harlan logo


Lesson Plan – National Aeronautics and Space Administration v. Nelson

September 6, 2010

National Aeronautics and Space Administration v. Nelson

Certiorari granted by the United States Supreme Court on March 8, 2010 Oral Arguments Scheduled for October 5 2010  



The Parties

Petitioner: National Aeronautics and Space Administration (“NASA”) and the Department of Commerce v. Respondent: Robert M. Nelson and 28 contract employees from the California Institute of Technology at Nasa’s Jet Propulsion Laboratory
(jump to the top of the page)

The Questions Presented

  1. Does the government violate a prospective contract employee’s right to “informational privacy” if they ask whether he or she has had counseling or treatment for illegal drugs?
  2. Does the government violate a prospective contract employee’s right to “informational privacy” when they ask the employee’s references about his or her background and work habits and outside activities?
(jump to the top of the page)

Case Background

NASA’s Jet Propulsion Lab & Questionnaire

Nelson and the other employees worked at NASA’s Jet Propulsion Laboratory, focusing on exploring our solar system with deep space robotics, including programs like the Mars Lander and Mars Rover.  As contract employees, NASA wanted the employees to be subject to the same personnel investigation as civil service employees in order to prevent vulnerability to terror attacks.  The personnel investigation included a questionnaire that asked the employees about any treatment or counseling that they may have received for illegal drug use within the past year.  The questionnaire further required that the employees authorize the government to seek information from any source about any negative information relevant to the employee’s work habits or activities related to their truthfulness, finances, and alcohol or drug use.  The employees filed suit, arguing that the questions amounted to a violation of their constitutional right to informational privacy.  The government maintained that these background searches are routine, and have always been a necessary part of civil service employment. At the District Court The plaintiffs moved for a preliminary injunction, which means that they asked the court to prevent the use of the questionnaires pending the outcome of the litigation. The district court denied this request on the grounds that the questionnaires served a legitimate government interest, and were narrowly tailored with adequate safeguards to protect the applicants’ personal information. Opinion of the Court of Appeals The Ninth Circuit ordered NASA to stop using certain questions from the questionnaires.  The court determined that NASA could ask about prior drug use and possession, but could not ask about any treatment the employees had received for their drug habits.  The Ninth Circuit also decided that the question asking for authorization to investigate the employees’ backgrounds violated their constitutional rights.  In the court’s view, the government had no legitimate reason to ask these questions.  The court found that these invasive questions implicated the constitutional right to informational privacy, meaning the interest in keeping personal information about oneself private. (jump to the top of the page)

The Law

The Fourth Amendment to the Constitution of the United States of America

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fifth Amendment to the Constitution of the United States of America

No person shall be . . . deprived of life, liberty, or property, without due process of law.
(jump to the top of the page)

Relevant Precedents

Whalen v. Roe, 429 U.S. 589 (1977)

The State of New York required a centralized filing system for all prescriptions of controlled substances, including the names and addresses of the patients who received the medications.  The Court held that the law was constitutional as it contained adequate measures to protect individual privacy.  The Court stated that there are two kinds of privacy interests protected by the Constitution: the interest in avoiding disclosure of personal matters, and the interest in making personal decisions.  The Court noted, however, that certain disclosures to medical personnel were essential to modern medical practice.  

Nixon v. Administrator of General Services, 433 U.S. 425 (1977)

Former President Nixon challenged an order to turn over presidential papers and tape recordings from the Oval Office.  Nixon asserted that his right to privacy was invaded by the law requiring that the papers and recordings be turned over.  The Court determined that Nixon’s right to privacy was not violated by the law.  Although he could correctly claim that papers and conversations relating to his wife, family, physician, lawyer, and clergy were protected, this was only a small fraction of his files, and they were removed through a careful screening process.

Engquist v. Oregon Department of Agriculture, 128 S.Ct. 2146 (2008)

In Engquist, a public employee filed suit alleging discrimination.  The Court held that the government has a legitimate interest in promoting efficiency and integrity in discharge of official duties, and in maintaining proper discipline.  Government employees do not lose their rights by becoming federal employees, but they must be balanced against the realities of the employment context.

