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MINNESOTA STATE BOARD FOR COMMUNITY COLLEGES v. KNIGHT ET AL.

decided*fn*: February 21, 1984.

MINNESOTA STATE BOARD FOR COMMUNITY COLLEGES
v.
KNIGHT ET AL.



APPEAL FROM THE UNITED STATES DISTRICT COURT, DISTRICT OF MINNESOTA, FOURTH DIVISION.

O'connor, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, and Rehnquist, JJ., joined. Marshall, J., filed an opinion concurring in the judgment, post, p. 292. Brennan, J., filed a dissenting opinion, post, p. 295. Stevens, J., filed a dissenting opinion, in all but Part III of which Brennan, J., joined, and in all but Part II of which Powell, J., joined, post, p. 300.

Author: O'connor

[ 465 U.S. Page 273]

 JUSTICE O'CONNOR delivered the opinion of the Court.

The State of Minnesota authorizes its public employees to bargain collectively over terms and conditions of employment. It also requires public employers to engage in official exchanges of views with their professional employees on policy questions relating to employment but outside the scope of mandatory bargaining. If professional employees forming an appropriate bargaining unit have selected an exclusive representative for mandatory bargaining, their employer may exchange views on non-mandatory subjects only with the exclusive representative. The question presented in these cases is whether this restriction on participation in the non-mandatory-subject exchange process violates the constitutional rights of professional employees within the bargaining unit who are not members of the exclusive representative and who may disagree with its views. We hold that it does not.

I

A

In 1971, the Minnesota Legislature adopted the Public Employment Labor Relations Act (PELRA), Minn. Stat. § 179.61 et seq. (1982), to establish "orderly and constructive relationships between all public employers and their employees . . . ." § 179.61. The public employers covered by the law are, broadly speaking, the State and its political subdivisions, agencies, and instrumentalities. § 179.63. In its amended form, as in its original form, PELRA provides for

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     the division of public employees into appropriate bargaining units and establishes a procedure, based on majority support within a unit, for the designation of an exclusive bargaining agent for that unit. §§ 179.67, 179.71, 179.741. The statute requires public employers to "meet and negotiate" with exclusive representatives concerning the "terms and conditions of employment," which the statute defines to mean "the hours of employment, the compensation therefor . . . , and the employer's personnel policies affecting the working conditions of the employees." §§ 179.63, 179.67, 179.71. The employer's and employees' representatives must seek an agreement in good faith. § 179.63, subd. 16.

PELRA also grants professional employees, such as college faculty, the right to "meet and confer" with their employers on matters related to employment that are outside the scope of mandatory negotiations. §§ 179.63, 179.65. This provision rests on the recognition that "professional employees possess knowledge, expertise, and dedication which is helpful and necessary to the operation and quality of public services and which may assist public employers in developing their policies." § 179.73. The statute declares it to be the State's policy to "encourage close cooperation between public employers and professional employees" by providing for "meet and confer" sessions on all employment-related questions not subject to mandatory bargaining. Ibid. There is no statutory provision concerning the "meet and confer" process, however, that requires good-faith efforts to reach agreement. See Minneapolis Federation of Teachers Local 59 v. Minneapolis Special School Dist. No. 1, 258 N. W. 2d 802, 804, n. 2 (Minn. 1977).

PELRA requires professional employees to select a representative to "meet and confer" with their public employer. Minn. Stat. § 179.73 (1982). If professional employees in an appropriate bargaining unit have an exclusive representative to "meet and negotiate" with their employer, that representative serves as the "meet and confer" representative as well.

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     Indeed, the employer may neither "meet and negotiate" nor "meet and confer" with any members of that bargaining unit except through their exclusive representative. § 179.66, subd. 7. This restriction, however, does not prevent professional employees from submitting advice or recommendations to their employer as part of their work assignment. Ibid. Moreover, nothing in PELRA restricts the right of any public employee to speak on any "matter related to the conditions or compensation of public employment or their betterment" as long as doing so "is not designed to and does not interfere with the full faithful and proper performance of the duties of employment or circumvent the rights of the exclusive representative if there be one." § 179.65, subd. 1.

