The Washington Post

No legal recourse for Gallaudet University official demoted because she signed anti-same-sex-marriage petition

In late 2012, Gallaudet University suspended Angela McCaskill, the university’s Chief Diversity Officer, for signing an anti-same-sex marriage petition. The university later reinstated her, but at a lower position. She sued, and on Monday she lost (McCaskill v. Gallaudet Univ. (D.D.C. Apr. 14, 2014)).

I think the court’s analysis is likely correct as a legal matter. Gallaudet is a private entity, so it’s not bound by the First Amendment (even though it gets federal funding, has a federal charter, and provides that three of the 21 board members are to be government officials, see Becker v. Gallaudet Univ. (D.D.C. 1999), and Rendell-Baker v. Kohn (1982)). And while many states do ban discrimination based on political activity — including petition signing — no such statute was raised here.

D.C. law does provide that it’s a crime for any person to “by threats or intimidation, interferes with, or attempts to interfere with, the right of any qualified registered elector to sign or not to sign any initiative, referendum, or recall petition, or to vote for or against, or to abstain from voting on any initiative, referendum, or recall measure,” and similar statutes have been read as providing a civil action for employer retaliation based on such behavior. But D.C. law also provides that “initiative, referendum, or recall measure” refers only to D.C. ballot measures, and this case involved McCaskill’s signing a Maryland ballot measure. Perhaps because of this, this statute wasn’t involved in the case.

D.C. law also bars private employer discrimination based on “political affiliation,” but that statute is written — and has been read — narrowly, to refer just to party affiliation, and not political activity more broadly. That statute was indeed raised in the case, but the court correctly rejected that argument.

So McCaskill is out of luck legally. I think it’s worth thinking, though, what the legal rules ought to be here (I’m not inclined to further constrain private employer decisions about whom to employ, but that’s obviously a matter on which reasonable people differ, especially when political activity is involved). And it’s also worth thinking about how this reflects on the wisdom of laws that mandate public disclosure of initiative/referendum/recall signatures, or — not in play in this case but potentially relevant in other cases — public disclosure of contributions to such campaigns.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.

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