Board Of County Commissioners v. Umbehr, 518 U.S. 668 (1996)

The Court held that a contract employee of the government was protected by the First Amendment against being fired for exercising his right to free speech.  In such cases, the government’s interest as contractor must be balanced against the free speech rights of the contract employee.
(jump to the top of the page)

Justice Voting History

This chart could help with predicting the outcome of the case and how the Justices will vote. But be careful: a lot will depend on the facts of this case and not how someone has voted in the past. [Note: the Justices are listed in order of seniority with the Chief Justice first.]
Engquist v. Oregon Dept. of Agriculture (2008) Bd. of County Comm’rs v. Umbehr (1996)
Roberts C Not yet on Court
Scalia C C
Kennedy C NC
Thomas C C
Ginsburg NC NC
Breyer C NC
Alito C Not yet on Court
Sotomayor Not yet on Court Not yet on Court
Kagan Not yet on Court Not yet on Court
C The Justice voted that the firing was constutional.
NC The Justice voted that the firing was unconstutional.
Not yet on Court The Justice was either not yet on the Court when the case was decided.
(jump to the top of the page)

The Arguments

NASA (Petitioner)

The government argues that they are required by presidential directive to conduct background investigations before approving contract employees to work at federal facilities.  They have required such investigations since 1953. The government states that the Ninth Circuit erred because informational privacy rights are limited by a government interest in gathering necessary information, even when the information may be embarrassing.  In these cases, privacy concerns can be resolved in other ways, but the government needs the information in order to know whether to trust the employee to work at a sensitive facility like the Jet Propulsion Laboratory.  With respect to the request for authorization to investigate the employee’s background by talking to references, the government says there is no expectation of privacy at all because the information has already been voluntarily revealed to a third party (the reference).

Nelson (Respondent)

The employees argue that they were compelled to either answer the questionnaire or accept the severe hardship of losing their jobs.  They point out that NASA had classified their work as low risk, and that they were already vetted before their initial hire with a criminal background and references check. The right to informational privacy, the employees argue, protects an individual interest in avoiding disclosure of personal matters.  That information need only be disclosed if the government can show a legitimate state interest and sufficiently tailored means to obtaining that necessary information.  The questions on the form, they argue, are too broad and are designed to elicit a wide range of material that the government does not really need. (jump to the top of the page)

Blog Topics

How much privacy is enough?

Is it important for employers to have the information they need to ensure that operations can be carried out safely and securely?  If so, what should employers be allowed to ask of potential employees?  How should the courts determine how much information is enough?

Couldn’t employees just quit rather than disclose private information?

If the employees really do not want to give the government this information about themselves, they can always quit their jobs.  Is that a satisfactory solution?  Perhaps the government should have more leeway in gathering information about its own employees than about ordinary citizens.  But does that give the government too much power, given that so many people today work for the government?

The right to “informational privacy” is not listed in the Constitution. Should this unenumerated right be protected?

The right to “informational privacy” is not contained in the Constitution, at least not in those words.  The Ninth Circuit relied on, among other things, the Fourth Amendment, which is reprinted for you above.  Re-read the words of the Fourth Amendment.  Is it reasonable to read the Amendment as protecting employees from answering personal questions?  Or did the court stretch too far?

Past Drug Use

Does the government need to know whether its employees used drugs in the past, even if they are not using drugs now?  Does drug use reflect on an employee’s judgment or trustworthiness?  What if someone could blackmail the employee by threatening to reveal his past drug habits unless he turned over sensitive government information?
(jump to the top of the page)

Additional Resources

  • Full opinion of the U.S. Court of Appeals for the Ninth Circuit
  • Docket information at the Supreme Court:  This page will be updated as more briefs are filed.
(jump to the top of the page)

FantasySCOTUS.org Rules OT 2010

September 6, 2010
Welcome to FantasySCOTUS, the Internet’s Premier Fantasy Supreme Court League. FantasySCOTUS challenges students to make predictions about pending Supreme Court cases and write analytical blog posts exploring the different constitutional issues in the cases.

