In “Collective Panic,” Martha Derthick and I argued that teachers’ unions dodged a major blow in Harris v. Quinn (2014) but that they should hold off on popping the champagne.
The court’s decision in Quinn indicated that a prized precedent, Abood v. Detroit Board of Education (1977), might soon be overturned. Under Abood, public sector unions could collect “agency fees” from nonmembers, but those funds could not be used for ideological or political purposes. The logic of Abood was that unless public sector unions could collect those funds by compulsion, nonmembers would “free ride” on the collective bargaining efforts of the unions.
Some have always questioned this logic. It’s not free riding if you never wanted the ride. It’s more like being clubbed in the head, tied up, and thrown in the trunk. Regardless, without the ability to punish these potential free riders, union membership would collapse. As Daniel DiSalvo has noted, “In nearly every state that permits agency fees, more than 90 percent of teachers belong to unions. In states that don’t allow agency fees, only 68 percent of teachers are unionized.” Since agency fees cost nearly as much as a full union membership, individuals see little reason not to join the union. Losing Abood would be a “crippling blow” for public sector unions.
In Quinn, Justice Alito argued that Abood created an “anomaly” that at best rested uneasily with First Amendment principles. Because public sector unions are public, all of their bargaining is political. Negotiating with the government means negotiating with taxpayers’ representatives. Thus, it is specious to draw a line between ideological activities and bargaining over wages and benefits. Compelling individuals to pay for the latter means compelling them to pay for speech that they oppose. Citing previous precedent, Alito said that “free-rider arguments…are generally insufficient to overcome First Amendment objections.” In all, Alito spent nearly four pages critiquing Abood, making it obvious to sentient readers that the majority would like the opportunity to overturn it. It just needed the right case. The employees in Quinn were home health care contractors, not “full-fledged” state employees.
As Martha and I pointed out, such a case was already making its way through the lower courts. Now that case, Friedrichs v. California Teachers Association (CTA), has been appealed to the Supreme Court, increasing the odds that Abood’s days are numbered.
In Friedrichs, ten California teachers are arguing that agency fees (combined with onerous “opt-out” procedures) violate their rights to freedom of speech and association. In their petition for certiorari, the teachers contend that “public-sector collective bargaining constitutes core political speech about governmental affairs that is not materially different from lobbying.” California’s fiscal train wreck makes that all the more obvious. With unfunded public pension liabilities of more than $198 billion, choices over compensation and benefits are profoundly political affecting the long-term financial viability of the state. Additionally, in order to receive a refund of the 30 percent of their dues that even the CTA acknowledges is used for explicitly political activity, teachers have to file a written annual request during a narrow window. Teachers, therefore, cannot permanently opt out. And if they forget to file a written request, their money goes to lobbying and campaigning. Since 2000, the CTA has spent more than $200 million on political activity, with their largest expenditures going to opposition against educational reform initiatives.
While the Court could always deny cert, right now Friedrichs looks like a case delivered straight from central casting. For unions, it looks like a machete-wielding monster. For education reformers, it looks like Clint Eastwood in Pale Rider. Regardless, teachers’ unions would be justified in worrying that their days of compelling contributions from alleged free riders are numbered.
– Joshua Dunn
Joshua Dunn is an associate professor of political science at the University of Colorado–Colorado Springs and co-author of Education Next’s Legal Beat column.