Government as Employer and Educator

• Author: Ruthann Robson
• Pages: 254-352

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

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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

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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