Why Are These Teachers Suing Their Union?
Rebecca Friedrichs and the ten other California teachers who sued their union know they are in the minority. They know that most teachers agree with their union and would willingly pay dues to support them. Yet they maintain that the First Amendment gives a minority, no matter how small, the right to decide what kind of speech to support and that therefore all public employees should be able to decide for themselves whether to join a union and support its collective bargaining agenda. In California and twenty-two other states, public employees are compelled by law to pay hundreds of dollars each year in union dues or fees as a condition of employment. For the minority of teachers who disagree with their union’s collective bargaining agenda on principle, these compelled dues violate their individual First Amendment rights to free association and free speech.
For example, some teachers disagree with union’s relentless efforts to bargain for higher salaries, which often means schools must increase class sizes at the expense of what is in the student’s best interest. Other teachers object to union insistence that pay, assignment, and teacher lay-offs all be made based on seniority rather than merit or student need.
Though many teachers agree with their union’s emphasis on higher salaries and greater protection assigned with seniority, not all teachers do. No how matter how small the minority, the First Amendment protects the right of individuals to dissent and decline to financial support speech – in this case, collective bargaining – with which they fundamentally disagree.
California teachers pay approximately $1,000 in dues per year. Teachers may, after undergoing a complicated opt-out process, decline to pay the “expressly political” portion of the union dues. However, even after this deduction teachers are compelled to pay close to $600 every year to support collective bargaining efforts that some believe are harming their schools.
States, like California, that compel union dues rely on a nearly forty year old Supreme Court decision called Abood v. Detroit Board of Education. The case recognized that the First Amendment prohibits the state from compelling employees to support unions when they engage in overt electioneering and express political activity. However, the Court reasoned that collective bargaining is not political. From that assumption, the Court ruled that public employees may opt out of paying dues that support express political activities but must continue to pay agency fees to support the positions their union takes in collective bargaining.
Abood’s false distinction between overt politicking and collective bargaining was controversial from the beginning. In truth, collective bargaining is just as political as the campaigning activities that unions also engage in. Recently, the Supreme Court indicated a willingness to rethink Abood. In a series of cases starting in 2010, a majority of Justices argued that Abood was at odds with settled First Amendment principles. In Friedrichs, the Court will finally have the chance to address the matter again.
Is Collective Bargaining Political?
In light of Abood, unions claim that agency fees paid to support collective bargaining are not political and that clear lines can be drawn separating the union’s political expenditures from its administrative and collective bargaining expenditures. However, even the union attorneys admitted in their briefs and before the Supreme Court that collective bargaining is every bit as political as anything else the union does. CITE
As Justice Scalia observed during oral argument in Friedrichs, “The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition. Should the government pay higher wages or lesser wages? Should it promote teachers on the basis of seniority or on the basis of merit… all of those questions are necessarily political questions.”
Through agency fees, teachers are compelled to financially support one side of this debate. Teachers may disagree with their union on class sizes, or think that schools should be able to fire bad teachers, but they still must pay fees to support the union process that cements these policies into school contracts. In no other context can the government compel citizens to financially support a private organization that lobbies on such politically contested issues.
Even in the rather mundane aspects of collective bargaining, the implications are more political than the union is willing to admit. In response to the union argument that agency fees only support non-political activity like bargaining for mileage reimbursements, Justice Roberts countered that “It’s all money. That’s money. That’s how much money is going to have to be paid to the teachers. If you give more mileage expenses, that costs more money. And the amount of money that’s going to be allocated to public education as opposed to public housing, welfare benefits, that’s always a public policy issue.”
Reasonable people can disagree on all these issues, but no one should be forced to support one side or the other. Rebecca Friedrichs and her co-plaintiffs do not wish to silence or discredit the opposing view. They simply maintain that even if only one teacher disagreed with their union, the First Amendment should protect that teacher’s individual right to choose the speech and causes they support.
Why Everyone Has an Interest in Free Speech
Rebecca’s fight for free speech has drawn the support of many diverse interests and organizations from across the political spectrum. Many of these recognize that reform and debate on a myriad of issues are advanced by expanding free speech rights.
For instance, as several amici supporting Friedrichs have observed, union policies pursued in collective bargaining frequently leave parents without a voice when it comes to their children’s education. These policies have a disproportionate impact on underprivileged students, whose parents cannot simply move to a better zip code. By allowing teachers with greater seniority to pick their assignments, schools serving low-income areas are often saddled with inexperienced or incompetent teachers.
As one amicus brief pointed out, “If a school district gets to keep talented teachers, it is mostly by accident.” This is mostly thanks to union negotiated tenure rules that leave administrators in these school districts without the authority to get rid of ineffective teachers. The effects of being stuck with an incompetent teacher can have disastrous effects on students. Studies have shown that a single year with an ineffective teacher can cost a student $1.4 million in lifetime earnings.
For many schools facing serious educational challenges, the union backed policies make it exceedingly difficult to succeed. As the amicus brief of Former California Senate Majority Leader Gloria Romero points out, “For failing schools, these rules make the turnaround all the more difficult. Poorly performing teachers crowd out highly motivated teachers. For those already there, poorly performing teachers drag down their high-performing colleagues, who must try to repair the damage done in the last grade.”
Teachers and parents who are on the front lines of our schools have a clear view of what needs to be done, and many of them disagree with their union. For these parent and student’s rights activists, giving free speech to teachers helps open up the field for them to debate and put forward new ideas.
The First Amendment protects everyone. Even though the plaintiffs in Friedrichs are a small minority of teachers across the country, the First Amendment protects the rights of everyone – especially those in the minority. When the rights of the minority are protected, society benefits. That is why Rebecca Friedrichs and her co-plaintiffs believe that all individuals, be they teachers or any other public employees, should not be compelled to fund organizations they disagree with.