Harris v. Quinn Symposium: Abood and the limits of cognitive dissonance

Jason Walta is an attorney at the Nataional Education Association, which filed an amicus brief in support of the respondents.

The most important take-away from yesterday’s decision in Harris v. Quinn is what it did not accomplish with respect to Abood v. Detroit Board of Education, the Court’s 1977 decision that has been the basis for upholding the constitutionality of agency fee arrangements in traditional public employment for nearly four decades.

Just two years ago, in Knox v. SEIU, Justice Alito’s majority opinion issued an unmistakable invitation for a case presenting the Court with an opportunity to reconsider and overrule Abood.  The Harris petitioners took that cue:  they, along with a phalanx of supporting amici, urged the Court to do away with Abood and to declare, in effect, that the First Amendment operates as constitutionally enshrined “right to work” law for all public employees. The governor, the unions, and their own supporting amici (including, for the sake of full disclosure, the NEA) made a full-throated defense of Abood, arguing that its core holding remained fully consistent with the Court’s case law dealing with the constitutional rights of public employees.

So, the issue of Abood’s continued vitality was certainly joined in Harris, and much of the Court’s questioning in oral argument reflected that.  Yet, like the Big Bad Wolf of fairy-tale fame, yesterday’s majority huffed, puffed, and huffed some more about the supposed infirmities of Abood, but it was ultimately unable to bring down the brick house of settled precedent.  Instead, the majority’s decision holds only that Abood’s authorization for public-sector unions to collect agency fees does not extend to those “partial public employees” who are “deemed to be public employees solely for the purpose of unionization and the collection of an agency fee.”  As a result, Abood remains good law for the vast majority of what yesterday’s majority calls “full-fledged public employees.”

What, then, explains the Court’s decision to stop short of overruling Abood?  Is it simply an act of judicial minimalism motivated by a belief that the Court should not make a broader holding when a narrower one suffices?  Almost certainly not, for in Knox itself, the majority felt free to reach an issue – whether non-members should be required to opt out of fees associated with certain dues increases – that was not only unnecessary, but was not even raised by the parties.

My explanation is this: although the Court’s conservative majority has a large capacity for cognitive dissonance, a outright overruling of Abood would have pushed that capacity past its breaking point.

In virtually every other context, the Roberts Court has taken a restrictive view of public employees’ constitutional rights.  Most notably, in Garcetti v. Ceballos, the Roberts Court declared that the First Amendment allows public employees to be disciplined or discharged for speech – even on matters of the highest public concern – if the speech is made “pursuant to” the employee’s job duties.  This holding followed from the Court’s perception that “[g]overnment employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.”

Nothing resembling that deferential approach toward the government qua employer can be found in the majority’s opinion yesterday.  To begin with, the majority declares that governmental restrictions on the associational rights of public employees must be justified by a “compelling state interest” and “cannot be achieved through means significantly less restrictive of associational freedoms.” Is this a proposition the majority would take seriously in any other context? After all, public employment is by its very nature an associational restriction, often with a significant ideological component:  public employees are required to associate with their fellow employees and public officials to implement politically determined policy.  Teachers, for example, are required to associate with school administrators to implement a curriculum established by the local school board, and local prosecutors are required to work together to pursue cases reflecting the district attorney’s priorities. Would the majority ever contend that such basic job requirements must be shown in each instance to be justified by a “compelling state interest” and the least restrictive means for advancing that interest?

The majority also decries the “significant impingement” of First Amendment associational rights that comes with a public employee’s obligation to pay an agency fee.  Yet, the Roberts Court has heretofore been relatively unconcerned with such impingements, saying in Garcetti that those who “enter government service. . . by necessity must accept certain limitations on [their] freedom,” and, in another recent case, Borough of Duryea v. Guarnieri, that such “[r]estraints are justified by the consensual nature of the employment relationship and by the unique nature of the government’s interest.”

Finally, the majority gives startlingly short shrift to Illinois’s interest as an employer in maintaining a stable collective bargaining arrangement in which the union is not confronted with the free-rider problem of having to allow represented workers opt out of all financial support for the costly business of negotiating and enforcing an agreement. Although the majority pays lip service to the balancing of interests that it has employed in other First Amendment cases involving public employees (so-called “Pickering balancing”), its actual reasoning gives no weight to the employer’s legitimate interests in maintaining an agency fee arrangement. In essence, the Court says that it is not enough for the state to determine that an agency fee arrangement would be helpful in carrying out its employee-relations function, but that such an arrangement must be necessary to pass constitutional scrutiny.

Again, this is a standard that would be unimaginable in any other public-employment context.  A public employer surely can require, as a condition of employment, that all of its employees cooperate with its human resources functions.  Indeed, I would hazard that the Harris majority would see no First Amendment problem with a public employer requiring employees to attend, at their own expense, a sexual harassment training course conducted by private entity.  In that context, it seems inconceivable that the majority would require the employer to show that such an arrangement is necessary, as opposed to merely convenient or helpful.  Likewise, it seems certain the contractor could not be required to provide the training for free to employees who object to the contractor’s approach to the training or to the contractor’s outside political activities.  (Recall that, in Citizens United v. FEC, the Court loudly proclaimed that “The First Amendment protects . . . speech [funded by money amassed from the economic marketplace], even if it was enabled by economic transactions with persons or entities who disagree with the speaker’s ideas.”)  And, if an employer can require this kind of association with a private entity “pursuant to” an public employee’s duty to cooperate with the employer’s human resources functions, why should Illinois be prohibited from requiring a similar association between employees and a union for purposes of its own employee-relations function?  You won’t find any answers to those questions from the majority.

As these obvious contradictions pile up, it undoubtedly became apparent to the majority that they faced a significant quandary:  by overruling Abood as to all public employees, they would either have to take the intellectually consistent route of recognizing that public employees have broad speech and associational rights that greatly constrain a public employer’s ability to maintain and direct an effective workforce; or they would have take the intellectually untenable position of declaring, in effect, that there is a “union objector” exception to general principles of First Amendment law applicable to public employees.

To be sure, the Harris majority plays an extended game of footsie with the intellectually untenable approach.  But, ultimately, it instead opts for a handy, if unsatisfying, expedient to avoid exposing an irreconcilable contradiction between a ruling in the objecting feepayers’ favor and a large body of law dealing with the constitutional rights of public employees. That is, the majority declares that the employees at issue are not real public employees, and that this difference suffices to distinguish Abood.

So, for now, Abood still stands as to the vast majority of public employees, and public-sector collective-bargaining arrangements throughout the nation have not been thrown into disarray. As Justice Kagan says in her masterful dissent, “That is to the good—or at least better than it might be.” But, it would be all the more satisfying if the Court’s conservative majority could separate its apparent distaste for unions and collective bargaining, and strive instead to create a more coherent view of public-sector employees’ rights.

In the meantime, it is important to keep this issue in perspective. If the Court were to declare that public-sector unions cannot collect agency fees, that decision would be wrong and a travesty, but it would hardly be the kill-shot that some union opponents have cheered for. The vitality of the labor movement does not rise or fall on the fees provided by agency feepayers; the unions’ card-carrying members will continue to the backbone of the movement’s support.  And, as politics continue to skew toward the wealthy (thanks, in large part to the Court’s own decisions), and concerns about growing economic inequality rise, more and more Americans will turn to unions as an effective counterweight to these trends.