Cooper v. Henslee

Cooper v. Henslee was a 1975 Arkansas Supreme Court free speech case that struck down the 1941 state law that made advocating communism illegal and that barred the employment of communists by any government agency or institution. The court said such laws violated the U.S. Constitution’s First Amendment protections of free speech, assembly, and association. The plaintiff was Dr. Grant Cooper—a young history professor in Little Rock (Pulaski County) whose father was a prominent physician, philanthropist, and former member of the Little Rock School Board. In the early 1970s, Cooper started telling his students at the University of Arkansas at Little Rock that a communist revolution would someday turn America from a plutocracy into a just society. A student newspaper reported Cooper’s teachings and his membership in the leftist Progressive Labor Party, and the Arkansas Gazette picked up the story, which set off a political storm that ultimately cost Cooper his job. A band of state legislators sued to force Cooper’s immediate firing and to block payments to Cooper and the university as long as it employed him.

Grant Cooper’s father, William Grant Cooper, was the president of the Little Rock School Board in 1954 after the U.S. Supreme Court’s Brown v. Board of Education decision, when the school district and its board developed plans to integrate the city’s schools gradually, which resulted in him being the nominal litigant in the lawsuit (Cooper v. Aaron, 1958) that ultimately brought about the full integration of Little Rock schools. The Cooper family had given the University of Arkansas at Little Rock $250,000 before the school hired Cooper’s son, who had obtained a doctoral degree from the University of Pennsylvania and joined the university faculty in 1969, later being promoted to associate professor.

In September 1973, a student newspaper reported that the school had directed Grant Cooper to quit telling students that he was a member of the Marxist party and to cease teaching history from a communist perspective (or at least stop telling students that he was). When the Arkansas Gazette reported the Cooper dilemma, it stirred a political pot that was already boiling from legislative efforts to stop an appearance by boxer and antiwar champion Muhammad Ali at the University of Arkansas (UA) in Fayetteville (Washington County).

Representative Frank B. Henslee and twenty-two other state legislators filed a suit against Cooper and Chancellor Robert Ross, claiming that a 1941 statute made Cooper’s employment by the university unlawful because communist ideology promoted the overthrow of the American government. Cooper admitted that he advocated the overthrow of the government, by force if necessary, but said he merely advocated and predicted it would occur perhaps in the distant future. He did nothing to bring it about. The suit also named State Treasurer Nancy J. Hall as a defendant and asked the court to order her not to write warrants to the university as long as Cooper was on the payroll. Little Rock lawyers Philip E. Kaplan and John M. Bilheimer, along with Morton Gitelman, a law professor at UA, represented Cooper. The university soon “nonreappointed” Cooper for poor teaching, which meant that under the contractual terms for tenure-track faculty members, he had a year’s notice before his employment would end (in the spring of 1975). The university’s board of trustees allowed him to continue to teach for a period, but without pay. Judge John T. Jernigan ruled the next spring that the school clearly had violated the law by continuing to employ the professor and ordered his immediate dismissal. Jernigan said the state treasurer had nothing to do with the matter.

The political fallout was quick and long lasting. The Arkansas House of Representatives adopted a nonbinding resolution, 78–3, calling for Cooper’s immediate dismissal. The Arkansas Supreme Court refused a stay on Judge Jernigan’s order that Cooper be fired immediately while an appeal of the judge’s order was decided by the high court. Arkansas candidates for governor and the U.S. Senate and legislative offices in the summer of 1974 took a stand against Cooper. Only one, Lieutenant Governor Bob Riley, who was running for the Democratic nomination for governor, supported Cooper or the university. Riley, a political science professor at Ouachita Baptist University (OBU), said neither he nor anyone else who was governor should intervene in the affairs of a public university.

In April 1975, the Arkansas Supreme Court reversed Judge Jernigan’s decision in its entirety, ruling that the 1941 anticommunist act violated the First and Fourteenth Amendments. The justices wrote three separate opinions; all were in agreement that Cooper’s free speech rights had been violated, but they disagreed as to how. Kaplan, Bilheimer, and Gitelman had argued that the Arkansas statute was a bill of attainder, prohibited by the Constitution, and that it also violated Cooper’s rights under the free-speech and equal-protection amendments to the Constitution. (A bill of attainder declares someone guilty of a crime without having a trial.)

Thomas Harper of Fort Smith (Sebastian County), a former state chairman of the Democratic Party and a special justice filling in for Justice Frank Holt, who recused himself in the case, wrote the majority opinion. He said the basic question posed by the suit—whether Cooper’s rights were abrogated by the anticommunist statute—had been decided definitively more than once by the U. S. Supreme Court, and he quoted extensively from opinions of Chief Justices Earl Warren (1967) and Warren Burger (1972) that punitive laws based upon speech and beliefs could not stand. “We have made it clear that neither federal nor state government may condition employment on taking oaths that impinge on rights guaranteed by the First and Fourteenth Amendments respectively, as for example those relating to political beliefs,” Burger wrote. “Employment may not be conditioned on an oath denying past or abjuring future associational activities within constitutional protection; such protected activities include membership in organizations having illegal purposes unless one knows of and shares a specific intent to promote the illegal purpose.”

Harper said the supremacy clause of the U.S. Constitution made it forever incumbent on state courts to respect and follow the decisions of the U.S. Supreme Court. Even without the federal precedents, he wrote, the Arkansas court could not uphold a statute “that has such a chilling effect on the exercise of valid First Amendment rights such as freedom of speech and freedom of association.” He said that while the state might prohibit one holding such radical ideas as Cooper’s from taking a critical job, such as a sensitive wartime position, where his beliefs could affect public safety, blocking people from operating a mowing machine, running a state elevator, or teaching history was not a valid exercise of government power.

Chief Justice Carleton Harris concurred in reversing Judge Jernigan but only because he said a chancery judge could not exercise the power to strike down a state law. The lawsuit was simply invalid; it was filed in the wrong trial court and there was no point in addressing the other issues. Justice John A. Fogleman said the statute was a bill of attainder and thus unconstitutional, and he delivered a lengthy discourse on bills of attainder.

Despite his victory, Cooper never taught again at the University of Arkansas at Little Rock, but he was awarded back pay through May 30, 1975, when his contract ended.

For additional information:
Cooper v. Henslee, Arkansas Supreme Court, 257 Ark. 963, 522 S.W. (1975).

Lyons, Gene. “The Cooper Case.” Change 6, no. 6 (Summer 1974): 16–19.

———. “Letter from the Land of Opportunity.” New York Review of Books, May 30, 1974.

Ernest Dumas
Little Rock, Arkansas