School districts across Nebraska have received an email from the ACLU
regarding the pledge contained in NEB. REV. STAT. § 79-8,108. This statute and
NEB. REB. STAT. § 11-101.01, which contains an oath of office for state
employees, both require 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 and pledge. Section 11-101.01 also requires
the oaths to be filed with the Department of Administrative Services or the
county clerk.
Section 11-101.01 states in full:
All persons in Nebraska, with the exception of executive and
judicial officers and members of the Legislature who are required
to take the oath prescribed by Article XV, section 1, of the
Constitution of Nebraska, who are paid from public funds for
their services, including teachers and all other employees paid
from public school funds, shall be required to take and subscribe
an oath in writing, before a person authorized to administer
oaths in this state, and file same with the Department of
Administrative Services, or the county clerk of the county where
such services are performed, which oath shall be as follows:
“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.”
Section 79-8,108 states in full:
All persons engaged in teaching in the public schools of the State
of Nebraska and all other employees paid from public school
funds, shall sign the following pledge:
“I, .........., do believe in the United States of America
as a government of the people, by the people, for
the people; whose just powers are derived from the
consent of the governed; a democracy in a republic;
an indissoluble nation of many sovereign states; a
perfect union, one and inseparable; established upon
those principles of freedom, equality, justice and humanity
for which American patriots sacrificed their lives and fortunes.
I acknowledge it to be my duty to inculcate in the
hearts and minds of all pupils in my care, so far as it
is in my power to do, (1) an understanding of the
United States Constitution and of the Constitution of Nebraska,
(2) a knowledge of the history of the nation and of the sacrifices
that have been made in order that it might achieve its present
greatness, (3) a love and devotion to the policies and institutions
that have made America the finest country in the
world in which to live, and (4) opposition to all
organizations and activities that would destroy our
present form of government.”
The Oath and Pledge are Probably Unconstitutional, if Required.
As you can see, both statutes require a signed document. It’s an “oath” for
purposes of section 11-101.01 and a “pledge” for section 79-8,108. If you
have never administered, signed, or even heard of these things, you are not
alone. In fact, it has long been our position that requiring all school
employees to comply with these laws probably violates the United States
and Nebraska Constitutions. At a minimum, as the ACLU mentions, you may
face litigation if you force employees to comply.
Although Nebraska does not have a Nebraska Supreme Court case
interpreting the constitutionality of the oath, the ACLU correctly notes a
Lancaster County District Court case in line with the U.S. Supreme Court and
several other state and federal courts which 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 which have
invalidated oaths and pledges like those found in sections 11-101.01 and 79-
8,108. A Nebraska court would likely find these laws to be unconstitutional,
as well. However, we do 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 employee’s First Amendment rights. 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.”).
I read in the news that other attorneys are telling schools to
require the oath and pledge, so what should we do?
There is no known consequence for failing to administer the oath, and we believe
requiring it would almost certainly subject your school to litigation as noted
in the ACLU email to Nebraska schools. If you have an employee who requests to take
the oath, you should let them.
Some schools and the State Board of Education have been faced with
patrons demanding that the oaths be administered, and we certainly
understand the strong feelings expressed by those who support such an oath
and pledge. We likewise understand the rationale behind following
mandates created by statute, even if they are “dead laws” which probably
are not constitutional. However, following the law merely buys you an
argument in a lawsuit—it does not prevent an employee or the ACLU on their
behalf from suing the district. While we don’t want to seem unpatriotic and
understand that board members and administrators don’t want to be labeled
a “communist,” we believe the ACLU has the law on their side.
In the end, this is a board decision. As you may recall, Commissioner
Blomstedt sent out a Memo to schools on May 11, 2015, in part bringing
section 79-8,108 to the attention of Nebraska districts. As the
Commissioner noted, this is a decision to be made within each district.
Boards are entitled to weigh the consequences of requiring the oath and
pledge versus not requiring them.
If you have questions, we recommend that you consult with your
school district’s attorney or call Karen, Steve or Bobby.