The San Francisco Chronicle reports:
Marianne Kearney-Brown, a Quaker and graduate student who began teaching remedial math to [California State University East Bay] undergrads Jan. 7, lost her $700-a-month part-time job after refusing to sign an 87-word Oath of Allegiance to the Constitution that the state requires of elected officials and public employees....
[W]hen asked to "swear (or affirm)" that she would "support and defend" the U.S. and state Constitutions "against all enemies, foreign and domestic," Kearney-Brown inserted revisions: She wrote "nonviolently" in front of the word "support," crossed out "swear," and circled "affirm." All were to conform with her Quaker beliefs, she said....
Modifying the oath "is very clearly not permissible," the university's attorney, Eunice Chan, said, citing various laws. "It's an unfortunate situation. If she'd just signed the oath, the campus would have been more than willing to continue her employment." ...
"Based on the advice of counsel, we cannot permit attachments or addenda that are incompatible and inconsistent with the oath," the campus' human resources manager, JoAnne Hill, wrote ....
Hill said Kearney-Brown could sign the oath and add a separate note to her personal file that expressed her views. Kearney-Brown declined. "To me it just wasn't the same. I take the oath seriously, and if I'm going to sign it, I'm going to do it nonviolently." ...
Now I appreciate Cal State's desire to follow the law; the California Constitution does prescribe the text of the oath, and says "all public ... employees, ... except such inferior officers and employees as may be by law exempted, shall, before they enter upon the duties of their respective offices, take and subscribe the following oath or affirmation." But surely there are times to interpret laws as requiring substantial compliance rather than strict literalism. Even the precedent that Ms. Hill cites as supposedly requiring the exact text of the oath (see the article for more on that) seems to take this view: It rejected the applicant's modified oath only after stressing that the modifications were not "surplusage" or "innocuous or merely expository," but rather "ma[d]e equivocal the essential oath preceding [the applicant's personal statement]." Likewise, the venerable principle that laws should be interpreted in a way that minimizes possible constitutional problems (here chiefly First Amendment problems related to compelled speech) counsels in favor of reading the law to provide some flexibility. In light of this, letting Ms. Kearney-Brown sign the entire oath, simply with the addition of a term, seems sufficiently consistent with the state mandate.
True, the Supreme Court has held that it doesn't violate the First Amendment to require certain narrow loyalty oaths, including support-and-defend oaths, for government employees. But the Court's justification was precisely that these oaths "do[] not require specific action in some hypothetical or actual situation"; they embody "simply a commitment to abide by our constitutional system ... [and] a commitment not to use illegal and constitutionally unprotected force to change the constitutional system."
Adding "nonviolently" to the oath (or affirmation) thus doesn't change its legal meaning: As the Supreme Court pointed out, the original oath has never been understood to require violent action. Draft laws and other laws may sometimes require such action, but they generally don't require it of women, and in any event it is those laws -- not the oaths required of a wide range of nonmilitary government employees -- that require the action.
So it looks like the state is losing a valuable employee, and has to spend time, money, and effort hiring a new employee. And people who (for religious reasons or other reasons) oppose violence and are especially scrupulous about not promising what they can't deliver lose the opportunity to work in state jobs. As I said, I agree the government should follow the law. But surely the law has enough flexibility in it to avoid this sort of pointless result.
Thanks to Joel Sogol for the pointer.
Related Posts (on one page):
- College Teacher Fired Over Loyalty Oath:
- "Pacifist Cal State Teacher Gets Job Back":
- "Quaker Teacher Fired for Changing Loyalty Oath":
How the minor modifications can justify a firing and still comport with the SC decision is beyond me (especially since she specifically is rejecting the use of force)
Of course, that won't help with inserting "non-violently", but it would remove one issue.
Can I get a goldfish, now?
They expand the boundary.
The next exception, somewhat more disturbing, would not be two steps from the (old) boundary, but only one step from the (new) boundary. Thus moving the boundary another step out.
In about three more steps we'd be arguing about "uphold, protect and defend the Constitution of The United States of America [inserted] to the extent it follows the UN Declaration of Human Rights..."
Or "my church".
But it would only be a slight, tiny, eeny change....
It takes one to know one, I guess.
It's absurd to deny state employment to a remedial math teacher (!) who happens to be a pacifist.
Clearly, this was a big deal for her. Making promises you don't intend to uphold even in hypothetical circumstance is a big deal to some people.
