Equality in hiring permanent resident foreign nationals in the United States: when loyalty is the question, but not the issue

Behavioral Sciences and the Law

Behav. Sci. Law 20: 141–160 (2002)

Published online in Wiley InterScience (www.interscience.wiley.com). DOI: 10.1002/bsl.481

Equality in Hiring PermanentResident Foreign Nationals inthe United States: When Loyaltyis theQuestion, But Not the Issue

Uco Jay Wiersma, Ph.D.*

Permanent resident foreign nationals, who have been leg-

ally admitted to the United States, have the right to work.

However, when deciding the constitutionality of a state

statute that requires citizenship for a public domain job,

the rights of permanent residents to seek gainful employ-

ment are balanced against the rights of state governments

to ensure that important sovereign functions are entrusted

only to their citizens. Several important Supreme Court

decisions have been 5/4 split decisions because of this

tension and dissenting judges have countered that the

majority rulings were based on presumptions, and not

facts, that citizens are more loyal than permanent resi-

dents. The judges have also disagreed about the level,

within a civil service hierarchy, below which a citizenship

requirement is unconstitutional. This article reviews

United States court decisions for relevant issues and solu-

tions, and shows how empirical studies in the area of

human resource management can help resolve the issues

that have caused the dissent. The analysis will be useful to

legal and human resource professionals in the U.S. and

other countries affected by surging global migration.

Copyright # 2002 John Wiley & Sons, Ltd.

Prejudice, writes Allport (1958), ‘is a bias or prejudgement, favorable or unfavorable

that has no basis in fact. It may be directed towards a group or towards an individual

because he is a member of that group’ (p. 10). Prejudice becomes discrimination

when it translates into the unequal treatment of individuals who are the object of the

prejudicial attitudes. Do legally admitted permanent resident foreign nationals, who

are not U.S. citizens, face discriminatory hiring practices when they apply for

government civil service positions and other jobs controlled by government statutes?

Copyright # 2002 John Wiley & Sons, Ltd.

*Correspondence to: Dr Uco Jay Wiersma, American University of Sharjah, P.O. Box 26666, School ofBusiness and Management, Sharjah, United Arab Emirates. E-mail: [email protected]. Wiersma is an associate professor in the Department of Management. He would like to thank the tworeviewers for their helpful comments on a previous draft of this article.

The effects of post-1965 legal immigration have been and will continue to be

dramatic. Latinos will outnumber blacks in 15 years, and a quarter of the U.S.

population will be comprised of Asians and Hispanics in 50 years. Over seven

million foreign nationals were legally admitted to the United States between 1981

and 1990, two million in 1991, one million in 1996, and currently 800,000 more are

admitted annually. Numerically, legal immigration in recent decades has matched

the great waves of the 1880–1910 period. This trend is set to continue because of the

Immigration Act of 1990, whose objective is to serve the country’s economic

interests by increasing the number of employment based visas to highly skilled

foreign nationals from 54,000 to 140,000 annually.

Although permanent residents are not as protected in U.S. society as such sub-

groups as race, color, religion, sex and national origin, permanent residents have

received special attention by the judiciary (Graham v. Richardson, 1971). However,

they can encounter problems procuring employment in public positions, and hiring

practicesbased oncitizenship can have significant practical consequences.Local, state,

and federal governments employabout 16% of the U.S. labor force, or about 20million

people. State and local governments account for about 75% of all public employment,

or over 15 million jobs. Of these 15 million, education and police occupations account

for eight million, and a little more than one million, jobs respectively. However,

permanent residents are not eligible for jobs in the federal civil service, and they may be

barred from many state and local civil service positions, such as law enforcement and

public education jobs.1 Furthermore, of the 800,000 annual immigrants, 48% settle in

the states of California, New York, and Texas, the three states that have most

strenuously contested non-citizen employment for public sector jobs.

In addition to the number of jobs from which permanent residents are excluded,

there are several reasons why an analysis of employment discrimination for this

subgroup is important. First, there is a consideration of the costs and benefits of

hiring permanent residents. In short, the sole cost of hiring this group of employees,

mentioned by the courts, is that permanent residents may be less loyal than citizens

and might therefore execute their duties less faithfully. No evidence has ever been

offered, however, to support this premise. Conversely, the major benefit of permit-

ting permanent residents to apply for government positions centers on merit based

systems of employment in which the most capable and skilled job candidates receive

hiring preference. Research shows that hiring and promoting employees based on

merit is highly correlated with organizational effectiveness and efficiency.

1Twenty-five states had statutes requiring citizenship specifically for law enforcement positions, andanother ten states had a general U.S. citizenship requirement for employment, when the Supreme Courtupheld New York State’s requirement that state troopers must be citizens. The following statutes requiredcitizenship for law enforcement positions: Ark. Stat. Ann. § 42–4206; Cal. Gov’t Code Ann. § 1031; Fla.Stat. Ann. § 943.13(2); Ga. Code § 92A–214; Ill. Rev. Stat., ch. 121, § 307.9; Ind. Rules & Regs, Tit. 10,Art. 1, ch. 1 § 4–7; Iowa Code § 80.15; Kan. Stat. Ann. § 74–2113(c); Ky. Rev. Stat. § 16.040(2)(c);Mich. Comp. Laws § 28.4; Miss. Code Ann. § 45–3–9; Mo. Rev. Stat. § 43.060; Mont. Rev. Codes Ann.§ 31–105(3)(a)(v); Nev. Rev. Stat. § 281.060(1); NJ Stat. Ann. § 53: 1–9; NM Stat. Ann. § 39–2–6; NDCent. Code § 39–03–04(4); NY Exec. Law § 215(3); Ore. Rev. Stat. § 181.260(1)(a); Pa. Stat. Ann. Tit.71, § 1193; RI Gen. Laws § 42–28–10; SD Comp. Laws Ann. § 3–7–9 and § 3–1–4; Tex. Rev. Civ. Stat.Ann., art. 4413(9)(2); Utah Code Ann. § 27–11–11. The following statutes had general U.S. citizenshipemployment requirements: Okla. Stat. Tit. 47 § 2–105(a); Ala. Code, Tit. 36, § 2–1(a)(1); Ariz. Rev.Stat. Ann. § 38–201; Haw. Rev. Stat. § 78–1; Idaho Code § 59–101 and Idaho Const., art. 6, § 2; Me.Rev. Stat. Ann., Tit. 5, § 556; Mass. Gen. Laws Ann., ch. 31, § 12; Ohio Rev. Code Ann. § 124.22; Tenn.Code Ann. § 8–1801; Vt. Stat. Ann., Tit. 3, § 262; and W. Va. Const., art. 4, § 4.

