Student Loyahy-Should It Be Questioned? No
AUERBACH, CARL A.
NO: Carl A. Auerbach OF ALL THE people receiving benefits from our welfare state, only college students and teachers are now required to attest to their loyalty to the United States. To date, 19...
...The student loan program under the NDEA is administered by the colleges and universities which must themselves match not less than one-ninth of the Federal contributions...
...There are any number of situations in which the beliefs which an individual holds are relevant to the determination of his qualifications for a particular office or position...
...I think it was unnecessary and unwise for Congress to impose the oath and affidavit requirement in the first place and that it will be even more unwise for Congress to insist upon it in the face of the academic community's opposition...
...Congress has struck a blow against academic freedom...
...Who knows what are "illegal or unconstitutional methods," except the Supreme Court of the United States, which may itself be divided on the question...
...under the NDEA, the only danger is that some students who hold the described beliefs may get a college or university education that would otherwise be foreclosed to them...
...If the oath is unobjectionable, so is the disclaimer affidavit: if the affidavit is objectionable, so is the oath...
...or his sympathy for those engaged in rebellion...
...But the analogy is not apt...
...Griswold explains that the affidavit under the NSFA "is the responsibility of the individual receiving the benefit...
...It is an unwarranted reflection upon the parents and teachers of the students who will apply for benefits...
...What is explicit in the disclaimer is implicit in the oath...
...It has no rational basis...
...The Senate Committee on Labor and Public Welfare, in recommending repeal of the non-Communist affidavit requirement of the Taft-Hartley Act, stated, almost plaintively: "The assumption upon which the present non-Communist affidavit requirement was based is that officers of unions who were Communists would not file affidavits...
...It is argued, however, that because of the vagueness of the language of the affidavit, all the negative statements that it may be interpreted to require are not implicit in the oath...
...The NDEA disclaimer affidavit calls essentially for an expression of belief in a system of government such as Holdsworth, the great historian of English law, described as having been made possible by the Revolution of 1688—one "under which parties peaceably contended in Parliament for the victory of their respective views" and "victory of the one or the other party gradually ceased to be accompanied and followed by the proscription of their opponents...
...Even Jefferson and Madison agreed that it would be necessary to screen the views of the scholars who sought to teach law and political theory at their University of Virginia, in order to block the entrance of doctrines which contradicted the cherished freedoms of democratic society and republican ideology...
...It threatens to split the academic community into two antagonistic camps, one ardently supporting the requirement and the other urging complete withdrawal of participation so long as it remains in the Act...
...But should colleges and universities refuse to participate in NDEA programs as a protest against the oath and affidavit requirement...
...It all depends, as Vinson recognized in the Douds case, upon "the circumstances under which one is asked to state his belief and the consequences which flow from his refusal to do so or his disclosure of a particular belief...
...Their position accords with that taken by the American Association of University Professors and the Association of American Universities...
...Secretary of Health, Education and Welfare Arthur S. Flemming appears to favor repeal of both the oath and the affidavit...
...yet both Harvard and Yale continue to participate in programs under it...
...But while actively seeking the elimination of these requirements, they should continue their participation in the sorely needed programs which the NDEA and NSFA make possible...
...Moreover, the danger sought to be averted in the Taft-Hartley case was much greater than in the case of the NDEA...
...The disclaimer affidavit, on the other hand, extends beyond the basic law of the land into the realm of belief and conscience, where definitions are vague and actions become matters of debate...
...And this is probably the common-sense way in which the NDEA affidavit would be interpreted by students, their parents and teachers...
...President Eisenhower has publicly opposed the affidavit requirement, saying that the oath should suffice...
...It does not call for the renunciation of any beliefs that are compatible with faith in and allegiance to such a system of government...
...Truly subversive students and teachers (I do not know that there are any) would not hesitate to sign the NDEA oath and affidavit...
...And it is especially incongruous because, as President Griswold says, "in one and the same breath [college students and teachers] are told they are the nation's first line of defense—and the nation's poorest security risk...
...Indeed, the record clearly demonstrates that the officers of unions alleged to be Communist-infiltrated have been most punctilious about filing non-Communist affidavits...
...3) "by act or word" manifested his adherence to the cause of the enemies of the U.S...