In normal, English usage, affirming you will defend against all enemies at least sounds like it could be construed to mean you are willing to take up arms against armed enemy invaders. I realize it may not mean this is some precise legal language, but many ordinary people would read it to mean this. The state is asking ordinary people to sign the oath. People assume the words means what they seem to mean in ordinary English.
So, in this case, she doesn't want to make it clear she won't take up arms.
As for me, I'm willing to affirm that I would fling bottle rockets in the street if we are invaded by armed combatants. But...well... that's just me. (In the end, I might chicken out. But, there you go.)
Where were you in the thread about Obama and his lack of a flag pin?
I'm glad Ms Kearney-Brown has the integrity to refuse to sign a oath she doesn't agree with, even one that binds her to nothing, but I wish she had the intelligence to realize her position is incoherent.
"Those who 'abjure' violence can only do so because others are committing violence on their behalf."
-- George Orwell
Some optimistic pacifists might assert that nonviolent resistance works against even violent opponents, a position that is logically consistent but factually incorrect. To those who don't believe me, I say, "Go try nonviolent resistance in, oh, Darfur. Your next-of-kin can admit to me that I was right."
By the way, why doesn't the California Legislature just exempt part-time TA's from the oath?
Amd why do I smell a lawsuit coming out of this? Bong Hits for Jesus, anyone? I can see Judges Reinhardt, Pregerson, and Thomas all drooling to be on the panel for this one.
In normal, English usage, affirming you will defend against all enemies at least sounds like it could be construed to mean you are willing to take up arms against armed enemy invaders. I realize it may not mean this is some precise legal language, but many ordinary people would read it to mean this. The state is asking ordinary people to sign the oath. People assume the words means what they seem to mean in ordinary English.
Please give me a break. She is a graduate student. I presume that she understands the English language. If not, maybe she should not be teaching.
Let me reiterate, it is a stupid law. However, even for a Quaker (that is why they allow one to affirm as opposed to swear), there was no reason that she couldn’t sign it.
I do all my signing in a nonviolent manner.
How do you sign violently? With blood? Or with dramatic flare?
Seriously, what authority does the university have to override a state constitutional provision? Not a mere statute but the highest law of the state. Cole does not support her argument at all so the university has no basis to make an exception.
I note that the California constiution in the oath section provides an exception for "such inferior officers and employees as may be by law exempted" so if she still wants this plum post, get the legislature to exempt part time posts or posts under $800 dollars per month.
Therefore, as EV says, why make a big deal about it? Some person should have just looked at the form, nodded, and filed it with the rest of the 10,000 papers she likely signed as a new employee.
Glad we're putting form above substance. Not like kids need to learn math or anything.
I wonder if EV could point Aubrey to some good legal scholarship discussing the issue of when slippery slopes were a valid concern and when they weren't.
Finally some of the comments seem to be suprisingly unconcerned with religious freedom when the religion teaches some things some conservatives oppose.
I am neither a citizen nor a lawyer, but my guess is that once CA considers part-time teachers to be "Officers" (that is, office-holders) in the executive branch of its government, not just the State Constitution but also US Const. art. VI kicks in and requires some form of "oath or affirmation" to uphold the Federal Constitution. So (depending on the definition of "Officer"), CA may not have a choice in administering some form of oath. That said, the text of the oath is for the State Legislature to draft, and state agencies can't write new oaths on their own. This is something that needs to (and should) be fixed by the legislature.
Richard. You give me a break. I have a Ph.D. I would understand "affirming I will defend against all enemies" as suggesting that one would be willing to defend against all enemies using the methods that could possibly be construed as "defense". I parse it this way:
Affirm=>pledge in some way.
Enemies=> Enemies..
All=> Includes armed invaders.
defend=>to take action against attack or challenge
Sometimes, the only truly logical way for most people to defend against determined, armed invaders is violently.
What are you going to do? Repel them by refusing to serve them breakfast?
It may well be that as a matter of law, that you, a lawyer, parse these words differently and could advise someone that no pledge of violence is implied.
But that doesn't transform the ordinary meaning of those words imply to non-lawyers.
As for your notion she should teach if she doesn't read it this way: woman was going to teach math, not law.
As for your contention that
First, it appear her concern also included "violent". At least that's how I read this:
As for the issue of "swear" evidently, she felt the need to make it very clear she wasn't swearing.
On the one hand, I don't want to try to explain my non-legal understanding of the first amendment to on EV's thread-- as I know if he is cautious in the thread, there is likely to be a nuance I certainly don't know.
