Tuesday, February 21, 2023

#52 / Entitlement To A Government Job?

Supreme Court Justice Thurgood Marshall

As noted in the caption, that is former Supreme Court Justice Thurgood Marshall, pictured above. Click on the link to his name, if you'd like to know more about him. That will take you to the website of the Thurgood Marshall College Fund. Wikipedia, of course, can also tell you a lot about Marshall. Here is how his Wikipedia biography begins: 
Marshall was an American civil rights lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1967 until 1991. He was the Supreme Court's first African-American justice. Prior to his judicial service, he was an attorney who fought for civil rights, leading the NAACP Legal Defense and Educational Fund. Marshall was a prominent figure in the movement to end racial segregation in schools. He won 29 of the 32 civil rights cases he argued before the Supreme Court, culminating in the Court's landmark 1954 decision in Brown v. Board of Education, which rejected the separate but equal doctrine and held segregation in public education to be unconstitutional. President Lyndon B. Johnson appointed Marshall to the Supreme Court in 1967. A staunch liberal, he frequently dissented as the Court became increasingly conservative.
I have recently had an occasion to do a "Sample" paper for my UCSC Legal Studies class on "Property And The Law." One of the graded assignments is a "Student Research Project Report." I provide all students with an "Assignment Memo," telling them how the paper should be structured, what the deadlines are, and outlining other requirements. One student asked me whether I would be willing to provide a "Sample," as well. That seemed like a good thing to do, so I recently did the kind of research I have asked the students to do, and I am sharing the "Sample" paper I produced with readers of these blog postings, as well as with my students. 

One of the readings for our class, and specifically the class that examines "Employment As Property," is the case of Board of Regents v. Roth. The case involved an assistant professor at a Wisconsin state university who was without tenure, and who taught on a one-year contract. During the time he was teaching, he spoke out against the university administration, and at the end of the year he was not rehired. Roth, the assistant professor, sued, claiming a violation of his Constitutional rights. Ultimately, the case reached the United States Supreme Court, and the Court reversed lower court decisions that ruled in Roth's favor. Thurgood Marshall wrote a dissenting opinion, and among other things Marshall said this:

In my view, every citizen who applies for a government job is entitled to it unless the government can establish some reason for denying the employment. This is the "property right" that I believe is protected by the Fourteenth Amendment and that cannot be denied "without due process of law." And it is also liberty - liberty to work - which is the "very essence of the personal freedom and opportunity" secured by the Fourteenth Amendment.
That, in essence, is the "story." An assistant professor on a one-year contract has no "right" to be rehired. If you want to think more about this topic, and specifically about Marshall's idea, you can read my "Sample" paper.

An Inquiry About Employment Rights Leads To An Understanding Of The State Action Doctrine
Gary A. Patton
LGST 159 – Property And The Law
UCSC, Winter Quarter 2023
Professor Patton
Topic Area Researched: “Employment As Property”


James Madison is supposed to have said that we not only have a right to our property, we have a “property in our rights.”[1] That statement has intrigued me, and as I did the class readings on “Employment As Property,” it made me think. What about the idea that we have some kind of “right” to employment? Candidly, that seems contradictory to what people normally think is the situation, and (it seems) that the Supreme Court has taken the position that there is no such “right” to employment – even government employment.[2] Of course, In Board of Regents v. Roth, which is the 1972 Supreme Court case just cited, not all of the Supreme Court Justices took that restricted and conventional position.