142 U. J. Wiersma

Copyright # 2002 John Wiley & Sons, Ltd. Behav. Sci. Law 20: 141–160 (2002)

Second, several Supreme Court decisions have been 5/4 split decisions and

dissenting judges have raised cogent counter-arguments. When deciding the con-

stitutionality of a state statute that requires citizenship, the rights of permanent

residents to seek gainful employment must be balanced against the rights of state

governments to ensure that important sovereign functions are entrusted only to their

citizens. The Supreme Court has ruled, in Sugarman v. Dougall (1973), that states

may reserve for citizens those jobs that require the formation, execution, or review of

broad public policy, or those in which job incumbents perform functions that go to

the heart of representative government. In short, only citizens may hold policy-

making positions.

But where and how does one draw the line between policy-making and

nonpolicy-making jobs? For example, only citizens in the State of New York may

become state troopers. But do police officers really operate on a policy-making level,

or do they merely perform their duties according to a set of codes as described in a

job description? Similarly, public school teachers in New York must be U.S. citizens

(or at least intend to become citizens), but do school teachers hold policy-making

positions? The boundaries of public functions have been interpreted divergently.

Third, United States courts have upheld the right of permanent residents to

become a(n) attorney, notary public, civil engineer, public transit operator, phy-

sician,2 youth counselor,3 office clerk,4 mental aide worker,5 sorting machine

operator,6 general laborer, railroad clerk, or labor union business agent, and the

right to work in most state civil service jobs. Conversely, the courts have ruled that

states have the right to bar permanent residents from becoming state troopers,

probation officers, or public school teachers, and from serving on community action

agencies. These rulings have, however, not yielded a clear framework from which

future cases may take their cues. The Supreme Court has even said that ‘we must

necessarily examine each position in question to determine whether it involves

discretionary decision making, or execution of policy, which substantially affects

members of the political community’ (Foley v. Connelie, 1978, p. 292). However,

this would be never-ending work, as evidenced by the Dictionary of OccupationalTitles, which lists 28,800 positions.

The purposes of this article are (i) to provide a review of important United States

court opinions for this protected subgroup, (ii) to analyze the major issues of debate,

and (iii) to offer suggestions derived from empirical research to help decision-

making. An analysis of, and suggestions for resolving, the issues raised may help

2New York state’s requirement that physicians become U.S. citizens within ten years of receiving theirlicense bears no rational relationship to their continued professional competence (Surmeli v. New York,1976).3The following city of Boston ordinance was declared unconstitutional: ‘Every officer in charge of adepartment shall to the best of his ability cause all statues, ordinances, regulations, and orders relating tothe duties of his department to be observed and enforced . . . that none but citizens shall be employed inany capacity’ (Mohamed v. Parks, 1973).4An Arizona statute was declared unconstitutional: ‘No person not a citizen or ward of the United Statesshall be employed upon or in connection with any state, county or municipal works . . . ’ (Miranda v.Nelson, 1972).5The following Vermont statute was disallowed: ‘No department or commission of the state governmentshall regularly employ an alien’ (Teitscheid v. Leopold, 1971).6See Tovar v. U.S. Postal, 1993.


Hiring permanent resident 143

legal and human resource professionals in the U.S. and in other countries affected

by surging global migration.

A LAND OF IMMIGRANTS

The history of America is a history of immigrants and the judiciary has long been

concerned about employment discrimination against permanent residents. In YickWo v. Hopkins (1886), the Supreme Court invalidated a San Francisco municipal

ordinance that discriminated against Chinese laundry operators, and ruled that a

lawfully admitted permanent resident is a person within the meaning of the Four-

teenth Amendment’s directive that a state must not deny to any person within its

jurisdiction the equal protection of the laws. Almost thirty years later, in Truax v.Raich (1915), the Court rejected an Arizona statute that required employers with

more than five persons to employ at least 80% qualified electors or native-born

citizens of the United States. Subsequently, the Court ruled unconstitutional a

California statute that prohibited issuing fishing licenses to persons who were

ineligible for citizenship (Takahashi v. Fish & Game Comm’n, 1948). Furthermore,

it has emphasized that states that adopt a suspect classification ‘bear a heavy burden

of justification’ McLaughlin v. Florida, 1964, p. 196). To emphasize this point

further, in a landmark case concerning the extension of welfare benefits to

permanent residents, the court concluded ‘Classifications based on alienage, like

those based on nationality or race, are inherently suspect and subject to close judicial

scrutiny. Aliens as a class are a prime example of a discrete and insular minority for

whom such heightened judicial solicitude is appropriate’ (Graham v. Richardson,

1971, p. 372). Although these decisions are not concerned necessarily with employ-

ment in the public sector, they underscore the value that once foreign nationals have

been lawfully admitted to the United States as permanent residents, they have a

basic right to exist in the community and should not be barred from any occupation

essentially economic in nature.

However, the courts have had to balance the employment rights of permanent

residents against the rights of a state or community to political sovereignty. In Boydv. Thayer (1892) the Court stated that ‘Each State has the power to prescribe the

qualifications of its officers and the manner in which they shall be chosen’ (p. 161),

and in Taylor v. Beckham (1900) it noted that ‘It is obviously essential to the

independence of the States, and to their peace and tranquility, that their power to

prescribe the qualifications of their own officers . . . should be exclusive, and free

from external interference, except so far as plainly provided by the Constitution of

the United States’ (pp. 570–571). It reaffirmed this position in Foley v. Connelie(1978) when it said ‘The essence of our holdings to date is that although we extend

to aliens the right to education7 and public welfare, along with the ability to earn a

livelihood and engage in licensed professions, the right to govern is reserved to

citizens’ (p. 297). Thus, these rulings support discriminatory hiring procedures

against permanent residents and there is a political justification for doing so.

7The Supreme Court disallowed New York state to reserve only for citizens (or intending citizens), statefinancial assistance for higher education, such as scholarships and student loans (Nyquist v. Mauclet,1977).


144 U. J. Wiersma

Employment discrimination against protected classes received heightened atten-

tion in the United States when Congress passed the Civil Rights Act of 1964. Title

VII of this Act prohibits discrimination because of race, color, religion, sex, or

national origin. Title VII protects permanent residents who are victims of illegal

discrimination; Title VII, however, does not prohibit discrimination on the basis of

citizenship. An employer may refuse to hire all permanent residents, but may not

favor permanent residents of a particular national origin (e.g. Dutch) over and above

those of another (e.g. Mexican).

