Oath of Office

Karen Haase khaase@ksbschoollaw.com @KarenHaase

Steve Williams swilliams@ksbschoollaw.com @SteveisEsteban

Bobby Truhe btruhe@ksbschoollaw.com @btruhe

You better pray you didn’t require that mandatory oath!

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.

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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.

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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.

Cornhusker Plaza 301 S. 13th St., Suite 210 Lincoln, NE 68508

P: (402) 804-8000 F: (402) 804-8002 KSBSchoolLaw.com