New Hampshire made national news twice last month, both times in one week! Crazy, right?
I had to get out my pen and take some notes when I heard the news. I was surprised when I heard New Hampshire was leading the nation in new COVID-19 cases per capita, and unsurprised when I found out that, yes, “an oath of loyalty” as found in New Hampshire’s HB 1255 for “public employees” is in fact legal practice.
I found there is a constitutional basis and I found out there is also a history of the Supreme Court’s deciding whether requiring “loyalty oaths” is in those cases legal. The pattern I went on during discovery, surprised then unsurprised, continued as I found precedents in the Jim Crow Era South.
Surprised when I saw the striking resemblance to totalitarian regimes in Europe, unsurprised to discover another example of America’s tendency to recycle racist authoritarian practices.
Dr. Judith Haydel, a political science professor, suggests “oaths of loyalty were an important tool in early America in helping sustain it,” which “the Constitution requires the President… members of Congress, the federal judiciary; officers of the state legislative, executive and judicial branches of government” to uphold. However, more common public positions may require them.
Most of us have learned, recited and pledged along with the Pledge of Allegiance in elementary school or at live sporting events. Haydel states, “in times of war, post-Civil-War, WWI, and WWII during the Cold War were also times various American states required public employees” to swear allegiances to an oath of loyalty.
The scope of an oath of loyalty is important to understand for its constitutionality and legality in New Hampshire. In cases involving free speech protected under the First Amendment, “the risks of not swearing allegiance must present a ‘clear and present danger’ and represent ‘substantial government interest.’”
Second, the wording of an oath of loyalty must be limited but, “must specifically define and punish behavior that constitutes a clear and present danger to a substantial governmental interest” (Haydel).
A famous limitation to an oath of loyalty by the courts occurred in West Virginia when the Supreme Court struck down a law requiring all students to salute the flag in 1943.
These instances of oaths of loyalties in the past were decided in court cases because, as David L. Hudson, a First Amendment expert and law professor writes, “Public Employees have a right to speak out on matters of public concern or importance as long as the expression is not outweighed by the employer’s interest in an efficient, disruption free workplace” (Hudson).
Balancing such issues — the concerns of the state to an “efficient, disruption free workplace” and the concerns of the teacher to “speak out on matters of public concern or importance” — are tricky. These cases have often reached the highest courts.
In a series of decisions sometimes called the “‘Communist’ Regulation Scheme,” the Supreme Court “acknowledged that the threat of dismissal from public employment… is a potent means of inhibiting speech” in 1968.
In this ruling, the Court determined that protecting free speech was a value worth affirming. This opinion, according to Stephen Wermiel, an American legal expert, “is often credited with helping to boost the concept of academic freedom as constitutionally protected value. Our nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned” (Wermiel).
So, I ask of us here in New Hampshire, especially of the GOP representatives who are crafting such legislation in Concord: does teaching true and complete history represent a “clear and present danger?”
Is “academic freedom” no longer of “transcendent value to all of us?” I don’t think New Hampshire’s teachers are better served by prescribing the “chilling effect” of a racist government’s example.
(Ben Bacote teaches at Waterville Valley Academy.)