The Supreme Court has held that alienage and national origin are not synon-

ymous. In Espinoza v. Farah (1973), a U.S. permanent resident of Mexican

citizenship who lived in the U.S., but who was refused a job as a seamstress because

she was not a U.S. citizen, claimed discrimination against a private employer

because of her national origin. However, the employers’ right to hire only United

States citizens was upheld because the company hired many employees of Mexican

national origin if they were U.S. citizens.8 Subsequently, an appeals court con-

fronted with a city ordinance that prevented a permanent resident from applying for

the job of laborer cited Espinoza and noted ‘The 1964 act does not apply to

employment discrimination on the basis of alienage’ (Ramirez v. Sloss, 1980,

p. 167), but the court did allow relief under the 1866 Civil Rights Act.

Allegations of unfair employment practices by state governments have frequently

been brought under the equal protection clause of the 14th Amendment of the U.S.

Constitution. Although these cases have been mainly against states, other public

employers such as counties, local municipalities, and fire districts may also be liable

under the equal protection clause. Allegations against the federal government have

been brought under the due process clause of the fifth Amendment. Additional

premises for redress include Section 1981 of the Civil Rights Act of 1866, the

Immigration Reform and Control Act (IRCA) of 1986, and the Immigration Act of

1990.

IRCA extends citizenship discrimination protection to those who are intending to

become citizens. The term ‘intending’ is defined as those who have acquired lawful

U.S. domicile, who initiate the naturalization process within six months of becom-

ing a permanent resident, and who complete the process within two years of the

application. Such individuals are protected against hire and discharge discrimina-

tion based on citizenship, but not against compensation, or employment condition,

discrimination. This protection affects private employers primarily because federal,

state, and local government employers are exempt from the constraints of IRCA if

8Rulings about employment discrimination against permanent residents in the private domain have notbeen clear. Immediately after Espinoza, the Fifth Circuit Court of Appeals also ruled that a permanentresident, who had been a warehouse laborer, was not entitled to relief from employment discrimination bya private employer under Title VII’s national origin discrimination prohibition (Guerra v. ManchesterTerminal, 1974), but that he could seek protection under the Civil Rights Act of 1866. Subsequently, aU.S. District Court also concluded that Title VII does not protect aliens against private discrimination(De Malherbe v. International Union of Elevator Constructors, 1977), and went a step further to conclude thatthe 1866 Act does not do so either. Finally, the same Fifth Circuit Appeals Court reversed its decision inGuerra and decided that neither Title VII, nor the 1866 Act, prohibited discrimination against permanentresidents by private employers (Bhandari v. First National Bank, 1987). However, see also Chaiffetz v.Robertson Research (1986), in which a U.S. citizen geologist who worked for a Texas subsidiary of a Britishparent corporation claimed discrimination under Title VII because he was discharged as a result of hisU.S. national origin.



they have adopted contravening regulations that mandate discrimination based on

alienage (Tovar v. U.S. Postal, 1993). Intending citizens lose their protection and

revert to normal permanent resident status if they fail to adhere to the time

constraints listed above. IRCA also states that a citizen may receive preference

over a permanent resident in the event that both are equally qualified for a particular

position.

LEGAL ANALYSIS

When the courts review government statutes that require citizenship as a condition

for employment, three questions are considered. (i) If the statute names an entire

classification of jobs, is the classification sufficiently precise? (ii) Does the job require

formulation, execution, or review of broad public policy? (iii) Does the statute

advance a compelling government interest by the least restrictive means available?

The first two issues encompass the ‘political function exception’ whereas the third

issue has been defined as ‘strict judicial scrutiny.’ These same questions and

analytical matrix derive from general constitutional law and apply to any issue in

which state versus individual rights are juxtaposed and the equal protection clause is

invoked.

As an example, in a ruling concerning a Texas state statute that barred permanent

residents from becoming notaries public (Bernal v. Fainter, 1984), the Supreme

Court ruled that (i) the statute was not too broad because it applied to only one

category of jobs, (ii) the job responsibilities of notaries public were essentially

clerical and ministerial and did not involve executing or reviewing public policy, and

(iii) a test that measured actual familiarity with applicable laws would have

maintained the valid state interest of ensuring high professional standards and

would have been less restrictive than the citizenship requirement. The Court,

therefore, did not uphold the Texas statute.

Political Function Exception

The political function exception examines the two issues of job classification and

political self-determination, and addresses the right of permanent residents to apply

for public jobs, versus a community’s right to be governed by its citizens. The Court

has stated

The rationale behind the political function exception is that within broad boundaries aState may establish its own form of government and limit the right to govern to thosewho are full-fledged members of the political community. Some positions are so closelybound up with the formulation and implementation of self-government that the State ispermitted to exclude from those positions persons outside the political comm-unity, hence persons who have not become part of the process of democratic self-determination (Bernal v. Fainter, 1984, p. 181).

In theory, the political function exception is meant as a narrow exception to the

general rule that employment discrimination based on alienage is unconstitutional.


146 U. J. Wiersma

However, in practice, the Supreme Court has used the exception to uphold a state’s

rights to bar permanent residents from employment in three of the seven most recent

cases.

Job Classification

When statutes exclude permanent residents from an entire class of jobs, the court

first considers whether the job classification is sufficiently precise. Classifications

that are too broad undermine claims that the statute serves legitimate political ends.

In Sugarman v. Dougal (1973), New York barred permanent residents from

employment in the competitive class of the state civil service, and argued that it had

a right to define its own political community, but the Supreme Court rejected this

argument because the statute included jobs such as clerk-typist, administrative

assistant, and human resources technician; the Court noted that the job classifica-

tion included the full range of work tasks, from the menial to the policy making. The

Court stated that ‘ . . . the means the State employs must be precisely drawn in light

of the acknowledged purpose’ (p. 643).9

However, the Supreme Court has had difficulty articulating how precisely drawn

the job classification must be. When a California District Court, citing Sugarman,

struck down a California State citizenship requirement for the job of probation

officer because the general job classification of peace officer, in which the probation

officer job was embedded, was too broad, the Supreme Court overruled the

California court, and stated, ‘the classifications need not be precise; there need

only be a substantial fit’ (Cabell v. Chavez-Salido, 1982, p. 443).

