Last August, California State University-Fullerton fired a lecturer for refusing to sign a loyalty oath in which she would have pledged to "support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic."
Wendy Gonaver, who had recently been appointed to teach American studies at CSU-Fullerton, expressed her disagreement with this part of the oath. As a Quaker and lifelong pacifist, she objected to its violent overtones. After all, a plain reading of it suggests that one is agreeing to take up arms against any "enemies" who present themselves. Gonaver therefore agreed to sign the oath if she were permitted to attach a brief statement expressing her personal views on the matter and her belief in nonviolence. However, the university refused to allow her to do so, claiming that such an accomodation would be contrary to California law. It insisted that Gonaver sign the oath as it was written and, when she refused, summarily fired her.
This incident is troubling in the first place because loyalty oaths have no rightful place on a university campus. The Supreme Court indicated as much in Keyishian v. Board of Regents, 385 U.S. 589 (1967). In that landmark decision, the Court invalidated a state university’s requirement, upon pain of dismissal, that each of its professors sign a certificate stating that he or she was not a Communist and would inform the university’s president if he or she had at some previous time been a Communist. The Court declared that "the stifling effect on the academic mind from curtailing freedom of association in such a manner is manifest." In other words, the imposition of the loyalty oath, rather than narrowly targeting truly subversive activity which posed a threat to the U.S. government, threatened to punish individuals for their political associations and beliefs. As such, the oath violated the professors’ constitutional freedoms and was struck down by the Court.
Given the Court’s stance on making loyalty oaths a requirement for teaching at a state institution, colleges and universities ought to be know better than to attempt to coerce professors and lecturers into espousing that which they do not actually believe. This principle becomes even clearer when one considers the seminal freedom-of-conscience cases of West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) and Wooley v. Maynard, 430 U.S. 705 (1977). Barnette arose from a religious objection to mandatory student participation in the practice of saluting the American flag and reciting the Pledge of Allegiance in public schools. The Court held that forcing students to participate violated their First Amendment right to private conscience, and Justice Robert H. Jackson famously wrote in his majority opinion, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein" (emphasis added). In Wooley, the Court reviewed a New Hampshire statute requiring all motor vehicles to bear license plates containing the state motto, "Live Free or Die." In striking down the statute, the Court held that the state may not, consistent with the First Amendment, force an individual to be an instrument for advocating and disseminating an ideological point of view with which he or she disagrees. The Barnette and Wooley decisions affirmed the right of Americans to be free from coerced beliefs and invasions upon their private consciences. They therefore counsel strongly against the use of loyalty oaths in public employment and education.
Secondly, the loyalty oath at issue here is too broad by its terms and requires too much from those who would sign it. The oath, which can be found in the California state Constitution (Article XX, section 3) and is required of all public employees in the state, reads as follows:
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.
There would be no problem if California and its state universities simply required employees to swear or affirm that they will uphold the state Constitution as well as the federal Constitution. Such a requirement would be perfectly acceptable given that state employees are obliged to uphold the Constitution anyway (indeed, we wish more administrators at public colleges and universities would take their duties under the First Amendment more seriously). However, to go beyond this and require state employees to take up arms if necessary to defend the state against foreign and domestic enemies infringes heavily upon individuals’ private beliefs and religious practices and obligations. That simply cannot be tolerated, no matter how laudable the intentions of the state may be.
Moreover, the case law on the state of California’s loyalty oath indicates that Gonaver should be allowed to add a personal statement expressing her nonviolent beliefs. In Smith v. County Engineer of San Diego County, 266 Cal. App. 2d 645 (1968), the Court of Appeal of California considered an individual’s addendum to the oath which read as follows: "I take this oath, pledging my loyalty and allegiance to my country, but declaring my supreme allegiance to the Lord Jesus Christ Whom Almighty God has appointed ruler of Nations, and expressing my dissent from the failure of the Constitution to recognize Christ and to acknowledge the Divine institution of civil government." Firstly, the court characterized the purpose served by the loyalty oath as demonstrating "good faith willingness to support the government in its purposes" and "commitment to the sovereign power of our national and state governments as they exist under organic law-the respective Constitutions." The court then held that plaintiff could not add his personal statement to the oath, reasoning that the statement "gratuitously inject[ed] his religious beliefs into the government process" and "[made] equivocal the essential oath preceding his personal statement." In other words, plaintiff’s statement essentially undercut the core meaning of the oath and made uncertain his pledge to support and uphold the state and federal Constitutions. The Smith case therefore sets a high bar for the type of personal expression which would invalidate one’s loyalty oath.
By contrast, Gonaver’s statement would not have the same effect, as she has given no indication that she would be unwilling to uphold state and federal Constitutions. Rather, she simply "wanted it on record that I am a pacifist" and wished to express her objection to the oath’s infringement upon the beliefs of religious pacifists. Significantly, her position is supported by other state institutions such as the University of California, which allows employees to attach an addendum to the oath as long as it does not negate the oath. UC even provides examples of such addendums, such as "This is not a promise to take up arms in contravention of my religious beliefs."
CSU-Fullerston, however, has taken a much harder line with Gonaver. This is all the more baffling in light of a similar episode at California State University-East Bay in February of this year. Marianne Kearney-Brown, who had been hired to teach math at the school, was fired for refusing to sign the oath unamended and instead inserting "nonviolently" in front of the word "support," crossing out the word "swear," and circling the word "affirm." CSU-East Bay soon thereafter reversed course and reinstated Kearney-Brown, who, as a Quaker, had objected to the oath for essentially the same reasons as Gonaver. In response to the case, the state’s Attorney General’s office had drafted a statement saying that the oath did not commit employees to take up arms in the country’s defense. The university allowed Kearney-Brown to attach this statement, thereby removing her objections to the oath.
CSU-Fullerton would do well to learn from the East Bay case. Thus far, it has stood its ground, declaring that it is not affected by how other public institutions handle the oath and that allowing Gonaver to attach her statement would violate state law. It has maintained that CSU-East Bay’s decision to allow Kearney-Brown to attach the Attorney General statement does not affect its stance because the Attorney General statement is different from an addendum. Questionable logic, it would seem.
It will be interesting to see how Gonaver’s case is resolved. The imposition of a loyalty oath on a college campus is troubling in itself, and the terms of the oath at issue here are clearly flawed in going beyond a basic requirement to uphold the state and federal Constitutions. CSU-Fullerton has caused further damage by taking such a hard line towards Gonaver’s request to add a personal statement. It is time for the university to admit its mistake and reverse course.