Roemer, William F.

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Loyalty Oath and Freedom to Teach

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Notre Dame Law ReviewVolume 28 | Issue 3 Article 45-1-1953Loyalty Oath and Freedom to TeachWilliam F. RoemerFollow this and additional works at: http://scholarship.law.nd.edu/ndlrPart of the Law CommonsThis Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by anauthorized administrator of NDLScholarship. For more information, please contact lawdr@nd.edu.Recommended CitationWilliam F. Roemer, Loyalty Oath and Freedom to Teach, 28 Notre Dame L. Rev. 364 (1953).Available at: http://scholarship.law.nd.edu/ndlr/vol28/iss3/4THE LOYALTY OATH AND FREEDOM TO TEACHIt is quite fashionable in the teaching profession to holdfor an absolute freedom to teach what you believe to be thetruth. The theory of relativity in truth has paradoxicallyspawned an absolute liberalism. The old common sense viewthat one man's freedom must allow for the freedom of hisfellow citizens somehow has come to be questioned by thisnew untouchable fetish in the faith of Stalin's fellow-travel-lers.On the face of it, academic freedom (as absolute) runshead-on into the freedom of the University, and both seem tocollide with that of the legislature.A case study of academic freedom and its limitations is tobe found in the campus conflict and legal battle that tookplace in the District Court of Appeal and the Supreme Courtof the State of California over the right of the Regents of theState University to require a "loyalty oath" of a sort as acondition precedent to employment for faculty members.The main question at issue was whether the teacher or re-search worker has both a legal and moral right (in California)to be free from interference by the university administration,the Regents, in expounding his beliefs. Once chosen andfound worthy of confidence, the teacher might well be allowedto pursue truth and teach truth as he saw it. Why should hebe singled out for suspicion and made to take an oath ofloyalty when men of other professions were not so held up tothe public as in need of the threat of dismissal in order toprevent disloyalty?When the professors at the University of California werefirst confronted with the demand that they sign an oath dis-claiming membership in a Communist party organization orgroup sympathetic to the Communist cause, many of themsuffered intense anguish and humiliation.(364)THE LOYALTY OATH AND FREEDOM TO TEACH 365The story of the debates that raged between proponents ofsigning and those who were for refusing to sign is told indetail in the book, The Year of the Oath by George R. Stew-art.'In the second chapter of this book, the author defines aca-demic freedom simply as "the freedom, within an educationalinstitution, to teach and to be taught the truth." 2Consider, at this point, that the University administrationhad doubtless become convinced of the untruth inherent inthe Communist dogma and were determined to manifesttheir concern for the teaching of the truth. The methodchosen was to question the advisability of allowing teachingwhich insinuated somehow the legitimacy of forcible over-throw of American government under present world con-ditions.The Regents of the University, together with influentialCalifornia University Alumni, believed that they were justi-fied in requiring a statement of "loyalty" from the membersof the faculty as a condition precedent to renewal of their con-tracts. The first demand in 1949 took the form of an order tosign a "loyalty oath." However, on April 21, 1950, the Regentswithdrew the requirement of the special oath and modifiedthe flat "Sign-or-get-out" edict, passing a resolution provid-ing that after July 1, 1950, the beginning date of the newacademic year, conditions precedent to employment or re-newal of employment at the University would be added tothe previous conditions attached to the contracts. Besides theexecution of the constitutional oath required of public offi-cials of the State of California, the University researchworker and teacher was to subscribe to the following terms: 3Having taken the constitutional oath of office required ofpublic officials of the State of California, I hereby formallyacknowledge my acceptance of the position and salary named,and also state that I am not a member of the Communist Party1 Garden City, N.Y.: Doubleday and Company, 1950. Pp. 156.2 STEWART, THE YEAR OF THE OATH 14 (1950).3 Id. at 145.NOTRE DAME LAWYERor any other organization which advocates the overthrow of theGovernment by force or violence, and that I have no commit-ments in conflict with my responsibilities with respect to im-partial scholarship and free pursuit of truth. I understand thatthe foregoing statement is a condition of my employment and aconsideration of payment of my salary.However, the compromise embodied in the statement ofnon-membership in a Communistic organization remainedunsatisfactory to many of the faculty. As Mr. Stewart put it,"This Is the Way It Begins" ' in a totalitarian state. The firstoath required from teachers is innocuous, "so gentle that onecan scarcely notice anything at which to take exception. Thenext oath is stronger." 'In Nazi Germany, on December 2, 1933, only ten monthsafter Hitler had seized power, the first oath was required ofcivil servants, including professors. "Thus started, the re-quirers of oaths closed in, and the second oath was demandedeight months later.... [In this one,] they were now requiredto substitute by declaring their allegiance to 'Adolf Hitler,Fuehrer.'..." 'The bravest of the non-signing professors, still protestingagainst this invasion of academic freedom as they interpretedthe condition attached to their contracts, took the matter tothe California courts and found protection in the state's con-stitutional law. A District Court of Appeal for the State ofCalifornia decided in Tolman v. Underhill,7 that the require-ment of a non-Communist oath as a condition of employmentwas invalid in California because it violated a specific pro-vision of the state constitution which prescribed the form ofoath to be given to those in "office or public trust," andspecifically provided that no other oath, declaration or testshould be required as a qualification for positions of suchtrust.84 Id. at 90.5 Ibid.6' STEWART, op. cit. supra note 2, at 91.7 229 P.