Harris v. Quinn , 134 S. Ct. 2618 ( 2014 )

(Slip Opinion) OCTOBER TERM, 2013 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
HARRIS ET AL. v. QUINN, GOVERNOR OF ILLINOIS,
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
No. 11–681. Argued January 21, 2014—Decided June 30, 2014
Illinois’ Home Services Program (Rehabilitation Program) allows Medi-
caid recipients who would normally need institutional care to hire a
“personal assistant” (PA) to provide homecare services. Under State
law, the homecare recipients (designated “customers”) and the State
both play some role in the employment relationship with the PAs.
Customers control most aspects of the employment relationship, in-
cluding the hiring, firing, training, supervising, and disciplining of
PAs; they also define the PA’s duties by proposing a “Service Plan.”
Other than compensating PAs, the State’s involvement in employ-
ment matters is minimal. Its employer status was created by execu-
tive order, and later codified by the legislature, solely to permit PAs
to join a labor union and engage in collective bargaining under Illi-
nois’ Public Labor Relations Act (PLRA).
Pursuant to this scheme, respondent SEIU Healthcare Illinois &
Indiana (SEIU–HII) was designated the exclusive union representa-
tive for Rehabilitation Program employees. The union entered into
collective-bargaining agreements with the State that contained an
agency-fee provision, which requires all bargaining unit members
who do not wish to join the union to pay the union a fee for the cost of
certain activities, including those tied to the collective-bargaining
process. A group of Rehabilitation Program PAs brought a class ac-
tion against SEIU–HII and other respondents in Federal District
Court, claiming that the PLRA violated the First Amendment insofar
as it authorized the agency-fee provision. The District Court dis-
missed their claims, and the Seventh Circuit affirmed in relevant
part, concluding that the PAs were state employees within the mean-
ing of Abood v. Detroit Bd. of Ed., 431 U.S. 209.
2 HARRIS v. QUINN
Syllabus
Held: The First Amendment prohibits the collection of an agency fee
from Rehabilitation Program PAs who do not want to join or support
the union. Pp. 8–40.
(a) In upholding the Illinois law’s constitutionality, the Seventh
Circuit relied on Abood, which, in turn, relied on Railway Employes
v. Hanson, 351 U.S. 225, and Machinists v. Street, 367 U.S. 740.
Unlike Abood, those cases involved private-sector collective-
bargaining agreements. The Abood Court treated the First Amend-
ment issue as largely settled by Hanson and Street and understood
those cases to have upheld agency fees based on the desirability of
“labor peace” and the problem of “ ‘free riders[hip].’ ” 431 U. S., 220–
222, 224. However, “preventing nonmembers from free-riding on the
union’s efforts” is a rationale “generally insufficient to overcome First
Amendment objections,” Knox v. Service Employees, 567 U. S. ___,
___, and in this respect, Abood is “something of an anomaly,” 567
U. S., at ___.
The Abood Court’s analysis is questionable on several grounds.
The First Amendment analysis in Hanson was thin, and Street was
not a constitutional decision. And the Court fundamentally misun-
derstood Hanson’s narrow holding, which upheld the authorization,
not imposition, of an agency fee. The Abood Court also failed to ap-
preciate the distinction between core union speech in the public sec-
tor and core union speech in the private sector, as well as the concep-
tual difficulty in public-sector cases of distinguishing union
expenditures for collective bargaining from those designed for politi-
cal purposes. Nor does the Abood Court seem to have anticipated the
administrative problems that would result in attempting to classify
union expenditures as either chargeable or nonchargeable, see, e.g.,
Lehnert v. Ferris Faculty Assn., 500 U.S. 507, or the practical prob-
lems that would arise from the heavy burden facing objecting non-
members wishing to challenge the union’s actions. Finally, the Abood
Court’s critical “labor peace” analysis rests on the unsupported em-
pirical assumption that exclusive representation in the public sector
depends on the right to collect an agency fee from nonmembers.
Pp. 8–20.
(b) Because of Abood’s questionable foundations, and because Illi-
nois’ PAs are quite different from full-fledged public employees, this
Court refuses to extend Abood to the situation here. Pp. 20–29.
(1) PAs are much different from public employees. Unlike full-
fledged public employees, PAs are almost entirely answerable to the
customers and not to the State, do not enjoy most of the rights and
benefits that inure to state employees, and are not indemnified by the
State for claims against them arising from actions taken during the
course of their employment. Even the scope of collective bargaining
Cite as: 573 U. S. ____ (2014) 3
Syllabus
on their behalf is sharply limited. Pp. 20–25.
(2) Abood’s rationale is based on the assumption that the union
possesses the full scope of powers and duties generally available un-
der American labor law. Even the best argument for Abood’s anoma-
lous approach is a poor fit here. What justifies the agency fee in the
Abood context is the fact that the State compels the union to promote
and protect the interests of nonmembers in “negotiating and admin-
istering a collective-bargaining agreement and representing the in-
terests of employees in settling disputes and processing grievances.”
Lehnert, supra, at 556. That rationale has little application here,
where Illinois law requires that all PAs receive the same rate of pay
and the union has no authority with respect to a PA’s grievances
against a customer. Pp. 25–27.
(3) Extending Abood’s boundaries to encompass partial public
employees would invite problems. State regulations and benefits af-
fecting such employees exist along a continuum, and it is unclear at
what point, short of full-fledged public employment, Abood should
apply. Under respondents’ view, a host of workers who currently re-
ceive payments from a government entity for some sort of service
would become candidates for inclusion within Abood’s reach, and it
would be hard to see where to draw the line. Pp. 27–29.
(c) Because Abood does not control here, generally applicable First
Amendment standards apply. Thus, the agency-fee provision here
must serve a “ ‘compelling state interes[t] . . . that cannot be achieved
through means significantly less restrictive of associational free-
doms.’ ” Knox, supra, at ___. None of the interests that respondents
contend are furthered by the agency-fee provision is sufficient.
Pp. 29–34.
(1) Their claim that the agency-fee provision promotes “labor
peace” misses the point. Petitioners do not contend that they have a
First Amendment right to form a rival union or that SEIU–HII has
no authority to serve as the exclusive bargaining representative.
This, along with examples from some federal agencies and many
state laws, demonstrates that a union’s status as exclusive bargain-
ing agent and the right to collect an agency fee from nonmembers are
not inextricably linked. Features of the Illinois scheme—e.g., PAs do
not work together in a common state facility and the union’s role is
very restricted—further undermine the “labor peace” argument.
Pp. 31–32.
(2) Respondents also argue that the agency-fee provision pro-
motes the welfare of PAs, thereby contributing to the Rehabilitation
Program’s success. Even assuming that SEIU–HII has been an effec-
tive advocate, the agency-fee provision cannot be sustained unless
the union could not adequately advocate without the receipt of non-
4 HARRIS v. QUINN
Syllabus
member agency fees. No such showing has been made. Pp. 32–34.
(d) Respondents’ additional arguments for sustaining the Illinois
scheme are unconvincing. First, they urge the application of a bal-
ancing test derived from Pickering v. Board of Ed. of Township High
School Dist. 205, Will Cty., 391 U.S. 563. This Court has never
viewed Abood and its progeny as based on Pickering balancing. And
even assuming that Pickering applies, that case’s balancing test
clearly tips in favor of the objecting employees’ First Amendment in-
terests. Second, respondents err in contending that a refusal to ex-
tend Abood here will call into question this Court’s decisions in Keller
v. State Bar of Cal., 496 U.S. 1, and Board of Regents of Univ. of Wis.
System v. Southworth, 529 U.S. 217, for those decisions fit comforta-
bly within the framework applied here. Pp. 34–40.
656 F.3d 692, reversed in part, affirmed in part, and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and SCALIA, KENNEDY, and THOMAS, JJ., joined. KAGAN, J., filed a dis-
senting opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ.,
joined.
Cite as: 573 U. S. ____ (2014) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
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 judg­
ment 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 nurs­
ing 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
2 HARRIS v. QUINN
Opinion of the Court
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 relation­
ship 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 em­
ployer 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 cus­
tomer and the personal assistants.” §676.10(c).
Other provisions of the law emphasize the customer’s
employer status. The customer “is responsible for control­
ling all aspects of the employment relationship between
the customer and the [personal assistant (or PA)], includ­
ing, without limitation, locating and hiring the PA, train­
ing the PA, directing, evaluating and otherwise supervis­
ing the work performed by the personal assistant,
imposing . . . disciplinary action against the PA, and ter­
minating the employment relationship between the cus­
Cite as: 573 U. S. ____ (2014) 3
Opinion of the Court
tomer 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 cus­
tomer’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 other­
wise; 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 mat­
ter, it “corresponds to the amount the State would expect
to pay for the nursing care component of institutionaliza­
tion if the individual chose institutionalization.” 89 Ill.
Admin. Code §679.50(a).
——————
1 Although this regulation states clearly that a customer has complete
discretion with respect to hiring and firing a personal assistant, the
dissent contends that the State also has the authority to end the
employment of a personal assistant whose performance is not satisfac­
tory. Nothing in the regulations supports this view. Under 89 Ill.
