Friedrichs Teachers File Petition for Re-Hearing of Supreme Court Case

Teachers say case is too important to let a tie decision stand

Washington, D.C.—Today lawyers for nine California teachers filed a petition asking the Supreme Court to re-hear arguments in Friedrichs v. California Teachers Association when a new Justice is confirmed.

Late last month the Supreme Court issued a 4-4 split decision in the Friedrichs case, leaving in place laws in more than 20 states that allow unions to require non-union members to pay “agency fees” to support the union’s collective bargaining work. A group of California teachers challenged this arrangement as a violation of their First Amendment rights. The plaintiffs have opted-out of paying for the union’s political campaign activity, but object to paying for collective bargaining work because they say that is also political.

“Tens of thousands of public sector workers—teachers, first responders, and child welfare case workers—are having their First Amendment rights violated every day,” said Terry Pell, the president of the Center for Individual Rights, the public interest law firm that brought the case on behalf of the teachers. “We can’t leave this issue for another time. The Court has already agreed to decide this case and it should hold the case until it can issue a definitive decision. A tie is simple not good enough when it comes to fundamental issues like the First Amendment.”

Twice in the last several years, majority opinions from the Supreme Court have has questioned compatibility of the case that agency fees rest on, Abood v. City of Detroit, with core First Amendment principles. The Supreme Court itself has written, “The Abood Court’s analysis is questionable on several grounds.”

The petition argues that this issue cannot be left for another day or another case:

“Moreover, precisely because the issues presented are of such importance, an equally divided affirmance will only defer decision of these pressing questions for another day. Right now, there are multiple cases pending in the lower courts that implicate the Questions Presented. In the absence of a precedential ruling from this Court, at least one of those cases will almost certainly reach the Court in the next several years. Rather than defer this issue for resolution in some future case at some future time, the better and more efficient course would be to hold the case this Court has already agreed to decide until it is capable of issuing a decision.”

While it is rare for the Supreme Court to re-hear cases that have been decided by a majority, it is much more common for the Court to re-hear cases where an unexpected vacancy prevented a majority opinion or if the case raises a question of fundamental right that deserves to be decided by a full panel of the Supreme Court. This includes seminal cases like Brown v. Board of Education and Roe v. Wade.

A majority of the court must decide to re-hear the case. This could happen with only eight members–if at least five of the eight agree—or the petition could be held until a new Justice is confirmed and he or she breaks the tie about whether or not to re-hear the case.

The Center for Individual Rights is representing the plaintiff teachers in Friedrichs .v CTA, together with lead counsel Michael Carvin of Jones Day. Terry Pell has been an attorney for more than 35 years and has had successful Supreme Court cases.

The Friedrichs petition for re-hearing is attached here for your review.

Please contact Starlee Coleman at (602) 758-9162 or with any questions.