Breck England is complaining about viewpoint discrimination, and he is completely right…and totally wrong.
In the latest strange development in Utah’s political litigation industry, Breck England, an unsuccessful candidate for the Utah State Board of Education (USBOE), has sued the members of the USBOE nominating committee, Governor Herbert, and Lt. Governor Cox for allegedly engaging in discrimination in violation of his constitutional rights (a copy of the complaint is embedded below).
The basis for England’s claim is that, during vetting process of state school board candidates, some candidates are favored while others (i.e., himself) are disfavored — based on their viewpoints (e.g., support of Common Core). He’s claiming First Amendment, Equal Protection, and Due Process violations.
You read that right — a candidate for public office is suing because the USBOE nominating committee and the Governor — who are responsible for selecting the candidates to stand for election — didn’t like his positions on the issues and chose someone else.
What is electoral politics if not an exercise in viewpoint discrimination?
It seems bizarre.
But let’s examine England’s claim more closely.
If the legislature passed a law prohibiting people who believed in, say, free markets or gay marriage, from running for public office, we would all agree that there was a constitutional violation of rights.
Is it any different when those responsible for choosing candidates for the state school board refuse to advance candidates who support, say, Common Core?
It is, and let me tell you why.
The Utah Constitution Gives the Legislature Total Control Over the Selection Process
The Utah Constitution contains only one sentence regarding the selection of state school board members. It says: “The membership of the board shall be established and elected as provided by statute.”
That’s the language of plenary control and unfettered discretion. It’s a bit odd as a constitutional provision, but it gives the legislature total authority to decide how state school board members are chosen.
The legislature has exercised that authority in Utah Code Ann. 20A-14-103 to 105, which provide for basic qualifications for candidates, and provide considerations to be taken into account by the USBOE nominating committee. However, the statute does not provide any required criteria for candidate selection.
In other words, the legislature leaves it to the discretion of the nominating committee to select candidates based on whatever criteria they find dispositive.
I suspect that Mr. England and his attorneys agree with this analysis thus far.
We diverge on the next point, though: England believes that no matter what the Utah constitution says, the statutory discretion given the USBOE nominating committee and the Governor violates the federal constitutional rights of the candidates by allowing them to “punish” candidates — by not selecting them for the ballot — based their viewpoints on issues.
England is wrong and it doesn’t.
The Federal Constitution Allows Executive Branch Discretion in Appointments and All Candidate Selection Processes Contain Viewpoint Discrimination
There is nothing in the United States Constitution that requires every applicant for an executive, administrative position be guaranteed a spot on the ballot. All federal and state governments make liberal use of the executive power to appoint agency heads and inferior officials. Sometimes, the consent of the legislature is even required — and candidates promoted by executives are sometimes denied based on “viewpoint discrimination” (also known as legislative vetting) from Congress.
That much is clear.
But does the fact that Utah has a hybrid process that allows candidates to file for positions make a difference? After all, if a government opens a public space to use, they can’t thereafter discriminate on who uses that space on the basis of their political viewpoints.
That’s right as far as it goes, but this case is different.
First, everyone is given the opportunity to apply for the state school board, regardless of opinion or partisan affiliation. There’s no discriminatory law at work here; just the policy preferences of the individuals assigned to select the candidates for the USBOE, which are entitled to no less deference than the policy positions of the governor in an appointment situation or the voters in any other election.
Second, viewpoint discrimination by the USBOE selection committee can’t violate the First Amendment. If it did, any winnowing of candidates for any position based on the candidates’ viewpoints is illegal discrimination. And that would be a problem. It would cripple government and make coherent policy direction impossible.
The Ron Swanson Test
For a moment, just imagine that a libertarian guy named Ron Swanson applied for a job as director of a city parks department and publicly expressed his desire to sabotage the operation of the department at every opportunity. And say that the hiring committee, comprised of people in the Parks Department who had an antipathy toward libertarians, refused to submit his name as a finalist to the city council (who would select the final candidate) — solely on the basis of his views about government.
Under the theory espoused by England’s attorneys, the refusal to hire Swanson, or even allow him to advance through the selection process, would be unconsistutional viewpoint discrimination.
In both cases, the actions are being taken by representatives of the government, under color of law. In both cases, the candidate is “punished” for his viewpoints by being eliminated during the process. The First Amendment, Equal Protection Clause, and right of Due Process don’t only apply to electoral candidates, but protect all people.
Unless you think Pawnee is constitutionally obligated to send Ron Swanson all the way to the final stage of the hiring stage, then England’s claim fails the Ron Swanson test.
We put to bed long ago the idea that the First Amendment immunizes you from all the consequences of exercising your First Amendment rights. One of the corollaries to a tradition of freedom of speech is acceptance of responsibility for the consequences of exercising your free speech rights.
In the rush to assert constitutional rights, especially First Amendment rights, it can be easy to lose site of the fact that the free speech rights guaranteed by the First Amendment exist in large measure to allow people to discern and discriminate among people with different political viewpoints.
I think England and his attorneys, out of frustration, have lost the forest for the trees.
There are lots of problems with the USBOE candidate selection process; most people acknowledge that and reform seems to be imminent. But lawsuits like this aren’t the answer. They only undermine the very rights that they are purporting to attempt to secure.