Loyalty+Oaths

toc In this article, I will briefly examine the history of loyalty oaths at colleges and universities in general. I will focus on the post-World War II loyalty oaths of three states in more detail, looking at the specific details surrounding a particular oath, the responses of the institutions, and any resulting state or U.S. Supreme Court cases arising from the oath in question.

=Background= The concept of a loyalty oath, taken to pledge allegiance to a government or a specific code of conduct, has existed in the United States since its inception. Such oaths are typically required in specific occupations or industries, such as the military or intelligence field, and are often instituted during times of stress, such as war or threats to national security. In response to concerns about Communism spreading through the United States post-World War II, loyalty oaths became more widespread throughout the nation. In 1947, President Harry Truman instituted a requirement that all federal employees sign an oath; the practice became more widespread among state and local governments in the late 1940s and early 1950s.

=Loyalty Oaths at Public Universities= As of 1950, twenty-four states and the District of Columbia required all teachers at public institutions to sign loyalty oaths, with many of these asking instructors to explicitly indicate that they were not members of the Communist Party and some states investigating teachers to determine if they were "professed Communists." In some states, legislatures passed statutes requiring loyalty oaths and were vetoed by governors; in one state, Iowa, the state legislature rejected proposed loyalty oath legislation. Many of the loyalty oaths originally enacted by state legislatures in the 1950s were struck down by various court cases. Several of these cases noted the significance of freedom of speech and assembly, as an individual member may speak against the government while never taking actions intended to support terrorist activities or the overthrow of the government.

Academic freedom was an issue of general concern in the late 1940s beyond concerns about Communist sympathizers indoctrinating American students; this freedom was affected by regional religious attitudes (such as those discouraging or preventing the teaching of evolution) and increasing subsidies of campus laboratories by the federal government. . The issue of loyalty oaths became a focal point for individuals and groups such as the American Association of University Professors that were concerned about the future of academic freedom in the United States as a result of unpopular opinions or government whims.

University of California System
Beginning in 1942, the University of California (UC) required faculty and staff to sign a constitutional loyalty oath. In March 1949, the UC Board of Regents added a reference to anti-communism policies implemented in 1940 to the loyalty oath, and the reference will be added to existing contracts. The text of the oath was not released by President Robert Sproul until June; at that time, the new portion of the oath read: "I do not believe in and am not a member of, nor do I support any party or organization that believes in, advocates, or teaches the overthrow of the United States government by force or violence." Concerned about academic freedom and the attitude of "guilt by association," both the Northern and Southern Sections of the Academic Senate passed resolutions asking the UC Regents to remove or revise the policy with the consultation of the Academic Senate. The Board of Regents acknowledges these concerns and changes the language slightly in their revisions, but require faculty members to sign a statement indicating that they are not a member of the Communist Party. Tensions between the Academic Senate and the Board of Regents continued to rise; President Sproul proposed the postponement of oath implementation, allowing faculty to sign contracts for the 1949-50 academic year without agreeing to the oath, but this proposal did not receive support from the Board of Regents.

In December 1949, a teaching assistant who had signed the loyalty oath, Irving David Fox, admitted to previous involvement in Communist organizations during the 1930s and stated that he severed his involvement with the groups by 1943. The Board of Regents votes to fire Fox after hearing his testimony, indicating that "he does not meet the minimum requirements for membership on the faculty." While the Regents maintain that a teaching assistant does not have the same privileges as faculty and that a faculty member would receive due process per the terms of their contract and agreements with the Academic Senate, many faculty members remain concerned by the firing, fueling ongoing conflicts between the Board of Regents and the Academic Senate. Eventually, the number of non-signers dwindled, with many of the remaining filing a lawsuit against the university. Ultimately, the California Supreme Court determined in //Tolman v. Underhill// (1952) that the Board of Regents did not have the authority to institute a separate oath in addition to those required by the state. A statewide loyalty oath, the Levering Oath, had been adopted in September 1951 that required all government employees to sign a statement indicating that they were not members of the Communist Party; thus, university employees were still affected. In November 1953, California voters overwhelmingly approve the addition of the Levering Oath to the California State Constitution.

