WASHINGTON — Lawyers representing a group of California teachers argued before the Supreme Court Monday that forcing non-union members to pay “fair-share fees” infringes on First Amendment rights.
The high court heard oral arguments for the case Friedrichs v. California Teachers Association, in which plaintiffs said that mandating fees from nonmembers that cover activities such as collective bargaining violates the rights of those teachers to free speech and association.
If the court decides to rule in favor of Rebecca Friedrichs, one of several California teachers’ party to the case, it would overturn an existing 40-year precedent that allows states to require public sector union nonmembers to pay agency fees. The court requires petitioners to provide “special considerations” to overturn this precedent, Supreme Court Justice Elena Kagan said.
Fair-share fees, also called agency fees, allow public sector employee unions to collect fees from people who opt out of union membership but are affected by collective bargaining. The court ruled in the 1977 case Abood v. Detroit Board of Education that unions cannot collect political fees to use for activities such as lobbying, since that would be a First Amendment violation, but that they can collect agency fees.
Federal law neither allows nor bans agency fees; rather, each state decides for itself whether unions are allowed to collect them. These decisions are made based on individual states’ history with public sector labor and political culture, said lawyer David Frederick, who represented the California Teachers Association.
Because California experienced “a long history” of labor unrest in the 1960s and 1970s, the state enacted a law permitting unions to collect agency fees, California Solicitor General Edward Dumont told the court. California is one of 23 states and the District of Columbia that permit agency fees.
Friedrichs’ lawyer, Michael Carvin, said that the court’s ruling in the Abood case is inconsistent with the First Amendment, as fair-share fees subsidize union speech that nonmembers may not support.
“Money is not money when it’s supporting speech,” Carvin said. “It is association with an advocacy organization.”
Dumont and Frederick, representing the state and union respectively, emphasized how California needs the union as an efficient “single actor” the state can come to workable agreements. Collective bargaining is not necessarily political, they argued. Dumont cited mileage reimbursements, teachers’ work hours, and lunch break times as examples of nonpolitical union negotiations.
But Chief Justice John Roberts and Justice Antonin Scalia dismissed his argument, saying that those points still count as necessarily political questions as they pertain to state spending.
“That’s always a public policy issue,” Roberts said.
Justices Sonia Sotomayor, Ruth Bader Ginsburg and Scalia all questioned whether unions could survive without nonmembers paying agency fees, but the defense refrained from answering. Dumont instead focused on how ruling against union agency fees would hurt organized labor in a way “we don’t want to find out.”
But at the close of the morning arguments, Plaintiff lawyer Carvin pointed out that 25 states, as well as the federal government, have banned agency fees — and still have functioning unions.
Teachers and parents crowded outside the Supreme Court to show support for Rebecca Friedrichs, while many union members defended fair-share fees.
“I want the choice to just not join the union and be able to negotiate my own contract,” said Sheri Joseph, a California third grade teacher at the same school as Friedrichs. “I’m paying a fee, but am still considered a nonmember with no voting rights, so basically my voice is silenced.”
Mary Chowhan, a Paterson Education Association union member and New Jersey math teacher, said she understands teachers that do not want to be a part of the political aspects of a union. They should still pay for representation, she said.
“It’s only through our union affiliation that we have the strength to go argue with the district and state and champion for our students,” Chowhan said. “We do much more than organize for political activities, so when we’re negotiating for everyone it is expected that everyone pay.”
The court is expected to hand down a decision this summer
Meanwhile outside, several hundred demonstrators holding signs, and shouting chants rallied on the steps of the Supreme Court.
“This is a historic date in education,” said Gerard Robinson, a resident fellow at the American Enterprise Institute in Washington. “There have been times in American history where certain Supreme Court decisions change the ebb and flow of education, Brown v. Board of Education being one of them, and I think this case has the potential to do it, too. It’s an education case, but it’s also about individuals’ rights to decide how to use their money.”
Robinson stressed that teachers in support of Friedrichs’ are not anti-union, but rather in favor of giving teachers the opportunity to join a union or not.
Although the teachers association case specifically relates to teachers unions, it has broader implications for other public employee unions. The case could result in the overturning of a 40-year-old court decision that upheld a union’s ability to assess non-members with collective bargaining fees.
Both sides of the argument were represented outside the courtroom.
“It’s not just about teachers, it’s about your rights, that’s all union members across the United States,” said Rosalind Walker, a registered nurse in the California public sector and a member of National Nurses United. “For nurses, if our rights are taken away, then we won’t be able to advocate for our patients safely. See, they’re focusing on one little group, but it’s really about everybody and your freedoms.”
According to its website, National Nurses United represents close to 185,000 members in every state.
Many pro-union forces at the rally advocated that the case would take away their “collective voice” to speak together on issues.
“I work with abused and neglected children, so I know when I can stand together with my colleagues and speak with one voice we can get the resources we need to help kids,” said Peter MacKinnon, a child protection social worker from Massachusetts. “If the Frederichs’ case happens as we fear, it’s going to be really hard for working people to stand together and speak for what is right.”