Who Can Play?

FantasySCOTUS is designed for high school government, civics, history, political science, social studies, and even writing classes. Advanced middle school students are welcome to play. Teachers should sign up their classes, and add or invite their students to join. Additionally, extra-curricular clubs, such as debate teams, mock trial teams, and other organizations, are able to join. Just ask your faculty advisor sign up your group.

How to Play?

The goal of FantasySCOTUS is simple. It encourages students to learn about cases pending before the Supreme Court. Students will write analytical blog posts exploring the constitutional issues in these cases, and based on this knowledge, make predictions about how each of the nine Justices will vote. Blog posts can be written by individual students, groups of students, or by the entire class. One set of predictions will be submitted based on the class consensus, though individual students can submit predictions that will not be used in the scoring process. All predictions and blog posts will be due by January 31, 2010. The winner will be announced at the conclusion of the October 2010 Supreme Court term when all of the cases have been decided.

The Cases

The Harlan Institute has selected five cases of interest for students that are currently pending before the United States Supreme Cour, and created lesson plans for each case:
  • Snyder v. Phelps – Does the First Amendment protect the right of protestors to display signs containing offensive messages about gay people near funerals of fallen military service members?
  • National Aeronautics and Space Administration v. Nelson – Does the government violate a prospective contract employee’s right to “informational privacy” if they ask whether he or she has had counseling or treatment for illegal drug?
  • Connick v. Thompson – A Defendant, who was convicted of a murder, was later released from prison after his attorneys found exculpatory evidence that the government did not show him. Can the defendant sue the district attorney’s office for failing to properly train prosecutors to properly disclose exculpatory evidence?
  • Schwarzenegger v. Entertainment Media Association – Does the First Amendment bar California from restricting the sale of violent video games to children?
  • Chamber of Commerce of the United States v. Candelaria – A federal law says that States cannot impose sanctions on employers who hire illegal aliens.  Arizona passed the Legal Arizona Workers Act, which says that companies that hire illegal aliens can have their business licenses revoked.  Does the federal law trump the state law?
Each plan will provide a plain English explanation of the parties involved, the question presented, the background of the case, the opinion of the lower court, and the competing arguments of the Petitioner and the Respondent. Following this background information, the lesson plan will discuss all relevant constitutional provisions, statutes, precedents, and other relevant information needed to understand the case pending before the Supreme Court.

Predictions and Points

For each case, your class will predict how each of the nine Justices of the Supreme Court will vote.  A Justice can either vote to AFFIRMREVERSE the lower court, or RECUSE from the case and not cast a vote. For each correct guess, you will receive 10 points.If your class correctly guesses the votes all nine Justices, you will receive a 10-point bonus, for a perfect score of 100 points. For example, in Schwarzenegger v. Entertainment Media Association, the Court of Appeals for the Ninth Circuit found that statute barring the sale of violent video games to children was unconstitutional. Your class predict that Justices Roberts, Scalia, Kennedy, Thomas, and Alito will vote to reverse the Ninth Circuit, and that Justices Ginsburg, Breyer, Sotomayor, and Kagan will vote to affirm, or agree with the Ninth Circuit. Assume your class’ predictions are correct, except for Justice Kennedy, who in fact voted to affirm the lower court.
Roberts Scalia Kennedy Thomas Ginsburg Breyer Alito Sotomayor Kagan
Predicted Vote Reverse Reverse Reverse Reverse Affirm Affirm Reverse Affirm Affirm
Actual Vote Reverse Reverse Affirm Reverse Affirm Affirm Reverse Affirm Affirm
Points 10 10 0 10 10 10 10 10 10
In this case your class will receive a total of 80 points because you correctly predicted 8 out of the 9 Justices (you failed to correctly predict the vote of Justice Kennedy). If your class correctly predicts all five cases, you will receive a perfect score of 500 points.

