- - Tuesday, July 28, 2015

Next fall, the Supreme Court will hear oral argument in Friedrichs v. California Teachers’ Association.

The question in Friedrichs is whether California laws that require teachers in public schools to contribute money to teachers’ unions to which they do not belong violate the First Amendment.

Generally speaking, the First Amendment not only precludes the government from restricting people’s right to speak, it also precludes the government from forcing people to support the speech of others with which they disagree. Governments cannot constitutionally pass laws forcing citizens in general, or all lawyers, to contribute to the Democratic Party or to the NRA.

Under California law, though, Rebecca Friedrichs and many others must pay money to the teachers’ union that represents teachers in the school district in which they work. Ms. Friedrichs is a school teacher in the Savanna School District in California. She need not join the local union (the Savanna District Teachers Association), or its parent organizations (the California Teachers’ Association and the National Education Association), but she still has to pay an “agency fee” to support those unions’ activities. The “agency fee” is usually the same as the dues that union members pay to belong to the unions. Once a year, non-members like Rebecca Friedrichs can “opt out” of the part of the “agency fee” that supports “non-germane” union activities political campaigns, lobbying, and the like. Regardless of whether she does so, she must pay the rest of the “agency fee” to the unions or risk losing her job.

Thirty-eight years ago, in Abood v. Detroit Bd. Of Education, the Supreme Court upheld the right of the state to force people in a given profession to contribute to the collective bargaining expenses of a union that was the “exclusive representative” for others in that profession. The Court in Abood made the distinction between “political” activities of the union and “collective bargaining” activities of the union, holding that the state could not force teachers to support the former, but could force them to support the latter. In Friedrichs, the plaintiffs are asking the Court to overrule Abood.

The peculiar part of Abood is that even members of the majority acknowledged that all activities of a public employee union could be characterized as “political.” That is because the various things that a teachers’ union (and other public unions) negotiate for have substantial public policy ramifications. A teachers’ union may negotiate for tenure for teachers, but whether tenure is a good idea is a basic public policy issue over which people of good will can and do disagree. Forcing someone to contribute to a union’s efforts to strengthen tenure provisions does not seem all that different from forcing someone to contribute to a union’s efforts to support or oppose a gay rights bill.

The most common explanation for this peculiar obligation of forced support is that it is needed to avoid a “free rider” problem. If teachers are not forced to support the union, many will not, but they will still hope to receive the benefits of the union’s efforts on wages, health benefits, and working conditions. Moreover, the argument goes, a union has a legal obligation to represent all of the teachers within the school district in which it is the exclusive representative, regardless of whether those teachers are members of the union. Since the union must represent these nonmembers, they should be obligated to pay to support it.

The difficulty with this argument is that “free rider” problems have never been thought to be sufficient to restrict people’s First Amendment rights. No one thinks that a state could force doctors in its jurisdiction to support the American Medical Association simply because the AMA works to pass laws benefitting all doctors. The AMA’s efforts would not change one whit if it had some legal obligation to represent all doctors. Neither would the efforts of a teacher’s union change if it did not have a similar legal obligation.

More fundamentally, a union, whatever its facial legal obligations, cannot really represent everyone, members and non-members alike. The law assumes that a teachers’ union that negotiates provisions that provide for pay increases with seniority is benefitting all teachers; but how is it representing younger teachers who oppose seniority pay? By working for a policy that they oppose?

In his dissent in Abood, Justice Lewis Powell said that he could detect little difference between a public union and a political party and what was true thirty-eight years ago is probably even more true today as unions inject themselves into all sorts of issues with significant public policy implications. Of course, under the First Amendment, they have every right to do so, just as Rebecca Friedrichs should have every right not to support them.

Michael Rosman is General Counsel at the Center for Individual Rights


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