Loyalty Oath Compromise

While many people assume loyalty oaths died out with the McCarthy era, they remain on the books in some states -- and after refusal to sign an oath cost two California State University instructors their jobs, civil liberties and faculty groups started to focus more on the issue. On Monday, People for the American Way and the university system announced a compromise that will restore employment to one of the employees and set a precedent that should theoretically help others avoid losing jobs.

Under the compromise, Wendy Gonaver will be permitted to attach an explanatory statement to the state's loyalty oath, and the system indicated it would be open to having such statements used by others too (provided they don't undercut the oath). In addition, the agreement says that Gonaver will be assigned two classes in American studies and women's studies in the fall 2008 semester -- assignments she would not have been able to obtain without a resolution of the oath dispute.

The additional statement that Gonaver will be permitted to sign and attach states: "I support and respect the United States Constitution and the California Constitution, and I fully intend to abide by the oath that I have been required to sign as a condition of my employment by California State University (“CSU”). As an American, I do object, however, to being compelled to sign such an oath, and want to state my belief that such compulsion violates my right to freedom of speech. And, as a Quaker, in order to sign the oath in good conscience, I must also state that I do not promise or undertake to bear arms or otherwise engage in violence, and I have been assured by CSU that my oath will not be construed to require me to do so."

The state's loyalty oath, required of all 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.”

Generally, there are two kinds of loyalty oaths: "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 U.S. 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. But a series of other court rulings upheld affirmative loyalty oaths, like the one in California.

In states where loyalty oaths remain on the books, many aren't enforced. And after the incidents came to light involving Cal State employees, others who work for education agencies in the state said that they had been permitted to make minor alterations or to append statements to the oath.

California State's tougher approach became known in February when Marianne Kearney-Brown, an instructor and graduate student at the system's East Bay campus, tried to add the word “nonviolently” before the phrase “support and defend the Constitution of the United States.” She was told this was unacceptable and was fired from her instructor's job. She said that she needed to insert the word to uphold her Quaker beliefs. Eventually, the university agreed to rehire her if she would sign the oath, unaltered, but with an attached statement: "Signing the oath does not carry with it any obligation or requirement that public employees bear arms or otherwise engage in violence."

In May, the Los Angeles Times reported on Wendy Gonaver's case and several others over the years, and that attracted the interest of academic and civil liberties groups, such as the American Association of University Professors.

People for the American Way then said it would take up Gonaver's case. The joint statement from that group and Cal State said that the university system was open to the use of explanatory statements to make people with some beliefs more comfortable signing.

"CSU is committed to working with individual employees to accommodate their religious beliefs in order to allow them to sign the oath," said Christine Helwick, Cal State's general counsel, in the announcement. "If an explanatory statement is needed to accomplish this, CSU must ensure that any such statement does not undermine or qualify the oath. In this case, we are pleased that this dispute ended in a positive resolution, and that we were able to work through the process together."