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SUPREME COURT OF THE UNITED STATES
_________________
No. 11–681
_________________
PAMELA HARRIS, et al, PETITIONERS v. PAT
QUINN, GOVERNOR of ILLINOIS, et al.
on writ of certiorari to the united states
court of appeals for the seventh circuit
[June 30, 2014]
Justice Alito
delivered the opinion of the Court.
This case presents
the question whether the First Amendment permits a State to compel
personal care providers to subsidize speech on matters of public
concern by a union that they do not wish to join or support. We
hold that it does not, and we therefore reverse the judgment of the
Court of Appeals.
I
A
Millions of
Americans, due to age, illness, or injury, are unable to live in
their own homes without assistance and are unable to afford the
expense of in-home care. In order to prevent these individuals from
having to enter a nursing home or other facility, the federal
Medicaid program funds state-run programs that provide in-home
services to individuals whose conditions would otherwise require
institutionalization. See 42 U. S. C. §1396n(c)(1).
A State that adopts such a program receives federal funds to
compensate persons who attend to the daily needs of individuals
needing in-home care. Ibid.; see also 42 CFR §§440.180,
441.300–441.310 (2013). Almost every State has established
such a program. See Dept. of Health and Human Services,
Understanding Medicaid Home and Community Services: A Primer
(2010).
One of those States is
Illinois, which has created the Illinois Department of Human
Services Home Services Program, known colloquially as the state
“Rehabilitation Program.” Ill. Comp. Stat., ch. 20,
§2405/3(f ) (West 2012); 89 Ill. Admin. Code §676.10
(2007). “[D]esigned to prevent the unnecessary
institutionalization of individuals who may instead be
satisfactorily maintained at home at a lesser cost to the
State,” §676.10(a), the Rehabilitation Program allows
participants to hire a “personal assistant” who
provides homecare services tailored to the individual’s
needs. Many of these personal assistants are relatives of the
person receiving care, and some of them provide care in their own
homes. See App. 16–18.
Illinois law
establishes an employer-employee relationship between the person
receiving the care and the person providing it. The law states
explicitly that the person receiving home care—the
“customer”—“shall be the employer of the
[personal assistant].” 89 Ill. Admin. Code §676.30(b)
(emphasis added). A “personal assistant” is defined as
“an individual employed by the customer to provide
. . . varied services that have been approved by the
customer’s physician,” §676.30(p) (emphasis
added), and the law makes clear that Illinois “shall not have
control or input in the employment relationship between the
customer and the personal assistants.” §676.10(c).
Other provisions of the
law emphasize the customer’s employer status. The customer
“is responsible for controlling all aspects of the employment
relationship between the customer and the [personal assistant (or
PA)], including, without limitation, locating and hiring the PA,
training the PA, directing, evaluating and otherwise supervising
the work performed by the personal assistant, imposing
. . . disciplinary action against the PA, and terminating
the employment relationship between the customer and the PA.”
§676.30(b).[
1] In general,
the customer “has complete discretion in which Personal
Assistant he/she wishes to hire.” §684.20(b).
A customer also
controls the contents of the document, the Service Plan, that lists
the services that the customer will receive. §684.10(a). No
Service Plan may take effect without the approval of both the
customer and the customer’s physician. See §684.10,
684.40, 684.50, 684.75. Service Plans are highly individualized.
The Illinois State Labor Relations Board noted in 1985 that
“[t]here is no typical employment arrangement here, public or
otherwise; rather, there simply exists an arrangement whereby the
state of Illinois pays individuals . . . to work under
the direction and control of private third parties.” Illinois
Dept. of Central Management Serv., No. S–RC–115, 2 PERI
¶2007, p. VIII–30, (1985), superseded, 2003 Ill. Laws p.
1929.
While customers
exercise predominant control over their employment relationship
with personal assistants, the State, subsidized by the federal
Medicaid program, pays the personal assistants’ salaries. The
amount paid varies depending on the services provided, but as a
general matter, it “corresponds to the amount the State would
expect to pay for the nursing care component of
institutionalization if the individual chose
institutionalization.” 89 Ill. Admin. Code
§679.50(a).
Other than providing
compensation, the State’s role is comparatively small. The
State sets some basic threshold qualifications for employment. See
§§686.10(h)(1)–(10).[
2] (For example, a personal assistant must have a Social
Security number, must possess basic communication skills, and must
complete an employment agreement with the customer.
§§686.10, 686.20, 686.40.) The State mandates an annual
performance review by the customer, helps the customer conduct that
review, and mediates disagreements between customers and their
personal assistants. §686.30. The State suggests certain
duties that personal assistants should assume, such as performing
“household tasks,” “shopping,” providing
“personal care,” performing “incidental health
care tasks,” and “monitoring to ensure the health and
safety of the cus-tomer.” §686.20. In addition, a state
employee must “identify the appropriate level of service
provider” “based on the customer’s approval of
the initial Service Plan,” §684.20(a) (emphasis added),
and must sign each customer’s Service Plan. §684.10.
B
Section 6 of the
Illinois Public Labor Relations Act (PLRA) authorizes state
employees to join labor unions and to bargain collectively on the
terms and conditions of employment. Ill. Comp. Stat., ch. 5,
§315/6(a). This law applies to “[e]mployees of the State
and any political subdivision of the State,” subject to
certain exceptions, and it provides for a union to be recognized if
it is “designated by the [Public Labor Relations] Board as
the representative of the majority of public employees in an
appropriate unit . . . .”
§§315/6(a), (c).
The PLRA contains an
agency-fee provision, i.e., a provision under which members of a
bargaining unit who do not wish to join the union are nevertheless
required to pay a fee to the union. See Workers v. Mobil Oil Corp.,
426 U. S. 407, 409, n. 1 (1976) . Labeled a “fair
share” provision, this section of the PLRA provides:
“When a collective bargaining agreement is entered into with
an exclusive representative, it may include in the agreement a
provision requiring employees covered by the agreement who are not
members of the organization to pay their proportionate share of the
costs of the collective-bargaining process, contract administration
and pursuing matters affecting wages, hours and conditions of
employment.” §315/6(e). This payment is “deducted
by the employer from the earnings of the nonmember employees and
paid to the em-ployee organization.” Ibid.
In the 1980’s,
the Service Employees International Union (SEIU) petitioned the
Illinois Labor Relations Board for permission to represent personal
assistants employed by customers in the Rehabilitation Program, but
the board rebuffed this effort. Illinois Dept. of Central
Management Servs., supra, at VIII–30. The board concluded
that “it is clear . . . that [Illinois] does not
exercise the type of control over the petitioned-for employees
necessary to be considered, in the collective bargaining context
envisioned by the [PLRA], their ‘employer’ or, at
least, their sole employer.” Ibid.
