The American Civil Liberties Union has told Hastings school officials that a state law requiring teachers to sign a pro-America pledge is unconstitutional, but the district superintendent says he's just following legal advice.
The pledge says those who sign it believe in the U.S. government and will teach students “love and devotion” of America.
Amy Miller, legal director for ACLU of Nebraska, said that although the 1951 law remains on the books, the U.S. Supreme Court has ruled several times that public employees cannot be required to sign such pledges because they violate the U.S. Constitution.
The law was passed during the Red Scare of the McCarthy era, and Miller said it's not the only outdated state law on the books.
“You need to know that the statute is a dead letter law which has been clearly overruled by the highest court in the land. Attempting to enforce the state statue is unconstitutional and will expose the school district to liability to a civil rights lawsuit,” the ACLU wrote in the letter, dated Friday.
Hastings Public Schools Superintendent Craig Kautz said this year is the first time he's asked teachers to sign the pledge and that he's following legal advice in doing so.
“So, for the first time in my working career we basically asked our staff to do that — our teaching staff — the minimum required by statute,” said Kautz, who has been an educator in Nebraska for decades.
He said he'd never heard of the 1951 pledge law until this spring, and noted that there is no penalty provision in the law. That means if staff choose not to sign it will not affect their employment status.
Kautz said he has no doubts about his staff’s loyalty to the country but does not have the option of ignoring the law.
“Our job is to comply with the law to the best of our ability,” he said, “But to say that we are forcing employees to take a McCarthy-era loyalty oath is just not accurate.”
The ACLU wrote that it will "close its file" if the Hastings district tells teachers within seven days they don't have to sign the pledge.
Miller said complaints the ACLU got from Hastings are similar to those they have received from teachers about the law over the years but this is the first time the complaining parties have given permission to make the letter public. Similar ACLU letters have solved the problem in the past, she said.
Teachers shouldn’t be forced to choose between their personal beliefs and a job, Miller said, and the pledge goes far beyond asking teachers to uphold the Constitution.
“The employees we've spoken to love their jobs. But they have deeply held beliefs that do not permit them to sign an outdated McCarthy era pledge," she wrote. "I am sure that your office wants to support valuable employees and not force them to choose between their jobs and their principles."
This spring, Lincoln businessman Richard Zierke asked the Nebraska Board of Education to enforce the law. His argument follows a national debate about how to teach history, especially issues such as slavery, racism and American exceptionalism, or the theory that the United States is inherently different than other nations.
Most recently, critics attacked a new framework for Advanced Placement history tests that require more interpretation than recitation of facts. They say it paints America in a negative rather than positive light. Earlier this month, the College Board revised the framework, appeasing many of the critics.
In May, Nebraska Education Commissioner Matt Blomstedt wrote to all superintendents concerning the 1951 teacher pledge law and another law that requires school boards to create an Americanism committee and also sets minimum requirements for teaching American history.
He said the state board’s policy committee is considering asking the Legislature to modernize certain provisions of the Americanism committee law. In his letter to superintendents, Blomstedt doesn’t take a position on the teacher pledge law but notes that some schools require it and others follow legal advice telling them not to do so.
“I simply draw this to your attention in case that you have not reviewed this in your school district recently,” he wrote.
Neither Lincoln nor Omaha public schools require teachers to sign the pledge.
The Nebraska Supreme Court has not addressed this law, but in 1967 a Lancaster County District Court struck down a similar one requiring public employees to sign an oath, she said.
But Rex Schultze, whose law firm represents many Nebraska school districts including Hastings, said the public employees law was different because it violated constitutional rights of free association by prohibiting employees from joining organizations or political parties that advocate overthrowing the government.
“I don’t think the (teacher pledge) law is unconstitutional because it does not require anyone to give up any constitutional rights of free speech or association,” he said, “All it says is you will, as part of your employment, seek to encourage these things.”
Schultze said he’s not advocating for the law, but the schools are required to follow it and the debate has put them in a Catch-22 situation.
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