Friedrichs v. CTA: Back To Your Corners, Until Round Two.
I make no secret about two things…that I am very politically and legally involved in Students’ Rights issues, and the legal issues involved in Education. The second thing…I am rabidly attached to political free speech, as outlined in the U.S. Constitution. As a teacher, Free Speech can be a tricky thing, though.
You see…as a teacher in California, you absolutely much be a member of the Teachers’ Union. They as a matter of course, automatically deduct money from your paycheck, which they in turn use for Union related business. That means that in many situations, they directly circumvent my own right to Free Speech. Consider…if I support a school board candidate, but the Union endorses another candidate…my dues money might be used to fund the opponent. For that matter…as a public educator, the contract negotiations themselves are a matter of public policy…so when the Union spends money in opposition to my views, without any way for me to “opt out” of paying them…my basic rights to free speech are circumvented.
In my specific case, it gets a little extreme. In Reed v. UTLA, I was involved in two amicus briefs on the plaintiff’s side. The Union was explicitly the defendant…but ultimately, it was a case about how the contract affected students, and was expressly unfair to a large population of both students and teachers. While opposing them, I had to pay dues to them, and thus financially assist my own opponent in their own defense. During Public School Choice 2.0, UTLA openly opposed my views on school reorganization, and in fact directly conspired against my team…and once again, I had to fund their ability to do so, despite vigorous opposition to all of their political views. In the Vergara v. California case, once again I am involved in a brief on the students’ side…and the Union has entered the case as an “intervening defendant,” using some of my mandatory dues payments to oppose my views.
It has happened to me a whole lot.
Hence, my interest in Friedrichs v. CTA. California, along with 22 other states, requires all public employees represented by unions to pay a “fair-share” or “agency” fee, which is directed toward the union’s collective-bargaining activities, even if they do not belong to the unions. Basically, those are the “mandatory payments” I have been yammering about. This has been approved by the Supreme Court for nearly 40 years and allows those who benefit from union activities to opt out of a union’s political efforts without being free riders. Incidentally…that is notoriously hard to do in California, the “opt out.” The arrangement was challenged by Rebecca Friedrichs and nine other California teachers as an unconstitutional form of compelled speech.
Despite the fact that the Supreme Court had already upheld agency fees in a 1977 decision called Abood v. Detroit Board of Education, which stated that asking nonmembers to contribute fees only for collective bargaining would discourage free riders and ensure “labor peace,” the conservatives of the old Roberts court were ready to junk that precedent. In 2014, in another labor case called Harris v. Quinn, Justice Alito wrote an opinion inviting a challenge that would allow them to do away with the fees rule once and for all. The conservative Center for Individual Rights hustled to create the lawsuit and put this appeal on the fast track to the Supreme Court.
That case was heard by the Supreme Court, and arguments presented. Then, with it sitting in session, Justice Scalia passed away. That deadlocked the Justices, who were set to pretty much decide 5-4 against the public sector unions. With a one-sentence decision, the U.S. Supreme Court tabled Friedrichs, a case that seemed like the best candidate for ending the practice of requiring government workers to pay union dues as a mandatory condition of employment.
That doesn’t necessarily end the case, however. The Center for Individual Rights, which represents Friedrichs, plans to file a petition for rehearing after the court receives its ninth justice, presumably after the November presidential elections.
The Center for Individual Rights will soon file a petition for rehearing, which under Supreme Court rules requires a majority of justices to uphold. While that might be a challenge, it’s in both sides’ interest here to get a final, authoritative decision, instead of leaving it in “legal limbo.” If the Republicans blink and confirm President Obama’s nominee, Merrick Garland, the Supreme Court almost certainly will affirm the Ninth Circuit again. During his long tenure on the D.C. Circuit Court of Appeals Merrick has written a number of opinions that generally show deference to government labor regulators.
Again…that probably wouldn’t matter so much as long as Majority Leader Mitch McConnell and his Republican colleagues in the Senate seem hellbent on ensuring that the court remains short a justice next term as well as this one by refusing to take up the nomination of Merrick Garland to replace Scalia. So, yes this case will come back at some point, but finding a fifth justice who doesn’t believe in stare decisis or the idea of binding precedent here should make for “fun” confirmation hearings.
Interestingly enough…my Union dues were just raised…so during the time until the re-hearing, I will be paying around thirty percent more to people I don’t agree with, so that they can protect their right to circumvent my free speech. Nice…real nice.
All of this goes on while the Vergara case is on it’s 90 Day clock. In theory, there can be a ruling at any time there.
Still, let’s be clear. If you heard about the ruling when it first came down, what you heard was the sound of public sector unions around the country dodging a bullet.
When the case was argued earlier this year it seemed clear that the five conservative justices on the court were extremely receptive to an argument that would have effectively crippled unions across the land. Even now, more moderate Teachers’ organizations like E4E are reaching out to the Unions, trying to open a dialogue where teacher would feel more represented by those Unions, and potentially defuse the problem before it sits in the Supreme Court once again.
For me…I’m at a school now where the Union is very, very weak. I’d prefer to NOT pay people who support labor rights over student rights, but right now, I don’t have that choice. Much like in the art for today, active hostility between the Union and myself has ground to a halt, as the dust settles on the landscape of various political issues. Pending Vergara’s ruling, both sides are ready to restart at a moment’s notice, though. For right now though, we are just angrily glaring at each other, and talking trash.
Gentle Reader, today take heart that in all probability, you are not forced to pay people who in turn, say the opposite of your beliefs with that money, and fund candidates that you don’t support. If you do make such payments…congratulations, you are probably a California teacher.