(2d) 447 (Cal. App. 1951).8 CAL. CoNST. Art. XX, § 3.THE LOYALTY OATH AND FREEDOM TO TEACH 367Finally, the California Supreme Court, on October 17,1952, declared the special loyalty oath imposed by the Boardof Regents unlawful as prohibited by the state constitution.'The court declared that "... the loyalty of state employees isnot a matter as to which there may reasonably be differentstandards and different tests but is, without doubt, a subjectrequiring uniform treatment throughout the state." 10Eighteen professors who had refused to sign the oath andwho had lost their teaching positions as a result, were orderedreinstated provided that they signed the loyalty oath requiredof all employees of the State of California under the LeveringAct.(The significance of the constitutional protection and theposition of the professors as persons in "office or publictrust" was demonstrated a short time later by a decision ofthe United States Supreme Court which held another "oath"constitutional when it was to be applied to state employeeswho did not occupy positions in "office or public trust.") "The Federal Constitution does not grant teachers an un-limited freedom to teach whatsoever they please, nor does itgrant them any unqualified right to hold positions in publicschools. The cry of "thought control" does not have weightwhen the common sense of legislators and their constituentssees through the claims of subversive elements which haveinfiltrated into the public institutions. The United StatesSupreme Court, for example, recently upheld the constitu-tionality 2 of the New York Feinberg Law."3 This statutereferred to the ineligibility for employment of any personadvocating the overthrow of the government by force, vio-lence or unlawful means. In declaring the Feinberg Law con-stitutional, the Court made the distinction between the9 Tolman v. Underhill, 249 P.(2d) 280 (Cal. 1952).10 Id., 249 P.(2d) at 283."1 Garner v. Board of Public Works, 341 U.S. 716 (1951).12 Adler v. Board of Education, 342 U.S. 485 (1952).Is N.Y. EDucAxoN LAW § 3022.NOTRE DAME LAWYERconstitutional right to assemble, speak and believe, and the"right" to work for the state. It asserted that one can workfor the state only if he complies with the reasonable termslaid down by the proper authorities. The majority held thatthis statute imposed a reasonable condition of state employ-ment.IIThe professors were right. The Supreme Court of Cali-fornia so decided. The California Constitution provided thatno oath other than that required of all holders of office orpublic trust in the State of California may be demanded fromthose who teach in the state's universities.Yet, with all of that admitted, it seems that the teachers ofyouth who refuse to declare themselves publicly as non-Com-munists when they are called upon to state their attitude aremissing an opportunity to exercise their leadership.It is as if the officer-of-the-day had queried the sentinelguarding the ramparts: "Watchman, what of the night? Haveyou any notice of the enemy's position?"The teachers in our universities should be acquainted withthe position of the fifth column which is the enemy in ourmidst. They should accept the challenge of parents and Re-gents by answering a legitimate question in so important amatter as the security of our country. They accept otherconditions of employment.There is no presumption that one is a Communist in thecondition that requires denial of membership in the Com-munist Party. The Communist who swears he is not a mem-ber of the party alone has jeopardized his position and madehimself liable to prosecution as a perjurer.The oath of loyalty has been labeled an insulting limitationof academic freedom. But it is difficult to understand how ithas become so discredited. An oath to think as some commis-THE LOYALTY OATH AND FREEDOM TO TEACH 369sar dictates would certainly be such a dishonor to those madeto take it. But we can distinguish between the oath of loyaltyto our constitutional law and another oath declaring fealty toa person or party. There is a vast difference between the twooaths. The intellectual leader is rightfully expected to under-stand and explain his insight into the nature of one and theother type of oath. He, above all, is unjustified in lumpingall oaths of loyalty as of equal honor or dishonor.As to the oath that binds me to accept control over mythoughts, I am adamant. I find it odious (as to the rest of theteachers it is odious) to be told what I must think. Onlythose who have lost confidence in education and democracyabove the intellectual level of the three R's will wish toabandon intellectual freedom.The professors in the university are rightfully jealous oftheir status as guardians of the heritage of western culturein its best traditions. They deserve to be applauded for theesprit de corps which they show whenever irresponsible dema-gogues threaten to stifle their freedom to discuss and investi-gate any new theory whose truth has not been demonstratedbeyond 'reasonable doubt. But that Americans have found apracticable working philosophy of life and that it has workedin their constitutional processes is not an untested theory thatneeds to be debated, while chaos is accepted as a preferablestate of existence for ourselves and our children.Teachers believe in loyalty and they believe in academicfreedom to teach the truth. As "loyalty" to Communisticideology is a counterfeit imitation of loyalty, so academicfreedom that does not direct its energy to truth is a fraud.Consider, then, the meaning of academic freedom as ameans to its legitimate end, the common good of the organ-ized community. It is fairly well ordinated as a means for thepromotion of the general welfare in the Statement of Princi-ples underlying Academic Freedom and Tenure as stated andendorsed by the American Association