Legal Commentary

NASA Employees Have No Constitutional Right to Avoid Certain Background Checks

By Eugene Volokh

So the Supreme Court unanimously held today in NASA v. Nelson, reversing a contrary Ninth Circuit panel opinion. I think the Court?s result is quite right, for reasons I blogged about earlier; I hope to post more on the reasoning soon.

UPDATE: Here?s a quick summary of the Court?s conclusions:

1. The Court ?assume[d], without deciding, that the Constitution protects a privacy right of the sort mentioned in Whalen v. Roe (1977) and Nixon v. Administrator of General Services (1977),? which is to say a right to ?avoid[] disclosure of personal matters.?

2. But this right, if it exists, ?does not prevent the Government from asking reasonable questions of the sort included on SF?85 and Form 42 in an employment background investigation that is subject to the [federal] Privacy Act.? Among other things, The questions at issue asked contractors and employees about their recent drug use and drug treatment, and asked the contractors? or employees? references open-ended questions about the contractor?s or employee?s ?honesty or trustworthiness,? ?violations of the law,? ?financial integrity,? ?abuse of alcohol and/or drugs,? ?mental or emotional stability,? ?general behavior or conduct,? or ?other matters.?

3. The court did not announce a general test for deciding which inquiries are permissible and which aren?t, but pointed to several factors in holding that these inquiries were permissible:

a. ?[T]he Government has a much freer hand in dealing ?with citizen employees [and contractors] than it does when it brings its sovereign power to bear on citizens at large.??

b. The questions were ?reasonable? and sufficiently ?employment-related.?

c. The government has long engaged in inquiries of this sort, and private employers engage in them as well.

d. The information gathered would generally be kept sufficiently confidential, given the restrictions created by the federal Privacy Act on dissemination of employee and contractor information.

It seems to me that the Court was quite right on these facts, for reasons I discussed in earlier posts. But I should note that the Court?s analysis leaves lower courts and other government officials rather at sea about what sorts of questioning about private matters ? whether directed to the target of the investigation, or to others ? is constitutionally permissible, not just in the employment context, but in the context of criminal investigations, investigations triggered by license applications, and so on.

Full post as published by The Volokh Conspiracy on January 19, 2011 (boomark / email).