But I'd developed the impression from previous posts that, when applying the first amendment, the courts enquire into the adherents own understanding of their religion. If so, even if you, Richard, are a Quaker, and believe you know what the dominant position of Quakers is, or even if you are the Quaker equivalent of the Pope who post Quakers accept as authoritative, this woman may have slightly different beliefs and feel that, for religious reasons, she needs to modify that document.
I have no idea why they didn't permit it.
Moreover, I actually hope that should she sue, she would prevail. I don't think you or I or the courts should decide what being a Quaker is supposed to mean to her!
I mean, if George Bush can attach a signing statement setting forth his interpretation of something he is signing, why not here? This is a perfect situation for a signing statement, no???
Nick
Firing her was dumb and, I hope, a violation of the federal Constitution. We will see.
Pretty much. If our Quaker pacifist had done that, the statement would have gone in her personnel file, she would have the job, and everyone would (presumably) be happy. She was, in fact, offered the opportunity to do just that by the campus manager of human resources.
But such a course would not have afforded anyone the opportunity to demonstrate high principles and engage in a bit of public grandstanding.
Hah. Serves me right for not actually clicking on the link to read that.
And the Left-wingers deny the value of signing statements...
In my first post I asked when was the last time anyone had to take up arms because they signed that oath. The answer of course is never. In fact since we have an all-volunteer army, nobody is forced to take up arms. Also she is a female, so she wouldn’t be included in ground combat forces. Now somehow you want us to believe she managed to get all the way through college without any knowledge of these facts. I can only concluded that you are not being serious.
I'm not a pacifist myself, but the idea that the state should effectively prohibit pacifists from being remedial math teachers is absurd.
I guess she can always serve as a medic in the California State University East Bay Army just like all of the other pacifists.
I guess we are innured to the fact that so many public servants (ie., the Prez) sign stuff that they have no intention of following, so what's the big deal to lie about it?
And that's exactly what you are asking this woman to do. Lie about her intentions. Perhaps that's okay for you, or for ordinary Christians, but at least for this Quaker, it isn't okay. Shouldn't we be congratulating her on having the courage of her convictions? Isn't that a traditional value that Bennet has written about?
It really boggles me -- if she had been a Christian objecting to having to sign a document asserting that she would treat all gay students with dignity as she does hetero students, all of you would be up in arms over her firing. Freedom of religion! Freedom of conscience!
But I guess freedoms are limited to the things you think are meaningful.
She also does not have the courage of her convictions. That means accepting a harsh result as a cost of a conviction. It does not include whining about it to the media so as to score attagirls at the next meeting.
Words can scarcely express the contempt I feel for this suggestion. Only outright coercion can justify falsely undertaking an oath, and even then I'd think more highly of the person that refused anyway.
Yes, it's true that the courts do not hold such oaths to be binding. So much the worse for the courts.
A kindergarten teacher can be both good at his job and a loyal citizen without also being required to swear to blow up Al Quaeda, should the need arise.
This is just another case of goof-bucket school administrators overreaching their authority.
It certainly is! Is there a full moon out tonight?
No. She specifically stated that she is happy to defend the Constitution, but only through nonviolent means. A person can defend the C through the court system, through published articles, and many other means. Picking up a gun and shooting people isn't the only way to defend the C.
Your comment convinces me that this is really all about proving your patriotism. If you won't sign a pledge saying that you love our country and it's the greatest, you don't deserve a job, or worse. This is the America that is a beacon of hope to the rest of the world?
"She also does not have the courage of her convictions. That means accepting a harsh result as a cost of a conviction."
Getting fired from a job isn't a harsh result? And how does going to the media pay her bills?
Your hyphenated Quaker is now free to fall into the arms of the Code Pinko warriorettes.
But such a course would not have afforded anyone the opportunity to demonstrate high principles and engage in a bit of public grandstanding."
Everyone would be happy, except Ms. Kearney-Brown. Terribly old fashioned and all, but some people take oaths seriously. This just might be "high principles" without "grandstanding". You appear to have made up your mind. Based on this post? The Chronicle article? Your deep knowledge of Quaker philosophy?
The school's lawyer seems a bit too sure of herself:
Does anyone know if the AG would be the school's lawyer in a suit?
Actually, I occasionally worry about what would happen if I were to reply to the usual witness oath about (paraphrasing) "whole truth and nothing but" by saying "insofar as I am both able and allowed." I suspect what Fark.com sometimes calls "jailarity" would follow.
Thank you. Exactly.