of University Profes-NOTRE DAME LAWYERsors and the Association of American Colleges in 1940. Asindicated in the Association's bulletin: 14The purpose of this statement is to promote public under-standing and support of academic freedom and tenure andagreement upon procedures to assure them in colleges anduniversities. Institutions of higher education are conductedfor the common good and not to further the interest of eitherthe individual teacher or the institution as a whole. The com-mon good depends upon the free search for truth and its freeexposition.Now, one sentence in this statement can be lifted out ofthe context and distorted so as to appear to stand as a credofor subversives, viz. "The common good depends upon thefree search for truth and its free exposition." [Italics mine.]The true freedom is a means for the attainment of end.Freedom of speech is not an ultimate end in itself as if a manmight with impunity say or shout anything in any circum-stances.In one sense, the end depends upon the means instrument-ally needed for the actualization of the end. In another sense,the means must be shaped so as to accomplish the good in-tended, which is the real good in itself. The auto is a means oftransportation and money is a medium of exchange for goodsof true value. It is easy to see that my reaching a destinationdepends upon my having the auto. If my dinner is to satisfymy appetite, the quality and quantity of the steak dependsupon the number of dollars in my wallet.Thus, in one way, the achievement of the common gooddepends upon freedom properly used as a means in the honestsearch for truth, its end. As the end, the common good isprior in moral and legal value to the academic freedom thatmust be ordinated to it. It is not the other way round. The14 37 BuLETm N OF THE AmERICAN ASSOCIATION OF UNIVERsrrY PROFESSORS 84(1951). This statement was also endorsed by the American Library Association, theAssociation of American Law Schools, the American Political Science Association,the American Association of Colleges for Teachers' Education, the Department ofHigher Education, and the National Education Association.THE LOYALTY OATH AND FREEDOM TO TEACH 371common good does not yield priority to academic freedom, asif academic freedom were of superior value, constituting theend of educational institutions.This is the core of the problem. We, who are in the teachingprofession, should be ready to help society rid itself of theenemies within preparing to strike at the heart of our nationallife. Where the means of academic freedom is dislocated fromits end, idealized, glorified as sacrosanct above all socialgoods, the overall common good of society is blacked out byits publicists. Then the real ends of education are mocked.Freedom to teach does not belong to the perjured Com-munist as a natural right' Where we lack the evidence to dis-cover the enemy in our ranks, we ought to welcome a devicethat helps to clean house without burning that house and usin it.It turns out that exponents of academic freedom are ofteninclined to interpret their intellectual expertness as an un-touchable privilege. This is dangerous. For it is here that theMarxist sympathizer comes by his best chance to do harm.Grounding his "right" to free speech on guarantees containedin the American Bill of Rights, he tunes his trumpet to thevoice of direction from those in quest of our destruction. Byan abuse of academic freedom liberty is done to death unlessthe officials chosen by the people come ot its rescue. In law is,therefore, to be found the limitations of academic freedom.An illustration of the inaccurate interpretation of academicfreedom is to be noted in the report on "Academic Freedomand Academic Responsibility" given out by the AmericanCivil Liberties Union committee in May, 1952." This free-dom, according to their standards, implies "no limitationsother than those imposed by generally accepted standards ofart, scholarship and science." This sort of "freedom" is law-less, as it leaves out of its frame of reference civic standards15 Commented on in 87 AmERicA 413 (1952).NOTRE DAME LAWYERcontained in constitutional law as determined by the highestcourts of the land.No civic minded teacher will teach the overthrow of legiti-mate authorities by violence. He or she will criticise corrup-tion. Our founding fathers were not anarchists or tyrants. OurConstitution may be amended peaceably. In self-governmentthe people have found ways to safeguard liberty of speech.The Communist conspiracy holds no promise of improvingthese legal guarantees. We who teach should know the differ-ence between liberty and license unlimited.Pupils in public and private schools are instructed to salutethe flag of the United States. That flag does not symbolizetyranny and the suppression of free speech. Quite the con-trary. It is fitting that the children of the parents whom weserve show respect for the republic by their salute of the flag."I pledge allegiance to the flag of the United States ofAmerica and to the republic for which it stands, one nationindivisible, with liberty and justice for all." While we instructothers unto loyalty to the national political society as againstits enemies, let us not ourselves become derelict.One does not fail in teamwork or show any failure to sup-port the rights and privileges of his profession as a teacherwhen he pledges his faith in American constitutional law asthe bulwark of citizenship. The children and all students whocome to us for assistance in the search for truth must not havetheir confidence misplaced. Our lives and talents are dedi-cated to the search for truth.William F. Roemer** Professor of Philosophy, College of Arts and Letters, University of NotreDame. A.B. 1919, Gonzaga University; A.M. 1922, St. Louis University; Ph.D. 1927,University of Notre Dame. President, Indiana Philosophical Association; Member,American Philosophical Association. Contributor to Law Reviews and periodicals.

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Loyalty Oath and Freedom to Teach

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