In the Spirit of Rosenbloom's "What Every Public Personnel Manager Should Know About the Constitution": An Updated Annotated Bibliography of Recent Caselaw

AuthorCraig Curtis
Date01 April 1990
Published date01 April 1990
Subject MatterArticles
In the Spirit of Rosenbloom’s
"What Every Public Personnel Manager
Should Know About the Constitution":
An Updated Annotated Bibliography of
Recent Caselaw
Craig Curtis
Washington State University
A key area in which the United States Supreme Court has set guidelines that limit the free-
dom of action of public organizations is in the Constitutional rights of employees.
Rosenbloom’s (1983) excellent summary of the relevant caselaw has, because of recent prece-
dent-altering decisions by the Court, become somewhat outdated. This article provides both
the academician and the practitioner with an up-to-date summary of caselaw which affects the
decisions made by administrators in public personnel administration.
lthough commentators disagree about the jurisprudential wisdom of
~~ the extensive involvement of the courts in the operation of public
agencies, (e.g., Dimock, 1980; Kaus, 1979), no one seriously dis-
putes the fact that the courts have in the 1970s and 1980s established a multi-
tude of guidelines which must be observed by public organizations to assure
that they are fair and politically responsible in their performance. One area in
which the courts have set out principles that limit the discretion of public
organizations lies in the realm of the individual constitutional rights of public
employees. In response to the need for public administrators to cope with
these seemingly endless new court rulings, David H. Rosenbloom (1983) pro-
vided a working account of the central legal principles across which a public
personnel administrator might run afoul. Because precedents in the law can
change quite quickly, periodic updates on the work of the highest bench -
the United States Supreme Court -
are absolutely indispensable to profes-
sional managers in public agencies.
This article provides an annotated bibliography of significant cases decided
by the United States Supreme Court from 1985 through 1989 -
that is, cases
which could affect the work of public personnel managers. In addition to the
cases concerning Constitutional doctrine, some attention is devoted to the
jurisprudence surrounding Title VII of the Civil Rights Act of 1964, as
From 1985 to 1989 the United States Supreme Court, as the ultimate arbiter
of the meaning of the United States Constitution, has wrestled with issues
concerning sexual preference, the rights of pregnant women, sovereign

immunity and its extensions to public employees engaged in official duties,
privacy rights in the work place, freedoms of expression and association of
public employees and, most significantly, affirmative action. It is on this last
issue that the most far-reaching case law has been developed. Most signifi-
cantly, there is evidence of a nascent consensus on the stringent standard of
review to be applied when testing affirmative action cases against the stric-
tures of the Equal Protection Clause of the Fourteenth Amendment. Such a
new consensus reflects a meaningful and long-term change in the composi-
tion of the Court resulting from Reagan administration appointments. The
ability of individual agency employees and agency clients who allege adverse
official action to obtain standing and relief in the courts may well be signifi-
cantly reduced as a consequence of recent developments in the law.
Rosenbloom (1983: 28-30) made note of an emerging trend towards
&dquo;deconstitutionalization,&dquo; and argued that the continuance of this trend
would effectively disengage the judiciary from a goodly portion of the arena
of personnel disputes. Aggrieved employees have come to depend on Title
VII of the Civil Rights Act of 1964 for actions in which discrimination based
on race, gender, or handicapped status is at issue, especially since the deci-
sion in Wygant v. Jackson Board of Educ. ( 1986), discussed infra. It is for this
reason that some attention is devoted to Title VII jurisprudence in this article.
It should be noted that Justice O’Connor, arguably the most influential writer
of opinions on affirmative action, regards Title VII actions in substantially
the same light as cases in which the Equal Protection Clause is at issue:
In my view, the proper initial inquiry in evaluating the legality of an affirmative action
plan by a pubhc employer under Title VII is no different from that required by the Equal
Protection Clause (Johnson v. Transportation Agency, Santa Clara Cty., Cal, 1987: 1461,
O’Connor concurnng)
Despite this trend towards deconstitutionalization, the Court has made it
quite clear that some established constitutional rights of employees will con-
tinue to receive the stout protection of the courts. In Webster v. Doe (1988)
the Court held that the extensive statutory grant of authority to the director of
the CIA to fire employees whenever he or she determines that continued
employment would represent a threat to the interests of the United States (50
U.S.C. section 403(c)) does not preclude review of such decisions when the
discharge putatively violates the constitutional rights of the employee. The
CIA employee in question was allegedly discharged because of his homosex-
uality. The Court held that, although review under the Administrative
Procedures Act (5 U.S.C. sections 701-706) was precluded by the statutory
grant of authority, there was no explicit intent by Congress to preclude review
of colorable constitutional claims.

