On Sunday, at the second presidential debate, moderator Martha Raddatz asked Donald Trump about the “total and complete shutdown of Muslims entering the United States” he had proposed in December. Was it a mistake to have a religious test? “The Muslim ban,” Trump responded, “is something that in some form has morphed into a extreme vetting from certain areas of the world.”
Trump had first announced his plans for “extreme vetting” in August:
In the Cold War, we had an ideological screening test. The time is long overdue to develop a new screening test for the threats we face today. I call it extreme vetting. I call it extreme, extreme vetting. Our country has enough problems. We don’t need more.
When I heard this, I wasn’t surprised—or at least, unlike so much of what Trump had been saying for months, this didn’t feel like an aberration. I had just encountered an ideological test of my own. And rather than being administered in the nightmarish possibility of a Trump presidency, full of “extreme, extreme vetting,” my ideological test was New York state law, specifically Section 3002 of the Education Law, which requires that
any United States citizen employed as a teacher within the state sign an oath or affirmation to support the Constitutions of the United States and of the State of New York.
Earlier in the summer, I had been offered a job teaching a course, “Editing for Translation,” online—or as they put it, “asynchronously”—at the Center for Applied Liberal Arts at New York University for the fall semester. I was excited—I’d long wanted to teach a class on this subject and I immediately started drafting a syllabus and dreaming up final projects. But when I got the paperwork from NYU, I found that it included a piece of paper with the oath. I haven’t sworn to anything for a long time—never married, never served as a juror, never held public office—and, educated in a Quaker elementary school, I had acquired a sense early on that oaths of any kind were to be treated gingerly. I thought about my other interactions with the New York state educational system. I had gone to college in New York and had many friends who taught in the city. Had all my radical professors, all my fire-breathing grad student friends, signed this oath?
Section 3002 has been New York state law since 1934, passed long before the McCarthy era. According to a complaint filed by the New York Civil Liberties Union in 1966:
In 1931, a general movement to enact teachers’ oaths began in earnest and more than half of the thirty state laws pertaining to teachers’ loyalty currently on the books belong to the period between 1931 and 1937. A rash of legislation surrounded a Resolution passed by the American Legion in Miami in 1934 establishing a nation-wide “Americanization Program” to promote approved opinions and decent respect for American institutions and to prevent their subversion by alien ideas.1
Because such oaths were so common, or because it appeared so innocuous, no one seems to have paid much attention to Section 3002 until the 1960s, when Adelphi University, which had not required its teachers to sign it, realized that they were breaking the law and asked their teachers to sign. According to the New York Times, “twenty-seven Adelphi teachers refused to take the oath and brought a suit sponsored by the New York Civil Liberties Union to have it declared unconstitutional.” First a federal court, and then the Supreme Court upheld the constitutionality of the law, claiming that it did not “impose restrictions on teachers’ political beliefs or expressions.”
But how could it not? I wouldn’t, to take a very flippant example, want to have been barred from criticizing the Eighteenth Amendment of the United States Constitution, which instituted Prohibition, and was repealed in 1933. Never mind that the oath is fundamentally self-contradictory: the act of requiring that teachers swear to support the US Constitution violates the First Amendment right to free speech protected in the very Constitution they are swearing to support.
The NYCLU court filing also makes a connection between the oath and the much-contested Pledge of Allegiance—both examples of coerced patriotic speech. The filing refers to West Virginia State Board of Education v. Barnette (1943), in which the Supreme Court upheld the rights of students not to participate in the Pledge of Allegiance and the flag salute. It’s the flip side of protected speech: as the filing puts it, “the state cannot tell people what to say anymore than it can tell them what not to say.” Supreme Court Justices Hugo Black and William O. Douglas added a concurring opinion to West Virginia v. Barnette, writing that “Words uttered under coercion are proof of loyalty to nothing but self-interest.”
The very vagueness of the oath is an issue, too. What does “support” mean? How active are we teachers supposed to be in the service of the two constitutions? The novelist James Sallis, who recently quit a job teaching at Phoenix College rather than sign a similar loyalty oath, made me aware of this indeterminacy—and the problems it raises—while I was trying to decide what to do. “It’s the very fact that it has no true content that makes it so dangerous,” he said in an email. “It can be construed to mean whatever the interrogator desires.” The NYCLU filing makes this point, arguing that it opens a teacher up to prosecution for perjury, since the oath’s vagueness means that a teacher who signed could unknowingly, inadvertently violate it, depending on how “support” is interpreted.
Loyalty oaths aren’t an abstraction—throughout the 20th century, they’ve had painful consequences for both those who signed and those who didn’t. George R. Stewart was a history professor at University of California, Berkeley in 1949, when the regents of the University added to the existing loyalty oath (which is close in wording to the New York state oath) a statement requiring professors to swear that they were not members of the Communist Party. Many faculty members objected, and the two sides argued the issue back and forth over the course of the next two years, resulting in the firing of thirty-one faculty members. Stewart described the background, timeline, and effects of the controversy in a short history called The Year of the Oath: The Fight for Academic Freedom at the University of California, written collaboratively with other “non-signers.” Though the book’s style is modest and objective, it makes it clear how agonizing the battle proved to be for many professors. It pitted them against the regents, who seemed to be trying to break the faculty’s autonomy, and it turned them against other faculty members—and sometimes against themselves—as the discussions went on and some professors’ opinions wavered. The whole process was insulting in the way that such conflicts always are: when it becomes clear that one party doesn’t trust another, the natural reaction of the scorned party is to then reflexively withdraw their own trust. I felt this way, too: who were NYU to ask me to sign such a thing? And the state, and the country? Why should I humiliate myself for them?
I refused to sign. When I informed the NYU administrator of this decision, the job offer was withdrawn, though in the politest and most sympathetic of ways. “I understand, believe me,” said, “but it’s state law.” I put my syllabus notes away.
I didn’t sign because I felt stubborn about Section 3002, and maybe even childishly whiny. I didn’t sign because I didn’t want to sign. But I’m still coming to terms with the self-righteousness of this stubbornness. How can a decision be right when it seems to require elevating oneself above others, drawing attention to oneself, even if it’s in the name of a greater cause? I see this point being made by people criticizing Colin Kaepernick’s refusal to stand for the national anthem: that his protest is about him, and not about the cause. It’s one thing to look back at past protests and think that they were obviously the right thing to do. It’s far harder, and stranger, to reckon with the sense of self-created, whipped-up melodrama that actually initiating one of those protests involves. The protestor, even one taking a tiny stand against a usually disregarded bit of H.R. mumbo-jumbo, must somehow balance her sense of the slightness of the cause with the weight of protest in general.
At the same time, the loyalty oath is a document with a pernicious history, and its modern iteration is far from benign—just because something is, more often than not, a bureaucratic formality doesn’t render it harmless. I lost a job over it. Teachers who disagree with such oaths and the history they represent, but who nevertheless choose to sign, are being asked to make a moral compromise as the first act of their employment. And yet the oath endures, long after “Americanization” and the McCarthy era and other waves of competitive patriotism-proving. After the last couple of weeks, the possibility of a Trump victory—and of “extreme vetting”—seems increasingly unlikely. But the idea isn’t going away.
Thanks to the New York Civil Liberties Union for allowing me to quote from the 1966 court case filing against Adelphi University. ↩