Updated: The story has been updated to add a comment from the Education Department.
The union representing U.S. Department of Education staff has sued the federal agency, arguing that altered out-of-office emails blaming Democratic lawmakers for the government shutdown violate employees’ First Amendment rights.
The lawsuit, filed by the American Federation of Government Employees in federal court late last week, challenges an automatic email from furloughed staff that blames U.S. Senate Democrats for the first government shutdown in nearly seven years after federal lawmakers failed to come to an agreement to extend funding beyond the Sept. 30 end of the fiscal year. Staff say the partisan messages were placed without their knowledge or consent.
“Employees are now forced to involuntarily parrot the Trump Administration’s talking points with emails sent out in their names,” said the complaint, filed in federal court in Washington on Friday.
Madi Biedermann, a department spokesperson, defended the automated messages in a statement to Education Week.
“The email reminds those who reach out to Department of Education employees that we cannot respond because Senate Democrats are refusing to vote for a clean CR and fund the government,” she said in an email. “Where’s the lie?”
Complaint asks court to find messages unlawful
With the government shutdown on the horizon last week, a number of federal agencies posted banners on their websites saying the “radical left” or Democrats had caused the lapse in funding, and encouraged staff to use similar phrasing in their out-of-office messages.
At the Education Department, the agency’s human resources leadership sent employees instructions with furlough preparations, which included setting up an out-of-office email. The department provided nonpartisan model language. The agency’s website also contains nonpartisan language about the government shutdown.
Staff set up automated messages with the suggested language, but later on Oct. 1, they found the messages had been changed to blame Democrats, according to the complaint.
Education Department staff correspond frequently with school district officials, parents, students, college administrators, and others as they carry out the agency’s functions—from overseeing student loan disbursement to investigating civil rights complaints to providing technical support on grants and other initiatives. The union raised concerns about those recipients getting such messaging from nonpartisan staff.
“So long as the out-of-office messages remain up, members of the public who try to reach a Department of Education employee will receive as an auto-reply a partisan message blaming ‘Democrat Senators’ for their inability to respond,” the complaint said.
Staff fear that the language puts them in violation of the Hatch Act, the 1939 law that prohibits federal employees from engaging in some forms of political activity and restricts the use of taxpayer money for partisan actions. The U.S. Office of Special Counsel, which enforces the Hatch Act, can seek disciplinary action against an employee who violates the law.
Many employees were unable to change the messages, as they were on administrative leave pending layoffs, and did not have access to their equipment. Others who still had access changed the automatic reply back to the nonpartisan language only to see it reverted back later, according to the lawsuit.
Roughly 87% of the department’s staff have been furloughed for the shutdown, according to the complaint and the department’s shutdown contingency plan.
The lawsuit asks for a judge to issue an injunction to stop the Education Department from modifying employees’ out-of-office messages to contain partisan speech.