A broad job classification was also involved in a citizenship requirement for

employment in the federal civil service. In Hampton v. Wong (1976), the Federal

Civil Service Commission sought to bar permanent residents from a wide range of

federal civil service jobs and argued that the need for undivided loyalty in certain

sensitive positions justified a citizenship requirement in parts of the civil service, and

that the broad exclusion served the valid administrative purpose of avoiding the

trouble and expense of determining those sensitive positions. The court rejected this

argument and noted ‘the administrative burden of establishing the job classifications

for which citizenship is an appropriate requirement would not be a particularly

onerous task for an expert in personnel matters . . . ’ (p. 101). However, it noted that

Sugarman was not controlling in this instance because, unlike states, the federal level

of government has paramount power over immigration and naturalization.

A second reason for rejecting the government’s argument in Hampton was that

the Chairman and Commissioners of the Civil Service Commission, and not the

President or Congress, had mandated the citizenship requirement. In response to

the Hampton ruling, Presidential Executive Order 11935, as well as various annual

9Citing Sugarman, a U.S. district court ruled subsequently that Florida may not require job incumbentsfor state jobs to take an oath in which they must swear that they are a citizen of the State of Florida and ofthe United States of America because such an oath imposed a flat ban on the employment of aliens(Orlando v. Florida, 1990). This case raises the question, where loyalty oaths are concerned, of whether aperson can swear to support the Constitution of the U.S. and any said state, while residing in the U.S,without being a U.S. citizen. See also In re Griffiths (1972), where this issue is raised.



appropriations acts of Congress, now explicitly allow federal agencies to exclude

permanent residents.10

Political Self-Determination

The second prong of the political function argument concerns democratic self-

government and a government’s special interest in preserving the political commu-

nity. Because permanent residents may not vote, they have no right to participate in

the governing process. This means there is no right for permanent residents to run

for elected office. Also included in the category of positions that symbolize the

governing process are important non-elective positions in which job incumbents

participate directly in the formulation, execution, or review of broad public policy.

Connecticut used the self-determination argument to bar resident foreign nationals

from becoming lawyers. In In Re Griffiths (1972), it argued that a lawyer is an officer

of the court who acts by and with the authority of the state and is entrusted with the

exercise of actual government power. The Supreme Court overruled and noted that

lawyers are not officials of government, and are not like other court officers such as

marshals, bailiffs, or judges, nor do they formulate government policy. Similarly, the

Florida Supreme Court upheld a permanent resident’s right to apply for a license to

become a business agent for a local fire fighter’s union because business agents do

not exercise the state’s authority over individuals, but rather represent the interests

of public employees before those who ultimately make policy (Palm Harbour v. Kelly,

1987).

The United States Supreme Court has, however, upheld states’ rights to bar

permanent residents from becoming law enforcement officials,11 as well as public

school teachers. When New York reserved state trooper jobs for citizens only (Foleyv. Connelie, 1978), the Court agreed and noted ‘Police officers in the ranks do not

formulate policy, per se, but they are clothed with authority to exercise an almost

infinite variety of discretionary powers’ (p. 301). Similarly, they are ‘nonelective

. . . officers who participate directly in the . . . execution . . . of broad public policy’ (p.

301). And in Cabell v. Chavez-Salido (1982), the court ruled, albeit 5 to 4, that a

California statute requiring citizenship for the job of probation officer was valid

because the functions of this job, ‘like the state troopers . . . sufficiently partake of the

sovereign’s power to exercise coercive force over the individual that they may be

limited to citizens’ (p. 446).

The Supreme Court also upheld a New York State citizenship requirement for

teaching in public elementary and secondary schools because it viewed education as

10Interestingly, during the Hampton litigation, the Postal Service broke ranks with the rest of thegovernment and began to employ permanent resident aliens in most positions. Moreover, a CircuitCourt of Appeals disallowed the Postal Service to discriminate against illegal aliens who had obtainedtemporary residency before May 4, 1988, under the amnesty provision of IRCA, because the PostalService could not establish a rational relationship between its group-status policy and the legitimateinterest that the policy furthered. The employee in question was personally qualified for the job, butbelonged to the disfavored class of temporary residents (Tovar v. U.S. Postal Service, 1993).11However, the state of Georgia was told by a U.S. District Court that it could not reserve state trooperpositions for native-born citizens only, and that naturalized U.S. citizens must also be permitted to applyfor the job (Fernandez v. Georgia, 1989). Similarly, a federal statute that distinguished between native-born and natural-born citizens for appointment as Foreign Service officers was declared unconstitutional(Faruki v. Rogers, 1972).


148 U. J. Wiersma

an important function of state and local governments. It noted that ‘Public

education, like the police function, fulfills a most fundamental obligation of

government to its constituency’ (Ambach v. Norwick, 1979, p. 76). Specifically,

teachers have direct contact with students and therefore influence students’

attitudes toward government; teachers have unsupervised discretion over their

students; and teachers act as role models. These, it noted, are all badges of

responsibility toward furthering democratic goals; therefore, ‘school teachers may

be regarded as performing a task that goes to the heart of representative government’

(p. 76). The Ambach decision, however, was another 5/4 split decision.

Strict Judicial Scrutiny

The last question posed by the Supreme Court asks whether a statute that requires

citizenship as a prerequisite for employment advances a compelling state interest by

the least restrictive means available. An important compelling government interest

usually concerns ensuring appropriate professional standards of job performance to

provide effective and efficient public services to the population. For example, in InRe Griffiths (1972), concerning the right of a permanent resident to practice law in

Connecticut, the Court said ‘The State’s ultimate interest here implicated is to

assure the requisite qualifications of persons licensed to practice law’ (p. 722). To

date, if the level of analysis goes beyond political function, then no statute has

withstood strict judicial scrutiny.

Connecticut argued that permanent residents should be barred from practicing

law because of a possible conflict of loyalties between the United States and the

country of birth, and because the conflict would cause difficulties when protecting a

client’s interests in particular situations, but the court rejected this argument

because the state had failed to provide evidence that citizenship was related to the

job criteria of protecting clients’ interests, or maintaining high professional stan-

dards. In the same year, and for similar reasons, the Supreme Court of Washington

ruled, in an 8/1 decision, that the city of Seattle could not bar permanent residents

from taking a civil service examination for the position of public transit operator

(Herriott v. Seattle, 1972).

