The Loyalty Oath at the University of California:
A Report on Events, 1949-1958
The loyalty oath controversy began in 1949 and continued until the last suit for back wages was won by a non-signer, and until the American Association of University Professors lifted its censure of the administration. The loss brought about by the controversy is incalculable to the students, and will grow every year without these men, a loss as incalculable as the loss to the faculty members themselves. A prominent faculty member believes that the relations between the administration and the faculty have been permanently warped.
The events are so numerous and their relationships so complex that an extended review is necessary before any comment is meaningful. The following summary is based largely upon the report of developments concerning academic freedom and tenure published as Appendix A in the Bulletin of the American Association of University Professors, Spring, 1956 (vol. 42, no. 1, pp. 100-7).
President Robert G. Sproul presented to the Board of Regents on March 25, 1949, a draft of a special oath to be taken by all university staff. The oath proposed was in addition to the oath to support the Constitution of the United States and the Constitution of the State of California which was required of all officers of the state. Whether faculty members at the state university were indeed officers of the state, and whether they held a public trust, like deputy sheriffs, became one of the most disheartening debates. The proposal by the president was made without the foreknowledge of the faculty, or at least without any communication with it beyond certain members who must have seriously misguided the president concerning the effects of the public announcement of the proposed oath.
The oath was apparently an effort to forestall action on the part of the California Committee on Un-American Activities, of which Senator Jack Tenney was chairman, to place a constitutional amendment on the state ballot giving the legislature authority over the University in matters of loyalty. To anticipate, the Supreme Court of California rendered its decision in Tolman vs. Underhill, October 17, 1952 (Sac. No. 6211, 39 26C), giving non-signers reinstatement to their positions on the ironic gounds of legislative pre-emption of any Regential authority in this field. However, in 1949, Comptroller James H. Corley, the University representative at the Logislature, apparently felt that Senator Tenney's Senate Bills, such as SB 130, which made it a crime to teach anything but "Americanism" in public schools, showed the Senator was riding a mounting wave of success. In fact, the Senator was soon to fall. But Corley, acting within his powers, evidently conferred with Tenney and made certain suggestions about the University and the Communists it allegedly harbored. These suggestions, or concessions, are only conjectural, but it is quite likely that President Sproul found himself forced to accept them without having been consulted. At least, the University's lobbyist no longer has such undefined powers.
The minutes of the Regents' March 25 meeting state simply that President Sproul said: "There is a matter on which I should like the hand of the President upheld and his authority clarified having to do with this subject." Offered then in executive session, the motion to require the oath was passed with little discussion by a unanimous vote.
Regent John Francis Neyland was ill with a cold in Arizona. His absence from the meeting and his claim to be ignorant about its business until later may have led to another grave difficulty for the President. In brief, Neylan was able to criticize any maneuver by Sproul without having to accept even partial responsibility for its effects. Whether he was as ignorant of the possibility of the oath as he claimed is an open question. In any event, the text of the oath, not revealed to the faculty until June 12, 1949, was as follows:
I do solemoly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of my office according to the best of my ability; that I do not believe in, and I am not a member of, nor do I support any party or organization that believes in, advocates, or teaches the overthrow of the United States Government, by force or by any illegal or unconstitutional means.
On June 24, the latter part was changed to make specific reference to the Communist Party:
. . .that I am not a member of the Communist Party or under any oath or a party to any agreement or under any commitment that is in conflict with my obligations under this oath.
This requirement of a special oath of disclaimer shocked the faculty, not only because they had not been consulted about it and had known of its existence only by a vague reference in the May Faculty Bulletin, but especially because it seemed clearly to contravene the State Constitution and the Government Code. The former simply prescribed the oath of allegiance to the Constitution, and further, provided clearly that no other oath shall be required (Art. XX, Sec. 3). The Levering Act (GC 3100-3109), or the present loyalty oath, was to alter this clear limitation. The latter, the Government Code, required public officers to take an identical oath and made it unlawful to remove a person from his post because of his failure to comply with any "law, charter, or regulation prescribing an additional test or qualification, other than tests and qualifications provided for under civil service and retirement laws, if he has taken or offers to take the oath prescribed" by the Code.
