Friedrichs v. California Teachers Association: Justice Alito’s Invitation Accepted
More Legal Attacks on Teachers
by Ann C. Hodges, Professor of Law, University of Richmond School of Law
In a blog post following the Supreme Court’s decision last term in Harris v. Quinn, I predicted that the constitutionality of union fair share fees would soon be back at the Court. It took little prescience to make such a prediction and indeed, the plaintiffs in Friederichs v. California Teachers’ Association worked mightily to get the case on the Court’s docket as quickly as possible. The Court will decide whether to grant cert in the near future.
Although this issue will no doubt return repeatedly to the Court, it should decline to hear the case. The 1977 decision of the Court in Abood v. Detroit Board of Education correctly concluded that fair share fees are constitutional, and the decision should not be disturbed.Abood allows the union to charge for its mandated representational duties, but not for political expenditures. In this context, the objectors’ first amendment interests are reduced and the interests of the government employer that has entered into an agreement with the union enhanced. Justice Alito suggested in Harris, however, that all union activity in the government sector implicates the highest first amendment interests. This is at odds with the Court’s cases on the first amendment interests of public employees following Abood.
In recent years, the Court has held that the government has stronger interests in restraining speech when it acts as an employer. Accordingly, when employees speak pursuant to their job duties, their speech is unprotected. Additionally, when an employee’s speech is about an internal workplace grievance, it is similarly unprotected by the first amendment. It is precisely these grievances that the union is obliged to handle for all employees regardless of membership. If speaking about the grievance is unprotected, why is compelling the unwilling employee to pay for this otherwise unprotected speech an interference with first amendment rights? Further, Justice Alito’s Harris opinion suggests that when one employee asks for a raise, the speech is unprotected but when the union asks for a raise on behalf of all employees, it is high order political speech which the employee cannot be compelled to support. As Justice Kagan pointed out in the Harris dissent, the fact that it takes more money to pay multiple employees does not transform the character of the speech when the substance, asking for a raise, is the same.
There are many other reasons for the Court to deny cert. Abood has been settled law for almost 40 years, Justice Alito’s efforts notwithstanding. As Justice Kagan ably pointed out inHarris, principles of stare decisis, including the reliance interests of thousands of employers and unions and millions of employees, counsel restraint. Moreover, as I have argued in earlier posts, fair share agreements are an essential pillar of the system of labor relations that has served our country well for 80 years. And finally, as pointed out in the opposition to cert, the record in this case has not been developed, as the plaintiffs rushed to accept Justice Alito’s invitation for an opportunity to overrule Abood.
When one takes a step back from the details of the cases and looks at the big picture, it is clear that the issue of fair share fees is about power and politics. While some may philosophically object to the requirement to pay fees despite the union’s legal obligation to represent all employees, many are looking for a way to reduce union resources.
Whether the ultimate desire is to reduce the size of government, to elect more Republicans, or to implement more conservative policies, limiting the power of unions is one route to success. And today, the more powerful unions are government unions, which represent more than one third of the government workforce, as compared to private sector unions with less than 7 percent representation. Despite the high representation rate in the public sector, however, the power of the unions is dwarfed by the opposition.
The cases challenging union fees are not financed by employees, but by powerful conservative interest groups. In an ironic twist on the theme of attacking the fair share fee requirement, fee payers, represented by a powerful law firm that typically advocates for employers, recently filed a different kind of first amendment challenge. These plaintiffs complain that their speech rights are violated because they cannot obtain the benefits of union membership without paying full dues, which subsidize activities objectionable to them. The goal of all these challenges is not to enhance speech, but to reduce it. Individual voices are far less powerful alone than when exercised collectively. If the vehicle for collective voice is silenced or diminished, the power of opposition groups is increased.
Despite efforts to portray the union fee cases as involving the special interests of powerful unions, those who value speech should be deeply concerned. Those who fear the consolidation of corporate power should be concerned as well. We may be heartened by the Court’s failure to overrule Abood in Harris v. Quinn. It is clear that Justice Alito and others are itching to send Abood to the dustbin, but apparently did not have sufficient votes inHarris. One hopes that the better part of wisdom will prevail and that it was not merely the vehicle that led to the result. The relentless attacks on union fees will continue to return to the Court, however, because of the powerful interests pushing them. Those concerned about preserving multiple voices in our society must be vigilant.
Friedrichs v. California Teachers Association
Pending petition| Docket No. | Op. Below | Argument | Opinion | Vote | Author | Term |
|---|---|---|---|---|---|---|
| 14-915 | 9th Cir. | TBD | TBD | TBD | TBD | TBD |
Issue: (1) Whether Abood v. Detroit Bd. of Ed. should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.
