Over the past three decades, disability rights activists and state governments have developed a program that enables people with disabilities to live independently in their own homes, one that avoids costly and stultifying institutionalization. But a case to be argued in the Supreme Court this Tuesday threatens to undo the great progress they have made.
The case is Harris v. Quinn. The program it threatens is called consumer-controlled personal assistance services. That program responds to a basic problem: Many people with disabilities are fully capable of making choices about how to live their lives, but they lack the physical ability to perform the necessary tasks themselves.
Too often, our society has responded to this problem by placing people with disabilities in nursing homes or other institutions. But those institutions segregate people with disabilities from the broader community and deprive their residents of an array of choices regarding how to live their lives.
The disability rights movement developed a better way. Instead of spending Medicaid money to shut people away in institutions, disability rights activists argued, states should spend that money to enable people with disabilities to hire personal assistants. Those personal assistants, chosen by the individuals with disabilities they serve (often referred to as consumers), perform the tasks that a disability limits a consumer from performing. At all times, the consumer controls what tasks the personal assistant will perform, as well as when and how she will perform them.
This arrangement promotes independence, enables people with disabilities to live as a part of--not apart from--the community, and helps preserve scarce state Medicaid budgets. Consumer-controlled personal assistance services--like wheelchair ramps, Braille signage, and captioned television programs--represent a major step forward for the disability rights movement, one for which people with disabilities have fought very hard. But personal assistance can serve its purpose only if there is a robust pool of individuals willing to work as personal assistants--and that is where this week's Supreme Court case comes in.
When states began to provide consumer-controlled personal assistance services through their Medicaid programs, they found that the workforce was unstable and marked by a high rate of turnover. As a result, individuals with disabilities often faced gaps in coverage. And the high turnover forced individuals with disabilities to bear the burden of repeatedly training new workers to serve their interests and desires.
Experts attributed the turnover to numerous factors. Chief among them were low wages and benefits. To address this problem and give personal assistants a voice, Illinois and nine other states adopted bargaining systems under which personal assistants may--if they choose--select a collective-bargaining representative to negotiate with the state over the terms and conditions of employment that the state sets under its Medicaid program.
Disability rights activists in Illinois and these other states agreed to support these collective-bargaining systems--but only on the important condition that the systems preserved the consumer control that is essential to promoting the independence and integration of people with disabilities. Collective bargaining with the state, over the terms and conditions of employment that the state itself sets, can serve disability rights interests by reducing turnover in the personal-assistance workforce--and the evidence suggests that that is exactly what has happened. But disability rights activists insisted--and the states agreed--that each individual with a disability who obtains personal assistance must retain the power to hire, fire, and direct the person who provides her services.
It is this sharing of the employment relationship between individuals with disabilities and the state that is the target of the challenge before the Supreme Court. Decades of precedents hold that, although a state worker may not be required to join a union as a condition of employment, workers may be required to pay their share of the costs of bargaining by a union that represents them--a union that is bound to fairly represent all workers in a bargaining unit, whether union members or not.
A handful of Illinois personal assistants, who are not members of the union that a majority of workers in the state program elected to represent them and who do not wish to pay their share of the costs of bargaining, argue that those precedents extend only to what the objectors call "true public employees." Because personal assistants in Illinois are hired, fired, and supervised by the individuals with disabilities they serve, these objectors assert that those precedents do not apply to them--even though their pay and benefits come directly from the state.
That argument is not supported by the Court's precedent. If accepted, it would have devastating consequences for the people with disabilities who rely on consumer-controlled personal assistance services. States would be put to a choice. They could continue providing personal assistants with effective collective bargaining rights, but they would then have to abandon the principle of consumer control over hiring, firing, and day-to-day supervision. Alternatively, they could abandon collective bargaining and simply treat personal-assistance workers for all purposes as employees of the individual consumers they serve, but they would then have to abandon collective bargaining over wages and benefits--bargaining that has proven to reduce turnover in the personal-assistance workforce.
Either way, if the Supreme Court accepts the objectors' argument, it will put the independence and integration of people with disabilities at great risk. The Court should adhere to its longstanding precedent and uphold Illinois's collective-bargaining system.
Samuel R. Bagenstos, Professor of Law at the University of Michigan Law School, is a former Principal Deputy Assistant Attorney General for Civil Rights at the United States Department of Justice. He filed a brief on behalf of 27 disability rights and seniors organizations in support of the collective bargaining arrangement challenged in Harris v. Quinn.