“Death to” phrases included?

“Death to Israel?” “Death to Zionists?” “Death to America, the Great Satan?”

“Down with America?” “Bush is Hitler?” “Cheney is a Fascist?”

“Eat the Rich?” “Burn Down Animal-Testing Labs?” “Avenge Ruby Ridge?”

“When Guns Are Outlawed, Only Outlaws Will Have Guns?”

Just wondering. Thanks.

L.L., at 6:35 am EDT on August 15, 2006

I guess it’s OK with Ohio if you’re a member of the Mafia or MS 13.

JLR, at 8:10 am EDT on August 15, 2006

Purpose of oath is to silence dissent

I worked at a state college in Georgia and had to sign a similar oath as a condition of employment. It was based on a 1953 GA law and was only slightly modified from the original. In my opinion, the purpose of these oaths are to shut people up. As another commenter pointed out, no one plotting terrorism would be deterred by a form. On the positive side, defenders of democratic rights recently scored a victory in Pennsylvania where the state was forced to stop making candidates for public office sign such an oath. For more on that story, see http://www.themilitant.com/2006/7029/index.shtml

Carl Weinberg, DePauw University, at 10:55 am EDT on August 15, 2006

This form does a bit more than just create problems for “conscientious academics.” I’m sure no one expects these statements to keep active terrorists out of Ohio. They do,however, create a problem for anyone who lies on them as grounds for dismissal becomes clearer should their role become known.

stm, UConn, at 12:20 pm EDT on August 15, 2006

oaths vs. felony questions

To “scared:” yes, many employers ask if you have been convicted of a felony. But there is a key difference between that question and this one: having been convicted of a felony does not immediately prevent your employment. Remeber that there are many different kinds of felonies, and that an employer may respond quite differently to the murderer or rapist who got out of jail a few months ago than to the criminologist who was inspired to get a Ph.D. in drug policy after spending some time in lockup a decade or two ago.

ML, at 2:15 pm EDT on August 15, 2006

Scared, Just a few general points. I say they are “general” because unlike you, I don’t understand why people speak of “left” and “right.” Since I think that you are making representations about the positions of the AAUP without actually reading them, I am not going to address these issues, except to say that many people can, have, and will continue to associate anything they don’t like with terrorism. Just because terrorism “isn’t nice” doesn’t mean that anything that anyone has declared to be “terrorist” is entitled to no constitutional protections.

Raising money might be a form of association. Requiring people to disclose it arguably burdens one’s constitutional rights. However, the State Department’s list is deliberately selected to include only organizations that exist outside the US. Therefore, the question of whether one can freely associate with them (without deliberately engaging in other illegal activities) as a constitutional matter has not yet been decided. Some courts have held that the way to challenge, on constitutional grounds, inclusion in the list is via the statutory procedures available at the DC Circuit, BEFORE raising money. But, this, itself, has not been tested at the Supreme Court.

One has a constitutional right not to be convicted of a felony without due process and a jury trial. However, once one has been convicted of a felony. Felonies cannot otherwise burden someone’s exercise of their constitutional rights. But, once one has legally been convicted of a felony, then there is no constitutional right to, say, declare oneself to not be a felon.

There are many reasons not to answer questions. For example, many questions asked in interviews might burden a long-established constitutional or statutory right. Such as “Do you eat pork?” (Asked by employers who don’t want to hire Jews.) Or “Do you swear allegiance to the president and assert that there is no god but W?” Or “Do you swear only to engage in approved methods of sexual intercourse?” Believe me, I could spend all day asking interviewees questions that burden statutory and constitutional rights (the latter only applying if I worked for a state university). I can ask them in all sorts of backhanded ways.

Secondly, just because one has a “right of free speech” doesn’t mean that one is required to speak all the time. Indeed, the Supreme Court has recognized a right to be free from “compelled speech” and to avoid direct and indirect self-incrimination.

The University doesn’t have a right of “free speech” per se, as it isn’t a person, but rather the university does have more generalized right to academic freedom which allows it to be free from state intervention in its curriculum. This doesn’t apply, however, to questions that would otherwise burden applicants First Amendment rights.

Strangely, I think the biggest problem with the list of questions is probably a demand that people incriminate themselves regarding the “material support” question.

ML, I don’t think this is a “loyalty oath” question. Since there seems to be no demand that people do anything in the future.

