Harris v. Quinn Symposium: The coming conflict in public employee speech law and the immediate risks to people with disabilities

What most people will take away from Harris v. Quinn is what the Court did not decide.  Although the petitioners asked the Court to overrule its 1977 decision in Abood v. Detroit Board of Education and, effectively, make right-to-work laws constitutionally required in all public sector employment, the Court chose not to take so drastic a step.  Instead, the Court left Abood standing—at least for now.

But today’s decision is hardly so innocuous.  Most immediately, the Court’s ruling deals a blow (though perhaps not a fatal one) to unions’ efforts to organize the many workers who provide home-based services, financed by the state, to the elderly and persons with disabilities.  These efforts have been one of the great organizing success stories for labor over the past dozen or so years.  They have provided representation to a heavily female and minority workforce that had previously been largely disempowered.  Today’s decision threatens this success.

The Court’s decision has more far-reaching implications, however.  In this post, I will focus on its implications for First Amendment doctrine and its implications for the independence and empowerment of Americans with disabilities.

The coming conflict in public employee speech law

Justice Alito’s opinion for the Court marks the second time in three Terms that the Court has suggested that Abood may be ripe for overruling.  In its 2012 opinion in Knox v. SEIU, also written by Justice Alito, the Court described Abood’s conclusion that non-members could be required to pay their share of a union’s costs of collective bargaining as “an anomaly” in First Amendment law.  The Knox Court said that decisions like Abood “approach, if they do not cross, the limit of what the First Amendment can tolerate.”

Although the Court saw no need in Knox to decide whether its earlier holding remained good law, its statements sent a clear signal that it might be willing to reconsider Abood in a subsequent case.  Heeding that signal, the non-union workers in Harris squarely asked the Court to overrule Abood.  But the Court, once again, declined to reach the question.  As it had in Knox, the majority held that upholding the agency fee in this context would have required an extension, and not just a simple reaffirmation, of Abood—and the Court saw no justification for extending that case.

Nevertheless, even more so than in Knox, Justice Alito’s majority opinion today expresses doubts about Abood’s continuing vitality.  Justice Alito devoted four pages of his opinion to highlighting what he called the “questionable” nature of Abood’s analysis.  That part of the opinion describes, far more systematically than Alito had in Knox, the problems the majority sees in Abood.  It offers a template for litigants seeking to overrule Abood in a future case—a case that seems likely to come sooner rather than later.

When the next case comes, however, the Court will have to confront a major doctrinal problem—a problem that Justice Alito’s majority opinion highlights.  To overrule Abood, the Court will have to conclude that the negotiations between government employees and their employers over the terms and conditions of employment constitute protected speech, and that requiring objecting employees to contribute money to those negotiations violates their First Amendment rights.

Any such conclusion will run headlong into the Court’s cases involving public-employee speech outside of the union context.  In those cases, the Court—led by its conservative Justices—has consistently distinguished between speech by government workers in their capacities as citizens and speech by those workers in their capacities as employees.  As the Court put it in its 2011 decision in Borough of Duryea v. Guarnieri, “[w]hen a public employee sues a government employer under the First Amendment’s Speech Clause, the employee must show that he or she spoke as a citizen on a matter of public concern.”  The Duryea Court held that the same analysis applies when the public employee relies on the Petition Clause as well.  Justice Scalia, concurring in the judgment in part, read the Petition Clause rights of government employees even more narrowly.  He contended that the clause did not protect those workers’ petitions “addressed to the government in its capacity as the petitioners’ employer, rather than its capacity as their sovereign.”  Quoting the Court’s 2009 decision in Garcetti v. Ceballos, Justice Scalia reasoned that “[w]hen an employee files a petition with the government in its capacity as his employer, he is not acting ‘as [a] citize[n] for First Amendment purposes,’ because ‘there is no relevant analogue to [petitions] by citizens who are not government employees.’”

Duryea and Garcetti are recent cases.  In each of them, the Court endorsed the speech-as-citizen/speech-as-employee distinction, and it did so in opinions joined by the five members of today’s majority.  But the opinion for the Court today questioned whether such a distinction was analytically possible.  The Court noted that in the government employment context “core issues such as wages, pensions, and benefits are important political issues” and that “in the public sector, both collective­bargaining and political advocacy and lobbying are directed at the government.”