...Together, the NDEA oath and affidavit do not require the avowal or disavowal of any particular social, economic, political or moral belief—other than the disavowal of beliefs inconsistent with belief in the democratic process itself as a mode of peaceful change...
...The disclaimer affidavit itself, however, calls for three different kinds of disclaimers—(1) that the affiant "does not believe in . . . the overthrow of the United States Government by force or violence or by any illegal or unconstitutional methods...
...These are hardly the people we should wish to deprive of the benefits of the NDEA...
...The oath seeks not only to elicit a promise of future behavior but also of future belief—to "bear true faith and allegiance to the United States...
...Speaking for the Court, the late Chief Justice Fred Vinson said: "There is little doubt that imagination can conjure up hypothetical cases in which the meaning of these terms will be in nice question...
...The applicable standard, however, is not one of wholly consistent academic definition of abstract terms...
...Griswold's objection to the affidavit would apply, if at all, to disclaimer (1), but not to disclaimers (2) and (3), which move from "the realm of belief and conscience" into the world of acts...
...Nevertheless, I do not think it will help the cause of repeal of the requirement to exaggerate the case against it and raise the alarming, but unjustified, cry that, by imposing it...
...2) voluntarily given aid, counsel, or encouragement to persons in armed hostility to the U.S...
...or his desire for their triumph over the arms of the U.S...
...Madison agreed that "the true doctrine of liberty, as exemplified in our political system, should be inculcated on those who are to sustain and may administer it," but he objected to Jefferson's proposal that textbooks be prescribed...
...Only the most sensitive and conscientious students and teachers, who take such things as oaths and affidavits seriously and are inclined towards an absolutist view of the Constitutional guarantee of freedom, will refuse to sign...
...It is quite another to take such a stand when the adverse consequences will also fall on others—students who will be deprived of a higher education and the people of our country generally, who will be deprived of programs essential to the intelligent conduct of our foreign affairs...
...In the former case, Congress sought to prevent acts which could cripple the national economy...
...The Regents of my university have protested both the oath and the affidavit, our faculty has condemned the affidavit only—although both Regents and faculty have voted to continue to participate in the NDEA student loan program...
...The lack of clarity about the issues raised by the NDEA oath and affidavit requirement has not only confused students, their parents and the public generally...
...However, the question remains whether the disclaimer affidavit, even so construed, infringes upon academic freedom...
...None of these considerations apply to the NDEA requirement of a disavowal of present beliefs and affiliations inconsistent with true faith and allegiance to the U.S...
...It is thus coextensive with and expressive of the basic law of the land...
...In the NDEA case, the government is simply refusing to subsidize persons who believe that it should be overthrown...
...Once it is decided that he is eligible, he is asked to sign the required oath and affidavit...
...When he does so, the loan is granted and the document containing the signed affidavit and oath is forwarded to Washington...
...government if one merely predicts that it will occur but does not advocate such action...
...It is difficult to see how the nation would be harmed if they did...
...whereas "in the NDEA, through investment in the loan program and administration of the affidavit, the institution itself is involved...
...The Supreme Court, in other words, was of the opinion that a person who refused to make the required disavowals could nevertheless promise in good faith to bear true faith and allegiance to the Union in the future...
...Expression of distrust is hardly compatible with the building of "a new esteem for scholarship, a new respect for the crucial importance of education" which Congress has acknowledged to be one "of the greatest needs in American education today...
...But the consequence to the individuals concerned in the one case—financial inability to obtain a higher education—may be as serious as in the other—loss of position as a union officer...
...The Supreme Court in 1866 held these test oaths to be unconstitutional because they (1) punished past acts of misconduct, without a judicial trial...
...Other principles are also involved...
...For example, the National Science Foundation Act of 1950 has the same disclaimer affidavit requirement as the NDEA...
...So far as Congress is concerned, let us hope that it will demonstrate its confidence in the academic community by repealing the oath and affidavit requirements in both laws...
...Is this protest justified...
...Certainly, we can expect that it will instill in our students abiding faith in and allegiance to democracy...
...A student applies for a loan to his own institution, not to the government...
