private depositions collected and methodically organized over sixteen months by staff members who were following leads on communist activities in the schools and colleges and in the teachers unions that represented New York City faculty and staff. The committee would disclose many of those findings in the series of public hearings that started that afternoon and ended the following year, and in a series of reports prepared for the state legislature and released to the press through 1942.
All the trappings of courtroom procedure and decorum, however, were merely superficial. And for the teachers and their union, the effects of the investigation were catastrophic: by the time the Rapp-Coudert committee was done, dozens of municipal college faculty and staff as well as a handful of public-school teachers had been fired or forced to resign because of alleged association with the Communist Party or their unwillingness to disavow it. Additionally, the investigation crippled the unions that represented those teachers by vilifying them in the press as "communist dominated" and by coordinating that attack with a successful campaign to throw the New York City locals out of the American Federation of Teachers (AFT), which represented teachers nationally and in the American Federation of Labor (AFL). And while many of those teachers and their unions had some sort of day in court by being run through the Board of Higher Education's (BHE) judicial process (required in the dismissal of tenured faculty), it was the Rapp-Coudert inquiry, unrestricted by courtroom rules and almost completely indifferent to constitutional rights, that really put them on trial.
Windels did observe the rules of one powerful court — the court of public opinion. He set very strict guidelines on the conduct of the inquiry, not to insure rights were protected or even to guarantee convictions would be upheld, but in order to manage the investigation's public relations effectively, the political influences on its outcome, and the political impact of its judgments. It was those measures that the accused teachers and their supporters, communist or not, came especially to resent.
In putting the manipulation of public opinion at the core of his strategy, Windels followed his mentor, Judge Samuel Seabury, who led the liberal and bipartisan reform movement that installed La Guardia in the mayor's office seven years earlier. A follower of the radical economist Henry George, Seabury won a city court judgeship in 1901, eventually sitting on both the New York Supreme Court (the lowest of the state courts at the time, despite its name) and the state court of appeals, from which he resigned to run unsuccessfully for governor in 1916. He then largely stayed out of the political limelight until 1930, when then-governor Franklin Delano Roosevelt appointed him to deal with a corruption scandal in New York City's court system. Seabury reestablished his reputation as a reformer in those investigations, going on to run as a dark horse candidate against FDR for the Democratic Party's presidential nomination in 1932, then helping to resurrect the Fusion movement that elected La Guardia in 1933 from constituencies spread across all the major parties. Thereafter he concentrated on other aspects of municipal reform — notably, the unification of the New York subway lines under municipal ownership.
Seabury's inquiry cracked open the rotten machinery of Tammany Hall, which had bought and sold public offices in Manhattan and the surrounding boroughs for decades. Running from 1930 through 1932, the Seabury Commission's work began with an inquiry into the city's Magistrates Courts (its lowest judicial body), many of which were run by judges not much more observant of the law than were the political hacks and thugs lodged in the Democratic Party clubs throughout the city that formed Tammany's field of operations. While the initial impetus for the investigation was the association of the courts with organized crime, the most alarming element of the court's corruption was its use by policemen and their informers to shake down innocent citizens, many of them women, by falsely accusing them of crimes such as prostitution and then dragging them before cooperating judges to buy back their freedom (and, less reliably, their reputations). The Seabury Commission shifted focus the following year to the Manhattan District Attorney's office and then to the overwhelmingly popular Mayor Jimmy Walker, elected with the support of the Tammany machine in 1925.
Like Windels's investigation, Seabury's was a legislative inquiry without the judicial authority of courtroom trials, but with none of the restrictions, either. Unlike previous legislative probes, Seabury's also had additional coercive means at its disposal. Tammany had for years evaded the cleansing action of Progressive reform, and through the 1920s it continued to run the city like a gambling house. Until the 1929 crash brought down the speculative frenzy of the previous decade along with the fortunes of middle-class Americans, Tammany enjoyed widespread support from a public willing to tolerate a little corruption if some of the profits returned to them as the patronage and informal services that the machine spread through city neighborhoods. Such support was evident at the polls and invested in figures such as Walker, a flamboyantly corrupt yet charming man of the people, who spent more time on Broadway in the company of beautiful women than in the mayor's office. The Depression, however, wore out public tolerance for graft and inefficiency not to mention outright criminality and violence, and liberal reformers found that by 1930 their demands for action gained traction among economically distressed New Yorkers. Meanwhile, FDR, considering a bid for the presidency and weighed down like most New York Democrats by his electoral dependency on the city's Tammany kingpins, wanted a high-profile housecleaning. So, Seabury devised an approach that appeared high-minded and reasonable yet, at the same time, used public sentiment to exert considerable pressure on witnesses who, despite the fact that they were not yet officially being accused of crimes, were widely considered criminals.(Continues…)
Excerpted from "Bad Faith"
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Table of Contents
PART I: The Hearings
1 The Threshold 21
2 The Stooge Grebanier 36
3 Coudertism 54
4 Vichy’s Lawyer? 70
PART II: Class War
5 The Dewey Trial 85
6 The Educational Front 108
7 Far from the Ivory Tower 129
PART III: The Mortal Storm
8 Bad Faith 149
9 CCNY 174
10 Flirting with the Right 195
11 Communism on Trial 212
12 Aftermath 227
Conclusion: The Coudert Legacy 241
Abbreviations Used in the Endnotes 259