Questioning Ohio's Loyalty Requirement

[Harold F. Schiffman]

http://chronicle.com/weekly/v53/i15/15b02401.htm
>>From the issue dated December 1, 2006

Questioning Ohio's Loyalty Requirement
By ROBERT M. O'NEIL

"Have you solicited any individual for membership in an organization on
the U.S. Department of State Terrorist Exclusion List?" is the type of
question that people in higher education dreaded receiving a half-century
ago during the McCarthy era. Seventy or more professors were dismissed
during those dark days, mostly because they refused, as a matter of
conscience, to answer such queries. Since the 1960s, such invasive
inquiries have been relegated to distant memory; few people still teaching
even recall much about McCarthyism, much less have had direct encounters
with redbaiting or witch hunting.

But beginning this past summer, all new employees at some Ohio public
universities, including those accepting teaching positions, are being
confronted with just such politically sensitive and intrusive questions.
In addition to the "have you solicited" inquiry, a new teaching assistant,
for example, at some of the public campuses is now required to disclaim
several other types of potentially suspect affiliation or activity. The
teaching assistant must declare that he or she is not currently a member
of any organization on the Terrorist Exclusion List, has not used any
"position of prominence ... within any country to persuade others to
support [such] an organization," has not "knowingly solicited funds or
other things of value" for such a group, has not "committed an act that
you know, or reasonably should have known, affords 'material support or
resources' to any such organization," and has not hired or compensated a
person known to belong to such groups, "or a person you knew to be engaged
in planning, assisting, or carrying out an act of terrorism."

The origin of this novel job requirement is Ohio's Patriot Act, which took
effect in April with remarkably little fanfare. Among a welter of
security-related provisions is one that calls upon the state's director of
public safety to prepare a document by which state agencies must certify
whether any "applicant for a [license, employment, or government contract]
has provided material assistance to an organization" on the U.S.
Department of State Terrorist Exclusion List. The statute lists six
questions to which acceptable answers must compose an applicant's
declaration. The law goes on to treat an unsatisfactory answer, or even a
failure to respond, as "a disclosure that the applicant has provided
material assistance" to a listed organization.

Needless to say, such a "disclosure" in explicit form  or, by nonresponse,
implicit form  would bar the issuance or renewal of the license, job, or
contract. As Christopher T. Carlson, manager of contracting for the Ohio
Department of Job and Family Services, predicted: "Frankly, what's going
to happen is some clerk, two years from now, will mistakenly check a bunch
of yeses instead of the noes ... and I don't know if the storm troopers
will be standing by or what."

The response from Ohio's 61 public colleges and universities has varied.
Statutory coverage of academic employees seems beyond doubt; the act's
provisions were specifically made applicable to public employment. Some
institutions have decided that applicants for graduate fellowships and
work-study positions are not really "employees," and need not complete the
questionnaire. At the University of Akron and several other campuses,
however, graduate TA's have been required to complete the form. Akron has
specifically decreed the inclusion of "all new hires for faculty and
contract professional positions." Reportedly, no candidate has yet refused
the request or provided unsatisfactory answers, or has been denied
employment under the law.

Soon after the graduate-TA situation became public, I sent a letter of
protest to the president of the University of Akron in my capacity as
chair of the American Association of University Professors' Special
Committee on Academic Freedom and National Security in a Time of Crisis.
The letter pointed out that the job-application questions violated the
constitutional guarantees of free speech and threatened the academic
freedom of professors, who were effectively forced to choose between
employment and a bewildering array of sensitive responses. University
officials responded that, as a state institution, Akron had to follow the
law and that the AAUP, not the university, should speak out on such
issues.

The application of the employment form to Ohio professors poses questions
of far greater import to universities like Akron, however, than the
minimal publicity about the issue might suggest. At a constitutional
level, the potential impact of such questions on a conscientious public
employee or job applicant may be profound. The broad scope of largely
undefined terms in the act and questionnaire compounds the dilemma.

