service on the theory that a position with the Government constitutes neither "life," "liberty," nor "property."115 Furthermore, the Supreme Court held in United Public Workers of America v. Mitchell116 that the restrictions imposed by the Hatch Act117 upon participation by public employees in political activities are not prohibited by the first, fifth, ninth, or tenth amendments.

However, this right-privilege approach requires closer scrutiny. In the first place, a number of the cases have explicitly imposed a reasonableness criterion upon a government's actions with respect to its employees. In the McAuliffe case, for example, Mr. Justice Holmes stated that "the city may impose any reasonable condition upon holding offices within its control."118 The Supreme Court in Mitchell found that the restriction upon political activity was necessary to prevent that which could be "reasonably deemed by Congress to interfere with the efficiency of the public service."110 The Court also insisted that employees may not be arbitrarily disqualified from government service.120

The establishment following World War II of extensive loyaltysecurity programs throughout the federal and state governments and in private industry presented threats to liberties so basic as to require redefinition of employees' constitutional rights.121 The "facile generalization"122 of a right-privilege dichotomy was rejected, and the due process test of "the protection of the individual

118 Taylor v. Beckham (No. 1), 178 U.S. 548 (1900); Angilly v. United States, 199 F.2d 642 (2d Cir. 1952); Bailey v. Richardson, 182 F.2d 46 (D.C. Cir. 1950), aff'd per curiam by equally divided court, 341 U.S. 918 (1951).

Public employment is a "privilege revocable by the sovereignty at will." Crenshaw v. United States, 134 U.S. 99, 108 (1890) (naval officer). This is in sharp contrast to the view of the Court that the right to hold specific private employment is within the "liberty" and "property" concepts of the fifth and fourteenth amendments' due process clause. See Willner v. Committee on Character & Fitness, 373 U.S. 96, 102 (1963); Greene v. McElroy, 360 U.S. 474, 492 (1959); Schware v. Board of Bar Examiners, 353 U.S. 232, 238-39 (1957); Peters v. Hobby, 349 U.S. 331, 352 (1955) (concurring opinion).

116 330 U.S. 75 (1947).

117 Section 9 (a), 53 Stat. 1148 (1939), as amended, 5 U.S.C. § 118i (a) (1964).

11 155 Mass. at 220, 29 N.E. at 518. (Emphasis added.)

110 330 U.S. at 101. (Emphasis added.)

120 "Congress may not 'enact a regulation providing that no Republican, Jew or Negro shall be appointed to federal office . . . .'" Id. at 100 (dictum). See Garner v. Board of Pub. Works, 341 U.S. 716, 725 (1951) (Frankfurter, J., concurring).

191 See generally ASSOCIATION OF THE BAR OF THE CITY OF New York, Report of THE SPECIAL COMMITTEE ON The Federal Loyalty-SECURITY PROGRAM (1956); BARTH, THE LOYALTY OF FREE Men (1951); BONTECOU, THE FEDERAL Loyalty-SecurITY PROGRAM (1953).

199 Wieman v. Updegraff, 344 U.S. 183, 191 (1952).

"12

against arbitrary action"123 began to make its way into the opinion Thus in Wieman v. Updegraff,124 in which an Oklahoma statul requiring loyalty oaths for state employees was voided, the Cour stated: "We need not pause to consider whether an abstract righ to public employment exists. It is sufficient to say that constitu tional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory." Four years later, the Court in Slochower v. Board of Higher Educ.12 invalidated action under a state law requiring the automatic dis missal of employees who pleaded the fifth amendment with the following observation: "To state that a person does not have a constitutional right to government employment is only to say that he must comply with reasonable, lawful, and nondiscriminatory terms laid down by the proper authorities."127 Thus it appears that the Slochower-Wieman approach places "constitutional restraints upon state and federal governments in dealing with their employees. "128 Whether or not an abstract "right" to public employment exists is irrelevant.129 The Government is restrained in regulating its relationship to its employees by the due process notion of reasonable action-action which is neither arbitrary nor discriminatory.180

13 This phrase originally appeared in Ohio Bell Tel. Co. v. Public Util. Comm'n, 301 U.S. 292, 302 (1937).

134 344 U.S. 183 (1952) (fourteenth amendment).

126 344 U.S. at 192.

