The First Amendment and rejection of a potential countyDirector of Schools

[Volokh, Eugene]

	The chief claim that the panel discusses is a Free Speech Clause
claim; Scarbrough also raised a Free Exercise Clause claim, but the
panel treats it the same as a Free Speech Clause claim.

	My sense is that there's no Lukumi-like discrimination based on
religion or religiosity here; there's good reason to think board members
disapproved of Scarbrough's implicit endorsement of homosexuality as
proper behavior, but little to think that they disapproved of his speech
because of its religious context.  So if there's a Free Exercise Clause
violation, it would presumably be some sort of hybrid-rights violation,
triggered partly by the Free Speech Clause.

	By the way, sorry for not posting a link to the decision; it's
http://www.ca6.uscourts.gov/opinions.pdf/06a0434p-06.pdf .

	Eugene

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mark Graber
> Sent: Wednesday, November 22, 2006 10:07 AM
> To: Volokh, Eugene; conlawprof at lists.ucla.edu
> Subject: Re: The First Amendment and rejection of a potential 
> countyDirector of Schools
> 
> Is this first amendment speech or first amendment religion.
> 
> Would a school board be allowed to reject a candidate for 
> anything on the ground that the candidate belonged to a 
> religious society that accepted gay and lesbian members?
> 
> Mark A. Graber
> 
> >>> "Volokh, Eugene" <VOLOKH at law.ucla.edu> 11/22/06 1:01 PM >>>
> 	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
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