Similarly, the District of Puerto Rico barred permanent residents from becoming

civil engineers because building owners have the right to hold engineers financially

accountable if their buildings collapse within 10 years of construction (ExaminingBoard v. Flores de Otero, 1976). However, the Supreme Court ruled that the

citizenship test was not accurate enough to satisfy the district’s interest in preventing

negligent workmanship, and further ruled that the district should use a more precise

‘tool’ to satisfy this otherwise legitimate responsibility.12

As noted above, the court rejected a Texas statute that excluded permanent

residents from the job of notary public (Bernal v. Fainter, 1984). Texas argued that it

12The court noted that ‘United States citizenship is not a guarantee that a civil engineer will continue toreside in Puerto Rico or even in the United States, and it bears no particular or rational relationship toskill, competence, or financial responsibility. Puerto Rico has available to it other ample tools to achievethe goal of an engineer’s financial responsibility without indiscriminately prohibiting the private practiceof civil engineering by a class of otherwise qualified professionals’ (p. 607).



needed to ensure that notaries were familiar with state law and that they would be

available if called upon years later to testify, but the court countered that citizenship

was not a proper measure of applicants’ familiarity of the applicable laws and

advised the state to use a more precise test. It noted ‘If the State’s concern with

ensuring a notary’s familiarity with state law were truly ‘compelling,’ one would

expect the State to give some sort of test actually measuring a person’s familiarity

with the law’ (p. 228). It also rejected the argument that notaries who are not

citizens would be less readily available for future testimony because no concrete

evidence had been provided to this effect.13

There is a substantive connection between constitutional standards of review,

used to balance state interests against individual rights, and standards established in

employment discrimination law. Although the legal premises may differ between

constitutionally based claims of discrimination and Title VII claims, the standards

applied under ‘strict judicial scrutiny’ are the same conceptually as those applied

under Title VII. The Court recommended in Bernal that tests that measure job

relevant skills, instead of citizenship, be used to support the ‘compelling state

interest’ of assuring professional job standards for notaries public. This is identical

to the ‘business necessity’ standard developed for validation studies in AlbermarlePaper Company v. Moody (1975). Albermarle Paper is a Title VII case in which the

Court determined that selection tests must be predictive of, or significantly

correlated with, important elements of actual work behavior. In both cases the

court requested empirically generated job-related selection criteria.

To summarize, if the court decides that the job in question falls under the

political self-determination umbrella and the job classification in which it is

embedded is reasonably precise, then it will uphold a statute that requires citizen-

ship as a job prerequisite. If a statute that excludes permanent residents is not

upheld through the political function argument, it is then subjected to strict judicial

scrutiny.

ISSUES AND SOLUTIONS

There have been several instances in which court opinions were based on unproven

premises, causing 5/4 split decisions. Although not a substitute for rational decision

making, supplementing decisions with empirical data and personnel tools can

provide a sharper definition of an issue than narrative analysis alone: A statistical

relationship between a predictor of job performance and subsequent, actual job

performance can clarify a rational relationship between citizenship and a state’s

legitimate interest of ensuring an adequate civil service, and knowing how such tools

can improve equality may benefit public sector employers, and attorneys who

represent permanent residents in court. Research in the areas of job analysis and

personnel selection provide particularly valuable insights.

13The court noted ‘the State fails to advance a factual showing that the unavailability of notaries’testimony presents a real, as opposed to a merely speculative, problem to the State. Without a factualunderpinning, the State’s asserted interest lacks the weight we have required of interests properlydenominated as compelling.’ (p. 228).


150 U. J. Wiersma

Political Function Exception

Job Classification and Job Analysis: Issues

When is a job classification too broad? Drawing the line between menial and policy-

making tasks has been difficult. The court ruled against the New York State Civil

Service Commission’s exclusion of permanent residents in Sugarman, and similarly

against the Federal Civil service Commission in Hampton, because so many jobs

were included in the classifications that they swept indiscriminately. Yet the court

supported a citizenship requirement in Cabell, despite the fact that a broad job

classification was involved.

In Cabell, the State of California barred permanent residents from becoming

probation officers, and argued that probation officers were peace officers and that

California code required all peace officers to be citizens. The peace officer job

classification included city and state police; enforcement officials who monitor such

areas as alcoholic beverage, food and drug, fire, and horse racing laws; those with

narrow geographic responsibilities such as harbor police, security officers in

government buildings, and public transportation police; and those with narrow

clientele such as welfare fraud investigators, correctional officers, and probation

officers. The classification also included cemetery sextons, furniture and bedding

inspectors, livestock identification inspectors, Dental Board inspectors, Parks and

Recreation Department employees, voluntary fire wardens, and toll service employ-

ees. The apparently contradictory rulings in Sugarman and Cabell suggest a need for

a standard.14

A related issue concerns how jobs should be compared on a case-by-case basis.

When the Court in Bernal permitted permanent residents to become notaries public,

it compared the tasks of a notary to those of a lawyer, a job it had previously

permitted permanent residents to practice. The court noted that both ‘sign writs and

subpoenas, take recognizances, administer oaths, and take depositions and acknowl-

edgements of deeds,’ and ruled ‘If it is improper to apply the political-function

exception to a citizenship requirement governing eligibility for membership in a

state bar, it would be anomalous to apply the exception to the citizenship require-

ment that governs eligibility to become a Texas notary’ (p. 227). However, the

comparison between lawyers and notaries public was based on a small portion of the

total work activities of notaries and lawyers.

Consider what happens when jobs are compared using only a few tasks. The State

of Texas in Bernal argued that notaries public may subpoena witnesses to obtain

testimony concerning the authenticity of a document, and that they have civil

contempt powers to enforce their authority. The state then drew a parallel between

the coercive powers of a notary and those of a police officer and argued that

because foreign nationals are not permitted to be police officers, they should

14Although no standard was set in Sugarman, the court did state the following concerning New York’sstatute that barred aliens from the competitive civil service: ‘the State’s broad prohibition of theemployment of aliens applies to many positions with respect to which the State’s proffered justificationhas little, if any, relationship. At the same time, the prohibition has no application at all to positions thatwould seem naturally to fall within the State’s asserted purpose. Our standard of review of statutes thattreat aliens differently from citizens requires a greater degree of precision’ (p. 642).



similarly not be permitted to be notaries public. However, the court rejected the

state’s argument because the record showed that notaries had not used such powers

in over 40 years.

Forty years is a long time and the facts appear to be rather straightforward in

Bernal. However subsequent comparisons may not be so clear, and one may

speculate about jobs where differences are more ambiguous. For example, given

that the court has ruled that public school teachers must be citizens, would it also

rule that permenent residents may not be public school speech therapists, nor teach

the retarded and specially handicapped? (See Kelly & Gansneder, 1998, for an

analysis of physical education teachers who work with handicapped children.)