For starters, the U.S. State Department Terrorist Exclusion List may be
viewed on the department's Web page, but it seems a lot to ask of a new
employee checking in for the first day of work at an Ohio university.
Moreover, the list enumerates 59 separate groups, some of which (Ulster
Defense Association, Japanese Red Army, People Against Gangsterism and
Drugs) are hardly household names when it comes to current security
concerns. A person confident of his or her nonengagement in Middle Eastern
tensions could conceivably be implicated through past involvement in a
remote sector of the world.

As for the statute's terminology, just one key concept is amplified. A
definition of "material support or resources" can be found in the statute,
while several other key words and phrases  "position of prominence,"
"persuade," and "solicited," among others  are nowhere defined in the law
and might be interpreted legally in myriad ways.

Our abhorrence of such imprecise language as an employment screen runs
deep. In a series of cases in the 1960s, the Supreme Court struck down  on
both free-speech and due-process grounds  disclaimer-type loyalty oaths
required of public employees. Since most cases involved professors and
teachers, the justices (sensitive to academic-freedom implications)
stressed the dilemma that a conscientious scholar would face on being
asked to declare loyalty through such ill-defined terms: "The teacher
cannot know the extent, if any, to which a 'seditious' utterance must
transcend mere statement about abstract doctrine... . The crucial
consideration is that no teacher can know just where the line is drawn."
Justice William J. Brennan added, in the case that struck down New York's
loyalty-security measures, that "it would be a bold teacher who would not
stay as far as possible from utterances or acts which might jeopardize his
living by enmeshing him in an intricate machinery. ... The result must be
to stifle 'that free play of the spirit which all teachers ought
especially to cultivate and practice.'"

Similar doubts might well affect, and ultimately deter, a conscientious
person who seeks academic employment in Ohio, but who could not possibly
anticipate how "solicit" or "persuade" or "position of prominence" might
eventually be construed. Thus, the implications for academic freedom of
the license requirement and questionnaire seem inescapable.

Of equal concern is the efficacy of such a measure as a safeguard against
terrorist infiltration. As the nation learned to its dismay during the
McCarthy era, it is the genuinely subversive and dangerous applicant for a
sensitive position who is least likely to be deterred by such a hurdle,
while the loyal and conscientious candidate is at risk of a seriously
adverse effect. Since the Ohio declaration form strikingly resembles the
disclaimer-type oaths of the 1950s, the flaw we discovered back then would
surely find a parallel among terrorists today. The person who poses the
gravest threat to our national security would be only too willing to
falsify a response to a misguided inquiry about loyalty.

Ohio's public universities face their own dilemma in implementing the
license provisions of the state's Patriot Act. A scholar who holds offers
from other states might choose to go elsewhere. Moreover, a state
university official who abridges the federally protected free speech of
any employee risks civil liability (even for personal damages) in a
federal-court suit.

Several paths of possible recourse do appear open to an Ohio university
administrator who might wish to avoid imposing on academic job applicants
a requirement of dubious constitutionality. For one, the statute provides
that the state's director of public safety "may adopt rules that establish
categories of employment that are exempt." There is no evidence that any
such exemptions have been issued, or that a process leading toward one has
even been initiated. There has been one reported court challenge, brought
on behalf of an Ohio lawyer who objected to completing the form as a
condition of receiving a routine court appointment. The state's Supreme
Court ruled in September that the statutory obligation did not apply, but
no broader issues were implicated. The wonder is that no challenge seems
yet to have reached administrative review, much less a state or federal
court, save for the technical objection raised by the court-appointed
lawyer.

Another option would be to seek formal legal guidance before imposing on
applicants a requirement that might be deemed unconstitutional in a
federal-court challenge. Most, if not all, of Ohio's public universities
have their own lawyer or general counsel, charged with providing legal
advice and representation to the governing board and administration. If
ever there was a time when such guidance would have been appropriate, it
would have been at the time the antiterrorist employment screen first took
effect. Even if such legal counsel was not then sought, it isn't too late
to seek it in advance of the next round of academic recruitment and
hiring. The exemplary tradition and values of public higher education in
the Buckeye State deserve at least that much.

Robert M. O'Neil is a founding director of the Thomas Jefferson Center for
the Protection of Free Expression and a professor of law at the University
of Virginia.

http://chronicle.com
Section: The Chronicle Review
Volume 53, Issue 15, Page B24

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