Admin. Code §677.40(d), the State may stop paying a personal assistant
if it is found that the assistant does not meet “the standards estab­
lished by DHS as found at 89 Ill. Adm. Code 686.” These standards are
the basic hiring requirements set out in §686.10, see n. 2, infra. Provid­
ing adequate performance after hiring is nowhere mentioned in
§686.10.
4 HARRIS v. QUINN
Opinion of the Court
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 man­
dates 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 perform­
ing “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
——————
2 It is true, as the dissent notes, post, at 4, that a personal assistant
must provide two written or oral references, see §686.10(c), but judging
the adequacy of these references is the sole prerogative of the customer.
See §676.30(b). And while the regulations say that an applicant must
have either previous experience or training, see §686.10(f ), they also
provide that a customer has complete discretion to judge the adequacy
of training and prior experience. See §684.20(b) (the customer has
complete discretion with respect to hiring and training a personal
assistant). See also §686.10(b) (the customer may hire a minor—even
under some circumstances, a person as young as 14); §686.10(f ) (the
customer may hire a personal assistant who was never previously
employed so long as the assistant has adequate training); §684.20(b)
(criminal record check not required).
Cite as: 573 U. S. ____ (2014) 5
Opinion of the Court
employment. Ill. Comp. Stat., ch. 5, §315/6(a). This law
applies to “[e]mployees of the State and any political sub­
division 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 provi­
sion 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 bargain­
ing agreement is entered into with an exclusive repre­
sentative, 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 earn­
ings 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 con­
cluded that “it is clear . . . that [Illinois] does not exercise
the type of control over the petitioned-for employees nec­
essary to be considered, in the collective bargaining con­
text envisioned by the [PLRA], their ‘employer’ or, at least,
their sole employer.” Ibid.
In March 2003, however, Illinois’ newly elected Gover­
nor, Rod Blagojevich, circumvented this decision by issu­
6 HARRIS v. QUINN
Opinion of the Court
ing 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 recogni­
tion of a union as the personal assistants’ exclusive repre­
sentative 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 de­
clared 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 vicari­
ous 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 bargain­
ing. 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 assis­
tants’ Medicaid payments. Ibid. The record in this case
Cite as: 573 U. S. ____ (2014) 7
Opinion of the Court
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 quadri­
plegic 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 preju­
dice, 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
——————
3 The other five petitioners are personal assistants under a similar
Illinois program called the “Disabilities Program.” See, infra, at 39–40,
and n. 30.
8 HARRIS v. QUINN
Opinion of the Court
that other States were following Illinois’ lead by enacting
laws or issuing executive orders that deem personal assis­
tants 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 non­
members,” 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 Amend­
ment 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
Cite as: 573 U. S. ____ (2014) 9
Opinion of the Court
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 Amend­
ment was barely mentioned. The dispute in Hanson re­
sulted 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 provi­
sions in order to provide the unions with needed dues.
Ibid.
10 HARRIS v. QUINN
Opinion of the Court
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 employ­
ees, “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 provi­
sion “ ‘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
Cite as: 573 U. S. ____ (2014) 11
Opinion of the Court
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
——————
4 The employees’ First Amendment claim necessarily raised the ques­
tion of governmental action, since the First Amendment does not
restrict private conduct, and the Hanson Court, in a brief passage,
concluded that governmental action was present. This was so, the
Court reasoned, because the union-shop provision of the RLA took away
a right that employees had previously enjoyed under state law. 351
U.S., at 232–233.
5 A related question arose in Keller v. State Bar of Cal., 496 U.S. 1
(1990), which we discuss infra, at 37–38.
12 HARRIS v. QUINN
Opinion of the Court
least partially regimented behind causes which they op­
pose.” 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 nar­
row. As the Court later noted, “all that was held in Han­
son 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 “con­
form 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 en­
forcement of the union-shop provision and entered judg­
ment for the dissenting employees in the amount of the
payments that they had been forced to make to the union.
Cite as: 573 U. S. ____ (2014) 13
Opinion of the Court
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 objec­
tion, the power to use his exacted funds to support politi­
cal 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 por­
tion of their dues spent by the union for political or ideo­
logical 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
——————
6 Only four Justices fully agreed with this approach, but a fifth, Jus­
tice Douglas, went along due to “the practical problem of mustering five
Justices for a judgment in this case.” Id., at 778–779 (concurring
opinion).
14 HARRIS v. QUINN
Opinion of the Court
causes, to promote their choice of candidates and par­
ties and to work for the doctrines or the laws they fa­
vor. 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 conceptu­
ally 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 Execu­
tive Council “emphasize that labor’s participation in urg­
ing 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 “ ‘activi­
ties and programs which are economic, political, profes­
sional, scientific and religious in nature of which Plaintiffs
do not approve, and in which they will have no voice.’ ”
Cite as: 573 U. S. ____ (2014) 15
Opinion of the Court
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 contribu­
tions 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 rep­
resentation.” Id., at 220. This principle, the Court ex­
plained, “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 agree­
ments and settlements that are not subject to attack from
16 HARRIS v. QUINN
Opinion of the Court
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 em­
ployers both desire to keep costs down, the Court recog­
nized that a public employer “lacks an important disci­
pline 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 pur­
poses,” 431 U.S., at 232, and, on the other, expenditures
Cite as: 573 U. S. ____ (2014) 17
Opinion of the Court
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 aban­
doned 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 authori­
zation 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 pre­
sented 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 invol­
untarily funded by their counterparts in the private sec­
tor. In the public sector, core issues such as wages, pen­
sions, 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
18 HARRIS v. QUINN
Opinion of the Court
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 ex­
penditures 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 di­
rected 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, expenditures
for “collective-bargaining, contract administration, and
grievance-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 allow­
ance of an agency or union shop.” 500 U.S., at 519. But
as noted in JUSTICE SCALIA’s dissent in that case, “each
——————
7 Recent experience has borne out this concern. See DiSalvo, The
Trouble with Public Sector Unions, National Affairs No. 5, p. 15 (2010)
(“In Illinois, for example, public-sector unions have helped create a
situation in which the state’s pension funds report a liability of more
than $100 billion, at least 50% of it unfunded”).
Cite as: 573 U. S. ____ (2014) 19
Opinion of the Court
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 un­
ion’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. Educa­
tion 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 particu­
lar 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 independ­
ent auditor to determine the allocation of chargeable and
20 HARRIS v. QUINN
Opinion of the Court
nonchargeable expenditures”); Price v. International Un­
ion, 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 unwar­
ranted.
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 differ­
ent. 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 qualifica­
tions 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 super­
vises and evaluates the employees’ job performance and
Cite as: 573 U. S. ____ (2014) 21
Opinion of the Court
imposes corrective measures if appropriate. If a state
employee’s performance is deficient, the State may dis­
charge the employee in accordance with whatever proce­
dures 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 qualifica­
tions 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 imple­
menting 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 per­
formance. 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 cus­
22 HARRIS v. QUINN
Opinion of the Court
tomer. 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 In­
surance 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. Ad­
min. Code §686.10(h)(7).
Personal assistants also appear to be ineligible for a
host of benefits under a variety of other state laws, includ­
ing 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 de­
ferred compensation program, full worker’s compensation
privileges,8 behavioral health programs, a program that
——————
8 Under §686.10(h)(9), a personal assistant “may apply for Workers'
Compensation benefits through [the State] . . . however, . . . the cus­
Cite as: 573 U. S. ____ (2014) 23
Opinion of the Court
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 bar­
gaining. 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 employ­
ment. The governing statute explicitly disclaims “vicari­
ous 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 condi­
tions 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
——————
tomer, not DHS, is the employer for these purposes.”
9 See www2.illinois.gov/cms/Employees/benefits/StateEmployee/Pages/
default.
10 What is significant is not the label that the State assigns to the
personal assistants but the substance of their relationship to the
customers and the State. Our decision rests in no way on state-law
labels. Cf. post, at 10. Indeed, it is because the First Amendment’s
meaning does not turn on state-law labels that we refuse to allow the
state to make a nonemployee a full-fledged employee “[s]olely for
purposes of coverage under the Illinois Public Labor Relations Act,” Ill.
Comp. Stat., ch. 20, §2405/3(f), through the use of a statutory label.
24 HARRIS v. QUINN
Opinion of the Court
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 ter­
mination 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 re­
sponsible 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
——————
11 See Meat Cutters v. Jewel Tea Co., 381 U.S. 676 (1965).
12 See In re National Grinding Wheel Co., 75 N. L. R. B. 905 (1948).
13 See In re Singer Manufacturing Co., 24 N. L. R. B. 444 (1940).
14 See Great Southern Trucking Co. v. NLRB, 127 F.2d 180 (CA4
1942).