In March 2003, however,
Illinois’ newly elected Governor, Rod Blagojevich,
circumvented this decision by issuing Executive Order
2003–08. See App. to Pet. for Cert. 45a–47a. The order
noted the Illinois Labor Relations Board decision but nevertheless
called for state recognition of a union as the personal
assistants’ exclusive representative for the purpose of
collective bargaining with the State. This was necessary, Gov.
Blagojevich declared, so that the State could “receive
feedback from the personal assistants in order to effectively and
efficiently deliver home services.” Id., at 46a. Without such
representation, the Governor proclaimed, personal assistants
“cannot effectively voice their concerns about the
organization of the Home Services program, their role in the
program, or the terms and conditions of their employment under the
Program.” Ibid.
Several months later,
the Illinois Legislature codified that executive order by amending
the PLRA. Pub. Act no. 93–204, §5, 2003 Ill. Laws p.
1930. While acknowledging “the right of the persons receiving
services . . . to hire and fire personal assistants or
supervise them,” the Act declared personal assistants to be
“public employees” of the State of Illinois—but
“[s]olely for the purposes of coverage under the Illinois
Public Labor Relations Act.” Ill. Comp. Stat., ch. 20,
§2405/3(f ). The statute emphasized that personal
assistants are not state employees for any other purpose,
“including but not limited to, purposes of vicarious
liability in tort and purposes of statutory retirement or health
insurance benefits.” Ibid.
Following a vote, SEIU
Healthcare Illinois & Indiana (SEIU–HII) was designated
as the personal assistants’ exclusive representative for
purposes of collective bargaining. See App. 23. The union and the
State subsequently entered into collective-bargaining agreements
that require all personal assistants who are not union members to
pay a “fair share” of the union dues. Id., at
24–25. These payments are deducted directly from the personal
assistants’ Medicaid payments. Ibid. The record in this case
shows that each year, personal assistants in Illinois pay
SEIU–HII more than $3.6 million in fees. Id., at 25.
C
Three of the
petitioners in the case now before us—Theresa Riffey, Susan
Watts, and Stephanie Yencer-Price—are personal assistants
under the Rehabilitation Program. They all provide in-home services
to family members or other individuals suffering from
disabilities.[
3] Susan Watts,
for example, serves as personal assistant for her daughter, who
requires constant care due to quadriplegic cerebral palsy and other
conditions. See App. 18.
In 2010, these
petitioners filed a putative class action on behalf of all
Rehabilitation Program personal assistants in the United States
District Court for the Northern District of Illinois. See 656
F. 3d 692, 696 (CA7 2011). Their complaint, which named the
Governor and the union as defendants, sought an injunction against
enforcement of the fair-share provision and a declaration that the
Illinois PLRA violates the First Amendment insofar as it requires
personal assistants to pay a fee to a union that they do not wish
to support. Ibid.
The District Court
dismissed their claims with prejudice, and the Seventh Circuit
affirmed in relevant part, concluding that the case was controlled
by this Court’s decision in Abood v. Detroit Bd. of Ed. 431
U. S. 209 (1977) . 656 F. 3d, at 698. The Seventh Circuit
held that Illinois and the customers who receive in-home care are
“joint employers” of the personal assistants, and the
court stated that it had “no difficulty concluding that the
State employs personal assistants within the meaning of
Abood.” Ibid.
Petitioners sought
certiorari. Their petition pointed out that other States were
following Illinois’ lead by enacting laws or issuing
executive orders that deem personal assistants to be state
employees for the purpose of unionization and the assessment of
fair-share fees. See App. to Pet. for Cert. 22a. Petitioners also
noted that Illinois has enacted a law that deems “individual
maintenance home health workers”—a category that
includes registered nurses, licensed practical nurses, and certain
therapists who work in private homes—to be “public
employees” for similar purposes. Ill. Pub. Act no.
97–1158, 2012 Ill. Laws p. 7823.
In light of the
important First Amendment questions these laws raise, we granted
certiorari. 570 U. S. ___ (2013).
II
In upholding the
constitutionality of the Illinois law, the Seventh Circuit relied
on this Court’s decision in Abood supra, which held that
state employees who choose not to join a public-sector union may
nevertheless be compelled to pay an agency fee to support union
work that is related to the collective-bargaining process. Id., at
235–236. Two Terms ago, in Knox v. Service Employees, 567
U. S. ___ (2012), we pointed out that Abood is
“something of an anomaly.” Id., at ___ (slip op., at
11). “ ‘The primary purpose’ of permitting
unions to collect fees from nonmembers,” we noted, “is
‘to prevent nonmembers from free-riding on the union’s
efforts, sharing the employment benefits obtained by the
union’s collective bargaining without sharing the costs
incurred.’ ” Id., at ___ (slip op., at 10)
(quoting Davenport v. Washington Ed. Assn., 551 U. S. 177, 181
(2007) ). But “[s]uch free-rider arguments . . .
are generally insufficient to overcome First Amendment
objections.” 567 U. S., at ___ (slip op., at
10–11).
For this reason, Abood
stands out, but the State of Illinois now asks us to sanction what
amounts to a very significant expansion of Abood—so that it
applies, not just to full-fledged public employees, but also to
others who are deemed to be public employees solely for the purpose
of unionization and the collection of an agency fee. Faced with
this argument, we begin by examining the path that led to this
Court’s decision in Abood.
A
The starting point
was Railway Employes v. Hanson, 351 U. S. 225 (1956) , a case
in which the First Amendment was barely mentioned. The dispute in
Hanson resulted from an amendment to the Railway Labor Act (RLA).
Id., at 229, 232. As originally enacted in 1926, the Act did not
permit a collective-bargaining agreement to require employees to
join or make any payments to a union. See Machinists v. Street, 367
U. S. 740, 750 (1961) . At that time and for many years
thereafter, there was “a strong and long-standing tradition
of voluntary unionism on the part of the standard rail
unions.” Ibid.
Eventually, however,
the view of the unions changed. See id., at 760–761. The
RLA’s framework for resolving labor disputes “is more
complex than that of any other industry,” id., at 755, and
amendments enacted in 1934 increased the financial burden on unions
by creating the 36-member National Railroad Adjustment Board,
one-half of whose members were appointed and paid by the unions.
Id., at 759–760. In seeking authorization to enter into
union-shop agreements, i.e., agreements requiring all employees to
join a union and thus pay union dues, see Oil Workers, 426
U. S., at 409, n. 1, the unions’ principal argument
“was based on their role in this regulatory framework.”
Street, 367 U. S., at 761. A union spokesman argued that the
financial burdens resulting from the Act’s unique and complex
scheme justified union-shop provisions in order to provide the
unions with needed dues. Ibid.
These arguments were
successful, and the Act was amended in 1951 to permit a railroad
and a union to enter into an agreement containing a union-shop
provision. This amendment brought the Act into conflict with the
laws of States that guaranteed the “right to work” and
thereby outlawed the union shop. Nebraska, the setting of Hanson,
was one such State. 351 U. S., at 228.
