Legal Watch: Academic Freedom, Loyalty Oaths, and Diversity in Academe

By Donna R. Euben

The United States Supreme Court has reviewed the constitutionality of two kinds of loyalty oaths, generally striking down "disclaimers" and upholding "affirmations." In 1966 the Court struck down in Keyishian v. Board of Regents a McCarthy-era disclaimer oath as violating the First Amendment rights of professors’ expression and association. Several State University of New York professors had refused to sign a loyalty oath that required them to "disclaim" that they were not and never had been communists, and they consequently lost their appointments. The Court ruled the oath unconstitutional, noting that academic freedom is a "special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom," and that the "classroom is peculiarly the ‘marketplace of ideas.’" And so the appointments of professors at state colleges and universities may not be conditioned on oaths that require them to disavow membership in certain political groups or commitment to certain beliefs.

In 1972, however, the Court held constitutional loyalty oaths that merely "affirm" the future obligation of public employees, including professors at state institutions. In Cole v. Richardson the Court upheld a Massachusetts oath that included a requirement to "uphold and defend" the Constitution and to "oppose the overthrow of the government . . . by force, violence or by any illegal or unconstitutional method." The Court found that the affirmation was merely "to assure that those in positions of public trust were willing to commit themselves to live by the constitutional processes."

Recently, a professor at Bucks County Community College in Pennsylvania challenged what he called a "diversity loyalty oath." It required job candidates to "provide a brief statement" about their "commitment to diversity and how this commitment is demonstrated" in their work. The college president initially defended the inquiry as a way to educate candidates about the school’s curriculum, which values "uniqueness and diversity." In March, however, the college’s board of trustees withdrew the question.

The AAUP views diversity as an important educational value, and commends the efforts of institutions seeking to promote diversity among faculty and students. As the district court in Gratz v. Regents of the University of Michigan recently opined, "A racially and ethnically diverse student body produces significant educational benefits . . . in the context of higher education." At the same time, the AAUP has observed that the push for diversity should "not itself lead to a violation of individual rights." Colleges and universities are the quintessential marketplace of diverse ideas, including those that are controversial, unpopular, and, at times, even offensive, including opposition to diversity in higher education.

The Bucks County Community College pledge to a "commitment to diversity" appeared to be a precondition of appointment—why else pose the question? Moreover, what did "commitment" or "diversity" mean in this context? For example, a faculty member who criticizes colleagues for promoting diversity may be considered by some to be insufficiently "committed" to diversity even when the criticism, whether right or wrong, serves the college’s mission to further the robust exchange of ideas. Such a pledge may become a means for stifling academic freedom.

The ability to deal with different cultures and ethnic groups is, of course, an important teaching skill and can be quite germane to the subject matter. Rather than demanding a pledge, however, schools might better communicate their commitment to diversity by adding a statement to the school’s application form, faculty handbook, and other materials. Traditional methods for deciding whether a candidate is suitable for a position also exist, such as questioning by search committees to determine a candidate’s experience teaching a diverse student body and using a variety of pedagogical techniques.

In the end, colleges and universities should avoid the use of such oaths or "commitments" to promote the worthy goal of diversity on campus.

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