Government as Employer and Educator

Author:Ruthann Robson
Pages:254-352
 
FREE EXCERPT
Robson The First Amendment
254
Chapter&Five:&GOVERNMENT&AS&
EMPLOYER&AND&EDUCATOR&&
This chapter considers applications of the First Amendment’s speech
clause when the government is not acting as a general sovereign but is
acting as an employer or educator. The basic question in such instances
is the extent to which the First Amendment doctrine that generally
applies should also apply to the employment and educational contexts.
The doctrine plows a middle ground. The courts have rejected the
antiquated notion that public employment or education is a “privilege”
that requires the abandonment of constitutional rights. [This concept of
“unconstitutional conditions” is discussed in the next chapter]. The
courts have also rejected the notion that employees and students retain
the same First Amendment rights at work and school as they do outside
these contexts.
Chapter Outline
I.!The&Politics&of&Public&Employment&!
Civil!Service!Commission!v.!National!Association!of!Letter!Carriers!!
Branti!v.!Finkel!!
Notes!!
II.!Protecting&Public&Employee&Speech&!
&A.&Foundational&Tests&&
Pickering!v.!Board!of!Education!of!Township!High!School!District!,!Will!County,!Illinois!!
Mt.!Healthy!City!Board!of!Ed.!v.!Doyle!!
Notes!!
&B.&Applying&and&modifying&the&tests&&
Givhan!v.!Western!Line!Consol.!School!Dist.!!
Connick!v.!Myers!!
Rankin!v.!McPherson!!
San!Diego!v.!Roe!!
Notes!!
&C.&Public&Employee&Speech&in&the&Roberts&Court&&
Garcetti!v.!Ceballos!!
Lane!v.!Franks!!
Notes!!
III.&Student&Speech&!
Tinker!v.!Des!Moines!Independent!Community!School!District!!
Bethel!School!District!No.v.!Fraser!!
Hazelwood!School!District!v.!Kuhlmeier!!
Morse!v.!Frederick!!
Notes!!
Note:!Curriculum!!
Robson The First Amendment
255
I.&The&Politics&of&Public&Employment&&&
The First Amendment rights of public employees to engage in political
speech and campaigning is in tension with the interest in a government
that is not exclusively partisan and in which public employment
positions are attributable to political patronage.
Civil$Service$Commission$v.$National$Association$of$Letter$
Carriers$$
413 U.S. 548 (1973)
WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C. J., AND STEWART,
BLACKMUN, POWELL, AND REHNQUIST, JJ., JOINED. DOUGLAS, J., FILED A DISSENTING OPINION,
IN WHICH BRENNAN AND MARSHALL, JJ., JOINED.
JUSTICE WHITE DELIVERED THE OPINION OF THE COURT.
On December 11, 1972, we noted probable jurisdiction of this appeal based on
a jurisdictional statement presenting the single question whether the
prohibition in § 9(a) of the Hatch Act, now codified in 5 U.S.C. § 7324 (a)(2),
against federal employees taking "an active part in political management or in
political campaigns," is unconstitutional on its face.
Section 7324(a) provides:
"An employee in an Executive agency or an individual employed by the
government of the District of Columbia may not
"(1) use his official authority or influence for the purpose of interfering with or
affecting the result of an election; or
"(2) take an active part in political management or in political campaigns.
"For the purpose of this subsection, the phrase `an active part in political
management or in political campaigns' means those acts of political
management or political campaigning which were prohibited on the part of
employees in the competitive service before July 19, 1940, by determinations of
the Civil Service Commission under the rules prescribed by the Pre sident."
A divided three-judge court sitting in the District of Columbia had held the
section unconstitutional. We reverse the judgment of the District Court.
I
The case began when the National Association of Letter Carriers, six individual
federal employees and certain local Democratic and Republican political
committees filed a complaint, asserting on behalf of themselves and all federal
employees that 5 U.S.C. § 7324 (a)(2) was unconstitutional on its face and
seeking an injunction against its enforcement. Each of the plaintiffs alleged that
the Civil Service Commission was enforcing, or threatening to enforce, the
Robson The First Amendment
256
Hatch Act's prohibition against active participation in political management or
political campaigns with respect to certain defined activity in which that
plaintiff desired to engage. The Union, for example, stated among other things
that its members desired to campaign for candidates for public office. The
Democratic and Republican Committees complained of not being able to get
federal employees to run for state and local offices. Plaintiff Hummel stated that
he was aware of the provision of the Hatch Act and that the activities he desired
to engage in would violate that Act as, for example, his participating as a
delegate in a party convention or holding office in a political club.
A three-judge court was convened, and the case was tried on both stipulated
evidence and oral testimony. The District Court then ruled that § 7324(a)(2) was
unconstitutional on its face and enjoined its enforcement. The court recognized
the "well-established governmental interest in restricting political activities by
federal employees which [had been] asserted long before enactment of the Hatch
Act," as well as the fact that the "appropriateness of this governmental objective
was recognized by the Supreme Court of the United States when it endorsed the
objectives of the Hatch Act. ***
II
*** Our judgment is that neither the First Amendment nor any other provision
of the Constitution invalidates a law barring this kind of partisan political
conduct by federal employees.
A
Such decision on our part would no more than confirm the judgment of history,
a judgment made by this country over the last century that it is in the best
interest of the country, indeed essential, that federal service should depend
upon meritorious performance rather than political service, and that the
political influence of federal employees on others and on the electoral process
should be limited. That this judgment eventuated is indisputable, and the
major steps in reaching it may be simply and briefly set down.
Early in our history, Thomas Jefferson was disturbed by the political activities
of some of those in the Executive Branch of the Government. See 10 J.
Richardson, Messages and Papers of the Presidents 98 (1899). The heads of the
executive departments, in response to his directive, issued an order stating in
part that "[t]he right of any officer to give his vote at elections as a qualified
citizen is not meant to be restrained, nor, however given, shall it have any effect
to his prejudice; but it is expected that he will not attempt to influence the votes
of others nor take any part in the business of electioneering, that being deemed
inconsistent with the spirit of the Constitution and his duties to it."
There were other voices raised in the 19th century against the mixing of
partisan politics and routine federal service. But until after the Civil War, the
spoils system under which federal employees came and went, depending upon
party service and changing administrations, rather than meritorious
performance, was much the vogue and the prevalent basis for governmental
employment and advancement. That system did not survive. Congress
authorized the President to prescribe regulations for the creation of a civil
service of federal employees in 1871, known as the Pendleton Act, that declared

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