In Hanson, the Union
Pacific Railroad Company and its unionized workers entered into a
collective-bargaining agreement that contained a provision
requiring employees, “as a condition of their continued
employment,” to join and remain members of the union. Id., at
227. Employees who did not want to join the union brought suit in
state court, contending that the union-shop provision violated a
provision of the Nebraska Constitution banning adverse employment
actions “ ‘because of refusal to join or affiliate
with a labor organization.’ ” Id., at 228 (quoting
Neb. Const., Art. XV, §13). The employer countered that the
RLA trumped the Nebraska provision, but the Nebraska courts agreed
with the employees and struck down the union-shop agreement.
When the case reached
this Court, the primary issue was whether the provision of the RLA
that authorized union-shop agreements was “germane to the
exercise of power under the Commerce Clause.” 351 U. S.,
at 234–235. In an opinion by Justice Douglas, the Court held
that this provision represented a permissible regulation of
commerce. The Court reasoned that the challenged provision
“ ‘stabilized labor-management
relations’ ” and thus furthered
“ ‘industrial peace.’ ” Id., at
233–234.
The employees also
raised what amounted to a facial constitutional challenge to the
same provision of the RLA. The employees claimed that a
“union shop agreement forces men into ideological and
political associations which violate their right to freedom of
conscience, freedom of association, and freedom of thought
protected by the Bill of Rights.” Id., at 236. But because
the lawsuit had been filed shortly after the collective-bargaining
agreement was approved, the record contained no evidence that the
union had actually engaged in political or ideological
activities.[
4]
The Hanson Court
dismissed the objecting employees’ First Amendment argument
with a single sentence. The Court wrote: “On the present
record, there is no more an infringement or impairment of First
Amendment rights than there would be in the case of a lawyer who by
state law is required to be a member of an integrated bar.”
Id., at 238.
This explanation was
remarkable for two reasons. First, the Court had never previously
held that compulsory membership in and the payment of dues to an
integrated bar was constitutional, and the constitutionality of
such a requirement was hardly a foregone conclusion. Indeed, that
issue did not reach the Court until five years later, and it
produced a plurality opinion and four separate writings. See
Lathrop v. Donohue, 367 U. S. 820 (1961) (plurality
opinion).[
5]
Second, in his Lathrop
dissent, Justice Douglas, the author of Hanson, came to the
conclusion that the First Amendment did not permit compulsory
membership in an integrated bar. See 367 U. S., at
878–880. The analogy drawn in Hanson, he wrote, fails.
“Once we approve this measure,” he warned, “we
sanction a device where men and women in almost any profession or
calling can be at least partially regimented behind causes which
they oppose.” 367 U. S., at 884. He continued:
“I look on the Hanson case as a
narrow exception to be closely confined. Unless we so treat it, we
practically give carte blanche to any legislature to put at least
professional people into goose-stepping brigades. Those brigades
are not compatible with the First Amendment.” Id., at
884–885 (footnote omitted).
The First Amendment
analysis in Hanson was thin, and the Court’s resulting First
Amendment holding was narrow. As the Court later noted, “all
that was held in Hanson was that [the RLA] was constitutional in
its bare authorization of union-shop contracts requiring workers to
give ‘financial support’ to unions legally authorized
to act as their collective bargaining agents.” Street, 367
U. S., at 749 (emphasis added). The Court did not suggest that
“industrial peace” could justify a law that
“forces men into ideological and political associations which
violate their right to freedom of conscience, freedom of
association, and freedom of thought,” or a law that forces a
person to “conform to [a union’s] ideology.”
Hanson, supra, at 236–237. The RLA did not compel such
results, and the record in Hanson did not show that this had
occurred.
B
Five years later, in
Street, supra, the Court considered another case in which workers
objected to a union shop. Employees of the Southern Railway System
raised a First Amendment challenge, contending that a substantial
part of the money that they were required to pay to the union was
used to support political candidates and causes with which they
disagreed. A Georgia court enjoined the enforcement of the
union-shop provision and entered judgment for the dissenting
employees in the amount of the payments that they had been forced
to make to the union. The Georgia Supreme Court affirmed. Id., at
742–745.
Reviewing the State
Supreme Court’s decision, this Court recognized that the case
presented constitutional questions “of the utmost
gravity,” id., at 749, but the Court found it unnecessary to
reach those questions. Instead, the Court construed the RLA
“as not vesting the unions with unlimited power to spend
exacted money.” Id., at 768. Specifically, the Court held,
the Act “is to be construed to deny the unions, over an
employee’s objection, the power to use his exacted funds to
support political causes which he opposes.” Id., at
768–769.
Having construed the
RLA to contain this restriction, the Street Court then went on to
discuss the remedies available for employees who objected to the
use of union funds for political causes. The Court suggested two:
The dissenting employees could be given a refund of the portion of
their dues spent by the union for political or ideological
purposes, or they could be given a refund of the portion spent on
those political purposes that they had advised the union they
disapproved.[
6] Id., at
774–775.
Justice Black, writing
in dissent, objected to the Court’s suggested remedies, and
he accurately predicted that the Court’s approach would lead
to serious practical problems. Id., at 796–797. That
approach, he wrote, while “very lucrative to special masters,
accountants and lawyers,” would do little for “the
individual workers whose First Amendment freedoms have been
flagrantly violated.” Id., at 796. He concluded:
“Unions composed of a voluntary
membership, like all other voluntary groups, should be free in this
country to fight in the public forum to advance their own causes,
to promote their choice of candidates and parties and to work for
the doctrines or the laws they favor. But to the extent that
Government steps in to force people to help espouse the particular
causes of a group, that group—whether composed of railroad
workers or lawyers—loses its status as a voluntary
group.” Ibid.
Justice Frankfurter,
joined by Justice Harlan, also dissented, arguing that the
Court’s remedy was conceptually flawed because a union may
further the objectives of members by political means. See id., at
813–815. He noted, for example, that reports from the
AFL–CIO Executive Council “emphasize that labor’s
participation in urging legislation and candidacies is a major
one.” Id., at 813. In light of “the detailed list of
national and international problems on which the AFL–CIO
speaks,” he opined, “it seems rather naive” to
believe “that economic and political concerns are
separable.” Id., at 814.
C
This brings us to
Abood, which, unlike Hanson and Street, involved a public-sector
collective-bargaining agreement. The Detroit Federation of Teachers
served “as the exclusive representative of teachers employed
by the Detroit Board of Education.” 431 U. S., at
211–212. The collective-bargaining agreement between the
union and the board contained an agency-shop clause requiring every
teacher to “pay the Union a service charge equal to the
regular dues required of Union members.” Id., at 212. A
putative class of teachers sued to invalidate this clause.
