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 [Page 305]act faithfully and truthfully.” Black's also defines a loyalty oath as

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.

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