Hugh L. Reilly

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In 1977, the Supreme Court considered whether the first amendment prevents or limits forced union dues in the public sector. The issue arose in Abood v. Detroit Board of Education. The Court's decision resolved several important issues, some unexpectedly, and left others for subsequent litigation. The Court rejected the claim that forced dues for public sector employees are per se unconstitutional. Instead, the Court determined that such fees are constitutional, but only to the extent that they defray the union's cost of "collective bargaining, contract administration, and grievance adjustment." In the Court's view, a fee confined to the cost of those three activities is constitutionally permissible because an "important" governmental interest exists "to distribute fairly the cost of these activities. . . ." In its discussion of this issue, the Court appears to have applied the "overbreadth-least restrictive alternative" test, a traditional type of first amendment analysis.