Asserting that “they opposed collective bargaining in the
public sector,” the plaintiffs argued that
“ ‘a substantial part’ ” of their
dues would be used to fund union “ ‘activities and
programs which are economic, political, professional, scientific
and religious in nature of which Plaintiffs do not approve, and in
which they will have no voice.’ ” Id., at
212–213.
This Court treated the
First Amendment issue as largely settled by Hanson and Street. 431
U. S., at 217, 223.The Court acknowledged that Street was
resolved as a matter of statutory construction without reaching any
constitutional issues, 431 U. S., at 220, and the Court
recognized that forced membership and forced contributions impinge
on free speech and associational rights, id., at 223. But the Court
dismissed the objecting teachers’ constitutional arguments
with this observation: “[T]he judgment clearly made in Hanson
and Street is that such interference as exists is constitutionally
justified by the legislative assessment of the important
contribution of the union shop to the system of labor relations
established by Congress.” Id., at 222.
The Abood Court
understood Hanson and Street to have upheld union-shop agreements
in the private sector based on two primary considerations: the
desirability of “labor peace” and the problem of
“ ‘free riders[hip].’ ” 431
U. S., at 220–222, 224.
The Court thought that
agency-shop provisions promote labor peace because the Court saw a
close link between such provisions and the “principle of
exclusive union representation.” Id., at 220. This principle,
the Court explained, “prevents inter-union rivalries from
creating dissension within the work force and eliminating the
advantages to the employee of collectivization.” Id., at
220–221. In addition, the Court noted, the “designation
of a single representative avoids the confusion that would result
from attempting to enforce two or more agreements specifying
different terms and conditions of employment.” Id., at 220.
And the Court pointed out that exclusive representation
“frees the employer from the possibility of facing
conflicting demands from different unions, and permits the employer
and a single union to reach agreements and settlements that are not
subject to attack from rival labor organizations.” Id., at
221.
Turning to the problem
of free ridership, Abood noted that a union must
“ ‘fairly and equitably . . . represent
all employees’ ” regardless of union membership,
and the Court wrote as follows: The “union-shop arrangement
has been thought to distribute fairly the cost of these activities
among those who benefit, and it counteracts the incentive that
employees might otherwise have to become ‘free riders’
to refuse to contribute to the union while obtaining benefits of
union representation.” Id., at 221–222.
The plaintiffs in Abood
argued that Hanson and Street should not be given much weight
because they did not arise in the public sector, and the Court
acknowledged that public-sector bargaining is different from
private-sector bargaining in some notable respects. 431 U. S.,
at 227–228. For example, although public and private
employers both desire to keep costs down, the Court recognized that
a public employer “lacks an important discipline against
agreeing to increases in labor costs that in a market system would
require price increases.” Id., at 228. The Court also noted
that “decisionmaking by a public employer is above all a
political process” undertaken by people “ultimately
responsible to the electorate.” Ibid. Thus, whether a public
employer accedes to a union’s demands, the Court wrote,
“will depend upon a blend of political ingredients,”
thereby giving public employees “more influence in the
decisionmaking process that is possessed by employees similarly
organized in the private sector.” Ibid. But despite these
acknowledged differences between private- and public-sector
bargaining, the Court treated Hanson and Street as essentially
controlling.
Instead of drawing a
line between the private and public sectors, the Abood Court drew a
line between, on the one hand, a union’s expenditures for
“collective-bargaining, contract administration, and
grievance-adjustment purposes,” 431 U. S., at 232, and,
on the other, expenditures for political or ideological purposes.
Id., at 236.
D
The Abood
Court’s analysis is questionable on several grounds. Some of
these were noted or apparent at or before the time of the decision,
but several have become more evident and troubling in the years
since then.
The Abood Court
seriously erred in treating Hanson and Street as having all but
decided the constitutionality of compulsory payments to a
public-sector union. As we have explained, Street was not a
constitutional decision at all, and Hanson disposed of the critical
question in a single, unsupported sentence that its author
essentially abandoned a few years later. Surely a First Amendment
issue of this importance deserved better treatment.
The Abood Court
fundamentally misunderstood the holding in Hanson, which was really
quite narrow. As the Court made clear in Street, “all that
was held in Hanson was that [the RLA] was constitutional in its
bare authorization of union-shop contracts requiring workers to
give ‘financial support’ to unions legally authorized
to act as their collective bargaining agents.” 367
U. S., at 749 (emphasis added). In Abood, on the other hand,
the State of Michigan did more than simply authorize the imposition
of an agency fee. A state instrumentality, the Detroit Board of
Education, actually imposed that fee. This presented a very
different question.
Abood failed to
appreciate the difference between the core union speech
involuntarily subsidized by dissenting public-sector employees and
the core union speech involuntarily funded by their counterparts in
the private sector. In the public sector, core issues such as
wages, pensions, and benefits are important political issues, but
that is generally not so in the private sector. In the years since
Abood, as state and local expenditures on employee wages and
benefits have mushroomed, the importance of the difference between
bargaining in the public and private sectors has been driven
home.[
7]
Abood failed to
appreciate the conceptual difficulty of distinguishing in
public-sector cases between union expenditures that are made for
collective-bargaining pur-poses and those that are made to achieve
political ends. In the private sector, the line is easier to see.
Collective bargaining concerns the union’s dealings with the
em-ployer; political advocacy and lobbying are directed at the
government. But in the public sector, both collective-bargaining
and political advocacy and lobbying are directed at the
government.
Abood does not seem to
have anticipated the magnitude of the practical administrative
problems that would result in attempting to classify public-sector
union expenditures as either “chargeable” (in
Abood’s terms, expendituresfor “collective-bargaining,
contract administration, andgrievance-adjustment purposes,”
id., at 232) or noncharge-able (i.e., expenditures for political or
ideological purposes, id., at 236). In the years since Abood, the
Court has strug-gled repeatedly with this issue. See Ellis v.
Railway Clerks, 466 U. S. 435 (1984) ; Teachers v. Hudson, 475
U. S. 292 (1986) ; Lehnert v. Ferris Faculty Assn., 500
U. S. 507 (1991) ; Locke v. Karass, 555 U. S. 207 (2009)
. In Lehnert, the Court held that “chargeable activities must
(1) be ‘germane’ to collective-bargaining activity; (2)
be justified by the government’s vital policy interest in
labor peace and avoiding ‘free riders’; and (3) not
significantly add to the burdening of free speech that is inherent
in the allowance of an agency or union shop.” 500 U. S.,
at 519. But as noted in Justice Scalia’s dissent in that
case, “each one of the three ‘prongs’ of the test
involves a substantial judgment call (What is
‘germane’? What is ‘justified’? What is a
‘significant’ additional burden).” Id., at 551
(opinion concurring in judgment in part and dissenting in
part).
Abood likewise did not
foresee the practical problems that would face objecting
nonmembers. Employees who suspect that a union has improperly put
certain expenses in the “germane” category must bear a
heavy burden if they wish to challenge the union’s actions.