Blogs Posts and Badges

In addition to making predictions, each class will write a series of analytical blog posts for each case.  By signing up your class, you will automatically receive a free WordPress blog hosted at the Harlan Institute. Each case will have approximately five blog posts. Here are some possible topics:
  • Write a post summarizing the facts of the case
  • Pretend your class is the Supreme Court and write your own opinions, including concurring and dissenting opinions
  • Explain why the First Amendment guarantee of Free Speech should prevent censorship of violent video games, but permit the criminalization of certain types of “hate speech.”
Please visit the sample blog, Harlan High School, for examples of what the blog posts should look like. For each submitted blog post, your class will be awarded a FantasySCOTUS Badge. Each badge will have a corresponding number of points, based on the level of difficulty of the assignment. The more badges you receive, the more points you score! View all of the badges available here.   

The Winners

The winner of FantasySCOTUS will be determined based on the class with the most points. All classes are placed into leagues based on the geographic location of the Circuit Court of Appeals of the United States.
* While the District of Columbia is in the Court of Appeals for the District of Columbia, for the purposes of this competition, the D.C. will be placed in the 4th Circuit. The team with the most points in each Circuit will be awarded the “Chief Judge” Prize. There will be one “Chief Judge” per grade for each Circuit. The top class in the United States will be awarded the “Chief Justice” Prize. Awards for the Chief Judge and Chief Justice will be determined later in the year.

Illustrating the Legislative Process

August 19, 2010
Mike Wirth, “designer, educator, and artist,” created a fantastic graphic illustrating the legislative process. The graphic is much more detailed than typical illustrations found in textbooks. This is a great resource for civics teachers. A section of the graphic is below, but click here for the full graphic.

The Future of Education is Online

August 8, 2010
Here at the Harlan Institute, we recognize the educational value of the Internet and the potential it has to provide teachers with low-cost, relevant, and effective alternatives to costly traditional programs and textbooks. According to a recent article from TechCruch, it seems Bill Gates shares our enthusiasm for the future of online education.
Five years from now on the web for free you’ll be able to find the best lectures in the world,” Gates said at the Techonomy conference in Lake Tahoe, CA today. “It will be better than any single university,” he continued. He believes that no matter how you came about your knowledge, you should get credit for it. Whether it’s an MIT degree or if you got everything you know from lectures on the web, there needs to be a way to highlight that.
He made sure to say that educational institutions are still vital for children, K-12. He spoke glowingly about charter schools, where kids can spend up to 80% of their time deeply engaged with learning. … But his overall point is that it’s just too expensive and too hard to get these upper-level educations. And soon place-based college educations will be five times less important than they are today.
The Internet is inherently egalitarian. With Internet access and a computer, teachers everywhere have access to the same educational resources and materials. Too often, teachers in struggling school districts are stuck with outdated and worn textbooks. Why do we continue to use these increasingly outdated teaching methods? Gates points out some of the weaknesses with these conventional, costly textbooks:
One particular problem with the education system according to Gates is text books. Even in grade schools, they can be 300 pages for a book about math. “They’re giant, intimidating books,” he said. “I look at them and think: what on Earth is in there?“ According to Gates, our text books are three times longer than the equivalents in Asia. And yet they’re beating us in many ways with education. The problem is that these things are built by committee, and more things are simply added on top of what’s already in there. Gates said that technology is the only way to bring education back under control and expand it.
Technology will significantly decrease the rising costs of education, while also providing students everywhere with the same learning opportunities. If state education boards, school districts, and teachers continue to incorporate online resources into the classroom curriculum, we can simultaneously beat the economic downturn and give our students the education they need to fully take advantage of life’s opportunities.