Could they be paraprofessional bilingual classroom aides, or principals? (See

Godwin, 1977, for a study that summarizes the role of the paraprofessional bilingual

aide in the classroom.) And, given that permenent residents may not become state

troopers, could they become juvenile officers? (See Conley & Sackett, 1987, for the

results of a job analysis.) Or could they become police technicians such as

emergency telephone operators? (See Schmitt & Ostroff, 1986, for the results of a

job analysis.)

Another point of contention, for jobs that fall under the political self-determina-

tion umbrella, concerns the amount of personal discretion in a given job. The court

has been quite divided about the level at which to impose a citizenship requirement

within a given hierarchy of jobs. In fact, three judges dissented in Foley and pleaded

for standards, ‘The Court should draw the line between policymaking and non-

policymaking positions in as consistent and intelligible a fashion as possible’ (p. 301).

When the Court ruled in Foley that police officers must be citizens because they

exercise a high degree of judgment and discretion in carrying out policy that

substantially affects members of the political community, the dissenting judges

countered that judgments made by police officers are factual in nature because the

policy judgments are prescribed in a book of regulations, which the officers then

apply to individual cases. Similarly, when the Court ruled in Cabell that probation

officers exercise coercive force and exercise a great deal of discretion when super-

vising the course of a probationers’ rehabilitation, and that the job symbolizes the

political community’s control over those who have violated the norms of social

order, the dissenting judges argued that, although probation officers play an integral

role in the criminal justice system, their powers are carefully conditioned by statute,

and their position is more comparable to that of a prison guard, bailiff, or court

clerk. In both instances, the dissenting judges would have restricted the citizenship

limitation to upper level positions such as to the head of an executive agency.15

Job Classification and Job Analysis: Solutions

Job analysis compares different jobs along common denominators to determine

whether the jobs fall in the same classification. The Principles for the validation and use

15Citing Sugarman, a U.S. District Court ruled that the state of New York can not discriminate againstpermanent residents when awarding bonus points to U.S. war veterans who take the competitive civilservice examination. It noted ‘That position [railroad clerk], and most if not all civil service positions filledby competitive examination, cannot be said to involve the formulation and execution of state policy’(Andrade v. Nadel, 1979, italics added).


152 U. J. Wiersma

of personnel selection procedures (1987), an official policy statement of the Division of

Industrial/Organizational Psychology of the American Psychological Association,

states that ‘Job analysis is essential to the development of a content oriented

procedure or to the justification of a construct considered important to job behavior’

(p. 5).

Jobs may be analyzed (i) in terms of the job tasks involved in completing the job or

(ii) in terms of the human knowledge, skills, and abilities needed to perform the job.

The technique should be well known to the judiciary: Thompson and Thompson

(1982) reviewed 26 court cases concerned with the requirements for an adequate

job analysis.

Although jobs are typically defined with narrative job descriptions, job informa-

tion that is quantified provides greater accuracy. Interviews with job incumbents and

supervisors can yield an inventory of as many as 500 tasks when the job task method

is used. Job incumbents then complete the inventory and verify how frequently each

task occurs, how important it is, and how long it takes to complete. They rate the

tasks using numerical scales in which ‘1’ represents infrequently, unimportant, and

little time, respectively; and ‘5’ represents frequently, important, and much time,

respectively. Attempting to measure the domain of a job helps clarify the definition

of that job and relevant studies are frequently available.

The completed inventories are factor, or cluster, analyzed to group the tasks

into major job duties. Bar charts profile the relative importance of each duty within a

job and the job profiles of different jobs may then be compared to assess the degree

of similarity. This comparison may be performed with statistical programs such

as profile analysis, or the comprehensive occupational data analysis program

(CODAP). A more precise comparison between the jobs of notary public and

lawyer could have been made in Bernal if both jobs had been job analyzed.

Task inventories have been widely used in the U.S. Air Force to identify career

ladders and to develop training programs (Christal, 1974). Government agencies

have used CODAP extensively to validate selection programs and there is a CODAP

program available to organize and analyze occupational data to answer almost any

question asked by managers of a personnel system. Task inventories are but one of

seven popular job analysis methods, and are well suited for determining similarities

among jobs (Levine, Ash, Hall, & Sistrunk, 1983).

Consider the case of Cabell, in which California included probation officers in the

broad job classification of peace officers, along with toll collectors and bedding

inspectors, resulting in confusion over the definition of the word: over-inclusiveness.

Task inventories could be developed for the individual jobs in the peace officer

classification and major clusters of tasks would then provide individual profiles for

each job. For example, Mullins and Kimbrough (1988) conducted a job analysis for

the job of university patrol officer and grouped 526 tasks into 13 independent job

duties.16 Individual jobs, such as that of bedding inspector, would then be compared

against the probation officer job. If the overlap in job duties of any single comparison

16The job duties are (i) conducting investigations, (ii) following proper procedures, (iii) concern forothers, (iv) knowledge of rules, regulations, and laws, (v) working with other officers, (vi) logically andrationally dealing with patrol situations, (vii) arrest, search, and seizure, (viii) traffic stops, (ix) ability todeal with students and the public, (x) proper use of authority, (xi) function under stress, (xii) driving whileintoxicated situations, and (xiii) proper use of force.



between two jobs is less than a specified standard, for example 75%, then the

classification could be considered too broad.

An approach that separates policy from nonpolicymaking positions is to use a

task-inventory named the Management Position Description Questionnaire

(MPDQ) (Tornow & Pinto, 1976). Raters review a set of 197 statements about

the job and rate each statement on a five-point scale of importance (in light of all

other position activities) and frequency of occurrence. A sample item is ‘review and

revise expense allocations.’ The MPDQ describes, classifies, and evaluates executive

positions based on the behavioral content of the job.

Borman and Brush (1993) summarized the many empirical studies of manager

performance and show that there are eight general management responsibilities,

namely, planning and organizing, motivating subordinates, developing subordi-

nates, coordinating subordinates and other resources to get the job done, hiring and

promoting staff, monitoring and controlling resources, delegating, and collecting

and interpreting data. Jobs that score low on the MPDQ, and on the job respon-

sibilities listed above, would not be considered to be managerial. Considered in this

light, neither state troopers, nor probation officers, nor teachers function at a

managerial, or policy-making level.

Political Self-Determination: Issues

The court has supported a citizenship requirement several times because of

presumed psychological distinctions between permanent residents and citizens.

