Loyalty Oaths

In the aftermath of World War II, amid concerns about communist infiltration in the United States, employers in government, education, and other arenas began to make use of Loyalty Oaths, a widespread practice with an extensive history tracing its origins to the ancient world. Educators and other public employees in the government and educational systems were required to sign such oaths as a condition of employment. As oaths became increasingly far reaching in nature, some forbade educators from joining specified organizations, while others required individuals to attest that they did not engage in specified (typically political) activities or belong to particular organizations. Although such activities and memberships would not ordinarily make applicants subject to criminal sanctions, failure to attest to the required oaths resulted in the applicants being rendered ineligible for teaching (Hyman, 1959).
Black’s Law Dictionary describes an oath as “Any form of attestation by which a person signifies that he is bound in conscience to perform an act faithfully and truthfully.” Black’s also defines a loyalty oath as
an oath by which a person promises and binds himself to bear true allegiance to a particular sovereign or government and to support its Constitution, administered generally to certain public officers or officials, to members of the armed services, to attorneys on being admitted to the bar, to aliens applying for naturalization. (p. 966)
Article II, Section 1 of the U.S. Constitution, for example, states that the president, “before he enter on the execution of his office, he shall take the following oath or affirmation,” and Article VI addresses office holders who “shall be bound by oath or affirmation, to support this Constitution.” Likewise, personnel in higher education have been asked to sign Loyalty Oaths that have often been challenged, with mixed results. In light of the role that Loyalty Oaths continue to play, this entry examines the history of Loyalty Oaths in American higher education, including cases from the world of K–12 schooling because of the precedential role that these disputes played in reviewing the constitutionality of such affirmations.
As Loyalty Oaths proliferated in post–World War II America, litigation began to emerge over their constitutionality. Wieman v. Updegraff (1952) arose when the state legislature in Oklahoma enacted a statute requiring state employees to take an oath affirming that they were not, nor had they been in the preceding five years, members of organizations that were named on the U.S. attorney general’s list of “communist” or “subversive” groups. After a group of employees refused to take the oath, the Supreme Court struck down the law as unconstitutional. The Court held that the statute violated the Fourteenth Amendment, because its indiscriminate classification of innocent persons without their full knowledge of whether their activities may have been against the law when they engaged in the conduct contravened their right to due process.
Adler v. Board of Education of New York City (1952), which reached the opposite outcome from Wieman, was litigated in a K–12 setting. Adler involved a statute that while, like Sweezy (see below), not requiring a loyalty oath per se, was designed to implement and enforce older laws to the same effect. Under the new law, educators who were members of subversive organizations were disqualified from working in public schools. In upholding the statute, the Supreme Court found that there was “no constitutional infirmity” in its wording that would have rendered educators in public school ineligible to work if they belonged to organizations that advocated the overthrow of the government by force. The Court decided that the law was constitutional because it did not limit the freedom of speech or assembly of the plaintiffs insofar as once they were notified of the statutory requirements, they had the choice of retaining their memberships in the organizations or discontinuing their jobs as public employees.
In a second case from New York City, a faculty member at a public college filed suit after he was dismissed for refusing to answer questions from a federal legislative committee about his communist activities because of his fear of self-incrimination. In Slochower v. Board of Education (1956), the Supreme Court maintained that because such a requirement would have essentially eviscerated the privilege against self-incrimination and was squarely within the prohibition that it established in Wieman, it was unconstitutional.
Sweezy v. New Hampshire (1957) involved a faculty member’s challenge of a contempt conviction for refusing to respond to inquiries about his knowledge of political parties and their members. In a case that did not concern a loyalty oath per se, the Supreme Court thus invalidated the conviction on the basis that the questions that he refused to answer violated his rights to Academic freedom and political expression. Shelton v. Tucker (1960) dealt with a law from Arkansas that required educators in public institutions, including faculty at colleges and universities, to file annual affidavits listing the organizations they had belonged to or contributed to within the past five years. The Contracts of educators who refused to file the affidavits were not renewed. In invalidating the statute, the Supreme Court ruled that while state officials could investigate the competence and experience of the educators that they hired, the statute unconstitutionally impaired the rights of employees both to free association and freedom of speech.
In Cramp v. Board of Public Instruction (1961), a teacher from Florida who refused to sign an oath nine years after he was hired filed suit when his action led to his dismissal from his job. While recognizing the right of states to expect loyalty from their employees, the Supreme Court invalidated the underlying statute for vagueness and for being overly broad, because it failed to describe the forbidden behavior adequately.
In 1932, Washington State enacted a law requiring individuals who applied for teaching licenses or license renewals to swear an oath respecting the American flag and pledging their allegiance to the United States. A 1955 law required state employees to swear that they were not subversive persons or member of the Communist Party or subversive organizations. Teachers, other public employees, and students subsequently filed suit, challenging the constitutionality of the law. In Baggett v. Bullitt (1964), the Supreme Court vitiated the statutes that authorized both oaths as unconstitutional, because they were so vague that individuals had to guess as to their meanings and whether they complied with the laws.
