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Volume 38 Issue 2
September 19, 2000

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District questions student’s loyalty
’60s-era case resurfaces in Communist’s test of oath

BY ANDREW LONG
© MESA LEGEND
Submitted September 19, 2000

In 1961, Barbara Elfbrant, then a first-year high school teacher in Tucson, began a fight by refusing to sign a loyalty oath required by Arizona law. It would be a five-year fight that would take her all the way to the U.S. Supreme Court.

Jim Allen/MESA LEGEND

ASMCC Executive Vice President Fabricio Rodriquez continues his struggle against the district's loyalty oath.

Fabricio Rodriguez, an MCC student and executive vice president of student government, began the same fight two months ago, not realizing Elfbrant had already won the battle for him.

By Arizona law, every state, county, city or school employee must sign a loyalty oath as a requirement for employment. Yet for the past 34 years, the wording in the Maricopa Community College District’s oath has been unconstitutional, according to the Arizona Chapter of the American Civil Liberties Union.

In 1966, the U.S. Supreme Court ruling of Elfbrant v. Russell struck down the section of the oath that required the termination and prosecution of state employees who are members of the Communist Party or of parties planning to overthrow the government.

But until last week, MCCD employees ranging from the chancellor to faculty members to student workers were required to sign the oath under Arizona Revised Statute 38-231. Thanks to Rodriguez’s refusal to sign the oath, the college district decided last Wednesday to scrap the Cold War-era wording of the oath, allowing people of any political party to work on campus without  fear of prosecution.

"I must admit that I’m surprised at some 34 years after the Supreme Court opinion we are still having problems with that oath," Elfbrant said.

As a member of the civil rights movement in Tucson, Elfbrant felt uncomfortable signing the oath because of the lack of the definitions contained in it. "Having been through the (Joseph) McCarthy era, I asked myself, ‘In 20 years would I find out that some current administration of the Arizona state government would decide I belonged to one of these organizations?"

Elfbrant filed a lawsuit in Pima County. Although the Attorney General ruled that the school could not fire her for not signing the oath, it said she could not get paid until she signed.

Elfbrant worked five years without pay as she pursued a lawsuit challenging the constitutionality of the oath.

Helped by a small group of supporters made up of teachers and university professors, Elfbrant and her husband, Vern, lived on a couple of hundred dollars a month. Elfbrant’s landlord excused their rent and friends would invite them to dinner about four or five nights a week.

"We were able to get by with a small group of supporters," she said.

Like Elfbrant, Rodriguez has gone without pay for his services as student body vice president and has relied on the support of friends to help him with food and money.

"Right now all my support systems are basically stretched to the limit," he said.

Rodriguez refused to sign the oath because, unlike Elfbrant, he is a member of the Communist Party USA.

"I disagree with the loyalty oath in general. You shouldn’t have to decree your loyalty to anyone but your god," he said.

Rodriguez, who went to high school and worked as a miner in Kearny, has been an activist on and off campus. He is a member of the Progressive Student Union and founder of MCC’s Young Democratic Socialist club. He volunteers as director of a literacy program for children in Mesa and was a member of MCC’s Model UN team.

His refusal to sign started as a letter to the student government’s adviser Johnice Wilkins. He stated that he refused to sign the oath because he was certain that it was a travesty to the ideas of freedom and democracy.

After discussing the matter more with Wilkins and sending a letter to MCCD, Rodriguez was informed by the district’s legal department that unless he signed the oath he would go unpaid for his position in student government.

Frustrated because he was not getting paid for his work and because he thought the oath was unconstitutional, he contacted the AzCLU.

"When Fab called, I was very anxious to take it on, and very pleased he had the courage and the ability to say this is not right and I’m not going to do it," said Eleanor Eisenberg, AzCLU executive director.

Eisenberg called MCCD general counsel Pete Kushibab, informing him of the unconstitutional language in the district’s oath. Eisenberg said Kushibab told her he would change the oath immediately throughout the district.

The new oath is modeled after one used by ASU, which asks that the employee swear allegiance to the U.S. Constitution and Arizona law.

After the story appeared on the Legend website and in local media, Phil Randolph, MCCD’s vice chancellor for human resources, directed that a revised version of the oath be prepared.

At press time, Rodriguez had not been contacted by the district about the change and said he was unsure whether or not he would sign the new oath.

"It’s the principle" Rodriguez said, adding he wants to make sure all state workers have the opportunity to work in Arizona free of prosecution.

"It’s almost ironic that it has finally been challenged by someone who was legitimately a Communist," Elfbrant said. "What I feel good about is it’s all right to be a Communist."

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