March 3

A Loyalty Oath Firing in 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.

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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.”

— Scott Jaschik

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Comments

The same held true when I worked in Nevada. System lawyers made it extraordinarily clear: Sign the oath or you don’t work here. I’m thinking though that anyone looking to overthrow the government would be the first to avoid suspicion by signing. So I’m guessing this instructor is ok.

thehrguy, at 8:25 am EST on March 3, 2008

Isn’t California the same state that sent Japanese-Americans to interrment camps during WWII? I used to work at a Cal State institution and thought the oath requirement was not only arcane but wasted time, paper and ink.

JP, at 8:40 am EST on March 3, 2008

The state of Florida requires these oaths, too. I wonder how many states require vs don’t require loyalty oaths?

pauldom, at 10:05 am EST on March 3, 2008

Federal, not State

JP — the federal government sent American citizens of Japanese decent to internment camps in the 40s. It was not a state action.

RG, at 10:30 am EST on March 3, 2008

Loyalty Oaths

I would be happy to sign a loyalty oath. But, not until the person requiring me to sign the oath signs MY oath, whereby he swears he will not commit any indecent acts with minors.

Peter Wolfe, Professor of Mathematics at University of Maryland, at 10:50 am EST on March 3, 2008

loyalty to what?

Here we go again. “Year of the Oath” revisited.

Interesting though, that the oath is to the Constitution and not to any specific govermental iteration of whatever party. Could this not lead to conflicts between a given current government’s actions and one’s oath to the US Constitution? Then what? FBI in the classrooms again? Patriot Acts? Unlawful spying? Data mining? Heavens, what a tangle.

Theron, at 11:15 am EST on March 3, 2008

the law is an ass

I had to sign the same loyalty oath as did hrguy when I first started teaching in Nevada. I don’t teach there anymore. I don’t know what the point of these things are, giving them a reason to fire people if they behave in a disloyal manner, even if the so-called disloyalty is constitutionally protected? As my subject line notes, just because something is legal hardly makes it right or moral.

Dickens said it best in Oliver Twist: “If the law supposes that,” said Mr. Bumble,… “the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.” If only school administrators and legislators would open their eyes.

bradley bleck, instructor at Spokane Falls CC, at 11:15 am EST on March 3, 2008

loyalty oaths

Applicants for U.S. visas used to have to sign a declaration that they would not attempt to overthrow the U.S. government by force. One wonders, how many potential visitors with just that intention muttered ‘curses — I cannot tell a lie’ and decided not to go?

Graham Richards, Dr, at 11:40 am EST on March 3, 2008

CA Constitution

This isn’t a Cal State issue: the oath is required of all CA public employees and office holders, and its wording is dictated in Article XX section 3 of the CA Constitution, http://www.leginfo.ca.gov/.const/.article_20

I would be very pleased to see this oath vanish, either through an amendment to the CA Constitution or through US Supreme Court action, but it seems unreasonable to expect that human resources staff on a Cal State campus will unilaterally agree to set aside a constitutional mandate. The instructor is the one who has standing to sue in federal court. Alas, the current Supreme Court is not likely to rule in her favor.

astroprof, at 11:40 am EST on March 3, 2008

and then what?

If she signs the oath/affirmation, she obliges herself to defend the US/California constitutions against the domestic enemies who continue to require these oaths.

Eric, at 12:15 pm EST on March 3, 2008

I had to sign one of these in my state, too. I giggled when I thought of the governor calling up the state’s professors to defend the constitution from enemies. “Quick, deploy your writing and lecturing powers! Perhaps we can lull them to sleep.”

Evan, at 1:05 pm EST on March 3, 2008

Interesting — that “oath” is practically identical, excepting the specific to California stuff and the mental reservations part, to the oath every single member of the US Military takes when they enlist/are commissioned.

I would guess it’s even closer to the one that members of the California National Guard take.

It’s not something I would expect a college professor to sign... or for that matter, in this day and age to follow.

Jeff, at 2:35 pm EST on March 3, 2008

Huh!!!

TO: Scott JaschikRE: Unnecessary??!?!??!