“[T]he onus is on the employees to come up with the resources
to mount the legal challenge in a timely fashion,” Knox, 567
U. S., at ___ (slip op., at 19) (citing Lehnert, supra, at
513), and litigating such cases is expensive. Because of the
open-ended nature of the Lehnert test, classifying particular
categories of expenses may not be straightforward. See Jibson v.
Michigan Ed. Assn.–NEA, 30 F. 3d 723, 730 (CA6 1994)).
And although Hudson required that a union’s books be audited,
auditors do not themselves review the correctness of a
union’s categorization. See Knox, supra, at ___ (slip op., at
18–19) (citing Andrews v. Education Assn. of Cheshire, 829
F. 2d 335, 340 (CA2 1987)). See also American Federation of
Television and Recording Artists, Portland Local, 327
N. L. R. B. 474, 477 (1999) (“It is settled
that determinations concerning whether particular expenditures are
chargeable are legal determinations which are outside the expertise
of the auditor. Thus, as we have stated, the function of the
auditor is to verify that the expenditures that the union claims it
made were in fact made for the purposes claimed, not to pass on the
correctness of the union’s allocation of expenditures to the
chargeable and nonchargeable categories”); California Saw and
Knife Works, 320 N. L. R. B. 224, 241 (1995)
(“We first agree [that the company at issue] did not violate
its duty of fair representation by failing to use an independent
auditor to determine the allocation of chargeable and nonchargeable
expenditures”); Price v. International Union, United Auto,
Aerospace & Agricultural Implement Workers of Am., 927
F. 2d 88, 93–94 (CA2 1991) (“Hudson requires only
that the usual function of an auditor be performed, i.e., to
determine that the expenses claimed were in fact made. That
function does not require that the auditor make a legal decision as
to the appropriateness of the allocation of expenses to the
chargeable and non-chargeable categories”).
Finally, a critical
pillar of the Abood Court’s analysis rests on an unsupported
empirical assumption, namely, that the principle of exclusive
representation in the public sector is dependent on a union or
agency shop. As we will explain, see infra, at 31–34, this
assumption is unwarranted.
III
A
Despite all this, the
State of Illinois now asks us to approve a very substantial
expansion of Abood’s reach. Abood involved full-fledged
public employees, but in this case, the status of the personal
assistants is much different. The Illinois Legislature has taken
pains to specify that personal assistants are public employees for
one purpose only: collective bargaining. For all other pur-poses,
Illinois regards the personal assistants as private-sector
employees. This approach has important practical consequences.
For one thing, the
State’s authority with respect to these two groups is vastly
different. In the case of full-fledged public employees, the State
establishes all of the duties imposed on each employee, as well as
all of the qualifications needed for each position. The State vets
applicants and chooses the employees to be hired. The State
provides or arranges for whatever training is needed, and it
supervises and evaluates the employees’ job performance and
imposes corrective measures if appropriate. If a state
employee’s performance is deficient, the State may discharge
the employee in accordance with whatever procedures are required by
law.
With respect to the
personal assistants involved in this case, the picture is entirely
changed. The job duties of personal assistants are specified in
their individualized Service Plans, which must be approved by the
customer and the customer’s physician. 89 Ill. Admin. Code
§684.10. Customers have complete discretion to hire any
personal assistant who meets the meager basic qualifications that
the State prescribes in §686.10. See §676.30(b) (the
customer “is responsible for controlling all aspects of the
employment relationship between the customer and the [personal
assistant], including, without limitation, locating and hiring the
[personal assistant]” (emphasis added)); §684.20(b)
(“complete discretion in which Per-sonal Assistant [the
customer] wishes to hire” subject to baseline eligibility
requirements).
Customers supervise
their personal assistants on a daily basis, and no provision of the
Illinois statute or implementing regulations gives the State the
right to enter the home in which the personal assistant is employed
for the purpose of checking on the personal assistant’s job
performance. Cf. §676.20(b) (customer controls “without
limitation . . . supervising the work performed by the
[personal assistant], imposing . . . disciplinary action
against the [personal assistant]”). And while state law
mandates an annual review of each personal assistant’s work,
that evaluation is also controlled by the customer.
§§686.10(k), 686.30. A state counselor is assigned to
assist the customer in performing the review but has no power to
override the customer’s evaluation. See ibid. Nor do the
regulations empower the State to discharge a personal assistant for
substandard performance. See n. 1, supra. Discharge, like
hiring, is entirely in the hands of the customer. See
§676.30.
Consistent with this
scheme, under which personal assistants are almost entirely
answerable to the customers and not to the State, Illinois
withholds from personal assistants most of the rights and benefits
enjoyed by full-fledged state employees. As we have noted already,
state law explicitly excludes personal assistants from statutory
retirement and health insurance benefits. Ill. Comp. Stat., ch. 20,
§2405/3(f ). It also excludes personal assistants from
group life insurance and certain other employee benefits provided
under the State Employees Group Insurance Act of 1971. Ibid.
(“Personal assistants shall not be covered by the State
Employees Group Insurance Act of 1971”). And the State
“does not provide paid vacation, holiday, or sick
leave” to personal assistants. 89 Ill. Admin. Code
§686.10(h)(7).
Personal assistants
also appear to be ineligible for a host of benefits under a variety
of other state laws, including the State Employee Vacation Time Act
(see Ill. Stat., ch. 5, §360/1); the State Employee
Health Savings Account Law (see Ill. Stat., ch. 5,
§377/10–1); the State Employee Job Sharing Act (see Ill.
Stat., ch. 5, §380/0.01); the State Employee
Indemnification Act (see Ill. Stat., ch. 5, §350/2); and
the Sick Leave Bank Act. See Ill. Stat., ch. 5, §400/1.
Personal assistants are apparently not entitled to the protection
that the Illinois Whistleblower Act provides for full-fledged state
employees. See Ill. Stat., ch. 740, §174/1. And it likewise
appears that personal assistants are shut out of many other state
employee programs and benefits. The Illinois Department of Central
Management Services lists many such programs and benefits,
including a deferred compensation program, full worker’s
compensation privileges,[
8]
behavioral health programs, a program that allows state employees
to retain health insurance for a time after leaving state
employment, a commuter savings program, dental and vision programs,
and a flexible spending program.[
9] All of these programs and benefits appear to fall
within the provision of the Rehabilitation Program declaring that
personal assistants are not state employees for “any
purposes” other than collective bargaining. See Ill. Comp.
Stat., ch. 20, §2405/3(f ).
Just as the State
denies personal assistants most of the rights and benefits enjoyed
by full-fledged state workers, the State does not assume
responsibility for actions taken by personal assistants during the
course of their employment. The governing statute explicitly
disclaims “vicarious liability in tort.” Ibid. So if a
personal assistant steals from a customer, neglects a customer, or
abuses a customer, the State washes its hands.