15 See N. K. Parker Transport, Inc., 332 N. L. R. B. 547, 551 (2000).
16 See St. John’s Hospital, 281 N. L. R. B. 1163, 1168 (1986).
Cite as: 573 U. S. ____ (2014) 25
Opinion of the Court
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, how­
ever, the union’s powers and duties are sharply circum­
scribed, 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 nonspeak­
ers, 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 be­
tween members and nonmembers in “negotiating and
administering a collective-bargaining agreement and
representing the interests of employees in settling dis­
putes 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 nonmem­
bers 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
26 HARRIS v. QUINN
Opinion of the Court
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 cus­
tomer fires a personal assistant because the customer
wrongly believes that the assistant stole a fork. Or sup­
pose 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 bar­
gaining 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
——————
17 Under the current collective-bargaining agreement, a “grievance” is
“a dispute regarding the meaning or implementation of a specific
provision brought by the Union or a Personal Assistant.” App. 51; see
also id., at 51–54. “Neither the Union nor the Personal Assistant can
grieve the hiring or termination of the Personal Assistant, reduction in
the number of hours worked by the Personal Assistant or assigned to
the Customer, and/or any action taken by the Customer.” Id., at 51.
That apparently limits the union’s role in grievance adjustments to the
Cite as: 573 U. S. ____ (2014) 27
Opinion of the Court
assistant works.18
2
Because of Abood’s questionable foundations, and be­
cause 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
——————
State’s failure to perform its duties under the collective-bargaining
agreement, e.g., if the State were to issue an incorrect paycheck, the
union could bring a grievance. See id., at 48
18 Contrary to the dissent’s argument, post, at 10–11, the scope of the
union’s bargaining authority has an important bearing on the question
whether Abood should be extended to the situation now before us. As
we have explained, the best argument that can be mounted in support
of Abood is based on the fact that a union, in serving as the exclusive
representative of all the employees in a bargaining unit, is required by
law to engage in certain activities that benefit nonmembers and that
the union would not undertake if it did not have a legal obligation to do
so. But where the law withholds from the union the authority to
engage in most of those activities, the argument for Abood is weakened.
Here, the dissent does not claim that the union’s approach to negotia­
tions on wages or benefits would be any different if it were not required
to negotiate on behalf of the nonmembers as well as members. And
there is no dispute that the law does not require the union to undertake
the burden of representing personal assistants with respect to their
grievances with customers; on the contrary, the law entirely excludes
the union from that process. The most that the dissent can identify is
the union’s obligation to represent nonmembers regarding grievances
with the State, but since most aspects of the personal assistants’ work
is controlled entirely by the customers, this obligation is relatively
slight. It bears little resemblance to the obligation imposed on the
union in Abood.
19 It is therefore unnecessary for us to reach petitioners’ argument
that Abood should be overruled, and the dissent’s extended discussion
of stare decisis is beside the point. Cf. Stoneridge Investment Partners,
LLC v. Scientific-Atlanta, Inc., 552 U.S. 148, 164–166 (2008) (declining
to extend the “implied” right of action under §10(b) of the Securities
Exchange Act “beyond its present boundaries”).
28 HARRIS v. QUINN
Opinion of the Court
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 regula­
tion of this group is increased? What if the Federal Gov­
ernment 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 em­
ployees, should Abood apply?
If respondents’ and the dissent’s views were adopted, a
host of workers who receive payments from a governmen­
tal 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
——————
20 The dissent suggests that the concept of joint employment already
supplies a clear line of demarcation, see post, at 8–9, but absent a clear
statutory definition, employer status is generally determined based on
a variety of factors that often do not provide a clear answer. See
generally 22 Illinois Jurisprudence: Labor and Employment §1:02
(2012); American Federation of State, County and Municipal Employ­
ees, Council 31 v. State Labor Relations Bd., 216 Ill. 2d 567, 578–582,
839 N.E.2d 479, 486–487 (2005); Manahan v. Daily News-Tribune, 50
Ill. App. 3d 9, 12–16, 365 N.E.2d 1045, 1048–1050 (1977). More
important, the joint-employer standard was developed for use in other
Cite as: 573 U. S. ____ (2014) 29
Opinion of the Court
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 Federa­
tion of Blind of N.C., 487 U.S. 781, 797 (1988) West Vir­
ginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943); Wooley
v. Maynard, 430 U.S. 705, 713–715 (1977). And “com­
pelled 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 ex­
plained 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 non­
members a special assessment or dues increase without
providing notice and without obtaining the nonmembers’
——————
contexts. What matters here is whether the relationship between the
State and the personal assistants is sufficient to bring this case within
Abood’s reach.
21 The dissent claims that our refusal to extend Abood to the Rehabili­
tation Program personal assistants produces a “perverse result” by
penalizing the State for giving customers extensive control over the
care they receive. Post, at 12. But it is not at all perverse to recognize
that a State may exercise more control over its full-fledged employees
than it may over those who are not full-fledged state employees or are
privately employed.
30 HARRIS v. QUINN
Opinion of the Court
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 high­
lights 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 too
permissive.
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 “ ‘com­
pelling state interes[t] . . . that cannot be achieved through
means significantly less restrictive of associational free­
doms.’ ” Knox, supra, at ___ (slip op. at 10) (quoting Rob­
erts v. United States Jaycees, 468 U.S. 609, 623 (1984)).
Respondents contend that the agency-fee provision in this
Cite as: 573 U. S. ____ (2014) 31
Opinion of the Court
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 Amend­
ment 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 be
forced 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 exclu­
sive 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 permit­
ted, “[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 under­
mine 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 assis­
——————
22 A similar statute adopts the same rule specifically as to the U. S.
Postal Service. See 39 U.S. C. §1209(c).
32 HARRIS v. QUINN
Opinion of the Court
tants 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 Rela­
tions Act. See 29 U.S. C. §152(3).
The union’s very restricted role under the Illinois law
is 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, back­
ground checks, and a program to deal with lost and erro­
neous paychecks have been instituted;24 and a procedure
was established to resolve grievances arising under the
collective-bargaining agreement (but apparently not
——————
23 Wages rose from $7 per hour in 2003 to $13 per hour in 2014. Brief
for Respondent Quinn 7. Current wages, according to respondents, are
$11.65 per hour. Brief for Respondent SEIU–HII 6.
24 See generally Brief for Respondent Quinn 6–8; Brief for Respondent
SEIU–HII 6.
Cite as: 573 U. S. ____ (2014) 33
Opinion of the Court
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 pres­
sure. 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” regard­
ing 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 pay­
ment 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 sugges­
tions 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’
——————
25 See Brief for Respondent Quinn 7.
34 HARRIS v. QUINN
Opinion of the Court
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, appli­
——————
26 The Abood majority cited Pickering once, in a footnote, for the prop­
osition that “there may be limits on the extent to which an employee in
a sensitive or policymaking position may freely criticize his superiors
and the policies they espouse.” 431 U.S., at 230, n. 27. And it was
cited once in Justice Powell’s concurrence, for the uncontroversial
proposition that “ ‘the State has interests as an employer in regulating
the speech of its employees that differ significantly from those it pos­
sesses in connection with regulation of the speech of the citizenry in
general.’ ” Id., at 259 (opinion concurring in judgment) (quoting Picker­
ing, 391 U.S., at 568). United States v. United Foods, Inc., 533 U.S.
405 (2001), cited Pickering only once—in dissent. 533 U.S., at 425
(opinion of BREYER, J.). Neither Roberts v. United States Jaycees, 468
U.S. 609 (1984), nor Knox cited Pickering a single time.
27 Nor is the State acting as a “proprietor in managing its internal
operations” with respect to personal assistants. See NASA v. Nelson,
Cite as: 573 U. S. ____ (2014) 35
Opinion of the Court
cation of Pickering would not sustain the agency-fee
provision.
Pickering and later cases in the same line concern the
constitutionality of restrictions on speech by public em­
ployees. Under those cases, employee speech is unprotected
if it is not on a matter of public concern (or is pursuant
to 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” out­
weighs “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 bargain­
ing.” 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
——————
562 U. S. ___ (2011) (slip op. at 1–2, 14).
28 The dissent misunderstands or mischaracterizes our cases in this
line. We have never held that the wages paid to a public-sector bar­
gaining unit are not a matter of public concern. The $338 payment at
issue in Guarnieri had a negligible impact on public coffers, but pay­
36 HARRIS v. QUINN
Opinion of the Court
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 assis­
tants. Increased wages and benefits for personal assis­
tants 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 grow­
ing share of state budgets.”29 In fiscal year 2014, “[t]hirty­
five states increased spending for Medicaid for a net in­
crease 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 “re­
flect[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
——————
ments made to public-sector bargaining units may have massive
implications for government spending. See supra, at 18, and n. 7. That
is why the dissent’s “analogy,” post, at 20–21, is not illustrative at all.
We do not doubt that a single public employee’s pay is usually not a
matter of public concern. But when the issue is pay for an entire
collective-bargaining unit involving millions of dollars, that matter
affects statewide budgeting decisions.
29 See Cooper, Bigger Share of State Cash for Medicaid, N. Y. Times,
Dec. 14, 2011.
