Tuesday, June 17, 2008
Last week I posted on the Supreme Court's decision in Enquist v. Oregon Dept of Agriculture, where a six-justice majority held that government employees could not challenge employment decisions as equal protection violations under the "class of one" theory of Village of Willowbrook v. Olech. That posting concerned the logic of the Court's equal protection analysis. But Enquist is as much a workplace case as a constitutional law case. Indeed, the majority frames its equal protection analysis by reference to the distinction between government's power as a sovereign and as an employer. The opinion (by Roberts) cites Fourth Amendment and Due Process cases, and relies especially heavily on the employee speech cases such as Pickering and Connick. From those cases it distills two principles: (1) the familiar "balancing" of the employee's constitutional rights against what the Court calls "the realities of the employment context;" and (2) whether the employee's right "implicates the basic concerns of the relevant constitutional provision."
My question is about the applicability of these precedents, especially Pickering and Connick. My very rough sense of those cases is that avoidance of litigation is not itself the government interest that needs to be balanced against the employee's speech rights. Rather, it's the interest in running an efficient office -- which in the speech context usually means an office free of insubordination. So too, for that matter, with search and seizure cases: in those cases I would think the government's interest is in being able to control the physical workplace.
In Enquist I would think the strongest argument for an analogy is that the government has an interest in making what the Court calls "subjective" and "individualized" decisions that simply don't allow the kind of "fit" analysis that is a staple of equal protection review. I might be splitting hairs, but that sort of justification doesn't seem grounded in the actual day-to-day needs of government-as-employer. Of course the Court also notes that a ruling for the plaintiff would conflict with the doctrine of employment-at-will. Again, though, what is it about the day-to-day operations of government that requires adherence to that doctrine (especially given how much erosion employment-at-will has suffered)?
I freely confess I don't know much about workplace law, so maybe I'm missing something obvious about either that body of doctrine or the intersection of that doctrine with constitutional rights law. But my intuition tells me that there's a difference between government saying "sometimes we need to be able to punish employees based on what they say" and "sometimes we need to make arbitrary, even vindictive, termination decisions." The first statement seems closely tied to day-to-day efficient operations in government offices, while the latter seems closer to a simple request for legal immunity.
For a non-workplace guy, Bill's instincts are right on. I spend a good part of my scholarly agenda at the intersection of employment and constitutional law, and I agree that the conservative majority is on a campaign to close off the government workplace as a locus for the exercise of all but the most basic constitutional rights for public employees. Interestingly, however, the same conservative justices have not shown the same zeal in the private-sector. The recent decisions of CBOCs and Potter on retaliation issues concerning Section 1981 and the federal provisions of the ADEA, respectively, suggest the court is not as easy to understand as conservative vs. liberal.
Instead, I think this 5 "conservative" Justices on the Court are more driven by an anti-litigation mandate to "save" the courts from an avalanche of frivolous litigation. Like Justice Stevens, in his dissent in Engquist, I think this concern is misplaced and the empirical evidence does not suggest that these "class of one" EP claims would overwhelm the courts. Such claims existed in every circuit but the Ninth before Engquist, and there has only been some 150 claims in the past five years.
In short, the Court appears to be on a mission to deprive public employees of their constitutional rights based on a boogey man that does not exist except in their business-friendly minds.
As far as the Connick and Pickering analogy and the Fourth Amendment cases, I actually believe such cases go against the reasoning of the majority in Engquist. Rather than completely depriving public employees of First and Fourth Amendment rights, these cases encourage a balancing of government and employee interests (in the case of Connick, after an initial threshold inquiry of public concern). On the other hand, Engquist is consistent with Garcettii v. Ceballos, which deprives all First Amendment rights for public employees speaking according to their duties. In this way, both Garcetti and Engquist are based on the idea that we should not "constitutionalize" all public employment workplace disputes and so public employees should have NO constitutional protection whatsoever.
As Justice Stevens pointed out, this is indeed constitutional law with a meat-axe. There is no sign that the federal courts and the federal government would come crumbling down if we recognized limited speech and equal protection rights in the public workplace under either a balancing test or class-of-one rational review theory.