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
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:
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:
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
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.