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Co-authored by: Nancy Thorner & Bonnie O’Neil
The Supreme Court has set the stage for a momentous 2016.
The Supreme Court put public-sector unions in its cross hairs Tuesday, June 30, 2015 by agreeing to hear a constitutional attack on the mandatory representation fees that nearly all California teachers pay in Friedrichs v. California Teachers Association.
It is expected that the U.S. Supreme Court will hear arguments sometime early in 2016 in what is a closely watched California-based lawsuit with major implications for the state’s teachers union and potentially all public-employee unions.
The lawsuit was brought to the Supreme Court by ten California teachers and a teachers group, Christian Educators Association International. The U.S. Supreme Court accepted the case. The plaintiffs want the court to overturn a four-decades-old court decision in Abood v. Detroit Board of Education. That ruling said states could require all employees represented exclusively by a public-employee union to pay “fair-share” or “agency” fees” (an equal portion of the bargaining costs related to wages, benefits, and working conditions).
Rebecca Friedrichs is the lead plaintiff, an outspoken opponent of her teachers’ union who agreed to let her name become identified with the case. Friedrichs has taught elementary school for 28 years, mostly in the Savanna School District in Anaheim.You can listen to her discuss the case here, read a Q&A with her here, and read a commentary by her in the Orange County Register here.
Funding the lawsuit is the Center for Individual Rights, a Washington, D.C. based public interest law firm whose mission is “the defense of individual liberties against the increasingly aggressive and unchecked authority of federal and state governments.” It has pursued lawsuits seeking to ban affirmative action and racial and gender preferences, including California’s Proposition 209.
Reaction to Friedrichs v. California Teachers Association
Even employees who are not members must pay union dues (fees). If the plaintiffs prevail, dues and fees for members and non-members would no longer be mandatory. Dues that union members currently pay include an additional amount that covers the union’s donations to specific candidates and organizations. Many teachers, however, do not support those candidates or organizations.
In their brief to the court, the teachers union said the agency shop arrangement is “simply a requirement that a nonmember teacher who receives the benefit of additional compensation as a result of the unions’ efforts in collective bargaining must pay a share of the unions’ costs in negotiating those improvements, rather than receiving a free ride.”
But the challengers — 10 teachers who are not members of the unions — call it a “multi-hundred-million-dollar regime of compelled political speech.” They are represented by Michael Carvin, the lawyer who represented the Virginia challengers to President Obama’s health care law in the case decided by the Supreme Court.
Terry Pell, President of the Center for Individual Rights, which brought and is funding the lawsuit on behalf of Rebecca Friedrichs and others, said the high court’s agreement to hear the case was “long overdue.” “This case is about the right of individuals to decide for themselves whether to join and pay dues to an organization that purports to speak on their behalf,” Pell said. “We are seeking the end of compulsory union dues across the nation on the basis of the free speech rights guaranteed by the First Amendment.
Examining Fair Pay Fees
Presently California teachers who are not members of the Union must contribute unless they opt out. Friedrichs v. California Teachers Association argues that the process should be just the opposite, that non-members should be excluded from contributing unless they opt in.
Typically, California teacher union dues cost upwards of $1,000 per year. Although California law allows teachers to opt-out of the thirty percent or so of their dues that even the union concedes is used for overtly political activities, teachers must file for a refund each year according to a precise procedure that effectively discourages its use. As a result, many teachers contribute hundreds of dollars in dues each year to support political positions in a variety of areas having nothing to do with education and with which many teachers disagree.
In California about 29,000 teachers, or slightly less than 10 percent of the CTA’s members, pay fair share fees. If many of the remaining 90 percent of teachers stopped paying dues, the loss would jeopardize CTA’s ability to continue supporting teachers, and greatly reduce their influencing court decisions and funding special interest groups.
For example, the CTA spent over $211 million in political expenditures from 2000 through 2009. CTA’s largest single expenditure (over $26 million) was made to successfully oppose Proposition 38 on the November, 2000 ballot, which would have enacted a school-voucher system in California (and thereby increased the potential employment pool for teachers). Should Friedrichs v. California succeed, it could significantly sap the financial strength and thus hinder their bargaining and political clout they now enjoy. They would have to persuade employees to voluntarily pay dues and/or fees to the union.
Decision of Supremes up for grabs
Twenty-five parties have filed amicus briefs at the Supreme Court in support of CIR’s case in Friedrichs v. CTA. The amicus briefs represent a broad and bipartisan coalition of individuals and organizations who agree that compulsory union dues are harmful to teachers, parents, and children. The amici includeformer California Senate Majority Leader Gloria Romero, who with other concerned parents, argues that compulsory union dues are contributing to the plight of underprivileged students by trapping them in under performing schools. A host of public interest law firms filed briefs, including Pacific Legal Foundation and the Becket Fund for Religious Liberty. A full list of amicusbriefs can be found on the main case page in the Legal Documents box. https://www.cir-usa.org/cases/friedrichs-v-california-teachers-association-et-al/
In looking ahead to the Supreme Court decision, although Justice Anthony Kennedy is usually the swing vote in 5-4 cases, how conservative Justice Scalia will vote is not certain. In a related 1991 Supreme Court decision, Judge Scalia wrote: “Where the state imposes upon the union a duty to deliver services, it may permit the union to demand reimbursement.” Teachers argue their dues and fees are being used to support controversial organizations and specific political candidates whom some members find objectionable and that it is reprehensible their money has and continues to be used by the Union to support them.
As to the far reaching implications of the lawsuit, half of the states, including California, have adopted laws establishing mandatory “fair share” or “agency” fees employees pay to unions. The remaining 25 “right to work” states either prohibit collective bargaining by public workers or ban mandatory dues. Although the case directly involves the CTA, and though not a defendant, a decision could affect all unions representing public workers, depending how narrowly or broadly the Supreme Court rules.