Trampling the Rights of Teachers

by Steve Forbes

The heroic effort of Wisconsin Gov. Scott Walker in 2011 to rein in public employee unions has started to produce results.

One of Walker’s reforms required a majority of members to vote each year to certify the union as its representative. Since that simple change took effect, 13% of Wisconsin’s teacher and public employee unions have been decertified because they can’t get enough employees to vote to keep the union and pay union dues. When given a choice, it seems public employees themselves don’t necessarily support union policies.

Wisconsin’s public employee union reforms are a rare victory for voters. Tired of runaway union demands for greater salaries and pensions from a seemingly bottomless pit of taxpayer largesse, Wisconsin put sensible limits on the ability of unions to manipulate compliant public officials into ever more generous benefits.

But while Walker’s victory changed the dynamic in one state, public employee unions continue to hold the upper hand in many other states. For example, laws on the books in 26 states guarantee unions millions in tax-free revenue each year by requiring public employees to pay as much as $1,000 a year in union fees as a condition of employment.

A lawsuit brought by the Center for Individual Rights in April may change all this. Filed on behalf of 10 California teachers and the Christian Educators Assn. International, the suit claims that so-called agency shop laws violate the 1st Amendment by forcing teachers to pay annual union fees to cover the costs of collective bargaining, even when they are not members and disagree strongly with the union’s negotiating positions.

If the suit makes its way to the Supreme Court, which seems likely, the justices could strike down agency shop laws across the country with a single decision. A victory would give public employees in all states the constitutional right to decide for themselves whether to support a union.

The suit does not challenge collective bargaining, nor does it undermine the legal authority of unions to negotiate on behalf of all employees. But it does attack the use of compulsory union dues to stifle disagreement and coerce employee support for controversial positions union leadership may want to take.

If successful, the suit will force union officials to compete for membership on the same terms as any other professional organization — by promoting policies that its employees actually support.

Compulsory dues amount to a massive state subsidy for unions and their leaders, the cost of which falls directly on the backs of public employees. The effect has been to create wealthy and powerful organizations that are no longer accountable to their dues-paying members. Although teachers can opt out of paying the portion of their fees that goes directly toward lobbying and other political activities, the California Teachers Assn. still brings in more than $192 million a year in tax-free revenue.

Union officials use this large pot of state-coerced money to influence policy in a range of areas, some having little to do directly with education policy. And union officials are free to stake out aggressive positions on even such basic issues as salary and benefits, positions that many union members oppose. Yet all teachers are forced to contribute hundreds of dollars a year to support the union’s agenda whether they agree with it or not.

The Center for Individual Rights’ suit is on a fast track to the Supreme Court, which seems poised to overturn a series of decisions going back to the 1930s upholding agency shop laws. In a case decided in 2012, a majority of justices acknowledged that compelled union dues are an exception to the 1st Amendment that may no longer be justified. Though the question of mandatory dues was not before the court in that case, a majority of justices signaled that agency fees may unconstitutionally force individuals to support speech and association with which they strongly disagree.

Ordinarily, the 1st Amendment bars the state from coercing individuals to support any particular point of view or group. In the past, courts have reasoned that because unions represent the interests of all employees when they negotiate for higher wages and better working conditions, mandatory union dues that support collective bargaining don’t offend the free- speech rights of individual teachers. Judges have said those who are getting the benefit of an organizational “megaphone” promoting positions that benefit employees should pay dues to support that megaphone.

But the assumption that teachers share a monolithic set of interests defined by union officials is false. The single-minded effort of union officials to extract ever-more generous employment benefits from cash-strapped local governments, for example, represents an inherently political judgment about how to fairly apportion public tax revenue among competing public interests, a judgment that many employees simply do not share.

The unions like to point out that teachers are free to opt out of paying dues to support highly partisan lobbying campaigns for such controversial causes as gay marriage and opposition to parental choice. But that doesn’t cover the political choices the unions make as part of collective bargaining. Nor does it address the difficulty of opting out, which requires the annual submission of a written request within narrow time limits.

Of course the unions can pursue as partisan and one-sided an agenda as they want. But the 1st Amendment requires that teachers be free to decide for themselves whether to support these efforts.

Steve Forbes is chairman of Forbes Media Inc. and editor in chief of Forbes magazine.