“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.” — Scott Jaschik, citing ‘Olivas’

Funny think that.

The ‘oath’ you cite is almost identical to the one I took almost 40 years ago when I took on my commission as an officer in the Armed Forces of the United States.

And, I think it bears an even closer resemblance to the one the President of the United States takes, upon assuming the office.

So....

....tell US again how it is ‘unnecessary’ as part of a ‘job’ requirement?

Regards,

Chuck(le)

Check Pelto, at 3:20 pm EST on March 3, 2008

The Easter Bunny doesn’t do oaths

I guess working at a Catholic university has it’s perks after all. (Besides getting Good Friday and “Easter Monday” as paid holidays... and the constant reminder of my original sin.)

Cb, University of St. Thomas, at 4:00 pm EST on March 3, 2008

Quakers are indeed a pacifist religion, which is pathetic since politically influential pacifism, early on, has usually lead to bigger buildups to wars, and thus much more deadly wars that could have been nipped in the bud, early on.

The oath says nothing about *violent* defense of the Constitution. That’s part of being drafted or enlisting in the armed forces, which being a Quaker makes it a lot easier to be assigned a “conscientious objector” status post, even though the Quaker founded ‘Amnesty International’ has been remarkably silent about how violently, in a truly barbaric sense, most of the Middle East is towards females. Perhaps our female math professor should move out of this stinking country of ours to Saudi Arabia. Oh, they don’t *have* female math professors there, not least because females are not allowed to drive or go about unescorted or they will be arrested. Sorry. Try China.

“War is an ugly thing, but not the ugliest of things. The decayed and degraded state of moral and patriotic feeling, which thinks that nothing is worth war, is much worse. The person who has nothing for which he is willing to fight, nothing which is more important than his own personal safety, is a miserable creature and has no chance of being free unless made and kept so by the exertions of better men than himself.” — John Stuart Mill

NikFromNYC, at 4:00 pm EST on March 3, 2008

The Feds Did It

JP, the internment of west coast Japanese (i.e., those in Washington, Oregon, California and the western half of Arizona) was an action taken by Democratic President Rooseveldt. It was not a state action.

The loyalty oath cited sounds very much like the one I had to take for the only government job I ever had: member of the US Army. Insertion of the word “nonviolently” would clearly have been a non-qualifier while the oath I took was clearly a bona fide occupational qualification.

Should the teacher in question ever be asked to do something for her country which involves violence, isn’t she free at that time to declare conscientious objector status (under which she would be expected to perform government service of a non-violent nature).

John C. Gardner, at 4:15 pm EST on March 3, 2008

End Loyalty Oaths

These loyalty oaths are sickening and should be immediately eliminated. One thing that makes them particularly terrible: universities are global institutions that welcome scholars from around the world. Does it make any sense for a foreign citizen to swear allegiance to the United States? Would we expect any American teaching overseas to swear allegiance to the government there?

John K. Wilson, collegefreedom.org, at 5:05 pm EST on March 3, 2008

of course it is silly....

....the professoriate is loyal to no one other than itself. Academic freedom, tenure, and salary benefits. Neither the US nor the CA Constitutions provide for any of these, so why Prof Pinko care?

Well, I suppose one might argue, that academic freedom only exists in a society with freedoms of speech and association...both guaranteed in the Bill of Rights which, as I recall, are the first 10 amendments to the Constitution.

tod, at 5:05 pm EST on March 3, 2008

Purpose of the Oath

Military folks: Thank you for your service.

Now.

Can someone please explain to me what possible good it does to have a schoolteacher sign such an oath?

Bob, at 6:35 pm EST on March 3, 2008

The oath says, “I take this obligation freely...", yet they fire you if you don’t sign it. Doesn’t sound like “freely” to me.

I never had to sign an oath when I worked for the state of Tennessee in the 1970’s.

DADvocate, at 6:35 pm EST on March 3, 2008

Some corrections and observations

Since I was involved in a fight to overturn an earlier California loyalty oath, and since I’m finishing up a biography of Professor George R. Stewart, I’d like to put my two cents worth in.

