A federal district court judge has ordered the promotion of two civil rights attorneys in the Education Department who refused to submit information for a national security clearance.
In a sharply worded opinion, Judge Louis F. Oberdorfer ruled that the Reagan administration acted unlawfully in requiring the clearances, which involve extensive background investigations, "for positions that do not affect the national security of the United States."
Even though the government told the judge two weeks ago that the clearance requirement had been suspended for the two individuals, Oberdorfer proceeded to rule that the requirement could not be imposed for those positions because they did not involve national security.
The administration had argued that requiring a security clearance was proper because the jobs were "critical-sensitive" and involved "the highest degree of public trust."
The American Civil Liberties Union, which handled the case on behalf of attorneys Kathleen Flake and William A. Delaney, praised the decision and said it would deter other security checks of government employes.
"There's been a pattern of overzealousness on the part of the administration in trying to hide things behind a national security clearance that shouldn't be hidden," said Arthur B. Spitzer, director of the ACLU's National Capital Area chapter. "The case has a significance beyond two plaintiffs because the reasoning of the opinion says the government can't classify any job that doesn't have anything to do with national defense or military security and foreign policy."
A spokesman for the Justice Department, which handled the case for the government, declined to comment on the decision or to say whether it would be appealed.
In his order, Oberdorfer rejected the government's contention that the case was moot because it already had decided to promote the attorneys, pending a major study by a consultant of security procedures throughout the Education Department.
Without a court order, Oberdorfer said, there is a risk that department officials "will quickly return to their 'old ways.' " In 1983, the department delayed implementing security clearances in its civil rights office after most of the office's staff attorneys signed a petition opposing them.
The ACLU had argued that the security clearances also violated the attorneys' constitutional right to privacy, but Oberdorfer said he did not have to deal with constitutional issues because the department's clearance requirement violated the 1950 law establishing the security system and the 1953 executive order that implemented it.