The facts in the Roth case were these: David Roth was an assistant professor at a state university, and he was terminated after completing one year in a teaching position. Roth had no contract that promised anything but that he would be employed for a year, and there was no state law or university rule that promised any non-tenured teacher the right to continued employment once the teacher had completed his or her employment pursuant to a contract. Roth sued the university, anyway, saying that he was discriminated against because he had spoken out against the university administration. Thus, Roth said, he had been unconstitutionally penalized for exercising his “free speech” rights, in violation of the guarantees provided by the Fourteenth Amendment to the Constitution. Furthermore, Roth contended that the decision not to rehire him also violated the Fourteenth Amendment’s protection of his property rights. Both the trial and appellate courts agreed with Roth, saying that the University could not decline to rehire him without giving him a hearing and an opportunity to be heard. After granting certiorari, the Supreme Court reversed the lower courts’ decision, saying that Roth had not demonstrated that his statements about the university administration had anything to do with the university’s decision not to rehire him, and he thus had no Constitutional claim. The Court also held that Roth had no “property right” to his employment, so Roth’s Fourteenth Amendment claim on that ground failed, too.

As noted, not all Justices agreed with the majority decision. Justice Marshall, in his dissent, stated his belief that “every citizen who applies for a government job is entitled to it, unless the government can establish some reason for denying the employment.”[3]

I thought that Justice Marshall’s assertion was a pretty amazing statement, at least if he meant it literally. That would seem to mean that when a city or other government agency advertises for positions, any citizen who applies should get the job, unless the city or government agency can state some reason for not giving that applicant the employment that was advertised. Again, this idea is contrary to what most people (including me) would think is the case. So, I decided to do some research to see what I could find out about this idea that “every citizen” has a right to employment, when the government advertises to fill a job, absent the government providing some acceptable reason to turn that applicant down.


The Madison quote that set me off on the search that led to this paper - the statement that we have a “property in our rights” - came from somewhere in our assigned reading. I remembered the statement, but I couldn’t quite remember who had said that, or exactly where it was in our reading, Thus, I used Google Search to track it down. After that, I began my research by using Westlaw Next, available through the UCSC Library. Westlaw Next is an online legal search tool, and legal database, a kind of “academic version” of the Westlaw search tool and database utilized by lawyers around the nation. Westlaw Next allows the user to type a search term into a search bar, and then allows a user to narrow the search, if desired. Westlaw Next then provides links to sources that reflect the search term inquired about.

I searched, initially, for “property right in employment,” and did not narrow the search, as I could have. Westlaw Next provided me with links to 10,000 cases, 985 statutes and court rules, 243 regulations, 10,000 administrative decisions and secondary sources, 634 pieces of proposed and enacted legislation, and 1,090 proposed and adopted regulations. I decided to search on “Board of Regents v. Roth,” and again got links to many different sources – more than 10,000. In this case, one of the results I got from my search seemed likely to be helpful. Specifically, a 1973 article in the Columbia Law Review explored the topic, “Procedural Rights of Non-Tenured Teachers.” The law review article was, however, just a description of the Roth decision, the article having been written shortly after the decision was handed down by the Court. It didn’t answer my question, but it did provide a kind of critical commentary on Roth, concluding as follows:

After Roth, the security of those dependent upon government benefits—often situated less advantageously than teachers—rests upon the shadowy and wavering distinction between protected and unprotected interests. In this context, the fears expressed by Justice Marshall in his dissent seem especially pertinent: “It is only where the government acts improperly that procedural due process is truly burdensome. And that is precisely when it is most necessary…. [While] the majority assured both tenured and non-tenured teachers of the protection afforded by the first amendment … by curtailing the possibility of pre-termination challenges to the validity of a board's decision, the Roth decision may in fact render such protection increasingly illusory."
Since I was most interested in finding out whether or not there was any support for Marshall’s claim about a citizen’s right to government employment, I decided to search using his exact words. When I did that, I was directed to only sixteen different search results, including, of course, the Roth case itself. However, this search also provided me with a link to an eighty-six page Hofstra Law Review article titled, “The State Action Doctrine and the Principle of Democratic Choice.”[4] The article was written in 2006 and was authored by Wilson R. Huhn, a law professor at Duquesne University School of Law.[5]

I knew very little about the “State Action Doctrine” – beyond knowing that there is such a thing - so I read the article, which was both long and detailed, figuring that it might provide me with “a compelling and interesting point not already covered by class discussion or found in the assigned and optional readings.” This is what the assignment memo told me was one of the main objectives of this research assignment. I was, in fact, happy to find out more about “the state action doctrine,” which was something, as I say, that I really didn’t know much about. I also learned, from footnote 134 in the article, that the Roth case is, apparently, still “good law,” in the sense that no courts seem anxious to embrace Justice Marshall’s belief that citizens have a right to employment in an advertised government job, unless the government demonstrates why not.