Nice straw quaker there. The oath does not say anything like that, of course. Neither does it ask her to take up arms.
She takes the most extreme and illogical interpretation of "defend" and must then insist on her purity. No one in their right mind thinks anyone is asking a tutor to take up arms.
Plenty of non-violent uses of the word "defend". Do defense counsel defend criminals with guns? Don't PhD candidates defend their dissertations? Maybe they use shotguns.
I don't care if she tutors or not. But neither do I see any injustice.
Bob, she's fine with all those meanings of defend except the one that involves shotguns and would prefer not to swear an oath that she does not sincerely believe.
At that time the State demanded all employees sign a "loyalty" oath and we were considered state employees. In one of the very few rebellious acts of my life I refused to sign the oath. This was the days of the famous free speech movement, sit-ins in San Francisco and make love not war.
Nevertheless, all the paper work cleared and my application was approved. Casually I mentioned the loyalty oath and was told there was no problem as it had been signed just the way it was supposed to have been done. So I guess I have some unknown friend to thank.
Richard is spot on, as mentioned in the original article:
Randy, apparently you fail to understand the rationale behind requiring the Oath:
Thus, the oath is an essential job requirement, not a pledge of devotion as Randy suggests, and is quite practical given California's susceptibility to wild fires, earthquakes, and such.
More on the legal basis for the Oath:
And something to consider: loyalty oaths for teachers have a considerable history stretching back to the country's founding...
"But surely there are times to interpret laws as requiring substantial compliance rather than strict literalism."
Hmmm...
*eyes US Constitution*
Smokey: Of course, that statement conflates religion with conservatism and patriotism. But, nice try there.
Not even close. First, noting that her religion is pacifist is hardly conflating religion with conservatism. I personally believe pacifists can be quite patriotic, so I'm not equating religion with being unpatriotic either.
Bob From Ohio:
Again, she's not objecting to defending the Constitution. She's objecting to using violence. You think that the Constitution is at peril if we don't require remedial math teachers to swear that they will use violence in a way that violates their obviously sincerely-held religious beliefs? I think one could make the opposite argument more convincingly.
As someone with a PhD, why would you interpret a legal document yourself instead of consulting a lawyer? It makes no sense.
In this specific case, the article says HR even gave an option that could resolve this. Why this person insisted on doing it their way or no way I can't understand. It's certainly not principled, as principle would have permitted the method offered by HR. I'm going to go with ignorance here and be generous. Otherwise I have to assume they were looking for something to use for attention :(
Yes, this is *exactly* why America is a beacon of hope. She refused to sign, and all that happened was she couldn't have that specific job. In the country my father escaped from to America, refusing to sign a similar statement would have likely led to his personal jailing, and deep suspicion from the authorities upon the rest of his family.
Here, this woman even had the ability to take her situation to the media. I don't agree with this, since I think this is an issue of her own making, but I certainly would never oppose someone being able to do so!
Then they should require her to sign a statement saying that she will help out when disaster strikes. But that has nothing to do with the Constitutions. And besides, she HAS NO PROBLEM with defending the C. I really don't understand why that is so hard for some to understand.
HRM: " In the country my father escaped from to America, refusing to sign a similar statement would have likely led to his personal jailing, and deep suspicion from the authorities upon the rest of his family. . She refused to sign, and all that happened was she couldn't have that specific job. "
Actually, she was fired for not signing. But what a great slogan we now can boast:
Come to America! We aren't as oppressive as other countries! We're Number 6! Whoohoo!
I'm being entirely serious. To some people who are serious about their religion, the fact that the probability that she would be asked to take up arms is vanishingly small is irrelevant. The fact that she is being asked to affirm that she would do so is the important point to her.
I don't know why you don't understand this. But, clearly, this was important to her. She refused to sign, and lost a job as a result.
I'm not religious. I wouldn't personally see this as a problem. But I do know some very devout people, and these principles, which do, indeed hinge on what they believe they are being asked to say or affirm matters.
1) It is Richard not David
2) The correct spelling is Nieporent
3) The fact that there is a zero chance for her to be asked to take up arms means that she is either very ignorant or a zealot
4) The fact that she is in graduate school indicates that the latter is true
5) Religious fanaticism is not an admiral trait no matter what the religion is because it precludes rational thought
You never know what might happen at a public school.
Randy, allowing Kearney-Brown to specify just how or under what conditions she will fulfill her duties as a state employee is patently silly.
By choosing to affirm the oath, state employees recognize that their job may entail being mobilized by the state in a wide variety of instances.