For example, the court has reasoned that permanent residents might be less loyal

than citizens and therefore should be barred from becoming state troopers, saying

that ‘most States expressly confine the employment of police officers to citizens,

whom the State may reasonably presume to be more familiar with and sympathetic toAmerican traditions’ (Foley v. Connelie, 1978, p. 300, italics added). Further,

permenent residents may not teach in public schools under the assumption that

their conflict of interests might lead them to foster unhealthy civil attitudes in their

students. It noted ‘the [State] legislature having in mind the importance of

education to state and local governments . . .may determine eligibility for the key

position in discharging that function on the assumption that generally persons who

are citizens, or who have not declined the opportunity to seek U.S. citizenship arebetter qualified than those who have elected to remain aliens’ (Ambach v. Norwick,

1979, p. 81, second italics added).17

Defending a political function argument because of presumed differences in

psychological attributes, such as loyalty, between permanent residents and citizens

opens a Pandora’s box of questions. How should loyalty be defined and how should

17In Cervantes v. Guerra (1981), a nonprofit community action agency, serving the poor, stipulated thatonly U.S. citizens would be eligible to serve on the board or to vote to select board members. The agencyargued that the citizenship requirement would result in a more capable board, and would permit bettercontrols against voting fraud. A U.S. Appeals Court, smelling a toothless argument, did not even ask for arational relationship between the limiting classification and the state interest sought to be protected, andsimply ruled that the ‘exclusion of aliens from political roles is an end rational and legitimate in itself’(p. 982).


154 U. J. Wiersma

it be measured? Does it mean obeying orders and following procedures, being

supportive of fellow officers, or blowing the whistle on corrupt practices?18 Is loyalty

an important factor in job performance—that is, are better troopers, teachers, and

probation officers more loyal then their less effective counterparts? Assuming for the

moment that loyalty can be adequately defined, and that it is correlated with job

performance, how do we know that citizen employees are more loyal than their

permanent resident counterparts? One can think of arguments that support a

presumption that permanent residents are more loyal than citizens. Further, what

are the differences, all else being equal, between citizens who have been naturalized

and permanent residents?

Political Self-Determination: Solutions

In addition to analyzing jobs by listing the requisite tasks, jobs may also be analyzed

and categorized according to the knowledge, skills, and abilities (KSAs) needed to

perform those tasks. Instead of measuring tasks and actual job behavior, the KSA

method measures attributes of people.

If employment restrictions are supported by actual rather than presumed

differences in psychological attributes between citizens and permanent residents,

then less dissent should occur among judges. Job analysis can confirm, or discon-

firm, the premise that loyalty is an important prerequisite for teachers and police

officers. Measures of relevant performance tasks for suburban police departments,

using the Critical Incident Technique, as well as the Position Analysis Question-

naire (PAQ), are available (McGurk, Platton, & Gibson, 1994; Ronan, Talbert, &

Mullet, 1977).

If a job analysis reveals that loyalty is an important job attribute, then further

empirical evidence can be gathered to support the claim that loyalty is related to job

performance. For example, a concurrent validity study would correlate teacher

loyalty and teacher effectiveness and would help answer the question arising from

Ambach: Do more loyal teachers produce better students? In this light,

Tannenbaum and Rosenfeld (1994) conducted a job analysis for teachers and

identified six basic skills, regardless of the subject area, or grade level of the teacher:

reading, writing, mathematics, listening, speaking, and interactive communication.

Loyalty was not mentioned.

A question arising from Foley was ‘How much personal discretion do police

officers have when executing their job duties?’ One is reminded of the policeman’s

answer to a citizen who complains about having just received a citation: ‘I don’t

make the laws, sir, I just enforce them.’ Empirical studies can help answer the

question by measuring the degree to which police officers differ in their responses to

particular job incidents. For example, police officers can be presented with carefully

worded vignettes describing typical job situations and then asked to describe

18For example, loyalty is mentioned twice in one job analysis about police officers (Terlouw, 1985). Itmeans giving your colleagues the feeling that they can count on your support (this is especially the case incritical situations, whereby it is frequently important to react quickly and with a single strategy, andconcomitantly, that one does not develop one’s own strategy but rather supports the decisions of thecolleague who has taken the lead). It also means supporting the decisions of a colleague, even if you wouldhave handled it differently.



specifically what they would do in each situation. Each answer would be written on a

3� 5 file card. Then a second group of officers would sort the cards into clusters

representing different manners of response to the situation. A single cluster would

mean that the officers responded similarly. An index of variability could be obtained

by dividing the total number of clusters by the total number of job duties.

Additionally, professional job analysts can accompany police officers on patrol to

determine the degree of variance in response to actual situations.

Judicial Scrutiny

Courts must scrutinize the job relatedness of selection tests. The citizen/noncitizen

dichotomy is a selection test—but is it useful in predicting job performance, and

what alternatives exist?

Judicial Scrutiny: Issues

When citizenship is acquired through naturalization, the following requirements

must be satisfied. The foreign national must (i) have been lawfully admitted to the

U.S. with a permanent resident visa, (ii) be at least 18 years of age, (iii) have lived in

the U.S. at least five years (or three years if married to a U.S. citizen), (iv) have no

serious criminal convictions, (v) take an oath of allegiance identical to that taken by a

new President, (vi) be willing to bear arms for the U.S. or in the event of religious or

moral beliefs against war, must at least be willing to perform war related civilian

work, and (vii) must be interviewed by an examiner of the U.S. Immigration and

Naturalization Service.

The criteria to become a citizen are of little value to an employer however,

because they are unrelated to abilities to perform jobs effectively. First, employees

are typically 18 years old or older. Second, taking a 5-minute oath of allegiance

needs little skill. Third, the typical 15-minute interview is little more than a symbolic

ritual. Only a cursory knowledge of American history (e.g., why do we celebrate the

4th of July?) and the ability to read and write a single English sentence are frequently

all that is required. Even the Supreme Court acknowledged in Foley that it is

relatively easy for immigrants to become naturalized citizens. Therefore, the most

important difference between citizens and permanent residents lies in the five-year

or three-year residency requirement.

Judicial Scrutiny: Solutions

Selection tools that measure job related skills and yield scores along a continuum

from low to high, are more sensitive than a dichotomous citizenship test. Therefore,

professionally developed selection tools such as structured interviews, job samples,

and paper and pencil tests are better predictors of future job performance than is

citizenship.

Meta-analytic research on interviews indicates that professionally developed

interviews yield correlations between interview scores and subsequent job perfor-

mance as high as r¼ 0.67 (Conway, Jako, & Goodman, 1995). In short, (i) a job


156 U. J. Wiersma

analysis should be conducted to determine important job responsibilities, (ii)

interviewers should use structured interview guides to ensure that interviews are

standardized across candidates, (iii) multiple interviewers should assess a candidate

and then meet afterwards to discuss their impressions of the candidate, and (iv)

interviewers should ask questions that focus on behavior—for example, ‘What

specifically did you do regarding the project you just mentioned?’ Campion, Palmer,

and Campion (1997) have identified 15 different components of professionally

developed interviews.

