The American Civil Liberties Union of Nebraska has threatened to sue a small-town Nebraska school district because it is enforcing a state law which calls on teachers to sign a loyalty oath pledging their beliefs in American constitutional principles and their general love “for the finest country in the world in which to live.”

The legal threat came late last week in the form of a letter to the school district superintendent in Hastings, Neb. (pop.: 24,907), reports the Omaha World-Herald.

The 1951 law (Neb. Rev. Stat. 79-8,108) lacks any apparent enforcement mechanism but declares that teachers and school employees “shall” sign a 180-word pledge swearing their beliefs that the United States has “a government of the people, by the people, for the people.” It’s “an indissoluble nation of many sovereign states” full of freedom and justice “for which American patriots sacrificed their lives and fortunes.” the oath states. Teachers who sign it acknowledge their duty “to inculcate in the hearts and minds” an understanding of the U.S. and Nebraska Constitutions as well as their “opposition to all organizations and activities that would destroy our present form of government.”

The ACLU calls the oath “an outdated McCarthy-era pledge” that is flatly unconstitutional.

“As far as we’re concerned, there’s black-and-white case law saying this style of loyalty oath or pledge is unconstitutional,” ACLU attorney Amy Miller told the World-Herald.

Hastings superintendent Craig Kautz responded to the ACLU letter by saying that his district is only trying to follow and enforce state law.

“I don’t think a school district can be out of compliance with the law,” Kautz told the Omaha newspaper.

Miller, the ACLU attorney, argues that the Cold War-era law is no longer binding because, even though it remains on the books, federal courts have invalidated such legislation.

“Nobody’s enforcing these things anymore, and Hastings and other school districts that are attempting to are so far out of line that we view it as a strong civil rights case if we had to go to court,” Miller told the World-Herald.

The Nebraska loyalty oath seems to have been dormant and unused for many years across the state. Then, a few months ago, a Lincoln, Neb. man and a school board member in an Omaha suburb spearheaded a movement to reinvigorate the pledge.

“I don’t see it as any more controversial than saying the Pledge of Allegiance,” Millard Public Schools board member Paul Meyer told the World-Herald in March.

Hastings school district employees who are unidentified and wish to remain anonymous initially complained to the ACLU about the loyalty pledge.

Kautz, the superintendent, indicated that the law does not have an enforcement provision and no employees would lose their jobs if they choose not to sign the oath.

“They’re not even at risk of getting a dirty look from their superintendent,” he told the paper.

“Unfortunately, the Hastings Public Schools has been caught between, really, two groups of people who have a fight with each other that I wish they would get on with and get resolved,” Kautz added.

The ACLU letter ominously warns that the Hastings school district has just seven days to act before the litigation hits the fan.

Hastings school district attorney Rex Schultze said he is not sure how the district will respond to the ACLU.

Here is the complete text of the 1951 law:

All persons engaged in teaching in the public schools of the State of Nebraska and all other employees paid from public school funds, shall sign the following pledge:

I, ………., do believe in the United States of America as a government of the people, by the people, for the people; whose just powers are derived from the consent of the governed; a democracy in a republic; an indissoluble nation of many sovereign states; a perfect union, one and inseparable; established upon those principles of freedom, equality, justice and humanity for which American patriots sacrificed their lives and fortunes.

I acknowledge it to be my duty to inculcate in the hearts and minds of all pupils in my care, so far as it is in my power to do, (1) an understanding of the United States Constitution and of the Constitution of Nebraska, (2) a knowledge of the history of the nation and of the sacrifices that have been made in order that it might achieve its present greatness, (3) a love and devotion to the policies and institutions that have made America the finest country in the world in which to live, and (4) opposition to all organizations and activities that would destroy our present form of government.

The World-Herald asserts that courts “in Nebraska and elsewhere” have invalidated loyalty oaths without citing any specific cases.

The U.S. Supreme Court’s rulings on loyalty oaths, however, are not nearly as cut and dry as the ACLU suggests. In 1972, the high court held that limited loyalty oaths for government employees are constitutional as long as they don’t require any specific action and only express “a commitment to abide by our constitutional system” and “a commitment not to use illegal and constitutionally unprotected force to change the constitutional system.”

In a famously embarrassingly 1961 case, the Supreme Court ruled 5-4 that the Illinois Bar could deny an attorney license to a University of Chicago Law School graduate because he refused to answer questions about membership in the Communist Party.

The losing plaintiff in the case, In re Anastaplo, was George Anastaplo. He was not a Communist but a devotee of Leo Strauss. He believed that the First Amendment of the U.S. Constitution forbids the government from demanding to know about a person’s political affiliations.

Justice Hugo Black penned a celebrated dissent in the case. “We must not be afraid to be free,” Black wrote. (Black also called Anastaplo “too stubborn for his own good,” but not in the dissent.)

Anastaplo, who never got a law license, would later obtain a Ph.D. and teach at a handful of colleges in Chicago including the University of Chicago and Loyola University School of Law. He remained active politically. On trips to the Soviet Union in 1960 and Greece in 1968, the authoritarian governments expelled him, leading political scientist C. Herman Pritchett to quip: “Any man who is kicked out of Russia, Greece, and the Illinois Bar can’t be all bad.”

Back in Nebraska, the state is apparently something of a lightning rod for incidents involving loyalty pledges. Back in October 2013, a high school principal in a tiny town in the western part of the state outlawed the Pledge of Allegiance for a day because of a partial shutdown which caused some 17 percent of the federal government (and no part of Nebraska high schools) to cease functioning. One kid stood up in class and said the pledge anyway, according to his irate mother. (RELATED: High school principal bans pledge of allegiance over government shutdown)

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