AAUP Legal Update - Harris v. Quinn, Case No. 11-681 (U.S. June 30, 2014)
The Supreme Court today issued its much awaited decision in the Harris case in which the plaintiffs requested that the Court rule unconstitutional the charging of agency fees in the public sector. Fortunately, the Court rejected these attempts to alter the agency fee jurisprudence as it has existed in the public sector for over 35 years since the Court issued its seminal decision in Abood v. Detroit Board of Education, 431 U.S. 209 (1977). Here, in a 5 to 4 opinion issued by Justice Alito, the Court questioned the foundation of Abood, but specifically stated that it was unnecessary for the Court to reach the argument that Abood should be overruled. Instead, the Court ruled that agency fees could not be imposed on certain “partial-public” employees, a category that likely has little applicability to faculty members at public institutions. Accordingly, the general agency fee jurisprudence as it applies to most AAUP chapters and members should continue undisturbed.
In its decision the Court focused on the unique employment status of the individuals in question, who were personal assistants providing homecare services to Medicaid recipients. While the state compensated the individuals, the majority noted that the employer was normally considered the person receiving the care and that the government had little role in the individuals’ employment. It also noted that the state classified the individuals as state employees “solely for the purpose” of being covered by the state labor law but did not consider them state employees “for any other purpose.” Accordingly, the Court held that these individuals were not “full-fledged public employees” but were instead “partial-public or quasi-public employees.” The majority then held that the authorization to charge agency fees under Abood did not extend to such employees and the imposition of agency fees could not be justified under other First Amendment principles. However, as the dissent explained, “[s]ave for an unfortunate hiving off of ostensibly ‘partial-public’ employees, Abood remains the law.” Because the ruling applied only to “partial-public employees,” it is unlikely to have a significant impact on agency fee jurisprudence applicable to faculty members at public institutions.
However, there are some disturbing undercurrents in the decision. First, the five justice majority clearly questions the rationale supporting Abood and did not reaffirm the decision, and Justice Alito has all but invited further challenges to Abood in general. Second, the Court created a new category of “partial-public employees.” This category, while not well defined, would seem to have limited application to current faculty members, whether on full-time, part-time or on contingent appointments. However, there could be attempts to create such “partial-public” employees as a result of this decision. Third, the Court raised the issue of the scope of bargaining as supporting agency fee under Abood. This could lead to some confusion regarding Abood in situations where bargaining rights are limited. Fourth, the case illustrates the danger in creating special classes of “employees,” whether the classes are created in the interests of unions or by employers seeking to avoid the application of certain laws. Finally, and perhaps most importantly, when combined with recent legislative changes in Michigan and other states, this case illustrates the fragility of agency fee provisions and the need for AAUP chapters to continue to seek to expand the percentage of active and engaged chapter members.