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MBE Question of the Day – Answer
(C) is the correct answer.
Issue: What burden does the government have when it is alleged to have fired an employee based on her political beliefs?
Rule: If government action against speech is based on the message (or viewpoint) of the speech, then strict scrutiny applies (i.e., it is a content-based action). The government then bears the burden of showing that it has a compelling interest and that the action was narrowly tailored to that alleged interest. By negative implication, if an employee alleges that the government, his employer, fired him because of his political beliefs, the government must show that it has a compelling interest in limiting his speech, or that it did not do the act complained of.
Analysis: The coach alleges that the government (a state college) refused to renew her contract because of her controversial political beliefs. If it is true that the government refused to renew the coach’s contract because of her political beliefs, this refusal to rehire would constitute a content-based restriction on speech, and the government must then show that it had a compelling interest in not renewing the contract based on the coach’s speech, or alternatively, that it did not engage in such activity (i.e., that the coach was not fired on the basis of her political views). (C) is correct because it requires the state to show that it did not fire the coach for her political beliefs (or affiliation). Note: there is a more complicated analysis that is more precise than that which would probably be required on the bar exam: the coach is a public employee. Under U.S. Supreme Court case law, a public employee cannot be fired merely for his political beliefs, unless the government can show that the public employee was a “decision-maker,” i.e., the employee was a political appointee. Appointees can be removed for political reasons because they were appointed to promote a political agenda. (A) is incorrect because there is no such burden on the coach. The coach under these facts is entitled to her political views and the burden is on the college to show her contract was not renewed because of something besides her controversial views. (B) is incorrect because the burden is on the government, and not the employee, to show that there was a valid reason (compelling interest) or that the government did not fire the employee for her political views. (D) is incorrect because lawful First Amendment speech related activity is improper, even secondarily, as a basis to refuse renewal of an employment contract.