Cite as: 573 U. S. ____ (2014) 37
Opinion of the Court
be necessary to proceed to the next step of the analysis
prescribed in that case, and this would require an assess­
ment 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 provi­
sions 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 rid­
ers—have already been discussed. Thus, even if the per­
missibility 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 re­
quired 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
38 HARRIS v. QUINN
Opinion of the Court
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 sub­
ject 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 up­
held the constitutionality of a university-imposed manda­
tory 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 pro­
moting 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
Cite as: 573 U. S. ____ (2014) 39
Opinion of the Court
Southworth.
* * *
For all these reasons, we refuse to extend Abood in the
manner that Illinois seeks. If we accepted Illinois’ argu­
ment, 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 fur­
ther proceedings consistent with this opinion.
It is so ordered.
——————
30 The Court of Appeals held—and we agree—that the First Amend­
ment claims of the petitioners who work, not in the Rehabilitation
Program, but in a different but related program, the “Disabilities
Program,” are not ripe. This latter program is similar in its basic
structure to the Rehabilitation Program, see App. to Pet. for Cert. 14a,
but the Disabilities Program personal assistants have not yet union­
ized. The Disabilities Program petitioners claim that under Illinois
Executive Order No. 2009–15, they face imminent unionization and,
along with it, compulsory dues payments. Executive Order No. 2009–
15, they note, is “almost identical to EO 2003–08, except that it targets
providers in the Disabilities Program.” Brief for Petitioners 10.
In a 2009 mail-ballot election, the Disabilities Program personal
assistants voted down efforts by SEIU Local 73 and American Federa­
tion State, County and Municipal Employees Council 31 to become
their representatives. See App. 27. The record before us does not
suggest that there are any further elections currently scheduled. Nor
does the record show that any union is currently trying to obtain
certification through a card check program. Under these circumstances,
we agree with the holding of the Court of Appeals.
Cite as: 573 U. S. ____ (2014) 1
KAGAN, J., dissenting
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 KAGAN, with whom JUSTICE GINSBURG,
JUSTICE BREYER, and JUSTICE SOTOMAYOR join,
dissenting.
Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977), an-
swers the question presented in this case. Abood held that
a government entity may, consistently with the First
Amendment, require public employees to pay a fair share
of the cost that a union incurs negotiating on their behalf
for better terms of employment. That is exactly what
Illinois did in entering into collective bargaining agree-
ments with the Service Employees International Union
Healthcare (SEIU) which included fair-share provisions.
Contrary to the Court’s decision, those agreements fall
squarely within Abood’s holding. Here, Illinois employs,
jointly with individuals suffering from disabilities, the in-
home care providers whom the SEIU represents. Illinois
establishes, following negotiations with the union, the
most important terms of their employment, including
wages, benefits, and basic qualifications. And Illinois’s
interests in imposing fair-share fees apply no less to those
caregivers than to other state workers. The petitioners’
challenge should therefore fail.
And that result would fully comport with our decisions
applying the First Amendment to public employment.
Abood is not, as the majority at one point describes it,
2 HARRIS v. QUINN
KAGAN, J., dissenting
“something of an anomaly,” allowing uncommon interfer-
ence with individuals’ expressive activities. Ante, at 8.
Rather, the lines it draws and the balance it strikes reflect
the way courts generally evaluate claims that a condition
of public employment violates the First Amendment. Our
decisions have long afforded government entities broad
latitude to manage their workforces, even when that
affects speech they could not regulate in other contexts.
Abood is of a piece with all those decisions: While protect-
ing an employee’s most significant expression, that deci-
sion also enables the government to advance its interests
in operating effectively—by bargaining, if it so chooses,
with a single employee representative and preventing free
riding on that union’s efforts.
For that reason, one aspect of today’s opinion is cause
for satisfaction, though hardly applause. As this case
came to us, the principal question it presented was whether
to overrule Abood: The petitioners devoted the lion’s
share of their briefing and argument to urging us to over-
turn that nearly 40-year-old precedent (and the respond-
ents and amici countered in the same vein). Today’s
majority cannot resist taking potshots at Abood, see ante,
at 17–20, but it ignores the petitioners’ invitation to de-
part from principles of stare decisis. And the essential
work in the majority’s opinion comes from its extended
(though mistaken) distinction of Abood, see ante, at 20–28,
not from its gratuitous dicta critiquing Abood’s founda-
tions. That is to the good—or at least better than it might
be. The Abood rule is deeply entrenched, and is the foun-
dation for not tens or hundreds, but thousands of contracts
between unions and governments across the Nation. Our
precedent about precedent, fairly understood and applied,
makes it impossible for this Court to reverse that decision.
I
I begin where this case should also end—with this
Cite as: 573 U. S. ____ (2014) 3
KAGAN, J., dissenting
Court’s decision in Abood. There, some public school
teachers in Detroit challenged a clause in their collective
bargaining agreement compelling non-union members to
pay the union a service charge equivalent to regular dues.
The Court upheld the requirement so long as the union
was using the money for “collective bargaining, contract
administration, and grievance adjustment,” rather than
for political or ideological activities. 431 U.S., at 225–226.
In so doing, the Court acknowledged that such a fair-share
provision “has an impact upon [public employees’] First
Amendment interests”; employees, after all, might object
to policies adopted or “activities undertaken by the union
in its role as exclusive representative.” Id., at 222. Still,
the Court thought, the government’s own interests “consti-
tutionally justified” the interference. Ibid. Detroit had
decided, the Court explained, that bargaining with a
single employee representative would promote “labor
stability” and peaceful labor relations—by ensuring, for
example, that different groups of employees did not pre-
sent “conflicting demands.” Id., at 221, 229. And because
such an exclusive bargaining agent has a legal duty to
represent all employees, rather than just its own mem-
bers, a compulsory surcharge fairly distributes “the cost of
[bargaining] among those who benefit” and “counteracts
the incentive that employees might otherwise have to
become ‘free riders.’ ” Id., at 222.
This case thus raises a straightforward question: Does
Abood apply equally to Illinois’s care providers as to De-
troit’s teachers? No one thinks that the fair-share provi-
sions in the two cases differ in any relevant respect. Nor
do the petitioners allege that the SEIU is crossing the line
Abood drew by using their payments for political or ideo-
logical activities. The only point in dispute is whether it
matters that the personal assistants here are employees
not only of the State but also of the disabled persons for
whom they care. Just as the Court of Appeals held, that
4 HARRIS v. QUINN
KAGAN, J., dissenting
fact should make no difference to the analysis. See 656
F.3d 692, 698 (CA7 2011).
To see how easily Abood resolves this case, consider how
Illinois structured the petitioners’ employment, and also
why it did so. The petitioners work in Illinois’s Medicaid-
funded Rehabilitation Program, which provides in-home
services to persons with disabilities who otherwise would
face institutionalization. Under the program, each disa-
bled person (the State calls them “customers”) receives
care from a personal assistant; the total workforce exceeds
20,000. The State could have asserted comprehensive
control over all the caregivers’ activities. But because of
the personalized nature of the services provided, Illinois
instead chose (as other States have as well) to share au-
thority with the customers themselves. The result is that
each caregiver has joint employers—the State and the
customer—with each controlling significant aspects of the
assistant’s work.1
For its part, Illinois sets all the workforce-wide terms of
employment. Most notably, the State determines and
pays the employees’ wages and benefits, including health
insurance (while also withholding taxes). See 89 Ill.
Admin. Code §§686.10(h)(10), 686.40(a)–(b) (2007); App. 44–
46. By regulation, Illinois establishes the job’s basic quali-
fications: for example, the assistant must provide refer-
ences or recommendations and have adequate experience
and training for the services given. See §§686.10(c), (f).
So too, the State describes the services any personal assis-
——————
1 The
majority describes the petitioners as “partial” or “quasi” public
employees, a label of its own devising. Ante, at 28. But employment
law has a real name—joint employees—for workers subject at once to
the authority of two or more employers (a not uncommon phenomenon).
See, e.g., 29 CFR §791.2 (2013); Boire v. Greyhound Corp., 376 U.S.
473, 475 (1964). And the Department of Labor recently explained that
in-home care programs, if structured like Illinois’s, establish joint
employment relationships. See 78 Fed. Reg. 60483–60484 (2013).
Cite as: 573 U. S. ____ (2014) 5
KAGAN, J., dissenting
tant may provide, and prescribes the terms of standard
employment contracts entered into between personal
assistants and customers. See §§686.10(h), 686.20.
Illinois as well structures the individual relationship
between the customer and his assistant (in ways the
majority barely acknowledges). Along with both the cus-
tomer and his physician, a state-employed counselor de-
velops a service plan laying out the assistant’s specific
job responsibilities, hours, and working conditions. See
§§684.10, 684.50. That counselor also assists the customer
in conducting a state-mandated annual performance
review, based on state-established criteria, and mediates
any resulting disagreements. See §686.30.
Within the structure designed by the State, the cus-
tomer of course has crucial responsibilities. He exercises
day-to-day supervisory control over the personal assistant.
