The American Civil Liberties Union (ACLU) has sent a letter to Lanier Technical College President Ray Perren warning him that the college's employment loyalty oath violates the U.S. Constitution.
The letter, dated August 7, 2018 and submitted in a news release to media, said the ACLU is acting on behalf of Dr. Bill Ellenberg, who completed an application for employment on June 18, 2018.
The loyalty oath contains a phrase that says "I am not a member of the Communist Party." The ACLU claims that particular phrase is a violation if the First Amendment Freedom of Association clause.
“Lanier Technical College’s requirement violates Georgians’ First Amendment Freedom of Association,” said Sean J. Young, Legal Director of the ACLU of Georgia. [It] is reminiscent of McCarthy-era loyalty oaths in the 1950s that required Americans to disavow membership in the Communist Party and other forms of ‘subversive’ activities. Rooting out employees who are or are thought to be members of the Communist Party was unconstitutional during the Cold War, and it remains unconstitutional today.”
Dave Parrish, spokesman for Lanier Tech, said the form in question was used in error.
"We were inadvertently using the incorrect form," Parrish said via email. "It was rectified as soon as it was brought to the President's attention. We are now using the correct form."
According to the media release, Ellenberg was applying for a position as an adjunct professor of English when he was presented with the loyalty oath.
The content of the letter sent to Dr. Perren is found below:
August 7, 2018
Dr. Ray Perren
President, Lanier Technical College
2990 Landrum Education Drive
Oakwood, GA 30566
CC by e-mail: Jill Cantrell, Director of Human Resources, [email protected]
Via Certified Mail and E-mail
Re: Requiring employees to disclaim membership with the Communist Party in violation of the First Amendment
Dear Dr. Perren:
The First Amendment guarantees the right to freedom of association, and the government cannot refuse employment based on mere membership of an unpopular group. The ACLU of Georgia writes on behalf of Dr. Bill Ellenberg, who has informed us that when applying to be an adjunct professor of English, he was required to swear a “Loyalty Oath” affirming that he is “not a member of the Communist Party.”1
Requiring prospective or current employees to swear that they are not members of the Communist Party—or any group or organization considered unpopular—is unconstitutional. Over 50 years ago, the United States Supreme Court held that it was unconstitutional for government employers to require employees to swear that they are not a member of the Communist Party or any other group, absent a showing of specific intent to further unlawful activity. See Keyishian v. Bd. of Regents of Univ. of State of N.Y., 385 U.S. 589, 605-10 (1967) (“Mere knowing membership without a specific intent to further the unlawful aims of an organization is not a constitutionally adequate basis for exclusion . . . .”).
Rooting out employees who are members of the Communist Party was unconstitutional during the Cold War, and it remains unconstitutional today. The government, including state colleges, may not require individuals to sign a certification regarding their political expression in order to obtain employment, contracts, or other benefits. 1
Lanier Technical College currently requires job applicants and employees to “hereby solemnly swear and affirm that I will support the Constitution of the United States and the Constitution of the State of Georgia, and I am not a member of the Communist Party.” A copy of the document is attached as Exhibit A. Dr. Ellenberg ultimately signed this Loyalty Oath but with strenuous objections. 2 Your Loyalty Oath also does not comply with state law. Georgia law requires “[a]ll persons who are employed by and are on the payroll of the state” to “take an oath that they will support the Constitution of the United States and the Constitution of Georgia,” O.C.G.A. § 45-3- 11, which is language your Loyalty Oath does contain. But nowhere in the law does it require employees to disclaim allegiance with the Communist Party as your Loyalty Oath does (and if it did, it would be unconstitutional).
Potentially thousands of current and prospective employees at Lanier Technical College are being forced, or have been forced, to sign this unconstitutional oath as a condition of employment. Lanier Technical College violates the First Amendment every single day that this portion of the Loyalty Oath remains in place.
To avoid continuing legal exposure, we ask that you cease and desist from requiring current or prospective employees to disclaim membership of the Communist Party.
Sincerely,
Sean J. Young
Legal Director
ACLU of Georgia