On June 14, 1949, the Northern Section of the Academic Senate passed a resolution of protest, to which the Southern Section concurred at its meeting of June 20. The objections to the oath included not only the ambiguity of its terms (it was perhaps modelled after a hastily-seen original from Alaska), and its obvious futility as a means to detect Communists, but also the broader questions of constitutionality and tenure. These objections are stated at length, along with a discussion of academic freedom and an analysis of the position of the faculty within the university, in Ernest H. Kantorowicz The Fundamental Issue: Documents and Marginal Notes on the (U. of C.) Loyalty Oath (Berkeley, 1950). The others present at this meeting, Professor Kantorowicz saw the issues involved clearly, because he had seen similar statements stipulating loyalty as a requirement of an academician before, in German and in Italian.
The Senate also asked the President for assurance of the application of "all normal intramural procedures with respect to privilege and tenure," of the separation of the oath from the "contract letter" (whichwas introduced to replace the former letter of notification of salary, thought to be tenure-guaranteed, sent to a professor each year), and of no requirement for annual repetition of the oath. The Senate resolutions showed great solidarity on the part of the faculty. A major error occurred, however, when an Advisory Committee was established to keep in contact with the Regents; the committee's powers were not clear. Four days after the Northern Section's meeting on June 14, the committee met with the President, and suggested two alternatives: a statement by the University condemning Communists as teachers, or, a watered-down version of the proposed oath. At the Regents June 24 meeting, this version was accepted, but a clause was inserted which abjured membership in the Communist Party explicitly [see George Stewart's The Year of the Oath (Berkeley, 1950), pp. 28-31]. The regular session ended. Many professors believed that the Advisory Committee had acted properly. In fact, some of its members did believe they were granted bargaining, and not only discussion, powers. They were rudely awakened to their being manipulated by the Regents when they saw the "agreement" as it was publicly announced. The action taken was very effective from the Regents' point of view. Most professors, upon their return from summer vacations, thought the matter had been settled, while the many fewer vocal non-signers charged they had been "sold down the river." The faculty solidarity was broken.
From the beginning, the faculty was placed in a dilemma because of the difficulty of separating the two major issues presented it. On the one hand, there was the issue of Communism and loyalty; on the other, the issue of the infringement of tenure implied in the imposition upon everyone of an oath of disclaimer: "I am not...". In later discussions it was emphasized, especially by the Regents, that in 1940, at the time of the dismissal of a teaching assistant who was found to be a member of the Communist Party, a public statement had been issued by the Regents which stated that "membership in the Communist Party is incompatible with membership in the faculty of a State University". Furthermore, a resolution of the Regents on January 4, 1946, had amplified and formalized this policy as follows: "Be it resolved that any member of the faculty or student body seeking to alter our American government by other than constitutional means or to induce others to do so, shall, on proof of such charge, be subject to dismissal." Many members of the faculty appear to have been uninformed of this policy; no effort had been made to implement it until the fateful days of 1949, when the political temper of the times had changed, and the disclaimer oath was made to substitute for proof of charges of subversion. On March 22, 1950, a secret mail ballot by the faculty allowed Regent Neylan to say: "After a full year's discussion, (the faculty) voted by secret ballot in a majority of 79% to sustain the policy of the University excluding Communists from employment." Further, Regent Neylan congratulated the faculty for being the first in the United States to take this stand (Stewart, Oath, p. 38).
A faculty leader subsequently revealed that the faculty thought it had engaged in a second bargain with the Regents, in order to end the controversy. This proposition, voted upon by all the faculty, was, in the leader's words, "put over" after assurances that the Regents would be satisfied with it as a substitute for individual oaths of denial (see John Caughey, "A University in Jeopardy," Harper's Magazine, vol. 201, no. 1206 (November, 1950), 72).
