Sunday, January 27, 2013

Loyalty Oaths and the University: Should Penn State Continue to Reserve to Itself the Power to Terminate "Subversives"?

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Since 1951, the price of admission to the ballot in Pennsylvania has been a loyalty oath, a declaration that you are "not a subversive person."

But that relic of the McCarthy era now may be on the way out - thanks to the Socialist Workers Party nominee for the State House in Philadelphia's 198th District, in Northwest Philadelphia.

John Staggs, a meatpacker, refused to sign the oath when he turned in his nominating petitions earlier this year, and also threatened to sue the state. In turn, Attorney General Tom Corbett told election officials to stop enforcing the requirement because it is unconstitutional. (Thomas Fitzgerald, Pa. will no longer enforce its loyalty oath Pennsylvania will no longer enforce an oath of loyalty,, Aug. 27, 2006).

The Penn State University continues to require its unit administrators to ensure the loyalty of its employees. Actually better put, it still requires the university to enforce the provisions of the Pennsylvania Loyalty Act, a provision which requires the termination of "subversive" faculty.   Yet our Republican Governor, as attorney General, bowing to a decision of the Pennsylvania courts, determined over 6 years ago to stop enforcing this provision as applied to elected officials. It is not clear that Penn State ought to continue to reserve to itself a power to terminate faculty appoints, as well as the employment of staff, on the basis of a provision which is offensive to both constitution and the freedom of individuals to express political beliefs without fear of having political disagreement labelled subversion.It is my hope that the University Faculty Senate takes the lead in urging its elimination.

What follows is the text of HR 30, last revised in 1995! (Cf John Dickison, Swearing Loyalty or Affirming Paranoia? 1998 Voices of Central Pennsylvania, Inc.).





To outline the responsibility of colleges and departments with regard to assertion as to the loyalty of faculty and staff members under the purview of the dean or administrative officer.


Each dean or administrative officer, by whatever means selected for his or her area of responsibility, shall assert, when requested by the President of the University, whether or not there is reason to believe that there are any subversive persons, as defined by the Pennsylvania Loyalty Act, in the employ of the dean or administrative officer, and what steps, if any, have been taken to terminate such employment.

The Penn State University, to my knowledge, has no enforced this provision for the last decade or so. There is no question in my mind that most administrators would now be troubled by a provision that is an artifact of another age, and the enforceability of which has been cast in doubt by the courts.  The university, like many governments, carries on its books rules and statutes that are no longer either relevant or enforceable.  There is no suggestion here of malicious or consciously questionable intent. Indeed, at the time enacted, universities were required to comply by the terms of the statute itself.  See Clark Byse, "A Report on the Pennsylvania Loyalty Act," U. Penn Law Review 101:480-508 (1953) (describing the opposition to the act at the time of enactment).   
The 1951 state law's broad definition of subversive is contained in a single confusing sentence of 100 words and 19 separate clauses. A subversive is anyone who advocates or participates in "any act intended to overthrow, destroy [or] alter" the government. At another point, the definition says that "advocacy" of "violence or force" is a prerequisite to being a subversive.

State loyalty oaths were declared unconstitutional in 1974, in the landmark Supreme Court case of Indiana Communist Party v. Whitcomb. The court found that Indiana's oath violated free-speech rights by equating an abstract belief in radical change with inciting "imminent" violence.

Through inertia, the loyalty oath continued to be administered in most elections in Pennsylvania. But in 1975, then-Attorney General Robert P. Kane issued an opinion that it was unconstitutional to require state employees to take the oath. Kane did not address the provision that applied to political candidates.

On July 25, Corbett referred to Kane's 31-year-old opinion and applied the reasoning to candidates, directing officials to "discontinue the oath unless and until the Whitcomb decision is overturned."

The loyalty oath will remain on the books, the statutory equivalent of the human appendix. It would take an act of the legislature to formally repeal it.

"We are not going to be enforcing it, and going forward, we're going to change the candidacy forms," said Leslie Amoros, spokeswoman for the Department of State. (Thomas Fitzgerald, Pa. will no longer enforce its loyalty oath Pennsylvania will no longer enforce an oath of loyalty,, Aug. 27, 2006).
There is no danger of the university engaging in a hunt for subversives.  It is unlikely that there are many people at the university that still consider such a possibility legitimate within the political culture and legal constraints now in force.  Still, there is merit in making the effort to eliminate rules that, though no longer enforced, continue, by their presence, to suggest a policy, or potential policy, that might reflect on the self image of the institution.  And while the university is at it, it might make sense to see if there are other provisions in need of elimination.  

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