Larry, at 4:30 pm EDT on August 15, 2006

And this is new?

So if a University wants to subcontract work from me they also (I assume) shouldn’t be sending a questionaire asking how I conform to their policies of affirmative action, animal safety, ties with Israel, drug-free workplace, etc?

That would be discriminatory hiring practices and stifle my freedom of speech... right?

So why have they been doing just that in many situations for years?

Non-discrimination & animal safety = good limitations; terrorist ties = bad limitations?

Beyond which “He also noted that there is not always broad agreement on which groups are terroristic"... ok, so he can’t read instructions and/or couldn’t find the list specifically noted in teh instructions.

Surprisingly the author of the story is capable of not just finding, but linking the list. I wonder why O’Neil is incapable of reading simple instructions?

Gekkobear, at 5:35 pm EDT on August 15, 2006

I’m required, on an annual basis,...

...to attest to the fact that I’ve not been convicted or even charged with certain kinds of felonies and even some misdemeanors. Why? I’m charged with safeguarding something that belongs to you. If I fail in this charge your life can suddenly become very unpleasant — unpleasant in the sense that you may spend weeks or even months cleaning up the mess. Nothing permanent or fatal, mind you, but unpleasant all the same. You see, I have access to your personal data if you’re a customer of our company.

And you’re charged with safeguarding something that is important to me — my children. If you can’t answer “no” to six simple “are you a terrorist” or “do you support terrorists” questions what makes you think that I would trust you to even be around my kids, let alone teach them?

Kevin, at 8:15 pm EDT on August 15, 2006

What if... Have you ever thought about

I agree, any true terrorist will not answer the questionnaire truthfully. My question is who monitors the visas and green cards that are paid for by public universities? INS depends on the university to get it right but what if you have a president who is of foreign decent (say middle east) and a hr director of the same foreign decent and visa/gcards are being applied for students/employees of the same foreign decent but not others, who looks at that. In light of the Egyptian students that wondered off, and the recent airline terror, academe beware. These matters should be looked into. Even with that there is no guarantee. Make sense?

heavyheartatkean, Associate Director at Kean University, at 9:30 pm EDT on August 15, 2006

Even those who believe this approach would generally be effective in avoiding employment persons with terrorist sympathies should have some concern about the “Have you ever” provisions coupled with current lists of groups termed terroristic for political reasons.

1) Sometimes groups change their nature over time. 2) Sometimes groups conceal some of their connections. Just as good Christians once used to find out that money they contributed to charities went to the IRA, good Muslims who contribute a portion of their income to charity may find that those charities in turn contribute some of those funds to groups on the terrorist list. It’s bad enough to find that money you thought was being used to clothe children was being spent on rocket launchers, but it’d be a lot worse to lose your job over it, too. Safest never to contribute to any charity except the Republican National Committee, eh? 3) Groups often do more than one thing. Hamas and Hezbollah feed and clothe lots of destitute people, which is why they have the local support they do in the Middle East. Arguably, individuals in a freedom-loving democracy should be able to make their own decisions about how the balance between saving lives and taking lives affects their charitable contributions (excepting such considerations from the matter of paying one’s federal taxes to a state that arguably takes far more lives than it saves, of course). 4) The list itself changes for political reasons, and one could find oneself suddenly on the wrong side of it simply because of a political decision to shut off as much aid as possible to some country. Nelson Mandela was once considered a terrorist worthy of endless incarceration by the US government; with a nationwide policy like this in place in the past, South African apartheid would most likely still be considered a “good” to be supported against “terrorists” like Mandela.5) A US administration wishing to diminish the power of its opponents could throw a lot of people out of jobs by simply choosing some fairly mainstream international group largely supported by either the left or the right to place on the list.

Thane Doss, Yomiuri Culture Centers, at 4:25 am EDT on August 16, 2006

responses to Kevin et al

heavyheartatkean, Green cards and visas are a different issue entirely than employment questionnaires. I don’t think we should confuse them.

Kevin, While I admit that when talking to non-lawyers (in person) I will almost always say that issues are “simple” and language is “clear” (and that, it, of course, supports my position), in the real world, sloppily drafted language paves the road to ruin. When people use words like “willingly” or “knowingly” (both of which are actually legal terms of art) very often they mean different things to different people. Likewise “material support” (a term in a statute) has been subject to considerable litigation. So, for you to gloss over the issue of whether someone really knows what these questions mean is a tad sloppy.

