Why the Supreme Court Needs to Resolve Friedrichs

Events in Chicago once again highlight the need for the Supreme Court to resolve the questions at issue in Friedrichs v. CTA. While the Supreme Court considers CIR’s Petition for Rehearing, experience is proving that Friedrichs represents ongoing problems for teachers across the country. These issues refuse to go away and deserve a decisive answer from the Supreme Court.

As CIR previously discussed, the April 1st Chicago strike put many teachers in the position of choosing between loyalty to their students and loyalty to their union. Several teachers confessed to a local paper they feared that the union was asking them to send the wrong message to their students. They confessed anonymously for fear of union discipline. Strike-breakers can be expelled from the union and lose benefits and representation rights, yet expelled teachers are still be required to pay agency fees to support the very activities they objected to. The teachers are legally bound to financially support an agenda they have misgivings about.

Now the Chicago Teacher’s Union is taking action against a dissenting teacher. Math Teacher and Chess Coach Joseph Ocol decided to break the strike and join his students. Ocol often meets with his chess team after hours, unpaid, in order to help them compete for a chance to visit the White House. Not wishing to waste precious hours preparing and studying, Ocol opted to spend April 1st with his students rather than strike.

Predictably, the union opened an investigation and told Ocol he could either pay a fine equal to his earnings received during the strike or be expelled from the union. But not even expulsion would free Ocol from the union activities he wishes to disassociate with. Under Illinois law he would be required to pay union agency fees that are equal to the amount of his dues as a member. As the union explained,

“CTU’s strike policy specifically states that members who go against the union and who are found guilty by a jury of their peers will have their membership suspended, said CTU spokeswoman Stephanie Gadlin.

“A strike breaker will be given the option to pay a fine equal to the member’s net earnings while working in order to be reinstated, if they so choose,” she said in an email. “If they choose not to pay the fine they will be expelled from the Union.”

If Ocol refuses to pay the fine and is expelled from his union, he will still be required by law to pay the full amount of his union dues to support the union’s efforts in bargaining and organizing strikes. The law will compel him to financially support the very activities he finds objectionable.

Teachers may reach different conclusions about the validity of their union’s activities, but the government should not put their thumb on the scale of one side or the other. The current arrangement traps teachers like Mr. Ocol and discourages them from following their conscience. Indeed, teachers like Mr. Ocol highlight the clear First Amendment problems that are raised in Friedrichs v. CTA.

While CIR’s Petition for Rehearing remains in limbo, the First Amendment rights of thousands of teachers are being aggressively violated by organizations that know the law allows them to punish and expel members yet still rely on a stream of coerced financial support. As long as the First Amendment rights of teachers like Mr. Ocol are in question, the Supreme Court should act quickly and decisively to resolve Friedrichs.


C

IR is representing nine California teachers and the Christian Educators Association International in a landmark effort to re-establish the right of individual teachers and other public employees to decide for themselves whether to join and support a union. The suit claims state “agency shop” laws, which require public employees to pay union dues as a condition of employment, violate well-settled principles of freedom of speech and association. While many teachers support the union, others do not and the state cannot constitutionally compel an individual to join and financially support an organization with which he or she disagrees.

Collective Bargaining is Inherently political

Typically, California teacher union dues cost upwards of a $1,000 per year. Although California law allows teachers to opt-out of the thirty percent or so of their dues devoted to overt political lobbying, they may not opt out of the sixty to seventy percent of their dues the union determines is devoted to collective bargaining. Requiring teachers to pay these “agency fees” assumes that collective bargaining is non-political.  But bargaining with local governments is inherently political.  Whether the union is negotiating for specific class sizes or pressing a local government to spend tax dollars on teacher pensions rather than on building parks, the union’s negotiating positions embody political choices that are often controversial.

Political Opt-Out is Burdensome

To opt out of the thirty percent of their dues that even the union concedes is used for overtly political activities, teachers must must file for a refund each year according to a precise procedure that effectively discourages its use. As a result, many teachers contribute hundreds of dollars in dues each year to support political positions in a variety of areas having nothing to do with education and with which many of them disagree.

For example, the CTA spent over $211 million in political expenditures from 2000 through 2009. CTA’s largest single expenditure (over $26 million) was made to successfully oppose Proposition 38 on the November, 2000 ballot, which would have enacted a school-voucher system in California (and thereby increased the potential employment pool for teachers). CTA also spent over $50 million to oppose three ballot initiatives in 2005, including Proposition 74, which sought to make changes in the probationary period for California school teachers; Proposition 75, which sought to prohibit the use of public employee agency fees for political contributions without individual employees’ prior consent; and Proposition 76, concerning state spending and minimum school-funding requirements.

Case Speeds to Supreme Court

On June 30th, the Supreme Court granted CIR’s petition asking it to review the case.  To date, over 20 amicus briefs have been filed in support of CIR’s efforts at the Supreme Court. The case likely will be heard in the fall of 2015, with a decision expected by June, 2016.

The speed with which the case moved through the lower courts reflected a deliberate litigation strategy.  From the beginning, CIR argued that the lower courts do not have the authority to overturn existing Supreme Court precedent. As a result, we asked the trial court and the Ninth Circuit Court of Appeals to decide against our clients on the basis of the pleadings (without trial or oral argument) so as to send the case on to the Supreme Court as quickly as possible.  The Supreme Court is the only forum that can vindicate the First Amendment rights of our clients and other teachers.

 

Case Status: Tied by an equally divided Supreme Court. Petition for rehearing pending.


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