To return to late July, 1949. The regent-administration side made a serious error in not sending checks to non-signers of the "compromise" oath. The faculty reacted with indignation; it considered this failure a sign of worsening breach of faith. Though the members were scattered,they realized their optimism at the end of the semester was unjustified.
On September 19, 1949 the Northern Senate met, and three days later the Southern section also convened. The resolutions adopted indicated that the faculty was not willing to follow the Advisory Committee in its compromise with Regents. The faculty now undertook to avoid explicit agreement with the Communist-exclusionist policy and the doctrine of guilt by association embodied in the Advisory Committee's compromise, or the Regents' reworking of the compromise. The faculty placed the issue of the Communist teacher squarely upon "the freedom of competent persons in the classroom" as stated in University Regulation No. 5 (1934; revised, 1944). The prohibition should be that of "the employment of persons whose commitments or obligations to any organization, Communist or other, prejudice impartial scholarship and the free pursuit of truth." It was a forlorn semantic hope that the word "Communist" would please the Regents, and the words "or other" would please those who objected to the oath on the grounds of it being a political test, or assigning guilt by association (Stewart, Oath, p. 32). The faculty did reject the additional loyalty oath outright. These proposals were voted unanimous in the north and south. When they were presented to the Regents, a committee, of which John Neylan later became Chairman, was appointed to confer with the Advisory Committee of the Senate. About this time, as the misunderstanding increased, Regent Neylan, who had on his account been originally opposed to the oath became one of its staunchest supporters, while President Sproul became more and more concerned with the adoption of some alternative that would be acceptable to the faculty.
It is difficult to assess Regent Neylan's part in the entire controversy. Before he was Regent Neylan, he was general counsel for, and once publisher of a part of, the Hearst chain. He was undoubtedly aware of what took place on many levels of State politics, and may have represented a faction in the State which was out to remove President Sproul and discredit the more liberal faction to which he belonged. Neylan was not so limited a man as Tenney, by any means. Possibly Comptroller Corley's compromise with the Senator forced President Sproul to do hastily and unwisely what Regent Neylan saw should be done more cleverly. In any event, his enmity toward the President became more and more apparent, and his actions became more and more complicated to explain. The task of trying to grasp what his ultimate influence on the Board of Regents came to represent is beyond the scope of this paper.
On September 13, 1949, the Regents' position was definite: Communists must be excluded from the faculty, and until a better means was found, an oath of disavowal would be a condition of employment. The faculty stand, as eventually defined by a newly-formed Conference Committee appointed to confer with the Regents at a meeting in San Francisco, September 29, was that the oath should be withdrawn; that freedom and security should be maintained by "full faculty participation in the making of decisions affecting conditions crucial to teaching and research and a high degree of deference to faculty judgment in such matters, such as qualifications for membership, which are peculiarly within the competence of the faculty;" and that "the exclusion of members of the Communist Party per se from employment is not the best means." There was admittedly a sharp division on the last matter; the majority at this time held to the policy of the AAUP and the judicial tenet that guilt should not rest solely upon membership or association. At the September 29 meeting, the faculty representatives were led to understand that the Regents were not wholly lacking in sympathy to their point of view. They were surprised at the Regents' meeting the next day: the Special Committee to which they had spoken presented the Regents with an entirely negative and completely unyielding set of recommendations. This was the last day before the "soft" deadline, and many professors were driven by economic pressures to sign the oath (see Stewart, Oath, p. 34, for an account of the meeting).