Illinois deems personal
assistants to be state employees for one purpose only, collective
bargaining,[
10] but the
scope of bargaining that may be conducted on their behalf is
sharply limited. Under the governing Illinois statute, collective
bargaining can occur only for “terms and conditions of
employment that are within the State’s control.” Ill.
Comp. Stat., ch. 20, §2405/3(f ). That is not very
much.
As an illustration,
consider the subjects of mandatory bargaining under federal and
state labor law that are out
of bounds when it comes to personal assistants.
Under federal law, mandatory subjects include the days of the week
and the hours of the day during which an employee must
work,[
11] lunch
breaks,[
12]
holidays,[
13]
vacations,[
14] termination
of employment,[
15] and
changes in job duties.[
16]
Illinois law similarly makes subject to mandatory
collective-bargaining decisions concerning the “hours and
terms and conditions of employment.” Belvidere v. Illinois
State Labor Relations Bd., 181 Ill. 2d 191, 201, 692 N. E. 2d
295, 301 (1998); see also, e.g., Aurora Sergeants Assn., 24 PERI
¶25 (2008) (holding that days of the week worked by police
officers is subject to mandatory collective bargaining). But under
the Rehabilitation Program, all these topics are governed by the
Service Plan, with respect to which the union has no role. See
§676.30(b) (the customer “is responsible for controlling
all aspects of the employment relationship between the customer and
the PA, including, without limitation, locating and hiring the PA,
training the PA, directing, evaluating, and otherwise supervising
the work performed by the PA, imposing . . . disciplinary
action against the PA, and terminating the employment relationship
between the customer and the PA”); §684.50 (the Service
Plan must specify “the frequency with which the specific
tasks are to be provided” and “the number of hours each
task is to be provided per month”).
B
1
The unusual status of
personal assistants has important implications for present
purposes. Abood’s rationale, whatever its strengths and
weaknesses, is based on the assumption that the union possesses the
full scope of powers and duties generally available under American
labor law. Under the Illinois scheme now before us, however, the
union’s powers and duties are sharply circumscribed, and as a
result, even the best argument for the “extraordinary
power” that Abood allows a union to wield, see Davenport, 551
U. S., at 184, is a poor fit.
In our post-Abood cases
involving public-sector agency-fee issues, Abood has been a given,
and our task has been to attempt to understand its rationale and to
apply it in a way that is consistent with that rationale. In that
vein, Abood’s reasoning has been described as follows. The
mere fact that nonunion members benefit from union speech is not
enough to justify an agency fee because “private speech often
furthers the interests of nonspeakers, and that does not alone
empower the state to compel the speech to be paid for.”
Lehnert, 500 U. S., at 556 (opinion of Scalia, J.). What
justifies the agency fee, the argument goes, is the fact that the
State compels the union to promote and protect the interests of
nonmembers. Ibid. Specifically, the union must not discriminate
between members and nonmembers in “negotiating and
administering a collective-bargaining agreement and representing
the interests of employees in settling disputes and processing
grievances.” Ibid. This means that the union “cannot,
for example, negotiate particularly high wage increases for its
members in exchange for accepting no increases for others.”
Ibid. And it has the duty to provide equal and effective
representation for nonmembers in grievance proceedings, see Ill.
Comp. Stat. Ann., ch. 5, §§315/6, 315/8, an undertaking
that can be very involved. See, e.g., SEIU: Member Resources,
available at
www.seiu.or /a/members /disputes-and-grievances-rights-procedures-and-best-practices.php
(detailing the steps involved in adjusting grievances).
This argument has
little force in the situation now before us. Illinois law specifies
that personal assistants “shall be paid at the hourly rate
set by law,” see 89 Ill. Admin. Code §686.40(a), and
therefore the union cannot be in the position of having to
sacrifice higher pay for its members in order to protect the
nonmembers whom it is obligated to represent. And as for the
adjustment of grievances, the union’s authority and
responsibilities are narrow, as we have seen. The union has no
authority with respect to any grievances that a personal assistant
may have with a customer, and the customer has virtually complete
control over a personal assistant’s work.
The union’s
limited authority in this area has important practical
implications. Suppose, for example that a customer fires a personal
assistant because the customer wrongly believes that the assistant
stole a fork. Or suppose that a personal assistant is discharged
because the assistant shows no interest in the customer’s
favorite daytime soaps. Can the union file a grievance on behalf of
the assistant? The answer is no.
It is true that
Illinois law requires a collective-bargaining agreement to
“contain a grievance resolution procedure which shall apply
to all employees in the bargaining unit,” Ill. Comp. Stat.,
ch. 5, §315/8, but in the situation here, this procedure
appears to relate solely to any grievance that a personal assistant
may have with the State,[
17]
not with the customer for whom the personal assistant
works.[
18]
2
Because of
Abood’s questionable foundations, and because the personal
assistants are quite different from full-fledged public employees,
we refuse to extend Abood to the new situation now before
us.[
19] Abood itself has
clear boundaries; it applies to public employees. Extending those
boundaries to encompass partial-public employees, quasi-public
employees, or simply private employees would invite problems.
Consider a continuum, ranging, on the one hand, from full-fledged
state employees to, on the other hand, individuals who follow a
common calling and benefit from advocacy or lobbying conducted by a
group to which they do not belong and pay no dues. A State may not
force every person who benefits from this group’s efforts to
make payments to the group. See Lehnert, 500 U. S., at 556
(opinion of Scalia, J.). But what if regulation of this group is
increased? What if the Federal Government or a State begins to
provide or increases subsidies in this area? At what point, short
of the point at which the individuals in question become
full-fledged state employees, should Abood apply?
If respondents’
and the dissent’s views were adopted, a host of workers who
receive payments from a governmental entity for some sort of
service would be candidates for inclusion within Abood’s
reach. Medicare-funded home health employees may be one such group.
See Brief for Petitioners 51; 42 U. S. C. §1395x(m);
42 CFR §424.22(a). The same goes for adult foster care
providers in Oregon (Ore. Rev. Stat. §443.733 (2013)) and
Washington (Wash. Rev. Code §41.56.029 (2012)) and certain
workers under the federal Child Care and Development Fund programs
(45 CFR §98.2).
If we allowed Abood to
be extended to those who are not full-fledged public employees, it
would be hard to see just where to draw the line,[
20] and we therefore confine Abood’s
reach to full-fledged state employees.[
21]
IV
A
Because Abood is not
controlling, we must analyze the constitutionality of the payments
compelled by Illinois law under generally applicable First
Amendment standards. As we explained in Knox, “[t]he
government may not prohibit the dissemination of ideas that it
disfavors, nor compel the endorsement of ideas that it
approves.” 567 U. S., at ___ (slip op. at 8–9);
see also, e.g., R.A.V. v. St. Paul, 505 U. S. 377, 382 (1992)
; Riley v. National Federation of Blind of N.C., 487 U. S.
