Judge Prohibits Education Department From Using Partisan Out-of-Office Emails for Employees

The judge and the department differed over whether the messages constituted a violation of the First Amendment.

Published: 11/8/2025, 9:40:03 PM EST

Judge Prohibits Education Department From Using Partisan Out-of-Office Emails for Employees — The Department of Education in Washington on April 28, 2025. (Madalina Vasiliu/The Epoch Times)

A federal judge said on Nov. 7 that the Department of Education violated the First Amendment by using employee email accounts to send out-of-office messages blaming Democrats for the ongoing government shutdown.

“When government employees enter public service, they do not sign away their First Amendment rights, and they certainly do not sign up to be a billboard for any given administration’s partisan views,” U.S. District Judge Christopher Cooper said in his 36-page opinion.

Cooper ordered the department to remove existing partisan language and permanently enjoined it from adding new partisan language.

A day before the government shutdown started on Oct. 1, the department advised furloughed employees to set up a reply that Cooper described as “plain-vanilla.” It simply stated that the employee was unable to respond due to a lapse in appropriations.

On the day of the shutdown, however, the department overrode custom messages employees set up and instead used replies that read: “Thank you for contacting me. On September 19, 2025, the House of Representatives passed H.R. 5371, a clean continuing resolution. Unfortunately, Democrat Senators are blocking passage of H.R. 5371 in the Senate which has led to a lapse in appropriations. Due to the lapse in appropriations I am currently in furlough status. I will respond to emails once government functions resume.”

H.R. 5371 was a continuing appropriations bill that was passed by the House of Representatives but failed to get the 60 votes needed for passage in the Senate. By Nov. 5, the shutdown had become the longest in U.S. history.

After the American Federation of Government Employees filed a lawsuit, the department revised its auto-reply to sound less personal.

It instead read: “The Department employee you have contacted is currently in furlough status. On September 19, 2025, the House of Representatives passed H.R. 5371, a clean continuing resolution. Unfortunately, Democrat Senators are blocking passage of H.R. 5371 in the Senate which has led to a lapse in appropriations. The employee you have contacted will respond to emails once government functions resume.”

In October, the Justice Department argued that the revised message should end the lawsuit because it clarified “that the content is a Department message and not a message from any individual employee.” It added that the messages constituted government speech and therefore were not subject to the First Amendment.

Cooper rejected these arguments and said in his Nov. 7 opinion that the department had created an “unacceptable risk” that the message would be attributed to employees. He said that the government had no legitimate need for the partisan messaging.

Another argument the Justice Department made was that Cooper lacked the authority to rule on the issue. They pointed to two laws Congress passed to channel federal employment disputes through an administrative process.

Cooper countered that he needed to intervene given the constitutional issue involved and the unusual circumstances surrounding the government shutdown.

“Due to the lapse in appropriations, the administrative agencies tasked with adjudicating federal employee disputes … are closed,” he said.

He said that by the time the government shutdown ended, the department’s revised message “would no longer be in effect, and there would be no way to afford [the union] meaningful relief.”

Nathan Worcester contributed to this report.

From The Epoch Times