See §676.30(b). And he gets both to hire a particular
caregiver (from among the pool of applicants Illinois has
deemed qualified) and to impose any needed discipline, up
to and including discharge. See ibid.; §677.40(d). But
even as to those matters, the State plays a role. Before a
customer may hire an assistant, the counselor must sign
off on the employee’s ability to follow the customer’s direc-
tions and communicate with him. See §§686.10(d)–(e)
(requiring that the employee demonstrate these capabili-
ties “to the satisfaction of” the counselor). And although
only a customer can actually fire an assistant, the State
can effectively do so by refusing to pay one who fails to
“meet [state] standards.” §677.40(d). The majority reads
that language narrowly, see ante, at 3, n. 1, 22, but the
State does not: It has made clear not just in its litigation
papers, but also in its collective bargaining agreements
and customer guidance that it will withhold payment from
an assistant (or altogether disqualify her from the pro-
gram) based on credible allegations of customer abuse,
neglect, or financial exploitation. See App. 55; Brief for
6 HARRIS v. QUINN
KAGAN, J., dissenting
Respondent Quinn 3, 50; Ill. Dept. of Human Servs., Cus-
tomer Guidance for Managing Providers 8, online at
http://www.dhs.state.il.us/OneNetLibrary/27897/documents/
Brochures/4365.pdf (as visited June 27, 2014, and availa-
ble in Clerk of Court’s case file).2
Given that set of arrangements, Abood should control.
Although a customer can manage his own relationship
with a caregiver, Illinois has sole authority over every
workforce-wide term and condition of the assistants’ em-
ployment—in other words, the issues most likely to be the
subject of collective bargaining. In particular, if an assis-
tant wants an increase in pay, she must ask the State, not
the individual customer. So too if she wants better bene-
fits. (Although the majority notes that caregivers do not
receive statutory retirement and health insurance bene-
fits, see ante, at 22, that is irrelevant: Collective bargain-
ing between the State and SEIU has focused on benefits
from the beginning, and has produced state-funded health
insurance for personal assistants.) And because it is
Illinois that would sit down at a bargaining table to ad-
dress those subjects—the ones that matter most to em-
ployees and so most affect workforce stability—the State’s
stake in a fair-share provision is the same as in Abood.
Here too, the State has an interest in promoting effective
operations by negotiating with an equitably and ade-
quately funded exclusive bargaining agent over terms
and conditions of employment. That Illinois has delegated
to program customers various individualized employment
issues makes no difference to those state interests. If
anything, as the State has contended, the dispersion of
employees across numerous workplaces and the absence of
——————
2 Indeed, pursuant to the grievance procedure in the present collec-
tive bargaining agreement, the SEIU obtained an arbitration award
reversing the State’s decision to disqualify an assistant from the
program for such reasons. See Brief for Respondent SEIU 7 (citing Doc.
No. 32–5 in Case No. 10–cv–02477 (ND Ill.)).
Cite as: 573 U. S. ____ (2014) 7
KAGAN, J., dissenting
day-to-day state supervision provides an additional reason
for Illinois to want to “address concerns common to all
personal assistants” by negotiating with a single repre-
sentative: Only in that way, the State explains, can the
employees effectively convey their concerns about em-
ployment under the Rehabilitation Program. App. to Pet.
for Cert. 46a (Exec. Order No. 2003–8).
Indeed, the history of that program forcefully demon-
strates Illinois’s interest in bargaining with an adequately
funded exclusive bargaining agent—that is, the interest
Abood recognized and protected. Workforce shortages and
high turnover have long plagued in-home care programs,
principally because of low wages and benefits. That labor
instability lessens the quality of care, which in turn, forces
disabled persons into institutions and (massively) in-
creases costs to the State. See Brief for Paraprofessional
Healthcare Institute as Amicus Curiae 16–26; Brief for
State of California et al. as Amici Curiae 4–5. The indi-
vidual customers are powerless to address those systemic
issues; rather, the State—because of its control over work-
force-wide terms of employment—is the single employer
that can do so. And here Illinois determined (as have nine
other States, see Brief for Respondent SEIU 51, n. 14) that
negotiations with an exclusive representative offered the
best chance to set the Rehabilitation Program on firmer
footing. Because of that bargaining, as the majority
acknowledges, home-care assistants have nearly doubled
their wages in less than 10 years, obtained state-funded
health insurance, and benefited from better training and
workplace safety measures. See ante, at 32–33; Brief for
Respondent Quinn 7; App. 44–48. The State, in return,
has obtained guarantees against strikes or other work
stoppages, see id., at 55—and most important, believes it
has gotten a more stable workforce providing higher qual-
ity care, thereby avoiding the costs associated with institu-
tionalization. Illinois’s experience thus might serve as a
8 HARRIS v. QUINN
KAGAN, J., dissenting
veritable poster child for Abood—not, as the majority
would have it, some strange extension of that decision.
It is not altogether easy to understand why the majority
thinks what it thinks: Today’s opinion takes the tack of
throwing everything against the wall in the hope that
something might stick. A vain hope, as it turns out. Even
once disentangled, the various strands of the majority’s
reasoning do not distinguish this case from Abood.
Parts of the majority’s analysis appear to rest on the
simple presence of another employer, possessing signifi-
cant responsibilities, in addition to the State. See ante, at
20–22, 24. But this Court’s cases provide no warrant for
holding that joint public employees are not real ones. To
the contrary, the Court has made clear that the govern-
ment’s wide latitude to manage its workforce extends to
such employees, even as against their First Amendment
claims. The government’s prerogative as employer, we
recently explained, turns not on the “formal status” of an
employee, but on the nature of the public “interests at
stake”; we therefore rejected the view that “the Govern-
ment’s broad authority in managing its affairs should
apply with diminished force” to contract employees whose
“direct employment relationship” is with another party.
NASA v. Nelson, 562 U. S. ___, ___ (2011) (slip op., at 14–
15). And indeed, we reached the same result (in language
that might have been written for this case) when such
employees “d[id] not work at the government’s work-
place[,] d[id] not interact daily with government officers
and employees,” and were not subject to the government’s
“day-to-day control” over “the details of how work is done.”
Board of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U.S.
668, 676–677 (1996).3 Here, as I have explained, Illinois’s
——————
3 The majority claims that the Court developed this law “for use in
other contexts,” ante, at 28–29, n. 20, but that is true only in the
narrowest sense. The decisions I cite dealt with First Amendment
Cite as: 573 U. S. ____ (2014) 9
KAGAN, J., dissenting
interests as an employer and program administrator are
substantial, see supra, at 4–6; and accordingly, the State’s
sharing of employment responsibilities with another party
should not matter.4
Next, the majority emphasizes that the Illinois Legisla-
ture deemed personal assistants “public employees” solely
“for the purposes of coverage under the Illinois Public
Labor Relations Act” and not for other purposes, like
granting statutory benefits and incurring vicarious liabil-
ity in tort. Ill. Comp. Stat., ch. 20, §2405/3(f) (West 2012);
see ante, at 6, 22–23; but cf. Martin v. Illinois, 2005 WL
2267733, *5–*8 (Ill. Workers’ Compensation Comm’n, July
26, 2005) (treating caregivers as public employees for
purposes of workers’ compensation).5 But once again, it is
hard to see why that fact is relevant. The majority must
agree (this Court has made the point often enough) that
——————
claims that joint or contract employees made against the government.
The only difference is that those suits challenged different restrictions
on the employees’ expressive activities.
4 In a related argument, the majority frets that if Abood extends to
the joint employees here, 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.” Ante, at 28. But as I have just shown,
this Court has not allowed such worries about line-drawing to limit the
government’s authority over joint and contract employees in the past.
And rightly so, because whatever close cases may arise at the margin
(there always are some), the essential distinction between such employ-
ees and mere recipients of government funding is not hard to maintain.
Consider again the combination of things Illinois does here: set wages,
provide benefits, administer payroll, withhold taxes, set minimum
qualifications, specify terms of standard contracts, develop individual-
ized service plans, fund orientation and training, facilitate annual
reviews, and resolve certain grievances. That combination of functions
places the petitioners so securely on one side of the boundary between
public employees and mere recipients of public funding as to justify
deferral of line-drawing angst to another case.
5 As the opinion’s quadruple repetition of the words “appear” and
“apparently” suggests, ante, at 22–23, the majority is mostly guessing
as to in-home caregivers’ eligibility for various state programs.
10 HARRIS v. QUINN
KAGAN, J., dissenting
“state law labels,” adopted for a whole host of reasons, do
not determine whether the State is acting as an employer
for purposes of the First Amendment. E.g., Umbehr, 518
U.S., at 679. The true issue is whether Illinois has a
sufficient stake in, and control over, the petitioners’ terms
and conditions of employment to implicate Abood’s ration-
ales and trigger its application. And once more, that
question has a clear answer: As I have shown, Illinois
negotiates all workforce-wide terms of the caregivers’
employment as part of its effort to promote labor stability
and effectively administer its Rehabilitation Program. See
supra, at 6–8. As contrasted to that all-important fact,
whether Illinois incurs vicarious liability for caregivers’
torts, see ante, at 23, or grants them certain statutory
benefits like health insurance, see ante, at 22, is beside the
point. And still more so because the State and SEIU can
bargain over most such matters; for example, as I have
noted, the two have reached agreement on providing state-
funded health coverage, see supra, at 7.
