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A Loyalty Oath Firing in 2008

March 3, 2008

Many people think of loyalty oaths as relics of the McCarthy era, long ago outlawed or abandoned. In fact, the U.S. Supreme Court has banned only certain kinds of loyalty oaths, permitting others. Last week, a mathematics instructor at California State University East Bay lost her job for refusing to sign one.

Marianne Kearney-Brown, who is also a graduate student at East Bay, tried to add a word to the state's Oath of Allegiance so that it would conform with her Quaker beliefs. The university offered her the chance to add a statement with her views, but insisted that she sign the oath, unaltered, and said that it had no choice but to fire her when she refused. A statement from the university said that if she changes her mind, East Bay would rehire her.

California's oath for state employees states: "I, ____________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter."

The change Kearney-Brown tried to make was to insert "nonviolently" before the phrase "support and defend the Constitution of the United States." She told The San Francisco Chronicle that she had previously made that change -- without objection -- when she held jobs in public schools. "I don't think it was fair at all," Kearney-Brown told the newspaper, of East Bay's decision. "All they care about is my name on an unaltered loyalty oath. They don't care if I meant it, and it didn't seem connected to the spirit of the oath. Nothing else mattered. My teaching didn't matter. Nothing."

In an interview with Inside Higher Ed, James Banks, president of the United Auto Workers chapter that represents California State graduate teaching assistants such as Kearney-Brown, said that the union has already filed a grievance on her behalf. Banks declined to discuss the grounds for the grievance, and said that this was the first time someone the UAW represents at Cal State has lost a job for this reason.

"It's an absurd and outrageous action to dismiss her," he said.

Henry Reichman, professor of history at East Bay and chair of the Academic Senate there, said that as soon as he heard about the situation Friday, he sent an e-mail to administrators that said in part: "What are we? Nitpicking State University? It would be one thing if Ms. Kearney-Brown had defaced the form or added illegal material. But the university's stance puts her in the untenable position of either violating her religious faith by signing something she does not believe in -- and which is completely irrelevant to what she was hired to teach -- or losing her employment with us."

Reichman stressed via e-mail that he believed the problem was with the Cal State system's legal interpretation and not with East Bay leaders. He said that he was drafting a resolution for the Academic Senate to consider and that some on the campus are considering going to the human resources department as a group to demand the right to add the word "nonviolently" to their oaths.

"The decision was unnecessary; unduly and, dare I say, stupidly legalistic; and deeply embarrassing to the university and all members of the university community," Reichman said. The Volokh Conspiracy, a popular legal blog, is also suggesting that Cal State could have accepted the additional word without incident.

Some who share his sympathy for Kearney-Brown, however, say that East Bay was acting within the law.

Michael A. Olivas, director of the Institute of Higher Education Law and Governance, at the University of Houston, said that there are two broad categories of loyalty oaths. The first is "disclaimer oaths," in which people are told to certify that they are not or have not been members of certain groups (the Communist Party is cited in many oaths of the Cold War). The second category is the "non-binding affirmative" oath, in which people are asked to pledge loyalty to the Constitution, to the United States, etc.

The Supreme Court barred the first category in 1967 in a case called Keyishian v. Board of Regents, in which faculty members at the State University of New York challenged an oath that required them to state that they had never been members of the Communist Party and that, if they had been, they had informed the university president. In rejecting the New York oath, the Supreme Court specifically cited the values of academic freedom, and the dangers posed by creating any "orthodoxy" requirement for teaching. Olivas noted that this type of oath "assumes your membership in a group compromises your ability to do public work," without any link established between group membership, belief, and an employee's actions or abilities.

In a series of other court rulings, however, affirmative loyalty oaths have been upheld, Olivas noted. "It's surprising that they are still used," he said, adding that he believes many places that still have them on the books ignore the requirement. However, courts have not rejected them.

To sign a disclaimer oath when one has been in the Communist Party posed a significant danger to a faculty member, who might be fired or indicted for lying on a state form. In contrast, someone who signs the kind of oath California still has while "crossing your fingers" does not face the same sort of material danger, Olivas said. "That doesn't mean it's not offensive to people who care," he said. It's just that "there are fig leaves available."

While the courts may consider these oaths constitutional, he added, that doesn't make them right. Said Olivas: "It is problematic that what is a coercive, completely unnecessary oath would be used as a condition for employment."

 

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