California State University System
During the 2007-2008 academic year, two potential employees of the California State University (CSU) system were not hired by their respective universities based solely upon their refusal to sign the state's required loyalty oath.

In February 2008, a graduate student instructor, Marianna Kearney-Brown, lost her position teaching remedial mathematics courses at California State University East Bay after attempting to add the word "nonviolently" to her State Oath of Allegiance form. Kearney-Brown is a Quaker; she was concerned that, by signing the oath as originally written, it would suggest that she was willing to defend the U.S. and California constitutions by force. Upon seeing the modifications, a representative from CSU East Bay's human resources department wrote a letter to Kearney-Brown stating that the university "cannot permit attachments or addenda that are incompatible and inconsistent with the oath." In previous state employment with local K-12 school districts, Kearney-Brown experienced no opposition to adding the word "nonviolently" to the oath. Attorney General Jerry Brown issued a statement in March 2008 regarding the Kearney-Brown incident, indicating that CSU East Bay "acted appropriately" in requiring Kearney-Brown to sign the Oath of Allegiance and clarifying that "the oath does not compel an employee to take any violent action and, in fact, requires an employee to work within the system of government to resolve problems and achieve change." Brown's statement further indicated that the university acted in good faith by providing an opportunity to include a personal statement of conviction. Thus, with this clarification from the Attorney General's office, future employees whose religious beliefs mandate nonviolence should be able to take the oath without reservation, and any statement addressing nonviolence would be consistent with the oath as long as it is included as an addendum rather than by modifying the oath itself.

A similar situation from the previous semester at another CSU institution came to light after Kearney-Brown's case gained state and national media attention. Wendy Gonaver, initially offered a position as an American studies instructor at California State University Fullerton, refused to sign the state's loyalty oath as part of her hiring materials, indicating that the oath as written restricted her freedom of religion. As a Quaker, Gonaver was unwilling to sign a document stating that she would "defend" the state and federal constitutions "against all enemies." In contrast to Kearney-Brown, Gonaver requested to sign the oath if she could append a personal statement clarifying her beliefs, similar to the policy of the University of California system; however, she was not allowed to do so. According to Clara Potes-Fellow, CSU Fullerton spokesperson, "The position of the university is that her entire added material was against the law." The Gonaver case was resolved in June 2008, when CSU Fullerton agreed to allow Gonaver to attach a statement clarifying her position. Claudia Keith, a spokesperson for the CSU system, acknowledged problems with the situation and stated, "We certainly respect employees' rights to believe in anything they want to believe in." Despite the two similar incidents, the California State University system opted not to create a systemwide policy addressing procedures for the Oath of Allegiance.

In August 2008, the California state legislature passed a bill, SB 1322, which would update and clarify the State Oath of Allegiance. The bill sought to remove references in the oath to Communism and group membership ruled unconstitutional by the U.S. Supreme Court, remove other Communism-specific provisions related to state and local government employment, and amend the oath requirement to allow for religious exemptions "provided that he or she is otherwise willing and able to uphold the United States Constitution and the constitution and laws of this state and to complete the duties of employment." SB 1322 was vetoed by Governor Arnold Schwarzenegger. The governor issued the following statement, without reference to the religious exemption that helped spark the bill: media type="custom" key="9582578"Many Californians have fled communist regimes, immigrated to the United States and sought freedom in our nation because of the human rights abuses perpetuated in other parts of the world. It is important particularly for those people that California maintains the protections of current law. Therefore, I see no compelling reason to change the law that maintains our responsibility to ensure that public resources are not used for purposes of overthrowing the U.S. or state government, or for communist activities. media type="custom" key="9582582" Thus, the specific procedures for individuals with religiously-motivated concerns regarding the Oath of Allegiance remain unclear throughout the state, with inconsistencies between the three public higher education systems in the state, individual universities within the California State University system, and other state and local government agencies. Additional language in the original oath prohibiting membership in organizations that advocate overthrowing the government and requiring individuals to disclose any membership in such organizations within the five years prior to signing the oath remains codified in the Constitution of the State of California, despite it becoming unconstitutional after //Keyishian v. Board of Regents// (discussed later in this article) and no longer used in hiring.