B

Appellant Minnesota State Board for Community Colleges (State Board) operates the Minnesota community college system. At the time of trial, the system comprised 18 institutions located throughout the State. Each community college is administered by a president, who reports, through the chancellor of the system, to the State Board.

Prior to 1971, Minnesota's community colleges were governed in a variety of ways. On some campuses, faculty had a strong voice in administrative policymaking, expressed through organizations such as faculty senates. On other campuses, the administration consulted very little with the faculty. Irrespective of the level of faculty involvement in governance, however, the administrations of the colleges retained final authority to make policy.

Following enactment of PELRA, appellant Minnesota Community College Faculty Association (MCCFA)*fn1 was designated the exclusive representative of the faculty of the

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     State's community colleges, which had been deemed a single bargaining unit.*fn2 MCCFA has "met and negotiated" and "met and conferred" with the State Board since 1971. The result has been the negotiation of successive collective-bargaining agreements in the intervening years and, in order to implement the "meet and confer" provision, a restructuring of governance practices in the community college system.

On the state level, MCCFA and the Board established "meet and confer" committees to discuss questions of policy applicable to the entire system. On the campus level, the MCCFA chapters and the college administrations created local "meet and confer" committees -- also referred to as "exchange of views" committees -- to discuss questions of policy applicable only to the campus. The committees on both levels have discussed such topics as the selection and evaluation of administrators, academic accreditation, student affairs, curriculum, and fiscal planning -- all policy matters within the control of the college administrations and the State Board. App. to Juris. Statement A-49.

The State Board considers the views expressed by the statewide faculty "meet and confer" committees to be the faculty's official collective position. It recognizes, however, that not every instructor agrees with the official faculty view on every policy question. Not every instructor in the bargaining unit is a member of MCCFA, and MCCFA has selected only its own members to represent it on "meet and confer" committees. Accordingly, all faculty have been free to communicate to the State Board and to local administrations their views on questions within the coverage of the statutory "meet and confer" provision. Id., at A-50, A-52. They have frequently done so.*fn3 With the possible exception

[ 465 U.S. Page 277]

     of a brief period of adjustment to the new governance structure, during which some administrators were reluctant to communicate informally with faculty, individual faculty members have not been impeded by either MCCFA or college administrators in the communication of their views on policy questions. Id., at A-50. Nor has PELRA ever been construed to impede such communication.*fn4

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     C

Appellees are 20 Minnesota community college faculty instructors who are not members of MCCFA. In December 1974, they filed suit in the United States District Court for the District of Minnesota, challenging the constitutionality of MCCFA's exclusive representation of community college faculty in both the "meet and negotiate" and "meet and confer" processes. A three-judge District Court was convened to hear the case. A Special Master appointed by the court conducted the trial in 1980 and submitted recommended findings of fact in early 1981. Id., at A-54 to A-81. The three-judge District Court issued its findings of fact in late 1981, id., at A-32 to A-54, and its decision on the legal claims in early 1982, 571 F.Supp. 1.

The court rejected appellees' attack on the constitutionality of exclusive representation in bargaining over terms and conditions of employment, relying chiefly on Abood v. Detroit Board of Education, 431 U.S. 209 (1977). The court agreed with appellees, however, that PELRA, as applied in the community college system, infringes First and Fourteenth Amendment speech and associational rights of faculty who

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     do not wish to join MCCFA. By granting MCCFA the right to select the faculty representatives for the "meet and confer" committees and by permitting MCCFA to select only its own members, the court held, PELRA unconstitutionally deprives non-MCCFA instructors of "a fair opportunity to participate in the selection of governance representatives." 571 F.Supp., at 10. The court granted declaratory relief in accordance with its holdings and enjoined MCCFA from selecting "meet and confer" representatives without providing all faculty the fair opportunity that its selection practice had unconstitutionally denied.