On November 30, the Berkeley non-signers formed a permanent but informal organization. There were further discussions between the Senate and Regent Committees, but little was done to change the atmosphere. On January 4, 1950, the Regents met with the faculty. The depth of the split between the two groups became apparent. In an effort to find another compromise, the faculty agreed to a proposal that a statement of policy might be placed on the reverse side of the "annual contract" (tenure was dead) and to have the acceptance of the "offer of position and salary" include acceptance of the "the terms of employment implied in that statement of policy." The proposed statement did not mention Communism, but concerned only free scholarship and teaching, according to the Regents' resolution of June 24, 1949, and University Regulation No. 5. In conference with President Sproul, the Northern Conference Committee members accepted wording that recognized the exclusion of Communists from the normal protection of tenure. The Regents proposed that the conditions be stated on the face of the letter of appointment as an alternative to the oath. This was unanimously refused by the Senate Committee. The Board of Regents reaffirmed the alternative requirement and set April 30, 1950, as the deadline for acceptance, with failure to sign meaning severance from the University as of June 30, 1950. The motion setting this policy in order was passed by a vote of twelve to six on February 24. This policy was known immediately as "The Sign-or-Get-Out Ultimatum." The result of a deadline for signature with no specific provisions for hearings was that non-signature as well as Communist Party membership abrogated tenure. This action was taken in spite of warnings of serious consequences to the University by 42 deans and department heads of the Northern Section and by 32 administrative heads of the Southern Section. One regent dismissed them as "campus politicians" (Stewart, p. 36). It was now evident that the issue could be stated in four words: "Not disloyalty but discipline" (see Caughey, "A University in Jeopardy," p. 68).
On February 27, the non-signers' meeting was attended by 150 members at Berkeley, who expressed their determination to stand together and accept dismissal rather than sign. A defense fund was inaugurated. On March 7, the Northern Section of the Academic Senate met, ready for an open and irretrievable break with the Regents; by floor motion, however, the mail ballot proposing the faculty to accept the policy that Communists are not acceptable "as members of the faculty" was advanced, and carried by 79%, as earlier mentioned.
At the March 31 Regents' meeting, Regent Neylan, who had earlier hailed the March 7 ballot as uniting the Regents and faculty, again led the attack against the faculty position. The Regents split 10 to 10 on a motion to withdraw the ultimatum. The tie vote allowed the ultimatum to stand, and the meeting became known as The Great Double-Cross (Stewart, Oath, p. 39).
On April 21, 1950, nine days before the deadline, an alumni committee which had been called by President Sproul to arbitrate the deadlock submitted, and the Regents supposedly fully accepted, a plan which substituted for the oath a "New Contract of Employment", containing a disavowal of Communist Party membership and a further provision that those who failed to sign could petition the President for a hearing by the Senate's Committee on Privilege and Tenure. These recommendations are available in the form of a letter to alumni offices sent by the committee on April 20. From the non-signers' point of view, these recommendations were ill-conceived: the alumni committee evidently failed to see they were dispensing with the notion of tenure, and substituted merely an "equivalent affirmation" for the oath itself, which they permitted to transmigrate to the "annual contract". All that was gained was a chance for "Any member of the present faculty...to appeal for review" by the Privilege and Tenure Committee, but the Regents, as previously, reserved the right of final decision concerning any recommendations by this committee. During the next few days, it became apparent that while President Sproul held that unwillingness to sign did not mean dismissal, and that one could be cleared by the committee without signing, this view was challenged by Mr. Neylan. At the April 21 meeting, the only dissenting vote was cast by Regent Giannini who had been appointed to fill his father's term on June 24, 1949. This fiery young man quit the Board on April 21. He might well not have let his anger carry him away, because Regent Neylan was far from accepting even the brutal compromise of the faculty position the alumni committee offered.
On May 1, a new form of letter of appointment was sent out to implement the adopted policy, to those with tenure as well as to those without. Instead of the former wording "... your salary for the year ending...as Professor of...was fixed at $...," it read as follows: "This is to notify you that you have been appointed Professor of... for the period July 1, 1949, to June 30, 1950, with salary at the rate of $...." This letter also contained the further requirement that the letter of acceptance be signed and the enclosed oath be subscribed and sworn to before a notary public. This letter clearly substituted for tenure and annual appointment, subject to the constitutional oath, and a written acceptance of the disclaimer statement. Even with an appeal route open to him, a professor would have to face the faculty, administration, and regent committees once each year if he did not sign for that year.