Freedom Of Speech
In Cornelius v. NAACP Defense and Education Fund ( 1985) the Court
upheld a limitation of access to federal employees by fund raisers for charita-
ble and political organizations. The Combined Federal Campaign (CFC) is a
program whereby all organizations who seek to solicit contributions from
federal employees are brought together into a single fund raising organiza-
tion. Participation in the CFC is limited, and the plaintiffs were organizations
who desired to participate but were denied access. The Court upheld this right
of exclusion as a valid practice, taking the viewpoint that such behavior rep-
resents a content-neutral regulation of speech in a non-public forum.
Restriction of speech in a non-public forum may be content-based, so long as
it is viewpoint-neutral and is reasonable in its purpose. The purpose of the
CFC is to promote traditional charities, and all political advocacy groups are
excluded, regardless of political orientation.
In Rankin v. McPherson (1987) the Court set new guidelines for when a
law enforcement agency may be permitted to restrict the freedom of speech
of its employees. A data entry clerk in a county constable’s office was dis-
charged for remarking to a co-worker after the assassination attempt on
President Reagan, &dquo;If they go after him again, I hope they get him.&dquo; She filed
suit under 42 U.S.C. section 1983, alleging that the discharge violated her
First Amendment rights. The Court held that the discharge was wrongful, but
the opinion made it quite clear that if the government agency had been able to
show a sufficient countervailing interest the discharge would not have been
constitutionally infirm. If the agency had been able to show that the remarks
made by the plaintiff would interfere with the ability of the agency to enforce
the law, or would demonstrably interfere with interpersonal working relation-
ships within the office, the agency might have been sustained in its action.
Freedom Of Association
In Chicago Teachers Union, Local No. 1, AFT, AFL-CIO v. Hudson (1986)
and Communications Workers of America v. Beck ( 1988) the Court narrowed
the limits of the ability of unions to force employees to contribute to union
activities. In 1982, the Chicago Teachers Union and the Board of Education
entered into a collective bargaining agreement which allowed the union to
collect dues from all employees, regardless of whether they were members of
the union. Non-union employees challenged this as a violation of their First
Amendment right of association, and ultimately they prevailed. Abood v.
Detroit Board of Education (1977) had held that such agreements were con-
stitutional, but only if the dues collected from non-union members were used
exclusively for collective bargaining activities. Consequently, such fees can
be used for collective bargaining activities, contract administration, and
grievance adjustment, but not for lobbying activities, union organization

activities, or political contributions (Communications Workers of America v.
Beck ( 1988).
In addition, Chicago Teachers Union (1986) held that, for such arrange-
ments to be valid, the union must establish a speedy procedure to contest the
determination of what percentage of union dues are used exclusively for col-
lective bargaining activities. Notice of the method of computation must be
provided. Further, collection of dues during the pendency of a dispute con-
cerning the percentage of dues to be assessed is impermissible, even where a
rebate procedure is available, since this would amount to an interest-free loan
from the employer to the union.
Freedom Of
Several cases decided from 1985 to 1989 have dealt with balancing the
rights of employees to engage in the free exercise of religion against the legit-
imate interests of government employers. In Estate of Thornton v. Caldor,
Inc. (1985) the Court struck down a Connecticut statute which forbade
employers to require employees to work on their sabbath because it forced
employers to conform their conduct to the religious beliefs of...

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