The Harlan Institute Adds Christopher Landau to our Board of Advisors

July 27, 2010
The Harlan Institute is excited to announce that Mr. Christopher Landau of Kirkland & Ellis LLP is the newest member of our Board of Advisors! Mr. Landau is head of his firm’s Appellate Litigation Practice, based in the Washington office. He began his successful career as a law clerk at the United States Supreme Court, first to Justice Antonin Scalia (1990-91) and then to Justice Clarence Thomas (1991-92). In 2006, he won a significant arbitration case, Buckeye Check Cashing v. Cardegna, in the United States Supreme Court. Mr. Landau has been recognized and featured as a leading lawyer in a number of publications, including: Chambers USAThe National Law JournalThe American Lawyer; Washingtonian Magazine; and Chicago Lawyer. He has also commented on the Supreme Court on a variety of media outlets, including CNN, PBS, MSNBC, C-SPAN and radio. The Harlan Institute is honored to have such an accomplished and talented attorney join our Board of Advisors. We look forward to Mr. Landau’s insight and advice, as well as his promotion of our educational service to the legal community.

Teachers at the Supreme Court, Reference to Harlan’s Partner iCivics

July 8, 2010
The AP recently reported on teachers vacationing at the Supreme Court this summer:
WASHINGTON — Adele Dalesandro stepped inside the U.S. Supreme Court wide-eyed. She spoke in whispers, trying to absorb everything about the room she had read so much about but had never seen. Her first impression was that it was much smaller than she expected. “This is not something you can replicate in the classroom,” said Dalesandro, who has taught high school government and politics classes in St. Charles, Ill., for 14 years. The teacher had become a student again. Dalesandro was part of a group of 30 social studies teachers from around the country who got a behind-the scenes look this week at the Supreme Court as part of the Supreme Court Summer Institute for Teachers. The six-day program that ended Tuesday covered subjects ranging from choosing the court’s docket to nominating a justice, an especially relevant topic this summer with the upcoming confirmation hearings for Supreme Court nominee Elena Kagan.
The article references Justice O’Connor’s iCivics, which recently entered a partnership with Harlan.

C-SPAN Poll- 80% of Young Adults Cannot Name Supreme Court Nominee, 70% Cannot Name a Single Supreme Court Case

June 24, 2010
Take a look at this C-SPAN poll which queried what people think about the Supreme Court. (H/T Above The Lawfor the screen shots of the poll). Approximately 80% of 18-24 year olds cannot name the most recent nominee to the Supreme Court, Elena Kagan. Additionally, only 33% of 18-24 year olds could name a single case decided by the Supreme Court. Less than 1% can name Plessy v. Ferguson and Marbury v. Madison. The results are quite depressing, and are a sad commentary on the knowledge of our young citizenry on the Supreme Court and the Constitution. Among people 18-24, the results are appreciably worse. This shows me that students are not gaining the necessary education in High School and College. All the more reason why our work at the Harlan Institute to teach students about the Supreme Court and the Constitution is vital.

Justice O’Connor’s iCivics and Harlan Institute Announce New Partnership

June 23, 2010
June 23, 2010 – Washington, D.C.  The Harlan Institute announced a new partnership today with iCivics Inc., the nonprofit civic education program founded by Justice Sandra Day O’Connor. The two organizations will integrate Argument Wars, a game developed by iCivics, and FantasySCOTUS, the Supreme Court fantasy league from the Harlan Institute, to teach students about the Constitution and the Supreme Court. This partnership will build on the great success of Justice O’Connor’s vision to use digital media to teach students about government and civics, and the surging popularity of FantasySCOTUS, which CNN called the “hottest new fantasy-league game.” Argument Wars presents students with famous Supreme Court cases and challenges them to critically examine arguments and exercise sound reasoning in order to win. FantasySCOTUS is a fun and interactive fantasy league that allows students to make predictions about cases pending before the Supreme Court, compete and collaborate with other classes across the country, and write analytical blog posts about the cases. iCivics and the Harlan Institute will be linking Argument Wars and FantasySCOTUS to immerse students in cases pending before the Supreme Court. Students will use Argument Wars to understand the facts and competing arguments in cases. Following this introduction, students will utilize FantasySCOTUS to make predictions, blog, and record podcasts about the cases. After the Supreme Court decides the cases, points will be awarded based on the accuracy of their predictions, and students will be able to compete with other classes nationwide. “Through our partnership with Justice O’Connor and iCivics, we will be able to offer students nationwide a fun and interactive way to learn about the law,” commented Josh Blackman, President and Co-Founder of the Harlan Institute. “Students will learn about cases pending before the Supreme Court with the same passion and excitement they have for video games and fantasy sports. It’s a recipe for educational success.” These programs will be free for all teachers and students to use and will be available in August of 2010. About iCivics iCivics (www.iCivics.org) is a web-based education project designed to teach students civics and inspire them to be active participants in our democracy. iCivics is the vision of Justice Sandra Day O’Connor, who is concerned that students are not getting the information and tools they need for civic participation, and that civics teachers need better materials and support.     About the Harlan Institute The Harlan Institute’s (www.HarlanInstitute.org) mission is to bring a stylized law school experience into the high school classroom to ensure that our next generation of leaders has a proper understanding of our most fundamental laws. The Harlan Institute developed FantasySCOTUS.org, a Supreme Court fantasy league that teaches students about Supreme Court cases and allows them to make predictions about the outcome of the case. ### Contacts:
Josh Blackman (202) 294-9003 The Harlan Institute info@harlaninstitute.org twitter: @HarlanInstitutehttp://HarlanInstitute.org Jeff Curley (202) 661-6527 iCivics Inc. jeff.curley@icivics.org www.icivics.org

