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Paul M. Secunda, Neoformalism and the Reemergence of the Right-Privilege Distinction in Public Employment Law, 48 San Diego L. Rev. 907 (2011). Copyright 2011 Paul M. Secunda and San Diego Law Review. Posted with the permission of the San Diego Law Review. Personal use of this material is permitted. In addition, permission to reprint/ republish this material for advertising or promotional purposes or for creating new collective works for resale or redistribution to severs or lists, or to reuse any copyrighted component of this work in other works must be obtained from the San Diego Law Review. Hard copies and or electronic download of this article may be obtained by contacting the William S. Hein Co. at http:/ / or EBSCO at or Lexis/Westlaw.

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48 San Diego Law Review 907 (2011)


The First Amendment speech rights of public employees, which have traditionally enjoyed protection under the doctrine of unconstitutional conditions, have suddenly diminished in recent years. At one time developed to shut the door on the infamous privilege/rights distinction, the unconstitutional conditions doctrine has now been increasingly used to rob these employees of their constitutional rights.

Three interrelated developments explain this state of affairs. First, a jurisprudential school of thought – the “subsidy school” – has significantly undermined the vitality of the unconstitutional conditions doctrine through its largely successful sparring with an alternative school of thought, the “penalty school.” Second, although initially developed in the government as sovereign context, this subsidy approach to the unconstitutional conditions doctrine has now infiltrated the government as employer context and eviscerated large parts of the holding in Pickering v. Bd. of Education. Third, and most significantly, the nature of the subsidy argument in the government as employment context has morphed into the government speech doctrine, through which the government employer claims the speech of its employees as it own and may regulate it willy-nilly. It is this neoformalism of the subsidy school that explains the reemergence of the privilege-right distinction in public employment law.

This Article argues for the restoration of Pickering, its constitutional balancing standards, and the penalty version of the unconstitutional conditions doctrine. Only when government actions that practically truncate the rights of public employees are not tolerated, will public employees be able again to assume the role of the vanguard of the citizenry, protecting fellow citizens from government fraud, waste, and abuse.

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