First, the internment, although the result of an unconstitutional law signed by Roosevelt, was actually not a federal law. There was no relocation in Hawaii, the only US territory that suffered a major attack. The real reason for the California relocation — and this is from a professor of mine who taught a few decades ago at San Francisco State, and who served as a young, idealistic, Congressman during WW II — is that a powerful special interest, who wanted to grow his bank, wanted to force the Japanese from their hard-earned farms and other real estate so his bank could buy the property at fire sale prices. The professor/Congressman refused to support relocation, so the founder and president of the bank confronted him in person and told him that if he did not support the law, he would not get re-elected. He was not re-elected. The bank did buy the farms and urban real estate very cheaply (except in some areas, like Arroyo Grande, California, where local non-Japanese citizens held the land in trust for those illegally relocated). As a result, it became the largest bank in the world, and is now one of the largest farmers in this state. So that’s the real story, as told by one who was involved. (My family has been in the state since just after the Civil War, and we know a lot about such dealings in the history of the place — most of which never get into history courses.)

Now: My oath. In 1967, I refused to sign the rather crappy and unAmerican loyalty oath required by, Max Rafferty, a right-wing southerner who managed to somehow become the State Superintendent of Public Instruction. Teachers were supposed to swear to teach “respect for law and order, and reverence for the flag” or some such phraseology. I signed the oath, but wrote a short essay explaining that only just law and order deserved respect, among other things, and they denied my credential. San Francisco State took the case to court for its graduates. (I chose not to be included in the case; I was driving a truck, and assumed that, not teaching, was going to be my career.)

When the time came for the state attorney general to defend the oath, the ag stood up, said “We agree with SFSU that this is an illegal oath,” and sat down; and the oath was history.

Superintendent Rafferty’s crew still refused to send my credential, stating that they had not been officially informed of the decision. So I wrote to the State Senate Majority Leader, George Moscone, who made sure that Rafferty’s crew sent the oath post haste. Rafferty retired, returned to old Dixie, and died not long after.

I also refused to sign the Levering Act Oath during my Army pre-induction physical at the Oakland Army Terminal. The oath had been declared unconstitutional, and I told the rather slow-witted soldier that I would not sign an illegal document. He said, “Hey, man — we all know it’s illegal, but just sign it.” After I had gone around with him for a couple of hours, I agreed to sign it if I could include an essay explaining why it was illegal, and why it — like most of the military actions some responders to this story seem to be all teary-eyed over — violated both constitutional law and American ethics. I kept the troops there, and the Oakland Army Terminal open, until 9pm. Much was made of protests that closed the Terminal during that last illegal war; but no one has ever told the story of how at least one person kept it open during that illegal war — and kept a couple of misguided soldiers from getting to a party that night.

Later, I was investigated by army intelligence — in this case, by two people who disproved the old statement that army intelligence is an oxymoron. I still have the letter which proclaims that I am of unquestioned loyalty. Which I am, and which my family has been since one of our shirttail ancestors stood up in church and said, “I know not what course others may take; but as for me, give me liberty or give me death.” W

What I did, with the illegal Rafferty California oath and the illegal Levering Act Army oath, I did for Patrick Henry, and for some very fine teachers of mine who were forced from the classroom for encouraging people to resist these restrictions on freedom of thought in the classroom.

I also did it in honor of Professor George R. Stewart, who wrote the classic work, referred to an earlier post, The Year Of The Oath. It is still the best work ever written on how we all must go up the hill and against the guns if we are to keep the freedoms which others gave us. (My biography of Dr. Stewart has several chapters about this topic.)

And, finally, I did what I did — and I write this — to encourage ALL of you who are committed to intellectual freedom to resist with all you courage and will such evil attempts to take away our liberty.

Donald Scott, On Internment and Loyalty Oaths, at 9:20 pm EST on March 3, 2008

I don’t have a problem with loyalty oaths—no government agency should be compelled to hire or retain any individual who seeks the destruction of that government.

Some say this oath is legal, but not right. That sounds exactly like the CTA’s extorting money from me each month, since California is a “fair share” state.