781, 797 (1988) West Virginia Bd. of Ed. v. Barnette, 319
U. S. 624 (1943) ; Wooley v. Maynard, 430 U. S. 705
–715 (1977). And “compelled funding of the speech of
other private speakers or groups” presents the same dangers
as compelled speech. Knox, supra, at ___ (slip op. at 9). As a
result, we explained in Knox that an agency-fee provision imposes
“a ‘significant impingement on First Amendment
rights,’ ” and this cannot be tolerated unless it
passes “exacting First Amendment scrutiny.” 567
U. S., at ___ (slip op. at 9–10).
In Knox, we considered
specific features of an agency-shop agreement—allowing a
union to impose upon nonmembers a special assessment or dues
increase without providing notice and without obtaining the
nonmembers’ affirmative agreement—and we held that
these features could not even satisfy the standard employed in
United States v. United Foods, Inc., 533 U. S. 405, 415 (2001)
, where we struck down a provision that compelled the subsidization
of commercial speech. We did not suggest, however, that the
compelled speech in Knox was like the commercial speech in United
Foods. On the contrary, we observed that “[t]he subject of
the speech at issue [in United Foods]—promoting the sale of
mushrooms—was not one that is likely to stir the passions of
many, but the mundane commercial nature of that speech only
highlights the importance of our analysis and our holding.”
Knox, supra, at ___ (slip op. at 9).
While the features of
the agency-fee provision in Knox could not meet even the
commercial-speech standard employed in United Foods, it is apparent
that the speech compelled in this case is not commercial speech.
Our precedents define commercial speech as “speech that does
no more than propose a commercial transaction,” United Foods,
supra, at 409 (citing Virginia Bd. of Pharmacy v. Virginia Citizens
Consumer Council, Inc., 425 U. S.748, 761–762 (1976)),
and the union speech in question in this case does much more than
that. As a consequence,it is arguable that the United Foods
standard is toopermissive.
B
For present purposes,
however, no fine parsing of levels of First Amendment scrutiny is
needed because the agency-fee provision here cannot satisfy even
the test used in Knox. Specifically, this provision does not serve
a “ ‘compelling state interes[t] . . .
that cannot be achieved through means significantly less
restrictive of associational freedoms.’ ” Knox,
supra, at ___ (slip op. at 10) (quoting Roberts v. United States
Jaycees, 468 U. S. 609, 623 (1984) ). Respondents contend that
the agency-fee provision in this case furthers several important
interests, but none is sufficient.
1
Focusing on the
benefits of the union’s status as the exclusive bargaining
agent for all employees in the unit, respondents argue that the
agency-fee provision promotes “labor peace,” but their
argument largely misses the point. Petitioners do not contend that
they have a First Amendment right to form a rival union. Nor do
they challenge the authority of the SEIU–HII to serve as the
exclusive representative of all the personal assistants in
bargaining with the State. All they seek is the right not to
beforced to contribute to the union, with which they broadly
disagree.
A union’s status
as exclusive bargaining agent and the right to collect an agency
fee from non-members are not inextricably linked. For example,
employees in some federal agencies may choose a union to serve as
the exclusive bargaining agent for the unit, but no employee is
required to join the union or to pay any union fee. Under federal
law, in agencies in which unionization is permitted, “[e]ach
employee shall have the right to form, join, or assist any labor
organization, or to refrain from any such activity, freely and
without fear of penalty or reprisal, and each employee shall be
protected in the exercise of such right.” 5
U. S. C. §7102 (emphasis added).[
22]
Moreover, even if the
agency fee provision at issue here were tied to the union’s
status as exclusive bargaining agents, features of the Illinois
scheme would still undermine the argument that the agency fee plays
an important role in maintaining labor peace. For one thing, any
threat to labor peace is diminished because 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. Cf. Perry Ed. Assn. v. Perry Local Educators’
Assn., 460 U. S. 37, 51 (1983) (“[E]xclusion of the
rival union may reasonably be considered a means of insuring
labor-peace within the schools”). Federal labor law reflects
the fact that the organization of household workers like the
personal assistants does not further the interest of labor peace.
“[A]ny individual employed . . . in the domestic
service of any family or person at his home” is excluded from
coverage under the National Labor Relations Act. See 29
U. S. C. §152(3).
The union’s very
restricted role under the Illinois lawis also significant. Since
the union is largely limited to petitioning the State for greater
pay and benefits, the specter of conflicting demands by personal
assistants is lessened. And of course, State officials must deal on
a daily basis with conflicting pleas for funding in many
contexts.
2
Respondents also
maintain that the agency-fee provision promotes the welfare of
personal assistants and thus contributes to the success of the
Rehabilitation Program. As a result of unionization, they claim,
the wages and benefits of personal assistants have been
substantially improved;[
23]
orientation and training programs, background checks, and a program
to deal with lost and erroneous paychecks have been
instituted;[
24] and a
procedure was established to resolve grievances arising under the
collective-bargaining agreement (but apparently not grievances
relating to a Service Plan or actions taken by a
customer).[
25]
The thrust of these
arguments is that the union has been an effective advocate for
personal assistants in the State of Illinois, and we will assume
that this is correct. But in order to pass exacting scrutiny, more
must be shown. The agency-fee provision cannot be sustained unless
the cited benefits for personal assistants could not have been
achieved if the union had been required to depend for funding on
the dues paid by those personal assistants who chose to join. No
such showing has been made.
In claiming that the
agency fee was needed to bring about the cited improvements, the
State is in a curious position. The State is not like the
closed-fisted employer that is bent on minimizing employee wages
and benefits and that yields only grudgingly under intense union
pressure. As Governor Blagojevich put it in the executive order
that first created the Illinois program, the State took the
initiative because it was eager for “feedback”
regarding the needs and views of the personal assistants. See App.
to Pet. for Cert. 46. Thereafter, a majority of the personal
assistants voted to unionize. When they did so, they must have
realized that this would require the payment of union dues, and
therefore it may be presumed that a high percentage of these
personal assistants became union members and are willingly paying
union dues. Why are these dues insufficient to enable the union to
provide “feedback” to a State that is highly receptive
to suggestions for increased wages and other improvements? A host
of organizations advocate on behalf of the interests of persons
falling within an occupational group, and many of these groups are
quite successful even though they are dependent on voluntary
contributions. Respondents’ showing falls far short of what
the First Amendment demands.
V
Respondents and their
supporting amici make two additional arguments that must be
addressed.
