We are now in the heart of this year’s legislative session. In the spirit
of following some laws that make us crazy, we wanted to take this
opportunity to talk about some unique school laws that have been around
for a long time. Since 1967, Nebraska statute section 11-101.01 has
required anyone “paid from public funds for their services, including teachers
and all other employees paid from public school funds” to take an oath of
employment. The law also requires the oaths to be filed with the
Department of Administrative Services or the county clerk. The oath states
in full:
I, .........., do solemnly swear that I will support and defend the
Constitution of the United States and the Constitution of the
State of Nebraska, against all enemies, foreign and domestic;
that I will bear true faith and allegiance to the same; that I take
this obligation freely, without any mental reservation or for
purpose of evasion; and that I will faithfully and impartially
perform the duties of the office of .......... according to law, and
to the best of my ability. And I do further swear that I do not
advocate, nor am I a member of any political party or
organization that advocates the overthrow of the government of
the United States or of this state by force or violence; and that
during such time as I am in this position I will not advocate nor
become a member of any political party or organization that
advocates the overthrow of the government of the United States
or of this state by force or violence. So help me God.
NEB. REV. STAT. § 11-101.01.
If you have never administered, sworn, or even heard of this oath, you
are not alone. In fact, it has long been our position that requiring all school
employees to take this oath probably violates the United States and
Nebraska Constitutions. At a minimum, you will probably face litigation if
you tried to implement the oath for all of the employees at your district.
The Oath is Probably Unconstitutional, if Required. Although
Nebraska does not have a case interpreting the constitutionality of the oath,
several other states have decided the issue. For example, in Nicholson v.
Board of Comm’rs, 338 F. Supp. 48, 56 (M.D. Al. 1972), a federal court in
Alabama held that the phrase “So help me God” administered in an oath
“infringes upon the free exercise clause of the first amendment.” Likewise,
in Vogel v. County of Los Angeles, 68 Cal. 2d 18, (Cal. Sup. Ct. 1967), the
California Supreme Court held that an oath violated the First Amendment
where it required the promisor to swear he or she was “not a member of any
party or organization, political or otherwise, that now advocates the
overthrow of the Government of the United States…by force or violence or
other unlawful means . . . .”
These cases are just a few examples of numerous courts who have
invalidated oaths like those found in section 11-101.01. A Nebraska court
would almost certainly find the school employee oath to be unconstitutional,
as well. However, we believe that a school employee is entitled to take the
oath if they so choose. Denying an employee to right take the oath might
well violate the First Amendment. See Newdow v. Roberts, 603 F.3d 1002,
1006 (D.C. 2010) (holding that President Obama had a “First Amendment
right” to conclude his Oath of Office with “So help me God.”).
Interestingly, at recent meetings of the Nebraska State Board of
Education, members of the public have asked the State Board why schools
are not requiring this oath. The short answer is that schools don’t require
the oath because we are afraid that they’ll get sued if they do so!
Are there other weird school laws in Nebraska? Oh, yeah,
especially dealing with religion. For example, did you know that it is a
misdemeanor if a teacher “wears . . . any dress or garb indicating the fact
that such teacher is a member or an adherent of any religious order, sect, or
denomination”?! NEB. REV. STAT. § 79-898. Did you know it’s misdemeanor if
a board member fails to suspend the teacher for one year for wearing
religious garb?! NEB. REV. STAT. § 79-899. We think both of these laws are
probably unconstitutional, too.
It is also “cause to remove” a superintendent, board member, or any
other school employee if they ask an applicant for a teaching position to
discuss their religious affiliation or beliefs. NEB. REV. STAT. § 79-896. We want
your school to comply with this law—don’t ever ask about religion on an
application or in an interview!
So, what should you do? Nothing. We recommend that you
continue on like normal. There is no known consequence for failing to
administer the oath, and we believe requiring it would almost certainly
subject your school to litigation. If you have an employee who requests to
take the oath, you should let them. Some schools have been faced with
patrons demanding that the oaths be administered, but we think you are
much better off avoiding the lawsuit than the allegation that you’re a
Communist!
If you have questions, we recommend that you consult with your
school district’s attorney or call Karen, Steve or Bobby.