Even though these two topics aren’t related, let’s link them and fix them both. I’d agree to getting rid of loyalty oaths if the rest of you would agree to let me keep my hard-earned money and not give it to a non-governmental agency (CTA) with which I don’t agree.

Deal?

Darren, at 10:35 pm EST on March 3, 2008

With Diane Feinstein’s husband protecting the University of California from its administrators and California State University protecting its citizens from a Quaker girl wanting to teach mathematics, we might all sleep more securely if they built a fence around California instead of across the Mexican border. I hope lunatic paranoia isn’t contagious to those downwind. When i read this in March, I just know the April Fools’ Day issue has be a hoot. Bring it on!

Prof Ed, at 5:10 am EST on March 4, 2008

I teach at another campus of the CSU in the Bay Area and when i was asked to sign this ridiculous thing when I got my tenure track position a few years ago, I wrote “signed under duress” below my signature and date. The HR staffer just rolled her eyes and filed it. So add to your list that the CSU’s policies aren’t applied equally across the 23 campuses.

CSU Prof, at 11:45 am EST on March 4, 2008

Denigrating pacifism

I write in response to NikfromNYC:It is patently unfair to suggest that pacifists value their personal safety above all. To resist violence with non-violence at the risk of one’s own safety and security is an act of extreme courage, not an act of narcissitic self-interest. Although I am neither a pacifist nor a Quaker, I highly respect anyone who takes a non-violent stand on a matter of deeply held principle and religious conviction. In an era when the civil liberties of all of us are under fire, we would do well to support those who have the courage to risk acts of resistance.

Carolyn, at 12:05 pm EST on March 4, 2008

Loyalty to an Employer??

CSU Prof:

Your including a comment after having signed is exactly what the University allowed the teacher to do. She could have signed it and included her own statement, as you did. I think that is applied consistently.

If a person wants to work for an employer who pays him or her with monies collected from all its citizens, it is not a crime to require that person to sign a loyalty oath. Moreover, if a U.S. faculty member went overseas to work for another government I would not object to that government’s requiring the person to sign a loyalty oath, as well.

The teacher is not required to sign the oath. If she decides not to she just does not get to work for that government employer. She can go somewhere else. If she feels so strongly that she has been agrieved she should file a law suit.

HJSW, at 9:00 pm EST on March 4, 2008

“The teacher is not required to sign the oath. If she decides not to she just does not get to work for that government employer.”

I’m not required to sign Verizon’s cell phone contract either. If I decide not to use them, I can just get service from another company. Except, my friend, that they all have virtually identical contracts. That’s the problem with adhesion contracts. At some point, you really don’t have a choice. I’d be interested in seeing what this teacher’s other options were. Teach at a private school? Teach in another state? She was not required to sign the oath, true, but as a practical matter, how much choice did she have?

“If she feels so strongly that she has been aggrieved she should file a law suit.”

I am glad she brought this ridiculous practice to national attention through the media before filing suit (if she intends to). Gets rid of the possibility of a quiet settlement and a sweep under the rug.

Bob, at 6:15 pm EST on March 5, 2008

Levering Act Oath

I did a Google search on the Levering Act Oath but didn’t find information on the wording of the oath and when it was thrown out. I guess I should look for the book.

I’m reminded of the story by Feynman of his agreeing to a lecture at a local high school as long as he didn’t have to sign his name more than 20 or 25 times. The fellow asking him to speak laughingly thought that would be easy to accomplish. However after the talk as Feynman was presented with form after form (including loyalty oaths) the number quickly mounted until finally the limit was reached on the next to the last form which was the form for him to be paid. Feynman refused to sign and was willing to let it drop and not accept his fee. However in order to not accept the fee there was a completely different form he was supposed to sign!

This is a tangent I know. Forgive me.

Fred, at 7:20 pm EST on March 5, 2008

Loyalty oath

I had to sign a loyalty oath as an adjunct in Georgia. I asked the Human Resources Manager if swearing not to “over throw the state of Georgia” meant that I had to, always, vote for the incumbent. The office personell did not know the answer.

Carol Linskey, ms at BU, at 3:40 pm EDT on March 24, 2008