No, Randy, it directly relates to the state Constitution since the Constitution is the legal basis for the state government authorizing , training, and mobilizing state employees.
This is delineated further in the above code:
Randy, Kearney-Brown evidently has a major problem with "support[ing] and defend[ing] the Constitution of the United States and the Constitution of the State of California" in that as a state employee she wishes to fulfill her duties conditionally.
If Kearney-Brown cannot meet all of the job requirements, then she is, despite her educational credentials, obviously not the most appropriate person for the position.
You, on the other hand, presume that the state may very well ask her to pitch in during a disaster, and so the oath has quite a bit of meaning.
So which is it? I'll leave you two to argue who is correct, but you both can't be.
Socrates, there is zero evidence that the reason anyone is asked to take this oath is because their help will be needed for a disaster. First, the document is entitled "Oath of Allegiance." It is not a "Promise to Act during a Disaster." Second, even if it were true, any disaster relief person will tell you that volunteers who are not properly trained are of very limited value, and often become a danger to themselves. Third, if there is a disaster, there is usually no shortage of volunteers to do anything that a volunteer actually can do. Remember 9/11?
Fifth, and most important, is that the Oath specifically states that she must defend the C. 'against all enemies, foreign and domestic.' perhaps you believe than an earthquake is a 'domestic enemy' but in actuality it is not. If the document is only what you say it is, then why would it have this phrase in it? The state is asking her to, IF NECESSARY, take up arms against foreign invaders.
Despite your parsing, it is clear, even from the title, Oath of Allegiance, that this is a document that is trying to determine the level of patriotism she has. And that's impermissible, in my view.
Why is a university even offering a class in remedial math at all?
I had to take a remedial math "refresher" course the summer before I started junior college to get an Associates Degree in Retail Management. But I wasn't on the "college" track. This was in the 1970's and I was a votech student who took mostly business classes. After 9th grade Algebra I, which I got an A in btw, I never took another math course again. I took things like Accounting, Typing (they call it "keyboarding" these days), and business and marketing courses. I couldn't remember how to divide, much less how to do fractions and decimals. But it all came back to me.
If students can't pass a simple math test they have no business applying to a university, and those schools have no business accepting them.
How dumb must kids be today to get into a junior college?
First: No, it does not. The fact that there is zero chance of her to be asked to take up arms still leaves the possibility that it violates her religion to affirm she would be willing to do this.
I do not consider this to be zealotry. You may, of course, hold the opposite view.
Either way, it is my impression that the first amendment extends to protecting zealots.
Agreed. But that does not preclude the possibility that she holds a particular religious view. I am under the impression that the first amendment applies to all religious views, including those that are either fervent, fanatical or irrational.
Remedial English is quite common, even at large universities. Our high schools just push 'em out, I reckon.
Funny thing is that I would actually have liked to serve on the jury. But I loathe official non-color-blindness and just couldn't keep my yap shut.
So I'm not unsympathetic to this woman's position, even if I find her pacifism itself morally and intellectually bankrupt.
My understanding is that the swear/affirm distinction is long standing, typically based on a religious prohibition against swearing. In keeping with her religion, she merely made this explicit.
Her nonviolent defense seems to merely be keeping with the tenets of her religion. We have a long standing practice of acknowledging this with Quakers. For example, Quakers have typically gotten automatic CO draft deferments for just this reason. (But this religious interpretation has a margin of personal interpretation - Richard Nixon was apparently eligible for a CO deferment, but served in the Navy regardless). I have every reason to believe that this was based on a long held religious view on her part.
Similarly, a number of people will not swear, or even affirm, falsely, again for religious reasons. The suggestion that she should have just signed to statement falsely, and be done with it, is forced speech and likely against a tenet of her religion.
Looking at who took what side here, there seems to be some correlation between those espousing a collectivist right to the 2nd Amdt. and support of the state here on the one hand, and an individual 2nd Amdt. right and support for the teacher. Not complete correlation, but enough to be possibly indicative of two very different views of government. Not complete, of course, since at least some ACLU chapters would support her, but none are likely to support an individual 2nd Amdt. right.
Just throwing it out there. It may be total bunk.
Dale Carpenter for Pres 2012!
Having said that, why is the State of California requiring such an oath from teachers? Why not an oath asking them to, um, teach? Is it really necessary to require this from teachers? Does Califirnia require the guys who mow the highways to also swear an oath to defend the Constitution? Am I the only one who thinks this is silly?