Appellees, the State Board, and MCCFA all filed appeals with this Court, invoking jurisdiction under 28 U. S. C. § 1253. The Court summarily affirmed the judgment insofar as the District Court held the "meet and negotiate" provisions of PELRA to be valid. Knight v. Minnesota Community College Faculty Assn., 460 U.S. 1048 (1983). The Court thus rejected appellees' argument, based on A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), and on Carter v. Carter Coal Co., 298 U.S. 238 (1936), that PELRA unconstitutionally delegated legislative authority to private parties. The Court's summary affirmance also rejected the constitutional attack on PELRA's restriction to the exclusive representative of participation in the "meet and negotiate" process.

On March 28, 1983, the Court noted probable jurisdiction in the appeals by the Board and MCCFA. 460 U.S. 1050. Several weeks later, following an election held pursuant to a newly established scheme for selecting "meet and confer" representatives, the three-judge District Court modified its injunction to require a specific voting system for the selection of faculty "meet and confer" representatives.*fn5 This Court

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     permitted appellants to add to their appeal a challenge to this new relief. 462 U.S. 1104 (1983). We now reverse the District Court's holding that the "meet and confer" provisions of PELRA deprive appellees of their constitutional rights.

II

A

Appellees do not and could not claim that they have been unconstitutionally denied access to a public forum. A "meet and confer" session is obviously not a public forum. It is a fundamental principle of First Amendment doctrine, articulated most recently in Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45-46 (1983), that for government property to be a public forum, it must by long tradition or by government designation be open to the public at large for assembly and speech. Minnesota college administration meetings convened to obtain faculty advice on policy questions have neither by long tradition nor by government designation been open for general public participation. The District Court did not so find, 571 F.Supp., at 9, and appellees do not contend otherwise.

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     The rights at issue in these cases are accordingly wholly unlike those at stake in Madison Joint School District No. 8 v. Wisconsin Employment Relations Comm'n, 429 U.S. 167 (1976). The Court in that case upheld a claim of access to a public forum, applying standard public-forum First Amendment analysis. See Perry Education Assn. v. Perry Local Educators' Assn., supra, at 45 (citing Madison Joint School District as an example of a case involving a "forum generally open to the public" for expressive activity). The school board meetings at issue there were "opened [as] a forum for direct citizen involvement," 429 U.S., at 175, and "public participation [was] permitted," id., at 169. The First Amendment was violated when the meetings were suddenly closed to one segment of the public even though they otherwise remained open for participation by the public at large.*fn6 These cases, by contrast, involve no selective closure of a generally open forum, and hence any reliance on the Madison case would be misplaced.

Indeed, the claim in these cases is not even a claim of access to a nonpublic forum, such as the school mail system at issue in Perry Education Assn. A private organization

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     there claimed a right of access to government property for use in speaking to potentially willing listeners among a group of private individuals and public officials not acting in an official capacity. The organization claimed no right to have anyone, public or private, attend to its message. See also United States Postal Service v. Greenburgh Civic Assns., 453 U.S. 114 (1981) (postal letterbox); Greer v. Spock, 424 U.S. 828 (1976) (military base); Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (advertising space on municipal bus); Adderley v. Florida, 385 U.S. 39 (1966) (county jail). Appellees here make a claim quite different from those made in the nonpublic-forum cases. They do not contend that certain government property has been closed to them for use in communicating with private individuals or public officials not acting as such who might be willing to listen to them. Rather, they claim an entitlement to a government audience for their views.