126 350 U.S. 551 (1956) (fourteenth amendment). 187 350 U.S. at 555.

...

Professor Davis suggests that "The Court could have expressed the essence of its thought more simply: to state that a person does not have a constitutional right is only to say that he does have a constitutional right. The Court has amply demonstrated a capacity to manipulate the doctrine [of privilege] out of existence, or to disable it temporarily or partially, as the occasion may require." Davis, The Requirement of a Trial-Type Hearing, 70 HARV. L. Rev. 193, 230, 232 (1956).

The comments in Slochower should be compared to those in Adler v. Board of Educ., 342 U.S. 485, 492 (1952):

"It is ... clear that they [public school teachers] have no right to work for the State in the school system on their own terms. United Public Workers v. Mitchell, 330 U.S. 75. They may work for the school system upon the reasonable terms laid down by the proper authorities of New York." (Emphasis added.)

19 Cafeteria Workers Union v. McElroy, 367 U.S. 886, 898 (1961) (dictum) (em-, ployee of private restaurateur located on military base denied security clearance).

1 See Cramp v. Board of Pub. Instruction, 368 U.S. 278, 288 (1961). "'One may not have a constitutional right to go to Baghdad, but the Government may not prohibit one from going there unless by means consonant with due process of law." Cafeteria Workers Union v. McElroy, 367 U.S. 886, 894 (1961) (dictum).

180 See Cafeteria Workers Union v. McElroy, 367 U.S. 886, 897-98 (1961); Davis, supra note 127, at 239 & n.170; Krasnowiecki, Confrontation by Witnesses in Govern

We may now proceed to apply this "reasonableness" test under certain more specific headings to the Government's use of psychological tests. This will be done by a consideration of the following questions: (A) Is psychological testing reasonably related to the ends sought to be achieved by its use? (B) Must an employee who undergoes such testing be allowed to present psychological evidence in rebuttal? (C) Is psychological testing analogous in the employeremployee situation to involuntary confessions and self-incrimination? (D) Does the employee have a "right of privacy" which is invaded by testing under some or all circumstances?

A. Reasonably Related to the Desired Goal

In the first instance, it must be pointed out that the "reasonableness" test has most frequently been applied to legislative action.181 However, where departments and agencies rely upon general statutes for rule-making powers over their employees, it would be logically inconsistent to suggest that the legislature is constrained by notions of due process but that the various departments have a completely free hand to act.182 If in accordance with traditional due process concepts the agencies may only act in a manner reasonably calculated to achieve their legitimate ends,133 it could be argued that ment Employee Security Proceedings, 33 NOTRE DAME LAW. 180, 191 (1958); Nutting, The Fifth Amendment and Privacy, 18 U. PITT. L. Rev. 533, 540 (1957); Richardson, Problems in the Removal of Federal Civil Servants, 54 MICH. L. REV. 219, 235-45 (1955); The Supreme Court, 1950 Term, 65 Harv. L. Rev. 107, 158 (1951); 46 Calif. L. REV. 828, 829 (1958); 2 Hous. L. Rev. 120, 124-25 (1964).

181 E.g., Wieman v. Updegraff, 344 U.S. 183 (1952); Slochower v. Board of Higher Educ., 350 U.S. 551 (1956).

133 See United States v. Rasmussen, 222 F. Supp. 430 (D. Mont. 1963); 2 Hous. L. REV. 120, 124 (1964). “An administrative agency-the creature of Congress-certainly cannot exercise powers that Congress itself is barred from asserting. See the opinion of MR. JUSTICE BLACK in Anti-Fascist Committee v. McGrath, 341 U.S. 123, 144-46." Peters v. Hobby, 349 U.S. 331, 352 (1955) (Douglas, J., concurring). (Footnote omitted.) 18 The interest of the Government in the area of personnel selection, of course, is the advancement of the government civil service. By statute the President is required to promulgate such rules regarding admission to the federal service "as may best promote the efficiency thereof." Rev. Stat. § 1753 (1875), 5 U.S.C. § 631 (1964).

With this in mind, consider the following remarks interpreting the due process clause of the fourteenth amendment: "[T]he guaranty of due process demands only that the law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained." Nebbia v. New York, 291 U.S. 502, 525 (1934); see Williamson v. Lee Optical, Inc., 348 U.S. 483, 489 (1955).

