February 09, 2011
On January 19, 2011, the Supreme Court announced its decision in NASA v. Nelson. The case presented the question of whether a prospective federal government contract employee possesses a constitutional right of informational privacy that prevents the government from doing either or both of the following in the course of a background investigation: (1) asking whether the prospective employee has received counseling or treatment for illegal drug use that has occurred in the past year; or (2) asking the prospective employee’s designated references for any adverse information that may have a bearing on the employee’s suitability for employment at a federal facility.
The Court ruled in favor of the government and against the prospective employees. Assuming for the sake of argument (but not deciding) that the prospective employees did have a constitutional right of information privacy, the Court held that the challenged portions of the government’s background check did not violate such a right in the present case.
Justice Alito delivered the opinion of the Court, which Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, and Sotomayor joined. Justice Scalia filed an opinion concurring in judgment, which Justice Thomas joined. Justice Thomas filed an opinion concurring in judgment. Justice Kagan took no part in the in the consideration or decision of the case.
To discuss the case, we have University of Arkansas at Little Rock William H. Bowen School of Law Professor Richard J. Peltz.