Fifty-two persons who did not comply appeared before the Northern Tenure Committee, of whom five were not recommended for rehiring on the basis of non-cooperation with the Committee, and 47 were recommended for continuance. The committee claimed that the crucial point was whether the non-signers would state to the Committee directly or indirectly that they were not Communists and so would clear themselves; but in cases of refusal to answer this question, the Committee might have acted from inferences. The Southern Tenure Committee, on the other hand, gave only incidental attention to the question of Party membership, and devoted itself mainly to eliciting satisfactory reasons for not signing. It examined 27 non-signers, nine without Senate status, and found all but one "loyal citizens, who in their independence stood unwilling to perform an act that they felt should form no part of a great University's condition for employment." In July and August meetings, the Regents showed conclusive disagreement.
It became clear that the reasoning of the Tenure Committees would not be accepted by the Regents. On June 23, the Regents voted to defer action on all cases with hearings involved and forecast the fate of this group by firing 157 employees who had neither signed the newcontract for the period to June 30, 1950, nor requested hearings. Few, if any, were regular members of the Senate. Most were staff members leaving in disgust. At the meeting on July 21, the Regents voted to fire six members of the faculty, as recommended by the President on the basis of Committee reports, not as Communists, but for refusal to cooperate with the examining committee. To refuse to sign was to be disobedient, to flout the Board's authority, to desire to substitute one's own judgment as to standards of employment, to resist the discipline of the University over its employees, Professors were now employees, not officers or holders of a public trust, and so had no vested right. Such statements appear from the stenographic records of the summer meetings as the grounds for the Regents' rejection of the President's recommendation for the continuance of those who had been cleared by the Tenure Committees. This rejection occurred on August 25. By a 12 to 10 vote, overruling acting Chairman Governor Warren's ruling that the parliamentary procedure was unallowable, the Regents voted to reconsider its earlier stand. By the same vote it reversed its stand.
Out of 62 original non-signers who were Senate members, and recommended by the Committees for continuance, 32 were left who had not signed at this date, and who therefore were dismissed. It was thus evident that, contrary to the understanding of the faculty, clearance by the Tenure Committees did not obviate the necessity of signing the oath. The reasons for not signing and other evidence reported by the Committees were not acceptable substitutes; whether any would have been acceptable is very doubtful. The climination of tenure in relation to the Regents' demands emerged as a clear policy.
The effect of the dismissals upon the faculty was dramatic and devastating. The Northern Committee's adverse report on the five who were not recommended for reappointment was reexamined, and an extended debate arose because of charges that the Committee had so acted only because of a lack of cooperation on the part of the five, and not from any evidence of their membership in the Communist Party. The Committee was asked to reconsider their cases. It did so, and on October 19 recommended their reappointment to the President, on the grounds that no charges of disloyalty, incompetence, or moral delinquency had been laid against them and that their discharge as a "disciplinary measure" constituted a breach of tenure. On October 9, the Senate voted to work for the reinstatement of all the non-signers. A Committee on Academic Freedom was set up in the North, and the Tenure Committee of the Southern Section was given similar functions.
Not only were 26 faculty members finally dismissed, but 37 others resigned in protest, including some of the most distinguished members of the faculty; 55 courses had to be dropped from the curriculum; and there were 47 pointed refusals of appointment (see Caughey, "A University in Jeopardy," p. 75). Over 1200 signatures to protests from other college and university faculties were reported, together with 20 condemnatory resolutions by professional societies and groups. Financial assistance for the non-signers, whose salaries were stopped in June, 1950, was organized and widely offered.
