Trump administration ‘co-opted the voices’ of Education employees in shutdown blame game, union lawsuit alleges

The modified out-of-office emails of furloughed Education Department employees blaming Democratic senators for the ongoing shutdown has prompted a lawsuit from the American Federation of Government Employees. 

The union accused the Trump administration in a complaint filed on Oct. 3 of violating the First Amendment by “co-opt[ing] the voices of rank-and-file employees in the nonpartisan civil service to take part in political messaging.” 

According to the lawsuit, Education employees who are furloughed due to the government shutdown that began on Oct. 1 were instructed to set up an out-of-office email. The model language said: “Hello, you have reached the [U.S. Department of Education’s Information Resource Center]. We are unable to respond to your request due to a lapse in appropriations for the Department of Education. We will respond to your request when appropriations are enacted. Thank you.”

Employees reported, however, that later on Oct. 1 their messages had been edited — without notice or their consent — to state that Senate Democrats voted against a GOP continuing resolution that would maintain current agency spending levels through Nov. 21. Democrats have demanded that any government funding measure also address increases to Affordable Care Act health insurance premiums, while congressional Republicans have so far refused to negotiate on that matter until appropriations resume. 

Some employees said they changed their out-of-office emails back to their original message, according to the complaint, but later found they were modified again to blame Democrats for the shutdown. 

“​​As part of their employment duties, many department employees regularly use their government email accounts to communicate with school district representatives, college administrators, parents, students, vendors and other external stakeholders,” lawyers for AFGE wrote. “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 union requested that the District Court for the District of Columbia declare such modification unlawful and bar the Trump administration from continuing to include “partisan political speech” in federal employees’ out-of-office messages. 

AFGE is represented by the legal nonprofits Democracy Forward and Public Citizen.

“It is profoundly offensive for the government to commandeer federal employees’ voices for partisan purposes,” said Cormac Early, attorney for Public Citizen Litigation Group, in a statement. “Government workers have a First Amendment right not to be conscripted as political mouthpieces against their will.”

Approximately 87% of Education employees were furloughed at the start of the shutdown, according to the department’s contingency plan. 

In a statement to Government Executive, Deputy Assistant Education Secretary for Communications Madi Biedermann said: “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. Where’s the lie?”

Democratic lawmakers and some good government groups have also argued that messages on several agencies’ websites blaming the shutdown on congressional Democrats run afoul of the Hatch Act, which restricts the political activities of federal employees.