Yesterday the U.S. Supreme Court heard oral arguments in the case of Friedrichs v. California Teachers Association. Adam Liptak of the NY Times explains what is at stake in this case: “Under California law, which is similar to ones in more than 20 other states, public employees who choose not to join unions must pay a ‘fair-share service fee,’ also known as an agency fee, which is typically equivalent to members’ dues.” “Such fees are constitutional, the Supreme Court ruled in 1977 in Abood v. Detroit Board of Education. ‘To compel employees financially to support their collective-bargaining representative has an impact upon their First Amendment interests,’ Justice Potter Stewart wrote for the majority. But he wrote, ‘such interference as exists is constitutionally justified’ to prevent freeloading and to ensure ‘labor peace.'”
Richard Kahlenberg writing for the Century Foundation, explains what’s at stake in this case: “The current legal framework in which courts weigh cases such as Friedrichs is narrowly constrained, balancing the free speech rights of dissenting union members against the state’s interests in promoting stable labor relations with its public employees. In the 1977 case of Abood v. Detroit Board of Education, the U.S. Supreme Court reached a sensible compromise that properly balanced these two sets of interests by splitting union dues into two categories: those that support political speech, and those that support bread-and-butter collective bargaining. Because the First Amendment’s free speech clause provides a right to not be compelled by the state to subsidize speech with which one disagrees, dissenting public employees cannot be required by the state to join a union, or to subsidize the union’s political and lobbying efforts to promote certain positions of public concern.” In Abood, “the Court held, the state may prevent employees from being ‘free riders’ by compelling contribution to that portion of union membership dues that underwrite the cost of collective bargaining over issues such as wages and benefits… Free speech rights are never absolute… For instance, the government may, in fact, compel taxation from an individual who is opposed to the war in Afghanistan, and then use those funds to engage in speech to recruit soldiers for the war effort. Free speech rights must always be balanced against other considerations.”
Certainly there is politics behind this lawsuit. Those behind the Friedrichs case are known to be allied with and funded by groups that seek to weaken teachers’ unions and reduce the public expense incurred by paying teachers fairly and offering health plans and pensions. Here is Liptak in the NY Times: “‘In this era of broken municipal budgets and a national crisis in public education,’ a brief for the plaintiffs said, ‘it is difficult to imagine more politically charged issues than how much money local governments should devote to public employees, or what public policies public schools should adopt to best educate children.” With 3.2 million members, the National Education Association is the nation’s largest union, and opponents of collective bargaining view it as an important target.
Brian Mahoney, reporting for Politico, connects the dots directly between plaintiffs in Friedrichs and far-right funders who have sought for many years to undermine the right of public employees to organize: “The lawsuit… was brought by Rebecca Friedrichs and eight other California public school teachers who declined to join the union that represents them in collective bargaining. But the lawsuit’s true author looks to be the Milwaukee-based Lynde and Harry Bradley Foundation.” For more than 25 years, Wisconsin’s Bradley Foundation has served as the primary funder for the development, promotion and expansion of the Milwaukee Voucher Program. Mahoney continues: “The Bradley Foundation funds the Center for Individual Rights, the conservative D.C. nonprofit law firm that brought the case; it funds (or has funded) at least 11 organizations that submitted amicus briefs for the plaintiffs; and it’s funded a score of conservative organizations that support the lawsuit’s claim that the ‘fair-share fees’ nonmembers must pay are unconstitutional.” Groups that have submitted amicus briefs supporting the plaintiffs the Friedrichs case—and that have received funding from the Bradley Foundation over the years—include the Cato Institute, the Manhattan Institute, the Institute for Justice, the Beckett Fund for Religious Liberty, and the Mackinac Center for Public Policy. Mahoney adds that the Bradley Foundation was significantly involved in political efforts that passed right-to-work laws in Michigan and Wisconsin. A spokesperson from the Center for Individual Rights told Mahoney that the Center for Individual Rights sought out the plaintiffs in this case; it wasn’t Rebecca Friedrichs and the other plaintiffs who themselves sought legal assistance to represent their rights.
Richard Kahlenberg reflects at length on the consequences for all of us if the Supreme Court reverses its 1977 Abood decision and affirms the Friedrichs plaintiffs: “All unions—including, and perhaps especially, public sector unions—also contribute to one of the most important foundational interests of the state: democracy. And they do this in many different ways. Unions are critical civic organizations that serve as a check on government power. They are important players in promoting a strong middle class, upon which democracy depends. They serve as schools of democracy for workers. And teacher unions, in particular, help ensure that our educational system is sufficiently funded to teach children to become thoughtful and enlightened citizens in our self-governing democracy.”
Commentators, here and here, who observed the oral arguments yesterday predict that the Court is likely to split along ideological lines to overturn Abood and weaken the position of public employee unions.