A Self-Appointed Teacher Runs a One-Man ‘Academy’ on YouTube

June 8, 2010
The Harlan Institute is always looking for ways to use the Internet to educate and teach students in new and innovative ways. Salmann Khan, who runs a one-man “academy” on YouTube has proved to be a virtuoso of online education. Check out this article from the Chronicle of High Education.
The most popular educator on YouTube does not have a Ph.D. He has never taught at a college or university. And he delivers all of his lectures from a bedroom closet. This upstart is Salman Khan, a 33-year-old who quit his job as a financial analyst to spend more time making homemade lecture videos in his home studio. His unusual teaching materials started as a way to tutor his faraway cousins, but his lectures have grown into an online phenomenon—and a kind of protest against what he sees as a flawed educational system. “My single biggest goal is to try to deliver things the way I wish they were delivered to me,” he told me recently. The resulting videos don’t look or feel like typical college lectures or any of the lecture videos that traditional colleges put on their Web sites or YouTube channels. For one thing, these lectures are short—about 10 minutes each. And they’re low-tech: Viewers see only the scrawls of equations or bad drawings that Mr. Khan writes on his digital sketchpad software as he narrates. The lo-fi videos seem to work for students, many of whom have written glowing testimonials or even donated a few bucks via a PayPal link. The free videos have drawn hundreds of thousands of views, making them more popular than the lectures by the Massachusetts Institute of Technology, famous for making course materials free, or any other traditional institution online, according to the leaders of YouTube’s education section. Mr. Khan calls his collection of videos “Khan Academy,” and he lists himself as founder and faculty. That means he teaches every subject, and he has produced 1,400 lectures since he started in 2006. Now he records one to five lectures per day.
What an amazing story!

Violent Video Games Touted As Learning Tool

June 1, 2010
Interesting article from the Huffington Post on the value of using video games–albeit violent ones– as learning tools.
“People that play these fast-paced games have better vision, better attention and better cognition,” said Daphne Bavelier, an assistant professor in the department of brain and cognitive science at the University of Rochester. Bavelier was a presenter at Games for Learning, a daylong symposium on the educational uses of video games and computer games. The event, the first of its kind, was an indication that electronic games are gaining legitimacy in the classroom. President Barack Obama recently identified the creation of good educational software as one of the “grand challenges for American innovation,” and the federal Department of Education’s assistant deputy secretary for the Office of Innovation and Improvement, Jim Shelton, attended Thursday’s conference. Panelists discussed how people learn and how games can be engineered to be even more educational. “People do learn from games,” said J. Dexter Fletcher of the Institute for Defense Analyses. Sigmund Tobias of the State University of New York at Albany said an Israeli air force study found that students who played the game “Space Fortress” had better rankings in their pilot training than students who did not. He added that students who played “pro-social” games that promote cooperation were more likely than others to help out in real-life situations like intervening when someone is being harassed.