Let My People Go

Predicting how the U.S. Supreme Court will rule based on oral arguments can be a risky business, but the January 11 arguments in Friedrichs v. California Teachers Association indicate that a majority of the justices want to overturn a 38-year-old mistake and eliminate one of the most cherished powers of teachers unions—the authority to confiscate money from nonmembers.

In 1977, the court held in Abood v. Detroit Board of Education that public employees could not be compelled to join a union but that they could be forced to pay “agency” fees, AKA “fair-share” fees, to help cover costs associated with collective bargaining. Unless all workers were required to pay, unions argued, many nonmembers would become “free riders” who didn’t pay their fair share.

For teachers unions, Abood has been a financial windfall. In states that allow agency fees, more than 90 percent of teachers join a union, while only 68 percent join in states that don’t. Since agency fees cost a teacher nearly as much as union dues, many see little reason not to join the union and get full membership benefits. As well, unions impose opt-out policies requiring teachers to “affirmatively decline” every year to support the political activities of the union, which allows them to request a partial refund of their dues.

In 2013, California teacher Rebecca Friedrichs and eight others filed suit. The clarity of the legal issues allowed them to take the case directly to the Supreme Court, where they argued that the mandatory fees constituted a violation of their rights to free speech and association. Their arguments appeared to carry the day. Less than two years ago, in Harris v. Quinn, a five-justice majority—Alito, Roberts, Kennedy, Scalia, and Thomas—stopped just short of overturning Abood, striking down agency fees for partial but not “full-fledged” government employees. During the oral arguments in Friedrichs, those same justices sounded eager to finish the job.

While Thomas, who is unlikely to defect from the majority, continued his policy of not asking questions, the others took turns picking apart the union arguments. Roberts, Scalia, and Alito pointed out that the union position rests on a false assumption: that you can draw a clear line between the political and nonpolitical activities of public-sector unions. Scalia contended that “everything that is collectively bargained with the government is within the political sphere.” This led Roberts to point out that even negotiations over seemingly small points—such as mileage reimbursement rates or the length of lunch hours—affect the public interest. “It’s all money,” he noted, and “the amount of money that’s allocated to public education as opposed to public housing [or] welfare benefits, that’s always a public policy issue.”

The only way for unions to credibly claim they represent the interests of all teachers is to assume that all teachers have the same preferences. But the very existence of Friedrichs shows that to be false. Justice Kennedy said that “we’re not talking about free riders, but compelled riders” and that the “union is basically making these teachers compelled riders for issues on which they strongly disagree.” In short, it’s not a free ride if you never wanted the ride. It’s more like being clubbed in the head, tied up, and thrown in the union trunk.

Notably, the best evidence for the weakness of the union’s position might have come from the four dissenters in Quinn. Breyer, Sotomayor, Kagan, and Ginsburg made little effort to dispute the plaintiff’s First Amendment arguments. Instead, those justices mainly argued that Abood should be upheld because overturning such a “deeply entrenched” precedent would be unsettling. Breyer emphasized that Abood “was [decided] forty years ago,” and Sotomayor argued that it had created “reliance interests” for unions and government. However, fundamental rights do not normally yield to that kind of utilitarian calculus, and taking refuge in stare decisis in this case looks like weakness, not strength.

Friedrichs could become the most significant case of the court’s current term. In public education, the elimination of agency fees would shift more power to states, school boards, parents, and taxpayers. And teachers unions, which have been able to ignore the preferences of many teachers, might have to offer a service that doesn’t require coercion. After all, if the union position is as compelling as it claims, as Justice Kennedy said, “the union can convince teachers to join.”

Joshua Dunn is associate professor of political science at the University of Colorado-Colorado Springs.

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