The Court thus suggested that, because the treatment of government workers is an important political issue, efforts by those workers to speak to their bosses regarding the terms and conditions of their employment is speech as a citizen.  There is much to commend this suggestion.  But the Court has repeatedly and recently shown itself unwilling to accept the suggestion in cases like Duryea and Garcetti in which government agencies discipline employees for their workplace speech.  If the Court does ultimately overrule Abood, it will have to explain why government workers’ First Amendment rights to be free from contributing money to collective-bargaining efforts are broader than those same workers’ First Amendment rights to be free from retaliation against their workplace complaints.

The independence and empowerment of people with disabilities

But all of those doctrinal problems are yet to come.  For now, today’s decision will be understood as a narrow one.  In holding that Illinois could not require the individuals who provide personal assistance under its Medicaid program to contribute an agency fee to the union that represents them, the majority relied on several differences between these personal assistants and more typical public employees.  In particular, the Court noted that “the personal assistants do not work together in a common state facility but instead spend all their time in private homes, either the customers’ or their own,” and that “the union is largely limited to petitioning the State for greater pay and benefits,” while other parts of the employment relationship are directed by the individual with a disability who receives personal-assistance services.

These facts may make Harris a narrow decision from the perspective of public-employee labor law.  But they highlight the threat that the Court’s ruling poses to the independence of individuals with disabilities.

At issue in the case were the collective-bargaining rights of workers who provide Medicaid-funded, home-based, consumer-directed services to people with disabilities.  Beginning in the 1980s, in response to pressure from disability rights organizations, states increasingly chose to provide these sorts of home-based and consumer-directed services.  States that did so advanced the independence of individuals with disabilities in two crucial ways.  First, by providing services to them in their own homes, these states no longer required people with disabilities to submit to institutionalization in hospitals, developmental centers, and nursing homes to receive the supports they needed.  Second, by adopting the principle of consumer control, these states gave individuals with disabilities themselves the power to choose the persons who would provide them assistance—and to provide them direction on a day-to-day and even moment-to-moment basis.  Arranged in this way, personal assistance is not merely paternalistic caretaking; rather, it gives individuals with disabilities the tools to make and effectuate their own choices about how to live their lives.  Illinois’s system, like the systems in others states that have adopted consumer direction, gave the state the power to set workforce-wide terms and conditions of employment (like wages and benefits), while reserving day-to-day supervision and the choice of personal assistant to the individual beneficiaries with disabilities themselves.

By allowing personal assistants to select a union to collectively bargain with the state on those workforce-wide terms and conditions, Illinois gave those workers the tools to negotiate higher wages and more ample benefits.  And this, in turn, helped to stabilize a personal-assistant workforce that had been marked by high turnover.  That is why many organizations of people with disabilities in Illinois and other states with similar collective-bargaining regimes signed on to a brief I filed in Harris in support of those regimes.

The Court’s opinion in Harris, however, says that the very features of Illinois’s regime that protect the rights of individuals with disabilities—providing services in the home rather than an institution; and reserving hiring, firing, and day-to-day supervision power in the individual with a disability—are what makes it unconstitutional to require personal assistants to defray the costs of collective bargaining.  Although the majority expressed skepticism that the collection of such fair-share fees was necessary for collective bargaining, the free-rider problem is a real one.  Collective bargaining is substantially impaired when unions cannot require the workers who benefit from it to pay their share of the cost.

However states like Illinois respond to today’s decision, people with disabilities face a troubled future.  If those states do nothing, the likely result will be erosion of the collective-bargaining regime that has helped to stabilize the personal-assistance workforce.  If those states seek to shore up their collective-bargaining regimes, the likely result will be more institutionalization, and less consumer control, directly harming the independence of individuals with disabilities.  From a disability rights perspective, Harris is not a narrow decision at all.

[Disclosure:  Kevin Russell of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel on an amicus brief in support of the respondent in Harris.  However, the author of this post was not involved in the case.]