Arizona
Similar to California, the Arizona Revised Statues require all government employees and officials in the state, including employees of public colleges and universities, to sign a loyalty oath indicating that they will "support the Constitution of the United States and the Constitution and Laws of the State of Arizona; that [they] will bear true faith and allegiance to the same, and defend them against all enemies, foreign or domestic."

Prior to 1966, the State of Arizona required employees and officials to sign an oath with similar meaning to the current oath, but with language that was more vague: media type="custom" key="9582578"I, (type or print name) do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution and laws of the state of Arizona; that I will bear true faith and allegiance to the same, and defend them against all enemies whatever, and that I will faithfully and impartially discharge the duties of the office of (name of office) according to the best of my ability, so help he God (or so I do affirm). media type="custom" key="9582582"In //Elfbrandt v. Russell,// the U.S. Supreme Court examined a decision by the Arizona Supreme Court upholding the oath and an additional requirement in the Arizona Revised Statutes that individuals signing the oath not join or maintain membership in the Communist Party while in service to the state. The U.S. Supreme Court reversed the decision; in the majority opinion, Justice Douglas states, "Nothing in the oath, the statutory gloss, or the construction of the oath and statutes given by the Arizona Supreme Court, purports to exclude association by one who does not subscribe to the organization's unlawful ends...Those who join an organization but do not share its unlawful purposes and who do not participate in its unlawful activities surely pose no threat, either as citizens or as public employees...A law which applies to membership without the 'specific intent' to further the illegal aims of the organization infringes unnecessarily on protected freedoms. It rests on the doctrine of 'guilt by association' which has no place here."

In 2000, Fabricio M. Rodriguez, vice president of the student body at Mesa Community College, refused to sign the State of Arizona Loyalty Oath of Office. As a member of the Communist Party U.S.A., he did not sign due to the anti-Communist provisions of the statute indicated in the form despite previous court rulings. This refusal initially resulted in his failure to receive pay for the position. After two weeks, the college, under pressure from the American Civil Liberties Union (ACLU), removed the oath requirement for Rodriguez and provided him with back pay for hours worked before the issue was resolved.

The Communist Party membership prohibition language remained in the Arizona Revised Statues until April 2003, nearly three years after the controversy at Mesa Community College.

New York
In 1962, the University of Buffalo was absorbed by the State University of New York system; as a result, all University of Buffalo employees were required to sign a loyalty oath required of state employees, including university professors. Four of the professors refused to sign a certificate indicating that they were not currently a Communist and, if they previously were, they had informed the President of the State University of New York. As a result, the university did not renew the contract of one professor; two others were still teaching but faced probable dismissal at the end of their contracts; and one voluntarily resigned. In the court case arising from this incident, //Keyishian v. Board of Regents// (1967), the U.S. Supreme Court, in a five-to-four decision, indicated that loyalty oaths preventing membership in the Communist Party are unconstitutional: media type="custom" key="9582578"Mere knowing membership, without a specific intent to further the unlawful aims of an organization, is not a constitutionally adequate basis for exclusion from such positions as those held by appellants.media type="custom" key="9582582" In the majority opinion, Justice Brennan emphasized the importance of protecting academic freedom, recognizing that the First Amendment remained in place for instructors and that the classroom served as a "marketplace for ideas"; Brennan indicated that students and future leaders needed this exposure to diverse ideas.

In //Knight v. Board of Regents//(1968), the U.S. Supreme Court upheld the oath being used by the State of New York at the time, which required employees of public schools and tax-exempt private schools, including university faculty, to indicate their support for the national and state constitution. This ruling confirmed that, conceptually, an oath requiring allegiance to the United States and to the specific state in question is acceptable; as written, the New York oath was considered specific while not restricting political speech or expression.