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“Vast Right-Wing Conspiracy” or Standing up for First Amendment Rights? The Battle Over Mandatory Union Fees

Published onFeb 25, 2016
“Vast Right-Wing Conspiracy” or Standing up for First Amendment Rights? The Battle Over Mandatory Union Fees

On January 11, the Supreme Court heard oral arguments in Friedrichs v. California Teachers Association, which is a conflict over mandatory public sector union fees.  Ten California teachers have sued the union, challenging the fees under the First Amendment.  The teachers claim they are required to pay to support political positions with which they disagree.  The First Amendment restricts government action infringing upon free speech, not private conduct; this decision will not have a direct impact on unionized employees of private businesses, but will affect millions of government workers.

Under current California law, with similar laws in twenty other states, employees who do not join the union are still required to pay a “fair-share service fee.”  In jurisdictions that have opted for a “fair-share” or “agency fee system,” the unions can charge non-members for services such as research, legal representation, communicating with members, and ascertaining the positions of the workforce before the union presents a policy.  The justification for these charges is to prevent non-members from gaining the benefits of union representation without paying for them.  The teachers challenge the application of these funds to “ideological activities unrelated to collective bargaining.”

The plaintiffs contend that charging non-members a fee forces them to be a “compelled rider” on political positions they do not support.  A key point for the teachers is that “unlike unions in the private sector, the collective bargaining process for public-employee unions is an inherently political one because the salaries and benefits and policies that the union is negotiating affect government budgets.”  Harlan Erlich, a high school math teacher who is a party to this litigation, argues that he can choose what movie to see, what church to attend, and what gym to join, and he should have the same freedom to choose when it comes to supporting a union.

This case has roused a number of political suspicions, dubbed by some as a “vast right-wing conspiracy,” aimed at crushing wages for teachers, nurses, firefighters, cops, and prison guards.  Justice Alito has been criticized for “hanging the red lantern” in recent labor cases to indicate to backers that the conservative majority “might be prepared to destroy the last best voice of America’s working families – unions.”  The Center for Individual Rights organized this case and is backed by various conservative foundations, such a Koch Industries.

Against the backdrop of a presidential election, this case has important political implications.  Unions in over twenty states will suffer significant financial losses if the Supreme Court decides in favor of the teachers.  A win for the teachers could mean a huge loss to the Democratic Party, since unions are significant democratic supporters.  Additionally, Justice Breyer suggested during oral argument that if Friedrich prevails, there could be vast legal implications for other compelled payments.  For example, lawyers in some states are compelled to pay dues to the bar association, and college students are often compelled to pay various fees for non-instructional activities.  If these mandatory union payments are found to be unconstitutional, the precedent may provide support to challenge other compelled payments.

If the Supreme Court were to rule in the teachers’ favor, the Court would have to overturn years of precedent, primarily Abood v. Detroit Board of Education.  In that opinion, Justice Potter Stewart wrote, “to compel employees financially to support their collective-bargaining representative has an impact on their First Amendment interests … such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress.”  The Court must again weigh the importance of unions in our labor system against First Amendment free speech rights.

Political suspicions of the various motivations aside, the Supreme Court has previously suggested in Harris v. Quinn, and Knox v. Service Employees International Union,that compulsory fees constitute a form of compelled speech and association that infringes upon First Amendment rights.  The teachers’ lawsuit may be successful, affecting more than 9 million public employees.  Anticipate more coverage of this controversial issue approaching the Supreme Court’s decision, expected by June.

*Molly Pearce is a second year law student at Wake Forest University School of Law.  She holds a Bachelor of Arts in Political Science from Florida State University.  After graduation, she hopes to practice employment law.

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