Further, the majority claims, “the scope of bargaining”
that the SEIU may conduct for caregivers is “circum-
scribed” because the customer has authority over individ-
ualized employment matters like hiring and firing. Ante,
at 23–25. But (at the risk of sounding like a broken rec-
ord) so what? Most States limit the scope of permissible
bargaining in the public sector—often ruling out of bounds
similar, individualized decisions. See R. Kearney & P.
Mareschal, Labor Relations in the Public Sector 75–77
(5th ed. 2014) (“The great majority of state statutes” ex-
clude “certain matters from the scope of negotiations,”
including, for example, personnel decisions respecting
“hiring, promotion, and dismissal”); Note, Developments in
the Law—Public Employment, 97 Harv. L. Rev. 1611,
1684 (1984) (Many state statutes “explicitly limit[ ] the
scope of bargaining, typically by excluding decisions on
personnel management”). Here, the scope of collective
Cite as: 573 U. S. ____ (2014) 11
KAGAN, J., dissenting
bargaining—over wages and benefits, as well as basic
duties and qualifications—more than suffices to implicate
the state interests justifying Abood. Those are the mat-
ters, after all, most likely to concern employees generally
and thus most likely to affect the nature and quality of the
State’s workforce. The idea that Abood applies only if a
union can bargain with the State over every issue comes
from nowhere and relates to nothing in that decision—and
would revolutionize public labor law.
Finally, the majority places weight on an idiosyncrasy of
Illinois law: that a regulation requires uniform wages for
all personal assistants. See ante, at 25. According to the
majority, that means Abood’s free-rider rationale “has
little force in the situation now before us”: Even absent the
duty of fair representation (requiring the union to work on
behalf of all employees, members and non-members alike,
see infra, at 22–23), the union could not bargain one em-
ployee’s wages against another’s. Ante, at 26.6 But that
idea is doubly wrong. First, the Illinois regulation applies
only to wages. It does not cover, for example, the signifi-
cant health benefits that the SEIU has obtained for in-
home caregivers, or any other benefits for which it may
bargain in the future. Nor does the regulation prevent
preferential participation in the grievance process, which
governs all disputes between Illinois and caregivers aris-
ing from the terms of their agreement. See n. 2, supra.
And second, even if the regulation covered everything
subject to collective bargaining, the majority’s reasoning is
a non-sequitur. All the regulation would do then is serve
as suspenders to the duty of fair representation’s belt:
That Illinois has two ways to ensure that the results of
——————
6 The majority also suggests in this part of its opinion that even if the
union had latitude to demand higher wages only for its own supporters,
it would not do so. See ante, at 27, n. 18. But why not? A rational
union, in the absence of any legal obligation to the contrary, would
almost surely take that approach to bargaining.
12 HARRIS v. QUINN
KAGAN, J., dissenting
collective bargaining redound to the benefit of all employ-
ees serves to compound, rather than mitigate, the union’s
free-rider problem.
As far as I can tell, that covers the majority’s reasons for
distinguishing this case from Abood. And even when
considered in combination, as the majority does, they do
not succeed. What makes matters still worse is the per-
verse result of the majority’s decision: It penalizes the
State for giving disabled persons some control over their
own care. If Illinois had structured the program, as it
could have, to centralize every aspect of the employment
relationship, no question could possibly have arisen about
Abood’s application. Nothing should change because the
State chose to respect the dignity and independence of
program beneficiaries by allowing them to select and
discharge, as well as supervise day-to-day, their own
caregivers. A joint employer remains an employer, and
here, as I have noted, Illinois kept authority over all work-
force-wide terms of employment—the very issues most
likely to be the subject of collective bargaining. The State
thus should also retain the prerogative—as part of its
effort to “ensure efficient and effective delivery of personal
care services”—to require all employees to contribute
fairly to their bargaining agent. App. to Pet. for Cert. 45a
(Exec. Order No. 2003–8).
II
Perhaps recognizing the difficulty of plausibly distin-
guishing this case from Abood, the petitioners raised a
more fundamental question: the continued viability of
Abood as to all public employees, even what the majority
calls “full-fledged” ones. Ante, at 9. That issue occupied
the brunt of the briefing and argument in this Court. See,
e.g., Brief for Petitioners 16–24; Brief for Respondent
SEIU 15–44; Brief for Respondent Quinn 15–29; Brief for
United States as Amicus Curiae 14–28; Tr. of Oral Arg. 5–
Cite as: 573 U. S. ____ (2014) 13
KAGAN, J., dissenting
21, 32–39, 42–47, 50–60. The majority declines the peti-
tioners’ request to overturn precedent—and rightly so:
This Court does not have anything close to the special
justification necessary to overturn Abood. Still, the major-
ity cannot restrain itself from providing a critique of that
decision, suggesting that it might have resolved the case
differently in the first instance. That dicta is off-base:
Abood corresponds precisely to this Court’s overall frame-
work for assessing public employees’ First Amendment
claims. To accept that framework, while holding Abood at
arms-length, is to wish for a sui generis rule, lacking in
justification, applying exclusively to union fees.
A
This Court’s view of stare decisis makes plain why the
majority cannot—and did not—overturn Abood. That
doctrine, we have stated, is a “foundation stone of the rule
of law.” Michigan v. Bay Mills Indian Community, 572
U. S. ___, ___ (2014) (slip op., at 15). It “promotes the
evenhanded, predictable, and consistent development of
legal principles [and] fosters reliance on judicial deci-
sions.” Payne v. Tennessee, 501 U.S. 808, 827 (1991). As
important, it “contributes to the actual and perceived
integrity of the judicial process,” ibid., by ensuring that
decisions are “founded in the law rather than in the pro-
clivities of individuals,” Vasquez v. Hillery, 474 U.S. 254,
265 (1986). For all those reasons, this Court has always
held that “any departure” from precedent “demands spe-
cial justification.” Arizona v. Rumsey, 467 U.S. 203, 212
(1984).
And Abood is not just any precedent: It is entrenched in
a way not many decisions are. Over nearly four decades,
we have cited Abood favorably numerous times, and we
have repeatedly affirmed and applied its core distinction
between the costs of collective bargaining (which the
government can demand its employees share) and those of
14 HARRIS v. QUINN
KAGAN, J., dissenting
political activities (which it cannot). See, e.g., Locke v.
Karass, 555 U.S. 207, 213–214 (2009); Lehnert v. Ferris
Faculty Assn., 500 U.S. 507, 519 (1991); Teachers v. Hud-
son, 475 U.S. 292, 301–302 (1986); Ellis v. Railway
Clerks, 466 U.S. 435, 455–457 (1984). Reviewing those
decisions, this Court recently—and unanimously—called
the Abood rule “a general First Amendment principle.”
Locke, 555 U. S., 213–215. And indeed, the Court has
relied on that rule in deciding cases involving compulsory
fees outside the labor context—which today’s majority
reaffirms as good law, see ante, at 37–39. See, e.g., Keller
v. State Bar of Cal., 496 U.S. 1, 9–17 (1990) (state bar
fees); Board of Regents of Univ. of Wis. System v. South-
worth, 529 U.S. 217, 230–232 (2000) (public university
student fees); Glickman v. Wileman Brothers & Elliott,
Inc., 521 U.S. 457, 471–473 (1997) (commercial advertis-
ing assessments). Not until two years ago, in Knox v.
Service Employees, 567 U. S. ___ (2012), did the Court so
much as whisper (there without the benefit of briefing or
argument, see id., at ___ (SOTOMAYOR, J., concurring in
judgment) (slip op., at 1–6)) that it had any misgivings
about Abood.
Perhaps still more important, Abood has created enor-
mous reliance interests. More than 20 States have enacted
statutes authorizing fair-share provisions, and on that
basis public entities of all stripes have entered into multi-
year contracts with unions containing such clauses. “Stare
decisis has added force,” we have held, when overturning a
precedent would require “States to reexamine [and amend]
their statutes.” Hilton v. South Carolina Public Railways
Comm’n, 502 U.S. 197, 202–203 (1991). And on top of
that, “[c]onsiderations in favor of stare decisis are at their
acme in cases involving property and contract rights.”
Payne, 501 U.S., at 828. Here, governments and unions
across the country have entered into thousands of con-
tracts involving millions of employees in reliance on
Cite as: 573 U. S. ____ (2014) 15
KAGAN, J., dissenting
Abood. Reliance interests do not come any stronger.
The majority’s criticisms of Abood do not remotely de-
feat those powerful reasons for adhering to the decision.
The special justifications needed to reverse an opinion
must go beyond demonstrations (much less assertions)
that it was wrong; that is the very point of stare decisis.