More importantly, "where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling.” Bates v. Little Rock, 361 U.S. 516, 524 (1960); see McLaughlin v. Florida, 379 U.S. 184, 196 (1964).

psychological testing is purely arbitrary and therefore does not meet this criterion. Even if some nexus can be shown between promoting the efficiency of the federal service and the use of psychological tests, the serious infringement on personal liberty which results from such tests would compel that the nexus be clearly indicated. To the extent that congressional hearings and numerous other studies indicate that psychological tests lack reliability and validity in employment situations and result in arbitrary personnel decisions, a prohibition of such techniques should result.134

B. Right to Rebut Test Evidence

If it be argued that psychological testing may have some usefulness as a screening device but that it is by no means an accurate indicator in every instance, the question arises as to whether the employee should be able to present his own rebutting psychological data-to "cross-examine" the tests. 135 The Supreme Court has given rather little guidance to indicate which procedures are necessary to insure that the requirements of due process are met. Traditionally the courts have treated admission, promotion, and dismissal from the civil service as matters to be dealt with by the executive branch.136 Therefore, rather than set down standards of its own, the Supreme Court in recent years has contented itself with scrutinizing the details of particular cases to make certain that the various departments have rigidly adhered to whatever procedural rules they may have enacted. 187 Thus the constitutional issue has been avoided.

184 See part II F of this article; note 133 supra.

185 As Senator Sam J. Ervin, Jr., pointed out: "[T]he analogy can be drawn perhaps that if the employee has a right to confront his accusers in some proceedings, then perhaps he should confront the psychological tests and the psychiatric reports which may cast a cloud over his emotional stability and his mental competency. In a sense, they are the accusers. Certainly, the procedural rights in this area should be carefully spelled out." Hearings Transcript 6.

180 See Richardson, supra note 130, at 239. Thus it was said in 1947 that "because of the courts' reluctance to interfere with government action taken against its em-' ployees, their protection lies largely with the president, and, to some extent, with Congress." Note, Restrictions on the Civil Rights of Federal Employees, 47 COLUM. L. REV. 1161, 1188 (1947).

187 E.g., Williams v. Zuckert, 371 U.S. 531 (1963); Greene v. McElroy, 360 U.S. 474 (1959); Vitarelli v. Seaton, 359 U.S. 535 (1959); Cole v. Young, 351 U.S. 536 (1956); Peters v. Hobby, 349 U.S. 331 (1955).

Most of these cases relating to employees' rights have involved aspects of the Government's loyalty-security program. The possible connections between this program and psychological testing have already been noted.138 The Court has been particularly concerned that aspersions cast upon one's loyalty may constitute a bar to future employment.139 Insofar as findings based upon psychiatric techniques and psychological testing may also result in such a bar, the Court could very well turn to the dicta in the security decisions. For example, in Greene v. McElroy, 140 which was not decided on constitutional grounds, the Court commented:

Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is true in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty.... We have formalized these protections in the requirements of confrontation and cross-examination.141

Justices Black and Douglas have been the most consistent supporters of full procedural safeguards "whether the life of a man is at stake, or his reputation, or any matter touching upon his status or his rights."142 They analogize administrative proceedings which adversely affect an individual's employment opportunities to those that "involve the imposition of criminal sanctions."143 Confrontation and cross-examination are indispensable, for it is not only the opportunity to work in one specific government office which is at stake;

139 See note 12 supra and accompanying text.

10 See, e.g., Greene v. McElroy, 360 U.S. 474, 506-08 (1959).

"[The practice of using 'faceless informers'] . . . deprives men of 'liberty' within the meaning of the Fifth Amendment, for one of man's most precious liberties is his right to work. When a man is deprived of that 'liberty' without a fair trial, he is denied due process." Peters v. Hobby, 349 U.S. 331, 352 (1955) (Douglas, J., concurring).

140 360 U.S. 474 (1959).

141 360 U.S. at 496.

149 United States v. Nugent, 346 U.S. 1, 13-14 (1953) (Douglas and Black, JJ., dissenting). See Cafeteria Workers Union v. McElroy, 367 U.S. 886, 900-01 (Brennan, J., dissenting).

148 Williams v. Zuckert, 371 U.S. 531, 533 (1963) (Douglas and Black, JJ., dissenting).