Academic journal article Harvard Law Review

First Amendment - Freedom of Speech - Compelled Subsidization

Academic journal article Harvard Law Review

First Amendment - Freedom of Speech - Compelled Subsidization

Article excerpt

For thirty-five years after Abood v. Detroit Board of Education, (1) the First Amendment unquestionably permitted a public-sector union to collect fair-share fees from those members of a collective bargaining unit who refused to join the union. (2) These so-called "agency shop" arrangements served the state's interests in promoting labor peace (3) and in preventing nonmembers from free riding on the union's bargaining efforts. (4) In 2012, though, the winds shifted against Abood, whose reasoning the Court now labeled "something of an anomaly." (5) Last Term, in Harris v. Quinn, (6) the Court retreated further, holding that the First Amendment prohibits the assessment of a fair-share fee against in-home caregivers--paid by the State of Illinois but hired and supervised by their patients--who refused to support their exclusive union representative. (7) Underlying the Court's refusal to extend Abood to "quasi-public employees" (8) were two doctrinal shifts. For the first time, the Court appears to have (1) protected employee speech (9) about the terms of public employment because of its potential budgetary impact and (2) subjected a public-sector fair-share clause to scrutiny bordering on strict. Together, these moves seemingly drive a wedge between the law of fair-share fees and that governing public-employee speech generally.

Through its Home Services Program--also known as the "Rehabilitation Program"--the Illinois Department of Human Services uses federal Medicaid subsidies to pay "personal assistants" who provide in-home care to patients who might otherwise be institutionalized. (10) Though Illinois sets the workforce-wide terms of the assistants' employment, (11) it is the patients who are otherwise "responsible for controlling all aspects" of the caregiver relationship. (12) In 2003, then-Governor Blagojevich directed the State to recognize a union chosen by a majority of the assistants. (13) The Illinois legislature soon codified that order, declaring the "assistants ... 'public employees' of the State of Illinois--but '[s]olely for the purposes of'" collective bargaining. (14)

Later that year, the assistants elected Service Employees International Union, Healthcare Illinois & Indiana ("SEIU-HII") as their exclusive representative. (15) SEIU-HII and the State subsequently entered into two collective bargaining agreements containing fair-share provisions, as authorized by Illinois state law. (16) These provisions required nonmember assistants "to pay their proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wages, hours and other conditions of employment." (17)

Banding together, three assistants filed a putative class action against Governor Quinn and SEIU-HII, alleging that the fair-share clauses compel objecting assistants to support SEIU-HII's bargaining efforts, in violation of the First Amendment. (18) In 2010, a federal district court replied that such fees are constitutional pursuant to "longstanding Supreme Court precedent." (19) Because the plaintiffs were designated public employees for collective bargaining purposes, and had not "alleg[ed] that the fair share fees ... support[ed] any political or ideological activities," the court dismissed the suit for failure to state a claim. (20)

The Seventh Circuit affirmed in part. (21) Writing for the panel, Judge Manion (22) noted that the Supreme Court "has not wavered from its position that, as a general matter, employees may be compelled to support legitimate, non-ideological, union activities germane to collective-bargaining representation." (23) Considered against the backdrop of Abood, the only question was "whether the personal assistants are ... State employees." (24) Here, because Illinois held "significant control over virtually every aspect of a personal assistant's job"--including fixing qualifications, approving service plans, and setting pay--it could be deemed an assistant's employer even if she was also employed by her patient. …

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