The government may regulate public employees more extensively than citizens at large because legitimate employer interests in controlling job-related behavior supplement the government's general constitutional power to control the behavior of private citizens. Government employers constitutionally are less free than private employers to control their employees, however, for the simple reason that the Constitution primarily limits government, not private, power. Eligibility criteria, work rules, and myriad personnel decisions take on constitutional dimensions in public sector employment that are absent from the private sector.
The competing analogies of government as citizen-regulator and government as private employer raise related questions. How much more power may the government exercise over its employees than over citizens at large? What constitutional limits bind public employers that do not bind private employers? The two questions tend to converge because, inevitably, the government affects its employees as regulator and employer simultaneously.
The constitutional issues comprise both substance and process. What substantive freedoms may the government require its employees to forgo as a condition of employment and what are the permissible and impermissible bases for disadvantaging public employees? Procedurally, when, how, and with what opportunity to respond, must government employers inform their employees of the reasons for adverse personnel actions?
The constitutional values at stake clash and mesh in complex ways. Government workers have individual rights to exercise substantive freedoms without improper penalty and to be treated fairly by the government. These often vie with government interests in effective, honest, efficient, and democratic management of the public's business. The government also has interests in employee loyalty and in the confidential execution of public policy. These may war with the value of freedom for dissident employees to bring important information to public attention and to check abuse of government power by other officials. Inevitably, public employees have greater opportunities than ordinary citizens both to impede legitimate government action and to prevent government abuse.
Public employees' own rights and the implication of their activities for public governance make the constitutional balance important and intricate, especially given this century's extensive increase in public employment. The existence of 3 million federal employees and 13 million more state and local government workers makes sacrifices of their constitutional freedoms of considerable consequence, both personal and societal. Yet their numbers create a potent political force able to secure statutory job protection and to fend off arbitrary treatment as a group, diminishing the need for constitutional protection. In addition, the size of the public work force increases legitimate government claims to constitutional flexibility in employee management.
Speaking in broad historical terms, Supreme Court decisions on the constitutional status of public employees reflect varying sensitivity to one or a combination of these competing considerations at different periods. Three major themes are discernible, however. The earliest, simplest, and perhaps most powerful is broad deference to government employment prerogatives. This deference rests on the common understanding that the Constitution creates no constitutional right to government employment. The frequently invoked corollary is that those who want the privilege of government work may be compelled to forgo exercising constitutional rights that the government cannot deny private citizens. Justice oliver wendell holmes, then still a state court judge, succinctly expressed this right-privilege distinction theme in McAuliffe v. Mayor of New Bedford (1892). Holmes rejected a policeman's claim that his discharge for political activity violated his right of free expression, commenting that the officer "may have a constitutional right to talk politics, but he has no constitutional right to be a policeman."
The Supreme Court invoked this theme before and after McAuliffe. At very different stages of constitutional development over the past century, the Court has consistently upheld government power to foster a nonpartisan civil service by requiring vast numbers of public employees to refrain from active participation in politics, a cherished right of the citizenry at large. The Court has also upheld government requirements that public employees vow to uphold and defend the federal and state constitutions and not attempt their unlawful overthrow, that they live in the employing jurisdiction, and that national security employees not publish writings about their work until the intended publication is screened to cull out classified information. In the early 1950s, moreover, the Court tolerated government efforts to disqualify from public jobs people who had advocated the forceful overthrow of the government, or who belonged to groups that did, or who refused to reveal their association with such groups, even in circumstances in which private citizens could not be punished for saying or doing the same things.
The right-privilege distinction remains a powerful influence, but Cold War hysteria and McCarthy-era purges of government employees suspected of subversive beliefs provoked the realization that adverse personnel decisions may involve more than legitimate government interests in employee relations, worker loyalty, bureaucratic neutrality, and government efficiency. The Court began to impose constitutional limits narrowly designed to protect public employees from invidiously selective maltreatment. This second theme protects against improper government motivation, but not against broad impact. Restrictions on the political freedom of numerous public employees are tolerated for the legitimate advantages of having a nonpartisan bureaucracy, but government may not penalize even a few for constitutionally unacceptable reasons, such as dislike of their beliefs. In united states v. lovett (1946), for example, the Court struck down as a bill of attainder a provision of an appropriations law prohibiting payment of the salaries of three named government employees declared guilty of subversive activity not by a court but by a House of Representatives subcommittee. Similarly, wiemann v. updegraff (1952) took a stand against guilt by association and held that government employment could not be denied for membership in a group advocating unlawful overthrow of the government if the member lacked knowledge of the group's unlawful aim.
