The U.S. Supreme Court on Tuesday agreed to hear a lawsuit against the California Teachers Association that will determine whether teachers and other public employees must pay fees to unions that represent them.
A victory for the plaintiffs in Friedrichs v. CTA would threaten the financial strength and bargaining clout of the CTA and other public employee unions by making all union dues voluntary. Ten California teachers and the conservative teachers group Christian Educators Association International filed the lawsuit.
The teachers assert that mandatory fees violate their First Amendment rights.
“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,” Terry Pell, president of the Center for Individual Rights, which brought the case on behalf of the teachers, said in a statement Tuesday. “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.”
In a joint statement with the presidents of the National Education Association and the American Federation of Teachers, CTA President Eric Heins said, “We are disappointed that at a time when big corporations and the wealthy few are rewriting the rules in their favor, knocking American families and our entire economy off balance, the Supreme Court has chosen to take a case that threatens the fundamental promise of America – that if you work hard and play by the rules you should be able to provide for your family and live a decent life.”
The lawsuit asks the Court to overturn its 1977 ruling in Abood v. Detroit Board of Education, in which the Court said that states could require public employees who decline to join a union to pay “agency” or “fair-share” fees. Along with covering the local union’s costs of negotiating workplace conditions, pay and benefits, a portion of the agency fees goes to the CTA and the National Education Association to cover lobbying and other expenses in Sacramento and Washington, D.C.
Twenty-five states, including California, have laws establishing compulsory union fees. Laws in two dozen “right -to-work” states prohibit them. By 2013, two years after legislators rescinded Wisconsin’s mandatory fees, a third of that state’s teachers had stopped paying dues.
Because of the Abood ruling, teachers already don’t have to pay the share of dues that goes to political purposes, such as supporting candidates for school boards and the Legislature and, in California, initiatives like Proposition 30, which established temporary taxes. About 30 to 40 percent of the approximately $1,000 in dues that California teachers pay annually funds political activities. Each year, about 29,000 teachers – less than 10 percent of teachers in the state – sign a declaration to get a rebate for that money.
However, Rebecca Friedrichs, a 27-year elementary teacher in the Savanna School District in Anaheim, and the other plaintiffs argue that agency fees violate their free speech rights. States, they argue, shouldn’t force them to pay fees to a union whose positions on issues like tenure, class size, teacher evaluations or merit-based compensation they don’t support.
Pell said there are indistinguishable differences between what is and isn’t considered political speech under the Abood ruling. “Everything the union does is political,” he said in an interview last year.
As a fallback position, attorneys for the teachers asked the court to require that unions ask employees to affirmatively opt in every year to pay agency fees, instead of having to opt out of automatic dues collection.
The court in Abood determined that states, as employers, have an interest in negotiating with a financially viable union serving the interests of workers. They can establish fair-share fees to prevent “free riders” – workers who get all of the benefits of representation without sharing any of the costs. The CTA also argues its positions reflect the views of the majority of its members, who elect the leaders who represent them.
At least four of the nine Supreme Court justices must agree to take a case. Last year, Justice Samuel Alito appeared to invite a re-hearing of Abood in writing the majority opinion in Harris v. Quinn, a narrow decision involving Illinois health-care workers. Alito referred to the “questionable foundations” of the Abood decision. In response, attorneys for the teachers asked federal courts in California to put Friedrichs on a fast track so that the Supreme Court could take up the challenge of Abood. The courts responded by moving the case forward without holding a full trial and oral arguments on appeal.
In a brief filed last month defending the state law on compulsory fees, California Attorney General Kamala Harris cited the expedited proceeding as a reason the Supreme Court shouldn’t take up the case. She said Friedrichs makes a sweeping assertion that all bargaining is political without citing specifics or establishing a record on which to rule.
“Even if there were some reason to revisit Abood, this case would not be a good vehicle for doing so,” Harris wrote.
Three times in the past 16 years, California voters have defeated initiatives to eliminate the compulsory fees deduction or prohibit unions from collecting a portion of dues for political purposes. Worried that the conservative Supreme Court majority might overturn Abood, the CTA’s leaders have looked ahead. Last year, at its conference for local union presidents, the CTA shared a 23-page presentation on Friedrichs with the fatalistic title “Not if but when: Living in a world without Fair Share.”
However, as last week’s 6-3 Supreme Court ruling upholding a key provision of the Affordable Care Act showed, a willingness to revisit a case does not necessarily foreshadow a decision to overturn it.