And the majority’s critique extends no further. It is mostly
just a catalog of errors Abood supposedly committed—
reproaches that could have been leveled as easily 40 years
ago as today. Only the idea that Abood did not “antici-
pate” or “foresee” the difficulties of distinguishing between
collective bargaining and political activities, see ante, at
18–19, might be thought different. But in fact, Abood
predicted precisely those issues. See 431 U.S., at 236
(“There will, of course, be difficult problems in drawing
lines between collective-bargaining . . . and ideological
activities”). It simply disagreed with today’s majority
about whether in this context, as in many others, lines
that are less than pristine are still worth using. And in
any event, the majority much overstates the difficulties of
classifying union expenditures. The Court’s most recent
decision on the subject unanimously resolved the single
issue that had divided lower courts. See Locke, 555 U.S.,
at 217–221. So it is not surprising that the majority fails
to offer any concrete examples of thorny classification
problems. If the kind of hand-wringing about blurry lines
that the majority offers were enough to justify breaking
with precedent, we might have to discard whole volumes
of the U. S. Reports.
And the majority says nothing to the contrary: It does
not pretend to have the requisite justifications to overrule
Abood. Readers of today’s decision will know that Abood
does not rank on the majority’s top-ten list of favorite
precedents—and that the majority could not restrain itself
from saying (and saying and saying) so. Yet they will also
know that the majority could not, even after receiving full-
16 HARRIS v. QUINN
KAGAN, J., dissenting
dress briefing and argument, come up with reasons any-
where near sufficient to reverse the decision. Much has
gone wrong in today’s ruling, but this has not: Save for an
unfortunate hiving off of ostensibly “partial-public” em-
ployees, ante, at 28, Abood remains the law.
B
And even apart from stare decisis, that result is as it
should be; indeed, it is the only outcome that makes sense
in the context of our caselaw. In numerous cases decided
over many decades, this Court has addressed the govern-
ment’s authority to adopt measures limiting expression in
the capacity not of sovereign but of employer. Abood fits—
fits hand-in-glove—with all those cases, in both reasoning
and result. Were that rule not in place, our law respecting
public employees’ speech rights would contain a serious
anomaly—a different legal standard (and not a good one)
applying exclusively to union fees.
This Court has long acknowledged that the government
has wider constitutional latitude when it is acting as
employer than as sovereign. See Engquist v. Oregon Dept.
of Agriculture, 553 U.S. 591, 598 (2008) (“[T]here is a
crucial difference, with respect to constitutional analysis,
between the government exercising the power to regulate
. . . and the government acting . . . to manage [its] internal
operation” (internal quotation marks omitted)). “Time and
again our cases have recognized that the Government has
a much freer hand” in dealing with its employees than
with other citizens. NASA, 562 U. S., at ___ (slip op., at
12). We have explained that “[t]he government’s interest
in achieving its goals as effectively and efficiently as pos-
sible is elevated” in the public workplace—that the gov-
ernment must have the ability to decide how to manage its
employees in order to best provide services to the public.
Engquist, 553 U.S., at 598. In effect, we have tried to
place the government-qua-employer in a similar (though
Cite as: 573 U. S. ____ (2014) 17
KAGAN, J., dissenting
not identical) position to the private employer, recognizing
that both face comparable challenges in maintaining a
productive workforce. The result is that a public employee
“must accept certain limitations on his or her freedom.”
Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).
“[A]lthough government employees do not lose their con-
stitutional rights when they accept their positions, those
rights must be balanced against the realities of the em-
ployment context.” Engquist, 553 U.S., at 600.
Further, this Court has developed and applied those
principles in numerous cases involving First Amendment
claims. “Government employers, like private employers,”
we have explained, “need a significant degree of control
over their employees’ words” in order to “efficient[ly]
provi[de] public services.” Garcetti, 547 U.S., at 418.
Accordingly, we have devised methods for distinguishing
between speech restrictions reflecting the kind of concerns
private employers often hold (which are constitutional)
and those exploiting the employment relationship to re-
strict employees’ speech as private citizens (which are
not). Most notably, the Court uses a two-step test origi-
nating in Pickering v. Board of Ed. of Township High
School Dist. 205, Will Cty., 391 U.S. 563 (1968). First, if
the expression at issue does not relate to “a matter of
public concern,” the employee “has no First Amendment
cause of action.” Garcetti, 547 U.S., at 418. Second, even
if the speech addresses a matter of public concern, a court
is to determine whether the government “had an adequate
justification” for its action, ibid., by balancing “the inter-
ests of the [employee] as a citizen . . . and the interest of
the State, as an employer, in promoting the efficiency of
the public services it performs through its employees,”
Pickering, 391 U.S., at 568.
Abood is of a piece with all those decisions; and indeed,
its core analysis mirrors Pickering’s. The Abood Court
recognized that fair-share provisions function as prerequi-
18 HARRIS v. QUINN
KAGAN, J., dissenting
sites to employment, assessed to cover the costs of repre-
senting employees in collective bargaining. Private em-
ployers, Abood noted, often established such employment
conditions, to ensure adequate funding of an exclusive
bargaining agent, and thus to promote labor stability.
Abood acknowledged (contrary to the majority’s statement,
see ante, at 17) certain “differences in the nature of collec-
tive bargaining in the public and private sectors.” 431
U.S., at 227; see id., at 227–229. But the Court concluded
that the government, acting as employer, should have the
same prerogative as a private business in deciding how
best to negotiate with its employees over such matters as
wages and benefits. See id., at 229 (“[T]here can be no
principled basis for” distinguishing between a public and
private employer’s view that a fair-share clause will pro-
mote “labor stability”). At the same time, the Court rec-
ognized the need for some mechanism to ensure that the
government could not leverage its power as employer to
impinge on speech its employees undertook as citizens on
matters of public import. See id., at 234–236.
The Court struck the appropriate balance by drawing a
line, corresponding to Pickering’s, between fees for collec-
tive bargaining and those for political activities. On the
one side, Abood decided, speech within the employment
relationship about pay and working conditions pertains
mostly to private concerns and implicates the govern-
ment’s interests as employer; thus, the government could
compel fair-share fees for collective bargaining. On the
other side, speech in political campaigns relates to matters
of public concern and has no bearing on the government’s
interest in structuring its workforce; thus, compelled fees
for those activities are forbidden. In that way, the law
surrounding fair-share provisions coheres with the law
relating to public employees’ speech generally. Or, said
otherwise, an anomaly in the government’s regulation of
its workforce would arise in Abood’s absence: Public em-
Cite as: 573 U. S. ____ (2014) 19
KAGAN, J., dissenting
ployers could then pursue all policies, except this single
one, reasonably designed to manage personnel and en-
hance the effectiveness of their programs.
The majority’s critique of Abood principally goes astray
by deeming all this irrelevant. This Court, the majority
insists, has never “seen Abood as based on Pickering
balancing.” Ante, at 34. But to rely on Abood’s failure to
cite Pickering more often, as the majority does, see ante, at
34, n. 26, is to miss the essential point. Although stem-
ming from different historic antecedents, the two decisions
addressed variants of the same issue: the extent of the
government’s power to adopt employment conditions
affecting expression. And as just discussed, the two
gave strikingly parallel answers, providing a coherent
framework to adjudicate the constitutionality of those
regulations.
To the extent the majority engages with that frame-
work, its analysis founders at the first step, in assessing
the First Amendment value of the speech at issue here. A
running motif of the majority opinion is that collective
bargaining in the public sector raises significant questions
about the level of government spending. Ante, at 17–18
and n. 7, 36 and nn. 28–29. By financing the SEIU’s
collective bargaining over wages and benefits, the majority
suggests, in-home caregivers—whether they wish to or
not—take one side in a debate about those issues.
But that view of the First Amendment interests at stake
blinks decades’ worth of this Court’s precedent. Our deci-
sions (tracing from Pickering as well as Abood) teach that
internal workplace speech about public employees’ wages,
benefits, and such—that is, the prosaic stuff of collective
bargaining—does not become speech of “public concern”
just because those employment terms may have broader
consequence. To the contrary, we have made clear that
except in narrow circumstances we will not allow an em-
ployee to make a “federal constitutional issue” out of basic
20 HARRIS v. QUINN
KAGAN, J., dissenting
“employment matters, including working conditions, pay,
discipline, promotions, leave, vacations, and termina-
tions.” Borough of Duryea v. Guarnieri, 564 U. S. ___, ___
(2011) (slip op., at 10); see Umbehr, 518 U.S., at 675
(public employees’ “speech on merely private employment
matters is unprotected”). Indeed, even Abood’s original
detractors conceded that an employee’s interest in ex-
pressing views, within the workplace context, about “nar-
rowly defined economic issues [like] salaries and pension
benefits” is “relatively insignificant” and “weak.” 431
U.S., at 263, n. 16 (Powell, J., concurring in judgment).
(Those Justices saved their fire for teachers’ speech relat-
ing to education policy. See ibid.) And nowhere has the
Court ever suggested, as the majority does today, see ante,
at 35–36 and n. 28, that if a certain dollar amount is at
stake (but how much, exactly?), the constitutional treat-
ment of an employee’s expression becomes any different.