On August 31, 1950, 20 of the dismissed Senate members petitioned the California District Court of Appeal for a writ of mandate to compel the issuance of the contracts voted in July, notwithstanding their refusal to sign. This process is referred to as Tolman vs. Underhill, 229 P 2d 447: it is not in the official court records, for its result was voided when the Supreme Court of California ruled on the case. However, the decision of Justice Peek, concurred in by Justices Adamsand Van Dyke, supplies the first note of hope implemented by reason and judicial power, and is reprinted in the Pacific Reporter, vol. 229, pp. 447 ff. Justice Peek disposes of a 1920 case made much of by the University's lawyers: "There is nothing either in the Leymel case or any other case cited by respondents (Regents) which is conclusive of the status of petitioners with respect to the constitutional oath of office as set forth in Section 3 of Article XX.... While the courts of this state have had no occasion in the past to discuss specifically the purposes behind this section, the history of the English and American peoples in their struggle for political and religious freedom offers ample testimony to the aims which motivated the adoption of the provision.... If the Faculty of the University can be subjected to any more narrow test of loyalty than the constitutional oath, the constitutional mandate in Section 9 of Article IX ("The University shall be free of all political or sectarian influence") would be effectively frustrated, and our great institution now dadicated to learning and the search for truth reduced to an organ for the propagation of the ephemeral political, religious, social, and economic philosophies, whatever they may be, of the majority of the Board of Regents of that moment."
Before the Regents had reached agreement on the question of appeal, the State Supreme Court, on its own motion, took the case under consideration. Meanwhile, on October 3, 1950, the state had enacted the so-called Levering Act, which required of all state employees an oath disclosing past membership in any subversive organization, although not designating any by name. The Regehts, on October 20, 1950, requested faculty members to comply with the state legislation. On December 15, 1950, they announced that any employee who did not do so by December 31 would be fired. On October 19, 1951, the Regents adopted the Levering Act as the University's own requirement. They then abolished the requirement of an annual anti-Communist oath, or an anti-Communist declaration in the annual acceptance of contract. They reasserted their refusal to hire Communist Party members, and the responsibility of the Senate for effecting this policy, and reserved a veto on any appointment which, in their judgment, would violate the anti-Communist policy.
Meanwhile, the broad grounds of the Appelate Court decision were reduced to the narrower question of legislative pre-emption in the State Supreme decision, which was rendered October 17, 1952 (Sac. No. 6211; 39 C 2d (708)). This decision was handed down to coincide with three cases involving petitioners against the Levering Act. The issues represented by Tolman vs. Underhill were held to be constitutionally separate from those of Pockman vs. Leonard (S.F. No. 18349; 39 C 2d). Leonard Pockman was discharged from San Francisco State College on the grounds that he had not signed the Levering Act oath. In this case and two related ones, the Supreme Court ruled against the petitioners, and the oath required by the Levering Act is still attached to employment contracts of University employees.
The Court was silent in regard to payment of back salaries. Individual cases throught 1954 finally brought compensation and sabbatical rights to the now-reinstated professors.
The American Association of University Professors suggested in their Spring, 1956, Bulletin (p. 64) that the administration of the University of California be termed a censured administration. This was done so. Although men of good hearts who wish to establish a perspective on the controversy point out that there were similar troublesat such major universities as the University of Washington, the University of Michigan, and others, no other major university received the continued censure of the AAUP.
In 1958, at an All-University Conference called together by the administration to learn from the faculty and other persons what might be done to improve the University's position in attracting and retaining the caliber of faculty it wished, such various matters as salary, fringe benefits, and research and teaching loads were discussed. One of the most respected members of the Academic Senate, a professor closely connected with the controversy, rose to his feet and suggested that it might be of some help if the administration were to remove itself from the list of censured administrations. According to a witness, there was a stunned silence. The witness, himself a non-signer, trembled as he rose to speak after the suggestion had been made. Following his statement, Mr. Kerr, then Chancellor of the Berkeley campus, stated that the administration was taking steps to have the censure removed. The censure was lifted the next year.
What can be concluded? The University, either in reaction to pressures outside it, or even worse, in league with these pressures to the extent that a faction of its governing body turned against another, came perilously close to making a shambles out of one of the Most important institutions for the disinterested search for truth in the country. The story of obstinacy, hasty and ill-grounded action, and sheer authoritarian perversity lod the University to drive away many of the greatest contributors to this search, and may permanently have broken the trust of those who remain.
-- Robert Greenberg
Associate in Subject A
(Title listed for identification purposes only.)