A
First, respondents
and the Solicitor General urge us to apply a balancing test derived
from Pickering v. Board of Ed. of Township High School Dist. 205,
Will Cty., 391 U. S. 563 (1968) . See Brief for Respondent
Quinn 25–26; Brief for SEIU–HII 35–36; Brief for
United States as Amicus Curiae 11. And they claim that under the
Picker-ing analysis, the Illinois scheme must be sustained. This
argument represents an effort to find a new justification for the
decision in Abood, because neither in that case nor in any
subsequent related case have we seen Abood as based on Pickering
balancing.[
26]
In any event, this
effort to recast Abood falls short. To begin, the Pickering test is
inapplicable because with respect to the personal assistants, the
State is not acting in a traditional employer role.[
27] But even if it were, application of
Pickering would not sustain the agency-feeprovision.
Pickering and later
cases in the same line concern the constitutionality of
restrictions on speech by public employees. Under those cases,
employee speech is unprotected if it is not on a matter of public
concern (or is pursuantto an employee’s job duties), but
speech on matters of public concern may be restricted only if
“the interest of the state, as an employer, in promoting the
efficiency of the public services it performs through its
employees” outweighs “the interests of the [employee],
as a citizen, in commenting upon matters of public concern.”
391 U. S., at 568. See also Borough of Duryea v. Guarnieri,
564 U. S. ___ (2011); Garcetti v. Ceballos, 547 U. S. 410
(2006) ; Waters v. Churchill, 511 U. S. 661, 674 (1994)
(plurality opinion); Connick v. Myers, 461 U. S. 138 (1983)
.
Attempting to fit Abood
into the Pickering framework, the United States contends that union
speech that is germane to collective bargaining does not address
matters of public concern and, as a result, is not protected.
Taking up this argument, the dissent insists that the speech at
issue here is not a matter of public concern. According to the
dissent, this is “the prosaic stuff of collective
bargaining.” Post, at 9. Does it have any effect on the
public? The dissent’s answer is: “not terribly
much.” Post, at 20. As the dissent sees it, speech about such
funding is not qualitatively different from the complaints of a
small-town police chief regarding such matters as the denial of
$338 in overtime pay or directives concerning the use of police
vehicles and smoking in the police station. See post, at 20;
Borough of Duryea, supra, at ___ (slip op. at 3).[
28]
This argument flies in
the face of reality. In this case, for example, the category of
union speech that is germane to collective bargaining
unquestionably includes speech in favor of increased wages and
benefits for personal assistants. Increased wages and benefits for
personal assistants would almost certainly mean increased
expenditures under the Medicaid program, and it is impossible to
argue that the level of Medicaid funding (or, for that matter,
state spending for employee benefits in general) is not a matter of
great public concern.
In recent years,
Medicaid expenditures have represented nearly a quarter of all
state expenditures. See National Association of State Budget
Officers, Summary: Fall 2013 Fiscal Survey of States (Dec. 10,
2013), online at http:// www.nasbo.org. “Medicaid has
steadily eaten up a growing share of state budgets.”[
29] In fiscal year 2014,
“[t]hirty-five states increased spending for Medicaid for a
net increase of $6.8 billion.” Ibid. Accordingly, speech by a
powerful union that relates to the subject of Medicaid funding
cannot be equated with the sort of speech that our cases have
treated as concerning matters of only private concern. See, e.g.,
San Diego v. Roe, 543 U. S. 77 (2004) (per curiam); Connick,
supra, at 148 (speech that “reflect[ed] one employee’s
dissatisfaction with a transfer and an attempt to turn that
displeasure into a cause célèbre” (emphasis
added)).
For this reason, if
Pickering were to be applied, it would be necessary to proceed to
the next step of the analysis prescribed in that case, and this
would require an assessment of both the degree to which the
agency-fee provision promotes the efficiency of the Rehabilitation
Program and the degree to which that provision interferes with the
First Amendment interests of those personal assistants who do not
wish to support the union.
We need not discuss
this analysis at length because it is covered by what we have
already said. Agency-fee provisions unquestionably impose a heavy
burden on the First Amendment interests of objecting employees. See
Knox, 567 U. S., at ___ (slip op. at 19) (citing Lehnert, 500
U. S., at 513; Jibson v. Michigan Ed. Assn., 30 F. 3d
723, 730 (CA6 1994). And on the other side of the balance, the
arguments on which the United States relies—relating to the
promotion of labor peace and the problem of free riders—have
already been discussed. Thus, even if the permissibility of the
agency-shop provision in the collective-bargaining agreement now at
issue were analyzed under Pickering, that provision could not be
upheld.
B
Respondents contend,
finally, that a refusal to extend Abood to cover the situation
presented in this case will call into question our decisions in
Keller v. State Bar of Cal. 496 U. S. 1 (1990) , and Board of
Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217
(2000) . Respondents are mistaken.
In Keller, we
considered the constitutionality of a rule applicable to all
members of an “integrated” bar, i.e., “an
association of attorneys in which membership and dues are required
as a condition of practicing law.” 496 U. S., at 5. We
held that members of this bar could not be required to pay the
portion of bar dues used for political or ideological purposes but
that they could be required to pay the portion of the dues used for
activities connected with proposing ethical codes and disciplining
bar members. Id., at 14.
This decision fits
comfortably within the framework applied in the present case.
Licensed attorneys are subject to detailed ethics rules, and the
bar rule requiring the payment of dues was part of this regulatory
scheme. The portion of the rule that we upheld served the
“State’s interest in regulating the legal profession
and improving the quality of legal services.” Ibid. States
also have a strong interest in allocating to the members of the
bar, rather than the general public, the expense of ensuring that
attorneys adhere to ethical practices. Thus, our decision in this
case is wholly consistent with our holding in Keller.
Contrary to
respondents’ submission, the same is true with respect to
Southworth, supra. In that case, we upheld the constitutionality of
a university-imposed mandatory student activities fee that was used
in part to support a wide array of student groups that engaged in
expressive activity. The mandatory fee was challenged by students
who objected to some of the expression that the fee was used to
subsidize, but we rejected that challenge, and our holding is
entirely consistent with our decision in this case.
Public universities
have a compelling interest in promoting student expression in a
manner that is viewpoint neutral. See Rosenberger v. Rector and
Visitors of Univ. of Va., 515 U. S. 819 (1995) . This may be
done by providing funding for a broad array of student groups. If
the groups funded are truly diverse, many students are likely to
disagree with things that are said by some groups. And if every
student were entitled to a partial exemption from the fee
requirement so that no portion of the student’s fee went to
support a group that the student did not wish to support, the
administrative problems would likely be insuperable. Our decision
today thus does not undermine Southworth.
* * *
For all these
reasons, we refuse to extend Abood in the manner that Illinois
seeks. If we accepted Illinois’ argument, we would approve an
unprecedented violation of the bedrock principle that, except
perhaps in the rarest of circumstances, no person in this country
may be compelled to subsidize speech by a third party that he or
she does not wish to support. The First Amendment prohibits the
collection of an agency fee from personal assistants in the
Rehabilitation Program who do not want to join or support the
union.
The judgment of the
Court of Appeals is reversed in part and affirmed in part,[
30] and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.