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Commentary

"Pall of Orthodoxy": The Insidious Persistence of Loyalty Oaths

By Marjorie Heins

A recent incident in California has dramatized the insidious persistence of loyalty oaths for public employment in America. These oaths of allegiance originated in the days of King Henry VIII of England, when treasonous plots and religious wars threatened royal hegemony. They survive today as coerced rituals of political orthodoxy, and as threats to free thought.

The latest casualty is - perhaps appropriately - an American Studies instructor hired to teach at Cal State University-Fullerton. Wendy Gonaver is a Quaker and pacifist who objected to the state's requirement that, as a condition of employment, she swear to "defend" the constitutions of the U.S. and of California "against all enemies, foreign and domestic."

Although the precise meaning of "defend" is left vague, one reasonable interpretation is that she must swear to bear arms in violation of her pacifist beliefs. According to news reports, other branches of California's public university system allow pacifists and conscientious objectors to modify the oath, but Cal State-Fullerton does not, and at this writing, Gonaver is out of a job.

The California oath is required by the state constitution of all public employees "except such inferior officers and employees as may be by law exempted." In its original form, in 1879, it simply required a promise to support the two constitutions and faithfully discharge the duties of one's office. But in 1952, the oath was enlarged, adding not only the pledge to defend the state and nation "against all enemies," but an affirmation "that I do not advocate, nor am I a member of any party or organization, political or otherwise, that now advocates the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means."1

This "negative oath" requirement - abjuring supposedly subversive beliefs or organizational affiliations - was common in post-World War II America. It was a product of the Cold War "Red Scare," when political leaders, media pundits, and freelance compilers of blacklists stirred up fears that communists, communist sympathizers, and others suspected of leftist views were working to undermine the U.S. government and prepare for a Soviet takeover. California's oath, like that of many other states, swept in all employees - teachers, clerks, janitors, health workers - even though most of their jobs had nothing to do with national security.

The Supreme Court, reflecting the anti-communist fervor of the time, initially rejected constitutional challenges to most of the oaths. In one major case, brought by New York City teachers, the Court justified the negative oath requirement (along with a flat disqualification from employment of any Communist Party member), by explaining that teachers work " in a sensitive area in a schoolroom," where they shape young minds.

That the school authorities have the right and the duty to screen the officials, teachers, and employees as to their fitness to maintain the integrity of the schools as a part of ordered society, cannot be doubted. One's associates, past and present, as well as one's conduct, may properly be considered in determining fitness and loyalty.2  

Three justices dissented in this 1952 case. One of them, Hugo Black, condemned the New York oath as "another of those rapidly multiplying legislative enactments which make it dangerous - this time for school teachers - to think or say anything except what a transient majority happen to approve at the moment." He dissented because the law "effectively penalizes school teachers for their thoughts and their associates."3

Things began to change in the 1960s: the Court found a number of oaths either so vague that a conscientious employee could not know what ideas were prohibited, or so "overbroad" that they essentially banned even innocent membership in a radical group - that is, signing up without knowing that the group might have some subversive aims. This, said the Court, amounted to unconstitutional guilt by association.4

Finally, in 1967, the Court stopped the charade of striking down some oaths while still pretending to adhere to its decisions from the early '50s. In a case brought by professors from the state university at Buffalo, the Court overruled its 1952 decision upholding New York's loyalty law. Justice William Brennan, writing for the majority, pointed out the likely chilling effect of anti-subversive oaths: “Does the teacher who carries a copy of the Communist Manifesto on a public street thereby advocate criminal anarchy” [that is, advocacy of government overthrow by force or violence]? “Does the teacher who informs his class about the precepts of Marxism or the Declaration of Independence violate this prohibition?” Brennan added a stirring peroration:

Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.5

With the handwriting now clearly on the wall, California's Supreme Court invalidated the anti-subversive portion of the state oath just a few months later. But it left in place the first part of the oath, the mandate that all public workers swear to defend the state and nation "against all enemies" - the provision that cost Wendy Gonaver her job in 2008.

So, what is the legal status of these "affirmative" oaths that linger on as conditions of public employment? The U.S. Supreme Court seemed to give them the seal of approval in a 1972 case. The oath in question (from Massachusetts) said: "I do solemnly swear (or affirm) that I will uphold and defend the Constitution of the United States of America and the Constitution of the Commonwealth of Massachusetts and that I will oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence, or by any illegal or unconstitutional method."