But there is more than just sloppy drafting. Unduly vague statutes (or and government directive) can create constitutional problems, as people might not be on notice of whether they are violating them or not, thereby creating a due process problem.

JP, While I appreciate the fact that you think that constitutional interpretations are not “congruent” with the constitution, to us lawyers they are (unless our clients take an adverse position) and since definitive interpretations of the constitution that bind all government acts (by the Supreme Court) define what the words of the constitution mean, we don’t see much of a problem with it. I would urge you to put your hat in the ring for the next open seat on the Supreme Court, so you can set things right. Be warned, however, that no matter what you do, someone will say that your interpretation is “activist.” Hint: Winners don’t claim decisions are activist. Only losers do.

Larry, at 11:45 am EDT on August 16, 2006

An answer to Kevin on HLP v. Ashcroft

Kevin, I am glad you asked that, because, as luck should have it, “Material support” and “monetary support” have been held to be un-constitutionally vague. The language in these questions tracks the federal statutes, which have been held partially unconstitutional. In HLP v. Ashcroft (9th Cir. 2002), the Court (in quoting its earlier decision by the same name) held that:

As we stated in Humanitarian Law Project II, “[i]t is easy to see how someone could be unsure about what AEDPA prohibits with the use of the term ‘personnel,’ as it blurs the line between protected expression and unprotected conduct.” Humanitarian Law Project II, 205 F.3d at 1137. We observed that “[s]omeone who advocates the cause of the PKK could be seen as supplying them with personnel. . . . But advocacy is pure speech protected by the First Amendment.” Id. Indeed, the term “personnel” could be understood to cover some of plaintiffs’ activities most safely guarded by the First Amendment. “Personnel,” for example, could be understood to bring into its scope Humanitarian Law Project’s members’ efforts to urge members of Congress to support the release of Kurdish political prisoners in Turkey. Or, providing “personnel” could reasonably be understood to include the WTCC’s writing and dissemination of literature educating the American public on Tamils in Sri Lanka and the LTTE-run Tamil independence movement. Because “personnel” could be construed to include unequivocally pure speech and advocacy protected by the First Amendment, we decline to depart from our legal ruling in Humanitarian Law Project II that the term “personnel” is void for vagueness. Id.

http://tinyurl.com/hc8yt

As a colloquial matter “recruited” is also difficult term, because one can “recruit” by just saying “You should do X.” For instance, people can accuse me of “recruiting” for the U.S. Army, because I have written posts here claiming people should join the army. “Monetary support” is also difficult, because one might contribute money to a cause that indirectly aids such a group. Such as a hospital, or technical support group. (Awhile back I got an Email forward accusing McDonalds of “monetarily supporting” the PLO. After some research I found out that McDonalds was contributing to children’s hospitals and bragging about it to curry Arab favor.

Larry, at 8:20 am EDT on August 17, 2006

Kevin, “Are you a member of...” is probably a bit better, but “membership” isn’t always as simple as asking whether someone sent in a membership form, or was voted on. For instance, I am a member of the much derided Federalist Society and the ABA, because, they have some membership benefits. Most of what the Federalist Society does I find annoying. My membership was never “voted” upon, and I don’t attend meetings or really agree with anything written in their magazines. Indeed, there are a host of magazines out there, whose subscriptions actually constitute “membership” in an organization (and they are not sold to the “general” public). Quite frankly, I can’t list every organization that I am a “member” of at the moment. Some may be defunct. Some may have changed their rules on membership, and some I might have forgotten about, and if I remembered, I probably would resign.

As to what would pass constitutional scrutiny, I would normally say that this is someone else’s job, but here are some things that would probably not fail: 1) have you ever been convicted of a crime?; 2) have you ever sworn allegiance to a foreign state; and 3) do you support the violent overthrow of the US government. Perhaps, “If you are a US Citizen, do you swear to support and defend the constitution of the United States.”

It probably is permissible to ask if someone could obtain a security clearance if necessary. However, since most people are not familiar with what that process entails, it would just create confusion.

The truth is, that explicit questions are just asking for lies, and more subtle ones won’t produce the devastating results that you are looking for. The best an institution can hope for is to screen out the felons, the avowed traitors, and violent anarchists.

Larry, at 1:25 pm EDT on August 18, 2006