The First Amendment and rejection of a potential county Director of Schools

[Volokh, Eugene]

	In Scarbrough v. Morgan County Bd. of Ed., decided today by the
Sixth Circuit, Scarbrough had been the elected superintendent of a
county school system.  The elected position expired by law, and was
replaced with an appointed position, Director of Schools; Scarbrough was
one of the candidates for that position.  The county Board of Education
then rejected him, allegedly because he had agreed to say a prayer at a
breakfast hosted by a church with a predominantly gay and lesbian
membership (the Metropolitan Community Church).  

	The Sixth Circuit held that the rejection violated the First
Amendment, and I think that has to be right as to most government
employees.  But the Circuit didn't consider whether the position of
Director of Schools is the sort of high-level policymaking position that
elected officials may fill even based on the candidate's otherwise
protected speech or political association.  It seems to me pretty clear
that a Governor, for instance, would be free to appoint a state
Secretary of Education based on the appointee's party affiliation or his
otherwise protected speeches to various groups that many voters
disapprove of -- such decisions may be narrow-minded, or improper
pandering to public prejudices, but I take it that under Elrod and
Branti they would be constitutional (or do Elrod and Branti limit
themselves only to decisions based on party affiliation and not based on
speech?).  Is Director of Schools a sufficiently high-level position to
qualify as well?

	(Scarbrough never did give the speech, but I agree with the
court that this shouldn't change the First Amendment analysis.)

	Eugene