Loyalty to whom?
A Nevada teacher objects to an oath that requires loyalty to government, not to the constitution
Last Thursday, high-school teacher Ted Scott arrived at the Truckee Meadows Community College office at Meadowood Mall. He’s an experienced high-school teacher and also teaches a TMCC class.
So he was taken aback when he was told to swear a loyalty oath: “Raise your right hand and repeat after me, then sign your name and teaching position on the form and enter your name in a Notary’s log.”
Scott’s idea was fairly simple—put in a little time teaching an evening woodworking class. The TMCC class meets one night a week at Spanish Springs High School. It’s described in the course catalog as offering “safety, power tools, joinery and finishing techniques.”
“I was required to repeat out loud and sign a loyalty oath or I would not be able to teach. … I was told that if I didn’t like it, take it up with the board, whatever that means,” Scott says.
He further referred to “the creepy slime balls that are accusing me and other teachers of being un-American or not pro-American and not supporting our government and colleges.”
It turns out that the slime balls are Nevada’s founding fathers. At a time, 1864, when Nevada was highly sensitive about the loyalty to the Union of both members of the Church of Jesus Christ of Latter Days Saints and of Confederate sympathizers, the delegates to Nevada’s second constitutional convention wrote a section requiring that “all Professors in said University, or Teachers in said Schools of whatever grade, shall be required to take and subscribe to the oath as prescribed in Article Fifteenth of this Constitution.”
Nevada Territory voters approved the constitution on Sept. 7, 1864, by an 8-1 margin.
The only exceptions provided in state statutes involve non-citizens hired in a teacher shortage.
The oath reads, “I, ……………., do solemly [solemnly] swear (or affirm) that I will support, protect and defend the constitution and government of the United States, and the constitution and government of the State of Nevada, against all enemies, whether domestic or foreign, and that I will bear true faith, allegiance and loyalty to the same, any ordinance, resolution or law of any state notwithstanding, and that I will well and faithfully perform all the duties of the office of ……………, on which I am about to enter.”
The teacher can finish the oath with her or his choice of two phrases: “… under the pains and penalties of perjury” or “… so help me God.”
What is amazing is that Scott hasn’t previously encountered this oath, since it is also required of public-school teachers, and he has been a high-school teacher in the county for seven years.
Loyalty oaths have long been contentious issues. The term is often held in disrepute and used as an expletive, so little is heard of loyalty oaths anymore.
Earlier this month Saudi Arabians were forced to take an oath of loyalty to the new king, Abdullah.
A peculiar variant came earlier this year when the British Association of University Teachers voted to bar academics at two Israeli universities from professional conferences and joint research unless they took a sort of “unloyalty” oath disavowing Israeli government policies.
In the United States, loyalty oaths have been especially enforced in periods of political paranoia such as the McCarthy era in the 1950s and the “red raids” period following World War I.
President Truman imposed loyalty oaths on federal employees on March 21, 1947, which tripped the spread of such oaths through state and local governments and private businesses. Morris Brodsky, executive of Reno’s Club Cal-Neva, forced 105 employees—such atomic spy candidates as dealers, pit bosses, waiters, janitors—to sign loyalty oaths or be fired ("Joe McCarthy comes to town,” RN&R, Feb. 24, 2000).
Loyalty oaths have generated a rich lode of court opinions, none of them from Nevada. There have been occasional complaints from Nevada teachers about the oath, but none of them undertook legal action. Nor have any Nevada attorney general opinions been rendered on the subject.
However, University of Arizona law school professor Jack Chin, a loyalty oaths scholar, says the power of government to impose such oaths is well established by federal court cases—but Nevada’s oath is likely unconstitutional because it demands loyalty to the government in addition to the constitution.
“This oath presents the central difficulty with oaths: If they are mere fluff, they are meaningless and we should get rid of them, but if they have real requirements, the [U.S.] Constitution demands that those requirements be clear and constitutional,” Chin says. “The problematic part of this oath is that it seems to require loyalty to the state and federal governments, as distinguished from the constitutions.”
Chin points to the U.S. Supreme Court case of Baggett v. Bullitt, a 1964 case involving teachers at the University of Washington who were required to swear “undivided allegiance to the government of the United States.” The court ruled in an opinion written by Justice Byron White that such language would make it impossible for “the serious minded oathtaker” to join community groups or organizations that opposed policies advocated by the current government, “For if he did, he might well be accused of placing loyalty to the group above allegiance to the United States.”
That is directly relevant to Scott, who is a critic of the federal “No Child Left Behind” law. He has written, “The No Child Left Behind act is just that: an act. One of desperation and futility forced down American families’ throats and using the public school system as the scapegoat for the lack of progress.”
Chin says the Nevada oath is ripe for a court challenge.
“The ‘faith, allegiance and loyalty’ part compounds the vagueness of the oath. It is hard to imagine, for example, that a member of a political party could honestly profess true faith, allegiance and loyalty to a government that they were actively (but legally) trying to unseat. In a 1971 case, the Court held that a similar oath requirement on its face raised serious constitutional questions. So I think the prospects for a successful legal challenge are good.”
He was referring to the 1971 case Law Students Research Council v. Wadmond.
State legislators might be reluctant to seek to repeal the oath for fear of 30-second television spots questioning their loyalty, so a court challenge is probably the more fruitful route to change. Lorne Malkiewich of the Nevada Legislative Counsel Bureau says he doesn’t recall any legislative attempts to repeal the teacher oath requirement, at least in the last quarter century or so.