...Those who argue that it does have failed to make clear whether they think so because it asks affiants to renounce beliefs which should be protected in a democratic society or simply because it seeks to elicit a statement about beliefs, regardless of their nature...
...From what I have been able to learn, the men in Congress who sympathize most with this dual objective advise continued participation in the NDEA programs...
...The distinction (based upon whether the university itself must administer the affidavit) is drawn not in order to justify the affidavit requirement under the NSFA, but to explain why an institution that will not refuse to accept students who have signed NSFA affidavits should nevertheless refuse to participate in the NDEA student loan program...
...The objective of the academic community is to preserve and expand the NDEA programs, for which it has pleaded for so long, and at the same time secure repeal of the oath and affidavit requirement...
...This assumption, on the basis of the record, has not proved sound...
...And the Supreme Court has upheld the elicitation of such beliefs from municipal employees, candidates for public office, public school teachers and, of course, trade union officials...
...Although it was very closely divided on the issue, the Supreme Court in 1950 upheld the affidavit (American Communication Association v. Douds...
...The utter futility of the oath and affidavit requirement must be admitted by anyone who will give the matter some thought...
...It is not fair, therefore, for Griswold to liken the NDEA requirement with Hitler's order that civil servants and professors swear allegiance to him or to see it as an instrument of coercion, conformism and oppression...
...In time, this will kill any vestige of ceremonial value which some of the proponents of the requirement think it may have...
...Certainly the academic community is committed to the democratic process...
...President A. Whitney Griswold of Yale, writing in the New York Times Magazine last December 20...
...It is interesting to recall that Lincoln signed the Congressional legislation that provided for these oaths...
...It is doubtful, too, whether the refusal to participate is a responsible action in a democracy, when active steps are being taken (in the Executive branch and in Congress) to use the democratic process to bring about a change in the law...
...The great objection to the historic test oaths was that they sought to elicit disavowals of beliefs which citizens could very well hold and still be loyal to their government...
...A good deal of public confusion may be attributable to the attempt to distinguish between the oath and the affidavit and to concentrate attack upon the affidavit...
...by force or violence or by any illegal or unconstitutional methods...
...To date, 19 colleges and universities have refused to participate in the student loan program under the National Defense Education Act of 1958 because the Act requires the borrowing student to take an oath of allegiance to the U.S...
...Suppose the government should become totalitarian...
...This is true...
...Under these circumstances, the students (advised by their parents) and teachers involved have a reasonable claim to be allowed to decide for themselves whether to sign the oath and affidavit...
...Does one "believe in" the overthrow of the U.S...
...Colleges and universities should of course protest the oath as well as the affidavit requirement of the NDEA and the NSFA...
...He pointed out that anyone could sign the disclaimer affidavit without fear of subsequent punishment for perjury if, when he did so, he did not knowingly lie about his beliefs and affiliations...
...thus explained the distinction he drew between the oath and the affidavit: "By itself the oath is no more than an affirmation of the duties every citizen owes to his country, whether he takes the oath or not...
...2) imposed, ex post facto, additional punishment for the crime of treason...
...Jefferson saw, as Adrienne Koch shows, that an essential limit on freedom included "uncompromising opposition to the systems of thought that would, if made effective, undermine that freedom...
...The Presidents of Harvard and Yale have objected mainly to the affidavit...
...The Douds case gives us reason to construe the affidavit requirement of the NDEA in the same way...
...Is it not crucial, then, to ask whether a protest which takes the form of a refusal to participate will help or hinder the attainment of this dual objective...
...Some NDEA graduate fellowships are administered this way, while some NSFA fellowships are administered by the institution involved...
...And it should be noted that the grounds for questioning the wisdom of the affidavit also apply to the oath...
...and (3) the disavowals they called for were not relevant to the qualifications for the offices and positions closed to the persons who refused to make them...
...On this question, reasonable men have differed...
...2) that he "is not a member of any organization that believes in or teaches" such overthrow...
...Jefferson wrote to Madison that in the field of government there was a duty "in us to lay down the principles which are to be taught...
...I myself am inclined to agree with Vinson and Frankfurter that there are circumstances under which it would be proper for a democratic government to elicit the avowal or disavowal of beliefs, as such...