In terms of the “State Action Doctrine,” here is what I learned from the law journal article. The doctrine, essentially, is the Supreme Court’s statement that there must be some sort of action by a governmental agency before the Constitution will provide any protection for our fundamental rights. “Private” actions that have the effect of impinging on the rights mentioned in our Constitution can’t be directly attacked; some kind of “state action” is needed first. The “state action doctrine” has been elaborated, over time, in numerous Supreme Court decisions, but it may not be as clear and definitive a statement of Constitutional law as might be wished. The author argues that the doctrine is, actually, “a collection of arbitrary rules that impede constitutional protection of liberty, equality, and fairness for no good reason.” [6] Here is how he sums up the situation:

In my opinion, both liberals and conservatives are mistaken in their interpretation of the state action doctrine because both sides misperceive the purpose of the doctrine. Conservatives are in error because the state action doctrine was not intended to be used to protect individual rights or states' rights. Liberals are in error because the Constitution was not intended to be used to regulate the behavior of individuals, nor does it guarantee governmental benefits. Instead, the state action doctrine stands for the proposition that the people have the right to determine for themselves, through their state and federal elected representatives, how individuals are to treat each other and how generous society will be in the distribution of wealth when it acts collectively. The state action *1384 doctrine is neither a barrier to governmental control of private parties, as conservatives imagine it to be, nor a replacement for the democratic process, as liberals would have it.[7]

According to the article, the “state action doctrine” is actually based on the fundamental commandments of the Constitution, elevating the people’s right to democratic self-government:

The state action doctrine stands for the proposition that the people alone have the final say in determining the nature and the degree of governmental services that they will support with their tax dollars. Social welfare policy is a matter of legislative grace, not constitutional right. The only governmental services that the government might be considered to have an affirmative duty to provide are education--so that citizens may have the opportunity to participate meaningfully in the democratic process--and the equal protection of the laws against acts of private violence.

The principle advanced in class, by Professor Patton, that it is our “politics,” our participation in self-government, that gives us the “law” by which we govern ourselves, is exactly what Huhn says the “state action doctrine” is all about.

As for a “right” to a government job, something for which Justice Marshall was advocating in the Roth case, it appears from my research that this, too, is something that our politics will either deliver, or not, but it is going to be up to “us,” as we engage with economic, political, and social issues ourselves. It will be our “political” decisions that will determine this question. The Constitution isn’t going to do that for us.

Could we have such a system? Could we establish a “right” to meaningful work, overseen by our national, state, and local governments, and enforced by them? Yes, we could establish such a system, but that would require legislation, which legislation would then be provided Constitutional protection. But the Constitution isn’t going to set up such a system for us. If we would like to have a government that acts the way Justice Marshall said our government should act, and if we want to provide a “property right” in employment, which would then be protected by the Fourteenth Amendment to the Constitution – we are going to have to do something ourselves, by way of legislation, to get that result!

That’s what I am getting from the research I have undertaken. That “formula” we have been hearing about from Professor Patton is a correct way to view our Constitutional system:


The Constitution protects the result. It doesn’t mandate any specific legislative decision.


1. James Madison (https://www.azquotes.com/author/9277-James_Madison/tag/property)

2. Board of Regents v. David F. Roth, 98 S.Ct. 2701

3. Ibid. at 2715

4. Hofstra L. Rev. 1379 (Summer 2006), Wilson R. Huhn

5. Google Scholar (https://scholar.google.com/scholar?q=wilson+r+huhn&hl=en&as_sdt=0&as_vis=1&oi=scholart)

6. Hofstra . Rev, at 1380

7. Ibid. at 1382-1383

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