By Patrick M. Garry
In this article, Professor Garry examines the case law and
rationale underlying the rule that public employment qualifies as
property under the Due Process Clause. Although, the kind of
property entitled to due process protections did not traditionally
include the expectation of continued government employment, the
Court extended due process protections to a wide range of
government benefits and programs during the rights explosion of the
1960s, including public employment. This extension, however,
departed from the historic grounding of constitutional rights in
the citizen-sovereign relationship. Due process rights were
now conferred upon individuals not as citizens but as public
employees.
An analogous situation exists in connection with the First
Amendment rights of public employees, which has continued to
incorporate the government-as-sovereign versus
government-as-employer distinction. Indeed, the Supreme Court
has recently imposed an even more rigid citizen-employee
distinction on the type of public employee speech receiving
constitutional protection. According to this newly
articulated doctrine in the public employee speech area, the
citizen-employee test is determinative of whether the individual
may enjoy First Amendment rights. If an individual speaks as
a citizen, she enjoys full constitutional protection; but if that
individual speaks as an employee, she receives only the protections
flowing from the employment relationship. In this article,
Professor Garry argues that this same approach should be taken with
respect to due process property rights. If an individual
acquires property as a citizen—e.g., a home or some tangible
personal property—then that individual possesses due process rights
regarding that property. On the other hand, if the individual
acquires an expectation of future employment because of her status
as a government employee, no constitutional due process rights
arise.