"Meet and confer" sessions are occasions for public employers, acting solely as instrumentalities of the State, to receive policy advice from their professional employees. Minnesota has simply restricted the class of persons to whom it will listen in its making of policy. Thus, appellees' principal claim is that they have a right to force officers of the State acting in an official policymaking capacity to listen to them in a particular formal setting.*fn7 The nonpublic-forum cases concern government's authority to provide assistance to certain persons in communicating with other persons who would not, as listeners, be acting for the government. As the discussion below makes clear, the claim that government is constitutionally obliged to listen to appellees involves entirely different considerations from those on which resolution of nonpublic-forum cases turn. Hence, the nonpublic-forum cases are

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     largely irrelevant to assessing appellees' novel constitutional claim.*fn8

The District Court agreed with appellees' claim to the extent that it was limited to faculty participation in governance of institutions of higher education. The court reasoned that "issues in higher education have a special character." 571 F.Supp., at 8. Tradition and public policy support the right of faculty to participate in policymaking in higher education, the court stated, and the "right of expression by faculty members also holds a special place under our Constitution." Id., at 8-9. Because of the "vital concern for academic freedom," the District Court concluded, "when the state compels creation of a representative governance system in higher education and utilizes that forum for ongoing debate and resolution of virtually all issues outside the scope of collective bargaining, it must afford every faculty member a fair opportunity to participate in the selection of governance representatives." Id., at 9-10.

This conclusion is erroneous. Appellees have no constitutional right to force the government to listen to their views. They have no such right as members of the public, as government employees, or as instructors in an institution of higher education.

1

The Constitution does not grant to members of the public generally a right to be heard by public bodies making decisions of policy. In Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441 (1915), this Court rejected a claim to such a right founded on the Due Process

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     Clause of the Fourteenth Amendment. Speaking for the Court, Justice Holmes explained:

"Where a rule of conduct applies to more than a few people it is impracticable that every one should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule." Id., at 445.

In Madison Joint School District No. 8 v. Wisconsin Employment Relations Comm'n, which sustained a First Amendment challenge to a restriction on access to a public forum, the Court recognized the soundness of Justice Holmes' reasoning outside the due process context. The Court stated: "Plainly, public bodies may confine their meetings to specified subject matter and may hold nonpublic sessions to transact business." 429 U.S., at 175, n. 8.

Policymaking organs in our system of government have never operated under a constitutional constraint requiring them to afford every interested member of the public an opportunity to present testimony before any policy is adopted. Legislatures throughout the Nation, including Congress, frequently enact bills on which no hearings have been held or on which testimony has been received from only a select group. Executive agencies likewise make policy decisions of widespread application without permitting unrestricted public testimony. Public officials at all levels of government daily make policy decisions based only on the advice they decide they need and choose to hear. To recognize a constitutional right to participate directly in government policymaking would work a revolution in existing government practices.

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     Not least among the reasons for refusing to recognize such a right is the impossibility of its judicial definition and enforcement. Both federalism and separation-of-powers concerns would be implicated in the massive intrusion into state and federal policymaking that recognition of the claimed right would entail. Moreover, the pragmatic considerations identified by Justice Holmes in Bi-Metallic Investment Co. v. State Board of Equalization, supra, are as weighty today as they were in 1915. Government makes so many policy decisions affecting so many people that it would likely grind to a halt were policymaking constrained by constitutional requirements on whose voices must be heard. "There must be a limit to individual argument in such matters if government is to go on." Id., at 445. Absent statutory restrictions, the State must be free to consult or not to consult whomever it pleases.

However wise or practicable various levels of public participation in various kinds of policy decisions may be, this Court has never held, and nothing in the Constitution suggests it should hold, that government must provide for such participation. In Bi-Metallic the Court rejected due process as a source of an obligation to listen. Nothing in the First Amendment or in this Court's case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to individuals' communications on public issues. Indeed, in Smith v. Arkansas State Highway Employees, 441 U.S. 463, 464-466 (1979), the Court rejected the suggestion. No other constitutional provision has been advanced as a source of such a requirement. Nor, finally, can the structure of government established and approved by the Constitution provide the source. It is inherent in a republican form of government that direct public participation in government policymaking is limited. See The Federalist No. 10 (J. Madison). Disagreement with public policy and disapproval of officials' responsiveness, as Justice Holmes suggested in Bi-Metallic, supra, is to be registered principally at the polls.

[ 465 U.S. Page ...


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