With the advent of the warren court, constitutional protection for public employees expanded with the gradual adoption of a third, more complex approach that perceived several values at risk in government treatment of public employees. Increased solicitude for the employees' personal freedom, heightened awareness that jobs often carry some sense of entitlement, and growing appreciation of the part that government workers play in citizen self-government, intensified objections to blatant instances of ideologically discriminatory treatment. Reports of the death of the right-privilege distinction may have been exaggerated, but its hold weakened considerably. Various methods used to weed out allegedly subversive public employees, especially loyalty oaths and compelled disclosure of an individual's associations, were invalidated on vagueness and overbreadth grounds, because the Court thought those methods of employment disqualification would excessively inhibit freedom of expression and association. Those developments paralleled the Warren Court's general expansion of citizen immunity from regulation affecting individual liberty and culminated in a series of decisions between 1966 and 1968, including elfbrandt v. russell (1966) and keyishian v. board of regents (1967), that forbade public employers from requiring their employees as a condition of employment to relinquish the expanded constitutional freedoms they enjoyed as citizens. Pickering v. Board of Education (1968) appeared to complete the rejection of Holmes's view in McAuliffe by holding that a teacher could not be dismissed for speaking on issues of public concern involving her employer.
After the Warren Court era ended, the broadest implications of the demise of the right-privilege distinction were curtailed when the Court reaffirmed the constitutionality of government efforts to keep the civil service broadly—and neutrally—apolitical. The opposition to narrower but selective disadvantaging based on ideological viewpoint remained, however. The Court has disallowed the firing of public employees for belonging to the wrong political party, except where party affiliation is a legitimate qualification for the particular job. The political patronage practice may distort the political beliefs of public employees, but because it represents discrimination against ideologically disfavored viewpoints, it also elicits the narrower concern for preventing selective arbitrariness. In 1983 the Court drew an uncertain line between a worker grievance and a citizen complaint, allowing dismissal of public employees without constitutional restraint for employee speech on matters of personal interest, but retaining Pickering 's first amendment protection against dismissal for speech as a citizen on matters of public concern. It endorsed neither government's right to impose any conditions on public employment it chooses, nor the employees' personal rights of self-expression. Rather, the Court stressed the government's need for flexibility in employee discipline and the public, not personal, value of employee freedoms.
Protection against employment sanctions imposed for constitutionally unacceptable reasons also underlies the Court's public employees procedural due process decisions. Significantly, these protections developed after, not before, the Court established substantive limits on the reasons the government legitimately could invoke to disadvantage its employees. The possibility of intentional government arbitrariness, rather than government indifference to valuable employment opportunities, seems to have prompted the development of procedural protections surrounding the loss of government employment benefits.
The development was part of the procedural due process revolution of the Warren Court. Government benefits that did not have to be granted at all, including employment, could not be taken away once awarded without providing certain constitutionally imposed minimum procedures. Rejecting both extremes, the Court never recognized a right to government work but also denied the government the unrestricted freedom to withhold it. Nor has the Court required that reasons and a fair process always be provided before an individual loses an employment opportunity. Instead, the Court has let the government decide whether to hold out a job as offering some job protection or security of employment. If the government bestows no entitlement by statute or practice, several rules apply. No reason is needed to discharge or refuse to hire. If defamatory reasons nonetheless are given for an adverse personnel action, the employee must have an opportunity to defend against the charge. In any event, constitutionally illegitimate reasons may not form the public basis of the adverse action. If the government does hold out a job as offering employment security of any sort, moreover, the Court disallows deprivation of the secured position until constitutionally adequate notice, reasons, and other procedures are followed. The government worker may not be deprived of employment prospects either for illegitimate reasons or for legitimate reasons that do not apply to his circumstances.
The constitutional law of public employee regulation inevitably affects the efficiency of government operations, the personal freedoms of the workers, and the public interest in checking government abuse and being apprised of how public policy is being enforced. Accommodating these interests is, and will remain, an important and complex constitutional problem.
Jonathan D. Varat
Note 1984 Developments in the Law—Public Employment. Harvard Law Review 97:1611, 1738–1800.
Van Alstyne, William W. 1969 The Constitutional Rights of Public Employees. UCLA Law Review 16:751–772.