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Friedrichs et al. v. Calif. Teachers Assoc. et al.

 

California teachers challenge compulsory union dues

 

CIR is representing ten California teachers and the Christian Educators Association International in a landmark effort to re-

Rebecca Friedrichs
Plaintiff Rebecca Friedrichs

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

"“When a State establishes an ‘agency shop’ that exacts compulsory union fees as a condition of public employment, the dissenting employee is forced to support financially an organization with whose principles and demands he may disagree.."

--Justice Alito, KNOX v. SEIU

Typically, California teacher union dues cost upwards of a $1,000 per year. Although California law allows teachers to opt-out of the 30% or so of their dues devoted to overt political lobbying, they may not opt out of the 60% - 70% of their dues the union determines is devoted to collective bargaining. This type of forced-payment scheme assumes that collective bargaining is somehow “non-political.”  But collectively 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, each of those “negotiating” decisions embodies an often controversial political choice.

 

Political opt-out burdensome

To opt out of the 30% of their dues even the union concedes is used for overtly political activities, teachers must must file for a refund each year according to a complex procedure that effectively discourages its use. As a result, many teachers contribute hundreds of dollars in dues each year to support controversial political positions in a variety of areas having nothing to do with education.

For example, CTA spent over $211 million in political expenditures from 2000 through 2009. CTA’s largest single expenditure, of over $26 million, was made to successfully oppose Proposition 38 on the 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.

 

Door open to a constitutional challenge?

For years, the Supreme Court has allowed compulsory union dues by treating them as an exception to the guarantee of freedom of association on the grounds that doing so is necessary to preserve labor peace. See, for example Abood v. Detroit Board of Education, 431 US 209 (1977).

However, in 2010, a majority of the Court signaled that the time may have come to revisit this approach. In Knox v. SEIU, 567 US ___ (2012) Justice Alito wrote for the majority that:

"Because a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences,” these sorts of “compulsory fees constitute a form of compelled speech and association that imposes a significant impingement on First Amendment rights.

Knox was not an aberration. This term, the Court agreed to decide Harris v. Quinn, a case challenging an Illinois statute that requires home health care workers to support a union to lobby for its interests with state legislators and regulators. Although the case does not involve collective bargaining or a political opt-out system, CIR filed a friend of the court brief urging the Court to decide the case broadly on the basis of the First Amendment. The Court's decision in Harris v. Quinn could move the Court further towards a comprehensive ban on coerced union dues of any kind, as CIR is pushing for in Friedrichs.

 

Who is the free rider?

Union defenders claim that compulsory dues are necessary to prevent individual employees from obtaining the benefits of union membership without paying for them -- called "free riding." This argument assumes that all teachers support the union's efforts but just aren't willing to pay for them. It is true that many teachers do support their union, but it undeniable that many many disagree strongly with the positions the union takes. Coercing the payment of dues from individuals who do not agree with the union's positions allows the union to "free ride" on the back of hundreds individual who have no choice but to pay hundreds of dollars in dues whether they agree with the union or not.

Many organizations -- from homeowners associations to professional organizations -- take positions that benefit members and non-members alike.  Yet no one would claim that the government can compel non-members to pay dues to those organizations. For example, the National Restaurant Association might successfully lobby for a tax break that benefits all restaurants, but surely they cannot compel all restaurant owners to pay for their lobbying.  Or an association of defense contractors might successfully push for increased defense spending and thereby make DC-area home values increase.  But surely homeowners cannot be forced to pay dues to the defense contractors association.

 

CIR's Co-Counsel

Michael Carvin has agreed to serve as lead counsel of the

case. Mr. Carvin is a partner at Jones Day, an international law

Michael Carvin
Michael Carvin

firm. Carvin was a founding board member of CIR and we have worked closely with him on several important cases over the last twenty years, including two major victories: the successful 1997 legal defense of California’s Prop. 209  (Coalition v. Wilson), and Reno v. Bossier Parish, a Supreme Court victory in 2000 that limited the Justice Department’s ability to create majority-minority voting districts.

Carvin has a long list of Supreme Court victories in addition to the cases he has litigated with CIR.  He has won victories invalidating Sarbanes-Oxley's accounting board; preventing the Justice Department from obtaining monetary relief against the tobacco industry under RICO; and overturning the federal government's plan to statistically adjust the census.  Finally, he was one of the lead lawyers for, and argued before the Florida Supreme Court on behalf of, George W. Bush in the 2000 election Florida recount controversy.

 

Case speeds to Supreme Court

In early December 2013, the Federal District Court Judge Josephine Staton granted CIR's request to render a decision on the pleadings in favor of the defendant unions without either discovery or a trial.  Judge Staton agreed with CIR that the lower courts do not have the authority to overturn existing Supreme Court precedent. As a result, they can neither side with the teachers nor the unions but must send the case on to the Supreme Court -- the only forum that can vindicate the First Amendment rights of its clients.

Following Judge Staton's ruling, CIR appealed the case to the Court of Appeals for the Ninth Circuit and promptly moved for expedited consideration by waiving oral argument and asking for a a decision on the pleadings by August, 2014.

 

The plaintiffs

CIR is representing ten long-time California teachers who fundamentally disagree with positions taken by the California Teachers Association and would not join or support the union if they were not required to do as a condition of employment. Lead plaintiff Rebecca Friedrichs has taught kindergarten through fourth grade for twenty-six years and believes the CTA has become increasingly out of touch with what is happening in the classroom and society. She says, "the union has become what it used to fight -- a powerful, entrenched organization more focused on self-preservation than educating children and protecting teachers." In addition, CIR is representing the Christian Educators Association International, a non-profit religious group that specifically serves Christians working in public schools. CEAI and its members object on policy grounds to positions taken by the union in collective bargaining and outside of that process.

 

Articles and video about the case

Alec Torres, National Review (December 17, 2013)

Steve Forbes, Los Angeles Times (October 13, 2013)

Claudia Cowen, Fox News (November 18, 2013)

Larry Sand, City Journal (July 11, 2013)

Carvin, Burnham & Pell, USA Today (May 16, 2013)

Peter Scheer, Huffington Post (May 5, 2013)

Howard Blume, Los Angeles Times (April 30, 2013)

Legal documents

District Court decision, December 5, 2013

CIR's motion for decision on the pleadings, July 9, 2013

CIR's motion for a preliminary injunction, June 25, 2013

CIR's complaint, April 29, 2013

 

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