n 2013, CIR filed suit on behalf of 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 claimed that state “agency shop” laws, which then required public employees to pay union dues as a condition of employment, violated well-settled principles of freedom of speech and association. While many teachers supported the union, others did not and CIR argued the state could not constitutionally compel an individual to join and financially support an organization with which he or she disagreed.
In January 2016, the Supreme Court heard oral argument in Friedrichs. Although there appeared to be five votes in support of Rebecca Friedrichs’ position, the untimely death several weeks later of Justice Antonin Scalia resulted in a tie vote that left state agency fee statutes in place. The issue was finally resolved in a later case, Janus v. AFSCME, which was decided in June, 2018. There the Court struck down agency fee laws along the lines argued in Friedrichs.
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. Over 25 organizations filed amicus briefs in support of CIR’s efforts at the Supreme Court. Oral arguments were held on January 11, 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.