The Court said this oath wasn't too vague, nor did it impose any specific obligations - despite its use of such terms as "defend" and "oppose." Even Justices Thurgood Marshall and William Brennan, who thought the second part of the Massachusetts oath was unconstitutional, said the first part, requiring that employees swear to "uphold and defend" the state and federal constitutions, was "nothing more than the traditional oath of support that we have unanimously upheld as a condition of public employment."6

And yet, what is the point of it all? What purpose does it serve to force office clerks, truckdrivers, firefighters, kindergarten teachers, and myriad other public employees whose work involves neither government policy nor national security to make these declarations? What if a clerk or firefighter sincerely believes that a different constitutional structure - perhaps the European parliamentary system - is superior to ours? Indeed, even teachers -whether of nonpolitical subjects like math or of political subjects like American Studies - best serve the goals of education when they aren't expected to unquestioningly "uphold and defend" governmental structures and laws, but instead to inspire critical thinking among their students.

Clearly, the oaths aren't necessary. In California, as in other states, noncitizens aren't required to sign. As one court pointed out (in a case granting an exemption from the California oath to a Jehovah's Witness on religious grounds), the state has no compelling interest in the oath because it's doubtful "whether an oath in any form can achieve employee loyalty."7 Obviously, oaths don't guarantee security: anyone truly dedicated to overthrowing the U.S. or California government is likely to lie and sign.

Something else is going on, then. The oath ritual - even if it merely consists of signing a form - forces millions of Americans to acquiesce in a gesture of political conformity. Whether they consider it a meaningless formality, however, or an annoying, offensive imposition on their freedom of thought, most sign even if they object - to get the job and avoid the hassle. Only dedicated conscientious objectors, often impelled by religious belief, make a fuss.

It was 65 years ago, in a case upholding a child's First Amendment right to refuse, on grounds of conscience, to recite the Pledge of Allegiance, that Justice Robert Jackson penned some of the most-quoted language in the Supreme Court canon. "If there is any fixed star in our constitutional constellation," Jackson wrote, "it is that no official, high or petty, shall prescribe what shall be orthodox in matters of politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein."8 Evidently, the State of California, and many others, do not take this principle seriously when it comes to grown-ups.

Even seemingly innocuous oaths, with their demand for symbolic gestures of loyalty, subtly squelch political dissent - an activity needed today in America more than ever. They impose a "pall of orthodoxy" not only on the classroom but on all of us.

May 24, 2008

Update: On June 2, 2008, People for the American Way reported that it had negotiated a deal with Cal. State on behalf of Wendy Gonaver. Gonaver would be given a temporary lecturer position and would be allowed to attach a statement objecting to the oath she must sign - even though the oath itself requires employees to swear that "I take this obligation freely, without any mental reservation."

In fact, when queried about the oath, an attorney at the University of California said it would be acceptable to append a statement that "I sign this oath under protest because I think it violates my First Amendment rights."9

For more background on loyalty oaths, see the author's longer article in the summer 2009 issue of Dissent.

NOTES

1. California Constitution, Article XX, §3.

2. Adler v. Board of Education, 342 U.S. 485, 493 (1952).

3. Adler, 342 U.S. at 496-97. There was one exception in the early 1950s to the Supreme Court's approval of anti-subversive oaths: a decision striking down an Oklahoma law because its ban on membership in any group listed by the U.S. Attorney General as "subversive" didn't distinguish innocent from "knowing" membership. Wieman v. Updegraff, 344 U.S. 183 (1952).

4. Elfbrandt v. Russell, 384 U.S. 11 (1966). The cases striking down oaths on grounds of undue vagueness were Cramp v. Board of Public Instruction, 368 U.S. 278 (1961) (Florida oath); and Baggett v. Bullitt, 377 U.S. 360 (1964) (Washington oath).

5. Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967).

6. Cole v. Richardson, 405 U.S. 676, 684, 692 (1972).

7. Bessard v. California Community Colleges, 867 F. Supp. 1454, 1464 (E.D.Cal. 1994).

8. Board of Education v. Barnette, 319 U.S. 624, 642 (1943).

9. Author's e-mail exchange with attorney David Birnbaum, May 8, 2009.

 


The Free Expression Policy Project began in 2000 to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. The FEPP website is now hosted by the National Coalition Against Censorship. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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