Consider an analogy, not involving union fees: Suppose
an employee violates a government employer’s work rules
by demanding, at various inopportune times and places,
higher wages for both himself and his co-workers (which,
of course, will drive up public spending). The government
employer disciplines the employee, and he brings a First
Amendment claim. Would the Court consider his speech a
matter of public concern under Pickering? I cannot believe
it would, and indeed the petitioners’ own counsel joins me
in that view. He maintained at oral argument that such
speech would concern merely an “internal proprietary
matter,” thus allowing the employer to take disciplinary
action. Tr. of Oral Arg. 6, 10. If the majority thinks oth-
erwise, government entities across the country should
prepare themselves for unprecedented limitations on their
ability to regulate their workforces. But again, I doubt
they need to worry, because this Court has never come
close to holding that any matter of public employment
affecting public spending (which is to say most such mat-
Cite as: 573 U. S. ____ (2014) 21
KAGAN, J., dissenting
ters) becomes for that reason alone an issue of public
concern. (And on the off-chance that both the petitioners
and I are wrong on that score, I am doubly confident that
the government would prevail under Pickering’s balancing
test.)
I can see no reason to treat the expressive interests of
workers objecting to payment of union fees, like the peti-
tioners here, as worthy of greater consideration. The
subject matter of the speech is the same: wages and bene-
fits for public employees. Or to put the point more fully:
In both cases (mine and the real one), the employer is
sanctioning employees for choosing either to say or not to
say something respecting their terms and conditions of
employment. Of course, in my hypothetical, the employer
is stopping the employee from speaking, whereas in this or
any other case involving union fees, the employer is forc-
ing the employee to support such expression. But I am
sure the majority would agree that that difference does
not make a difference—in other words, that the “difference
between compelled speech and compelled silence” is “with-
out constitutional significance.” Riley v. National Federa-
tion of Blind of N. C., Inc., 487 U.S. 781, 796 (1988).
Hence, in analyzing the kind of expression involved in this
case, Abood corresponds to Pickering (and vice versa)—
with each permitting a government to regulate such activ-
ity in aid of managing its workforce to provide public
services.
Perhaps, though, the majority’s skepticism about Abood
comes from a different source: its failure to fully grasp the
government’s interest in bargaining with an adequately
funded exclusive bargaining representative. One of the ma-
jority’s criticisms of Abood, stated still more prominently
in Knox, 567 U. S., at ___ (slip op., at 10–11), goes some-
thing as follows. Abood (so the majority says) wrongly saw
a government’s interest in bargaining with an exclusive
representative as “inextricably linked” with a fair-share
22 HARRIS v. QUINN
KAGAN, J., dissenting
agreement. Ante, at 31; see ante, at 20. A State, the
majority (a bit grudgingly) acknowledges, may well have
reasons to bargain with a single agent for all employees;
and without a fair-share agreement, that union’s activities
will benefit employees who do not pay dues. Yet “[s]uch
free-rider arguments,” the majority avers, “are generally
insufficient to overcome First Amendment objections.”
Ante, at 8–9 (quoting Knox, 567 U. S., at ___ (slip op., at
10–11)). In the majority’s words: “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.” Ante, at 33–34.
But Abood and a host of our other opinions have ex-
plained and relied on an essential distinction between
unions and special-interest organizations generally. See,
e.g., Abood, 431 U.S., at 221–222 and n. 15; Communica-
tions Workers v. Beck, 487 U.S. 735, 750 (1988); Machin-
ists v. Street, 367 U.S. 740, 762 (1961). The law compels
unions to represent—and represent fairly—every worker
in a bargaining unit, regardless whether they join or
contribute to the union. That creates a collective action
problem of far greater magnitude than in the typical
interest group, because the union cannot give any special
advantages to its own backers. In such a circumstance,
not just those who oppose but those who favor a union
have an economic incentive to withhold dues; only altru-
ism or loyalty—as against financial self-interest—can
explain their support. Hence arises the legal rule counte-
nancing fair-share agreements: It ensures that a union
will receive adequate funding, notwithstanding its legally
imposed disability—and so that a government wishing to
bargain with an exclusive representative will have a via-
ble counterpart.
As is often the case, JUSTICE SCALIA put the point best:
Cite as: 573 U. S. ____ (2014) 23
KAGAN, J., dissenting
“Where the state imposes upon the union a duty to de-
liver services, it may permit the union to demand re-
imbursement for them; or, looked at from the other
end, where the state creates in the nonmembers a le-
gal entitlement from the union, it may compel them to
pay the cost. The ‘compelling state interest’ that justi-
fies this constitutional rule is not simply elimination
of the inequity arising from the fact that some union
activity redounds to the benefit of ‘free-riding’ non-
members; private speech often furthers the interests
of nonspeakers, and that does not alone empower the
state to compel the speech to be paid for. What is dis-
tinctive, however, about the ‘free riders’ [in unions]
. . . is that . . . the law requires the union to carry
[them]—indeed, requires the union to go out of its way
to benefit [them], even at the expense of its other in-
terests. . . . [T]he free ridership (if it were left to be
that) would be not incidental but calculated, not im-
posed by circumstances but mandated by government
decree.” Lehnert, 500 U.S., at 556 (opinion concur-
ring in judgment in part and dissenting in part).
And in other parts of its opinion, the majority itself mim-
ics the point, thus recognizing the core rationale of Abood:
What justifies the agency fee, the majority notes, is “the
fact that the State compels the union to promote and
protect the interests of nonmembers.” Ante, at 25; see
ante, at 27, n. 18. Exactly right; indeed, that is as clear a
one-sentence account of Abood’s free-rider rationale as
appears in this Court’s decisions.
Still, the majority too quickly says, it has no worries in
this case: Given that Illinois’s caregivers voted to unionize,
“it may be presumed that a high percentage of [them]
became union members and are willingly paying union
dues.” Ante, at 33. But in fact nothing of the sort may be
so presumed, given that union supporters (no less than
24 HARRIS v. QUINN
KAGAN, J., dissenting
union detractors) have an economic incentive to free ride.
See supra, at 22–23. The federal workforce, on which the
majority relies, see ante, at 31, provides a case in point.
There many fewer employees pay dues than have voted for
a union to represent them.7 And why, after all, should
that endemic free-riding be surprising? Does the majority
think that public employees are immune from basic prin-
ciples of economics? If not, the majority can have no basis
for thinking that absent a fair-share clause, a union can
attract sufficient dues to adequately support its functions.
This case in fact offers a prime illustration of how a fair-
share agreement may serve important government inter-
ests. Recall that Illinois decided that collective bargaining
with an exclusive representative of in-home caregivers
would enable it to provide improved services through its
Rehabilitation Program. See supra, at 7–8. The State
thought such bargaining would enable it to attract a better
and more stable workforce to serve disabled patients,
preventing their institutionalization and thereby decreas-
ing total state expenditures. The majority does not deny
the State’s legitimate interest in choosing to negotiate
with an exclusive bargaining agent, in service of adminis-
tering an effective program. See ante, at 32–33. But the
majority does deny Illinois the means it reasonably
deemed appropriate to effectuate that policy—a fair-share
provision ensuring that the union has the funds necessary
to carry out its responsibilities on behalf of in-home care-
——————
7 See, e.g., R. Kearney & P. Mareschal, Labor Relations in the Public
Sector 26 (5th ed. 2014) (“[T]he largest federal union, the American
Federation of Government Employees (AFGE), represented approxi-
mately 650,000 bargaining unit members in 2012, but less than half of
them were dues-paying members. All told, out of the approximately 1.9
million full-time federal wage system (blue-collar) and General Sched-
ule (white-collar) employees who are represented by a collective bar-
gaining contract, only one-third actually belong to the union and pay
dues”).
Cite as: 573 U. S. ____ (2014) 25
KAGAN, J., dissenting
givers. The majority does so against the weight of all
precedent, and based on “empirical assumption[s],” ante,
at 20, lacking any foundation. Abood got this matter
right; the majority gets it wrong: Illinois has a more than
sufficient interest, in managing its workforce and admin-
istering the Rehabilitation Program, to require employees
to pay a fair share of a union’s costs of collective bargaining.
III
For many decades, Americans have debated the pros
and cons of right-to-work laws and fair-share require-
ments. All across the country and continuing to the pre-
sent day, citizens have engaged in passionate argument
about the issue and have made disparate policy choices.
The petitioners in this case asked this Court to end that
discussion for the entire public sector, by overruling Abood
and thus imposing a right-to-work regime for all govern-
ment employees. The good news out of this case is clear:
The majority declined that radical request. The Court did
not, as the petitioners wanted, deprive every state and
local government, in the management of their employees
and programs, of the tool that many have thought neces-
sary and appropriate to make collective bargaining work.
The bad news is just as simple: The majority robbed
Illinois of that choice in administering its in-home care
program. For some 40 years, Abood has struck a stable
balance—consistent with this Court’s general framework
for assessing public employees’ First Amendment claims—
between those employees’ rights and government entities’
interests in managing their workforces. The majority
today misapplies Abood, which properly should control
this case. Nothing separates, for purposes of that decision,
Illinois’s personal assistants from any other public em-
ployees. The balance Abood struck thus should have
defeated the petitioners’ demand to invalidate Illinois’s
fair-share agreement. I respectfully dissent.