Evening star., 1952-12-18
OkIohomo's Loyalty Oath

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1t is difficult to join unreservedly in the
applause which has greeted the Supreme Courts
decision striking down an Oklahoma law re-
quiring teachers to take loyalty oath.
This difficulty does not arise because OF the
merits of the Oklahoma statute and the oath it
prescribes. For the oath, in effect, denies en-
ployment to teachers who belong to Communist
front or subversive organizations, without making
any distinction between those who Joined know
ingly and those who joined unknoWingly. Any
law requiring such an oath is bad law.
The difficulty is rooted in the nature of the
courts decision. Justice Clark, speaking for
unanimous bench, has decreed that the Okla
homa law violates the elastic boundaries OF the
14th amendments due process clause. The fact
is, however that this law was enacted by
the Oklahoma Legislature and approved by the
Oklahoma courts. And as one reads the Supreme
Court opinion, and more especially the con-
curing opinions of Justices Frankfurter, Black
and Douglas, there is strong impression
that the justices, rather than passing on
constitutional question, are substituting their
judgment for the judgment of the Oklahoma
legislators and courts as to what is wise and
what is not wise in a matter of this kind.
At no point does Justice Clark precisely
define the grounds which the Oklahoma
clause. The inference is, however, that the
teachers dismissed for refusing to take the
oath (and subsequently refused permission to
take an amended OATH have been deprived of
property without due process of law, which is
forbidden by the amendment. II this is the
case, however, the teachers although the
opinion disclaims. such a ruling-must have
property right in their jobs. And this right,
furthermore, must extend to new applicants for
teaching jobs since the oath would be appl-
cable in both cases.
Justice Clark to repeat did not say as much.
He confined himself to this 1T is sufficient to
say that constitutional protection does extend to
the public servant whose exclusion pursuant to a
statute IS patiently arbitrary or discriminatory"
a view which presumably invests the court with
exclusive power to determine what is and what
is not potentially arbitrary discriminatory.
AS a practical matter, Oklahoma probably
can meet the courts vaguely defined require
ments by amending its oath so that it would
apply only to teachers who knowingly join
subversive organizations. Nevertheless, there
turks in this opinion, and especially in the con-
curing opinions, strong suggestion that the
Supreme Court is asserting the right to pass
upon and invalidate on grounds of wisdom or
unwisdon1, the tests which State may invoke
to determine the loyalty or disloyalty of pros
pective employees
This would not be the case if the constitu-
tional basis for overruling the Legislature and
the courts of Oklahoma had been clearly stated.
But there is no such clear statement in the
opinion. On the contrary, it is conceivable that
this opinion means, for instance, that State
is without power to deny employment to
teacher who chooses to campaign openly for the
election of Communist candidate as President
of the United States.
If this is a fair inference, the issue boils
down to question of who is better qualified to
decide a matter of this kind-nine men sitting
in Washington, or the legislators the courts
and, in the last analysis, the voters of State.
The Oklahoma statute has all the earmarks of
an unwise and an unjust law. But, lacking
clear constitutional basis for invaldation, it is
at least doubtful that the Supreme Court is in
a superior position to correct errors in what
Justice Holmes once spoke of as the great
laboratories of the States It would be one
thing If Oklahoma, by law, had undertaken to
forbid free speech or free association. But the
case is different, constitutionally speaking when
law does no more than undertake to prescribe
conditions on which person may work for the
State.