Job simulations also predict future employee performance and can be as simple as

a typing test to assess secretarial skills, or as complex as an assessment center to

assess managerial skills. Simulation tests have been well received by the courts and

by employees because it is easy to demonstrate how skills sampled by the test are

related to skills required on the job: The test is the job (Perticone & Wiesen, 1979).

Assessment Centers accurately predict who has the ability to become a good

manager and have therefore become popular worldwide in the past 10 years. They

are widely used for federal and local U.S. government positions. For example, a

recent survey found that 62% of cities in the United States with populations of more

than 50,000 use assessment centers to promote fire-fighters and law enforcement

personnel (Lowry, 1997). Assessment centers have also been used to promote police

officers in Singapore (Chan, 1996), as well as in Holland (Van der Velde, Born, &

Hofkes, 1994).

Assessment centers typically last three days and include multiple exercises that

sample the entire domain of managerial tasks. Leaderless group discussions, in

which individuals work with their colleagues to solve a group problem, simulate

business meetings and measure the ability to persuade while working as a member of

a team. In-basket exercises, in which a candidate sits behind a desk and reacts to

memos and telephone calls, measure decision-making ability. Public speaking

exercises, in which candidates are presented with a technical business plan and

must then present their evaluation of the plan to the group, measure the ability to

plan and communicate. Ratings of Assessment Center exercises accurately predict

subsequent job performance as a manager (Gaugler, Rosenthal, Thornton, &

Bentson, 1987). Because work samples reduce racial and gender bias, relative to

other techniques, they help promote equal employment opportunities for racial

minorities and for women.

Used faithfully, professionally developed selection tools such as structured

interviews and job simulations help satisfy the legitimate requirement that a

government agency ensure appropriate minimum standards of job performance.

These tools can be developed for any job, including that of attorney, notary public,

and civil engineer, and are less restrictive than a citizenship requirement. Such tools

are not foolproof, and those who truly wish to discriminate can circumvent them,

but they are a far better solution than a flat ban on all permanent residents.

SUMMARY AND FUTURE ISSUES

Several issues will arise in the future as a result of the history of cases to date.

Although it is understood that permanent residents may not work in the federal civil

service because federal authority in immigration and naturalization is plenary,



whereas permanent residents may work for a state civil service, it is difficult from a

behavioral science perspective to reconcile this difference. But for citizenship, a clerk

typist may work in accounts receivable for a state but not for the federal government,

when in fact the jobs are identical, and both civil services are merit systems. It would

be helpful if the federal government would set levels within the civil service hierarchy

below which permanent residents could compete for jobs, as was suggested by the

Court in Hampton.

The courts have ruled that a compelling state interest must be supported by the

least restrictive means available. It will not be surprising if the courts request

employers to look for alternate selection methods whenever the method used,

even if it is correlated with job performance, discriminates against permanent

residents. Establishing which selection tests accurately predict job performance

and avoid doing so on attributes that are correlated with alienage is a practical

research area that clearly needs to be developed.

Although the current focus is on discrimination during hiring, it is quite likely, as

happened with Title VII litigation, that future claims will involve discrimination on

the job—after a candidate has been employed. Constitutional claims may be based

on disparate treatment or disparate impact arising from biased decisions throughout

the employment relationship. Thus, the focus will shift from measuring predicted

performance to measuring actual performance, and the accuracy of the tests

involved, namely, performance appraisals, will become salient. Employers use a

wide variety of performance appraisal systems to promote, transfer, and discharge

employees. As with hiring, professionally developed appraisals based on job analyses

help improve rater accuracy, thereby reducing unintended discrimination.

Finally, returning to the cost/benefit analysis, the reasoning for excluding

permanent residents from particular public sector jobs runs as follows. Permanent

residents may not vote, may not run for elective office, and may not serve on a jury.

Therefore they may not hold positions that involve important elective nor non-

elective executive, legislative and judicial positions that involve direct participation

in the formulation, execution, or review of broad public policy. A narrow inter-

pretation of this phrase includes only those positions involving top managers and

their direct reports. Such an interpretation is inconsistent with rulings that bar aliens

from state trooper, parole officer, and public school teaching positions, but has

several advantages.

From an employer’s perspective, a narrow interpretation affords a state or city

access to a larger applicant pool when it recruits for employment, thus increasing the

probability of finding talent. If, in addition, valid and reliable selection methods are

used, then the state can maximize correct decisions by selecting candidates who

succeed subsequently on the job, as well as minimize reject-errors (candidates who

would have succeeded on the job but who are rejected). The reverse is, of course,

also true: the state can maximize correct decisions by rejecting candidates who

would fail subsequently on the job, and minimize accept-errors (candidates who are

selected but who fail subsequently on the job). Second, a narrow interpretation

reinforces a meritocracy: a civil service based on competitive examinations, instead

of the historical spoils system. Supporting a meritocracy yields better public services

to the community, something for which all taxpayers are paying. A narrow inter-

pretation would also permit permanent residents to gravitate to those jobs to which

they are best suited, and it would eliminate unnecessary unfairness.


158 U. J. Wiersma

The basic cost to a narrow interpretation, dominant in all of the rulings that

support a citizenship requirement, is that more loyal employees are more effective

employees, and it is assumed that citizens are more loyal than permanent residents.

There is a rational relationship between citizenship and a state’s legitimate interest

in maintaining an effective civil service, and, following this line of reasoning, to

accept permanent resident employees would mean to tolerate a less effective

workforce, but there is no factual basis for (i) assuming that the concept of loyalty,

as defined in the court rulings, is related to effective job performance as a teacher or

law enforcement official, or (ii) assuming that citizens are more loyal than perma-

nent residents. As an example, whereas research shows that teachers have a

significant influence on the political attitudes of their students, it is not known

whether professionally certified citizen teachers have a healthier influence on their

students than do professionally certified permanent resident teachers.

It is legitimate to ask ‘Where is the ‘‘rational’’ in the Court’s ‘‘rational relation-

ship’’?’ The definition of prejudice is worth repeating: ‘Prejudice is a bias or

prejudgement, favorable or unfavorable that has no basis in fact’ (Allport, 1958,

p. 10, italics added).

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Documents

Equality in hiring permanent resident foreign nationals in the United States: when loyalty is the question, but not the issue