...Is there, nevertheless, a principle of freedom which should keep a democratic government from seeking, under any circumstances, to elicit the avowal or disavowal of beliefs, no matter what their nature...
...For most students and teachers, the only effect of the NDEA requirement will be to accustom them to depreciate the solemn import of such requirements and to meet them routinely and uncomprehendingly...
...But even with regard to disclaimer (1), I find it difficult to see his distinction...
...But so they are in the language of the oath...
...Under the NSFA, the student applies for aid directly to Washington, and the affidavits are administered through the mail without any intermediate intervention of the institution he will attend...
...The late Justice Robert Jackson thought there was such a principle...
...Equally inapt are the analogies drawn by President Griswold between the NDEA requirement and the test oaths directed against Loyalists at the end of the Revolutionary War and the adherents of the Confederacy at the end of the Civil War...
...It is one thing to take a stand for principle when only one's own welfare is at stake...
...This distinction is not very satisfying to me, and it should be least satisfying to those who regard their objection to the affidavit as a matter of "principle...
...What else should any thinking person have expected...
...Harvard, for example, continues to participate in the programs for NDEA foreign language fellowships and NSFA Cooperative Fellowships, which require the university itself to administer oaths and affidavits...
...nor (4) harbored or aided any person engaged in guerrilla warfare against loyal inhabitants of the U.S...
...Justices Hugo Black and William Douglas think so too...
...At the same time, they have a special obligation to see to it that other funds are raised for the benefit of any student who is eligible for a loan or grant under the NDEA or NSFA but has conscientious objections to signing the required oath or affidavit...
...and sign a "non-Communist affidavit...
...Congress adopted this procedure in order to place "the administration of the funds closer to the students who may need and apply for loans...
...The Reconstruction Period oaths, for example, provided that no person could practice law in a Federal court, hold public office, be a teacher or perform the tasks of a clergyman unless he took an oath that he had never (1) voluntarily borne arms against the U.S...
...The Congressional distrust implicit in this singling out of the academic community rankles—and justifiably so...
...Even those who object to the affidavit requirement on principle should hesitate greatly before refusing to participate in the NDEA programs...
...So, for example, the NDEA disclaimer affidavit has been likened by President Griswold to the political and religious test oaths so abhorrent to our liberty-loving forefathers...
...The language of the NDEA affidavit is taken almost word for word from the non-Communist affidavit which labor union officers had to take under the Taft-Hartley Act (until the Landrum-Griffin Act of 1959 repealed this requirement) . The constitutionality of the Taft-Hartley affidavit was attacked because of these ambiguities...
...in the Taft-Hartley case, the government was exerting pressure on labor unions to get them to remove from office the individuals who held the described beliefs...
...Liberals who fought for increased Federal aid to education and scorned the argument that it might lead to Federal control of education are now protesting this requirement as an unwarranted Federal invasion of academic freedom...
...Does one "support" an organization that believes in or teaches overthrow merely by endorsing certain parts of its program (e.g., the elimination of racial discrimination) ? Or by defending its right to exist and be heard...
...Will our democracy really be strengthened by wholesale pledges of allegiance by college students and teachers...
...The Chief Justice then held that the non-Communist affidavit was aimed only at "persons and organizations who believe in violent overthrow of the Government as it presently exists under the Constitution as an objective, not merely a prophecy...
...Neither position, in my opinion, is reasonable...
...and (3) that he "does not support any" such organization...
...It is whether the person asked to sign the affidavit is given fair warning of what is required of him...
...A higher education is precisely what these students need...
...I do not see how anyone can take the oath in good faith who believes in the overthrow of the U.S...
...In some ways, the disclosure of beliefs is easier, and in other ways more difficult, to justify under the NDEA than under the Taft-Hartley Act...
...The answer given to this question has not been clear or consistent, and some of the distinctions drawn are less persuasive than others...
...Other Justices, like Justice Felix Frankfurter and the late Chief Justice Vinson, do not...
...There are other reasons—and President Griswold marshals them—that should be sufficient to persuade most Congressmen of its lack of wisdom...
...It must be admitted that these ambiguities are latent in the language of the affidavit...
...In addition, some who make this distinction do not apply it consistently...
Vol. 43 • February 1960 • No. 5