Elfbrandt v. Russell (1966), involving an oath not unlike the one in Adler, concerned a challenge to a statute that required individuals to take a loyalty oath and that denied public employment to those who ever belonged to or were associated with organizations with unlawful ends, even if individuals were unaware of what the group believed in or whether they actually subscribed to those beliefs. The Supreme Court observed that the statute was unconstitutional to the extent that the Court was convinced that the law was based on the impermissible inference that individuals necessarily shared the unlawful goals of organizations to which they belonged.
Keyishian v. Board of Regents of the State of New York (1967) involved litigation by faculty members who challenged their loss of employment for refusing to sign an oath stating that they were not members of the Communist Party (O’Neill, 2008). The Supreme Court ruled that the statute was unconstitutionally vague, not only because it lacked objective measures to evaluate the actions of individuals but also because it unlawfully abridged the faculty members’ right to freedom of association.
Conversely, a year later, in another case from New York, the Supreme Court reached the opposite result in summarily affirming an order of a federal trial court. In Knight v. Board of Regents of the University of the State of New York (1967, 1968), the Court upheld an oath requiring employees to support the federal and state constitutions in performing their duties. The trial court was of the opinion that the oath passed constitutional muster insofar as it neither placed restrictions on political or philosophical expressions nor was it impermissibly vague.
In the first of two cases relying on Knight, the Supreme Court upheld a similar statute from Florida in Connell v. Higginbotham (1971). The Court pointed out that the statute was constitutional, because it did not treat state employees any differently from federal employees. In Biklen v. Board of Education (1972), the Court essentially upheld the constitutionality of the oath from Knight in the face of a challenge from a teacher who objected for religious reasons. The Court affirmed that because the teacher had the opportunity to take the oath and keep her job, she was not entitled to a hearing before officials terminated her employment contract. In the same year, in Cole v. Richardson (1972), the Court upheld a similar oath from Massachusetts. According to the Court, the statute was constitutional, because wording that required individuals to uphold and defend the federal and commonwealth constitutions from being overthrown violently did not violate the First Amendment speech or Fourteenth Amendment Due Process Rights of public employees.
Disagreements over Loyalty Oaths continue to generate controversy. In a 2008 incident that did not involve litigation, a mathematics teacher at California State University–Hayward refused, on the basis that it violated her Quaker religious beliefs against bearing arms, to sign an oath that she would “support and defend” the U.S. and California constitutions against their enemies. University officials refused to allow her to modify the language to state that she would do so “nonviolently.” She was fired for her refusal to sign but was later reinstated (Hendricks, 2008). In allowing the faculty member to return to work, university officials cited a 1946 U.S. Supreme Court case affirming that public employees need not violate their religious beliefs in their defense of the government and noted that they had never intended to force the employee to violate her religious beliefs by engaging in acts of violence.

See also Keyishian v. Board of Regents of the University of the State of New York
Further Readings
Black, H. C. (1979). Black’s law dictionary (5th ed.). St. Paul, MN: West.
Euben, D. R. (2001). Legal watch: Academic freedom, Loyalty Oaths, and diversity in academe. Retrieved April 27, 2009, from http://www.aaup.org/AAUP/ pubsres/academe/2001/MJ/Cols/lw.htm
Hendricks, T. (2008, March 8). Pacifist Cal State teacher gets job back. San Francisco Chronicle, p. B8. Retrieved April 27, 2009, from http://www.sfgate .com/cgi-bin/article.cgi?f=/c/a/2008/03/08/ BADRVG6CI.DTL
Hyman, H. M. (1959). To try men’s souls: Loyalty Oaths in American history. Berkeley: University of California Press.
O’Neill, R. M. (2008). The story of Keyishian v. Board of Regents: Loyalty Oaths, Academic freedom and free speech in the university community. In M. A. Olivas & R. G. Olivas (Eds.), Education law stories (pp. 285–302). New York: Foundation Press.
Schrecker, E. (1999, October 7). Political tests for professors: Academic freedom during the McCarthy years. Talk delivered as part of the University Loyalty Oath: A 50th Anniversary Perspective Symposium, University of California at Berkeley. Retrieved April 27, 2009, from http://sunsite.berkeley.edu/uchistory/ archives_exhibits/loyaltyoath/symposium/schrecker.html
Legal Citations
Adler v. Board of Education of the City of New York, 342 U.S. 485 (1952).
Baggett v. Bullitt, 377 U.S. 360 (1964).
Biklen v. Board of Education, 406 U.S. 951 (1972).
Cole v. Richardson, 405 U.S. 676 (1972).
Connell v. Higginbotham, 403 U.S. 207 (1971).
Cramp v. Board of Public Instruction, 368 U.S. 278 (1961).
Elfbrandt v. Russell, 384 U.S. 11 (1966).
Keyishian v. Board of Regents of the University of the State of New York, 385 U.S. 589 (1967).
Knight v. Board of Regents of the University of the State of New York, 269 F. Supp. 339 (S.D.N.Y. 1967), aff’d, 390 U.S. 36 (1968).
Shelton v. Tucker, 364 U.S. 479 (1960).
Slochower v. Board of Higher Education of New York City, 350 U.S. 551 (1956).
Sweezy v. New Hampshire, 354 U.S. 234 (1957), reh’g denied, 355 U.S. 852 (1957).
Wieman v. Updegraff, 344 U.S. 183 (1952).