On Monday, January 11, the United States Supreme Court heard the oral arguments for the case of Friedrichs v. California Teachers Association (CTA). The petitioner, public school teacher Rebecca Friedrichs, is suing the CTA, one of the nation’s largest teachers unions, claiming it has violated her free speech rights by forcing her to fund a political cause that with which she does not agree. Although this case did not garner widespread media attention, its outcome could have detrimental effects for organized labor across the country.
All California public school teachers are obligated to pay so-called “fair share fees” to the CTA, which is the exclusive bargaining power for the teachers when negotiating new contracts. In this way, every teacher benefits from the CTA’s work, whether or not they are part of the union. For this reason, even teachers who do not want to be members of the CTA must pay these fees, as they inherently benefit from its collective bargaining agreements. It’s a simple way of fixing what economists call the “free-rider problem,” in which individuals benefit from a group’s activities without providing support. This system of labor relations is known in the public sector as an “agency shop” and in the private-sector as a “union shop.”
These “fair share fees” ensure that the CTA can effectively administer collective bargaining, covering the costs of negotiating contracts with school districts, grievance processing, and related litigation. However, the union has anything but a carte blanche for how it uses these fees. Strict regulations prohibit the spending of these fees on anything but the costs of collective bargaining. They especially cannot be used to further the political goals of the Union in question. Many unions, especially the CTA and its parent national union the National Education Association (NEA), run significant lobbying, policy advocacy, and legislative activities, which must not be funded by the fees collected by non-members. This is a system that has been in place for around two decades and has worked well, thanks to strict audits of union budgets.
The separation of public sector unions’ political and collective bargaining activities began with a case very similar to Friedrichs’s, Abood v. Detroit Board of Education, which was argued in 1977 in front of the United States Supreme Court. The petitioner in that case, Detroit teacher D. Louis Abood, opposed the Detroit Federation of Teachers, the city’s exclusive bargaining power, as he disagreed with its political endorsements and lobbying activities. Under Michigan law at the time, the “agency shop” was considered legal and had little restrictions on what the “agency fees” could be spent. Abood had a reasonable First Amendment claim that carried his case all the way to the Supreme Court. The Court ultimately ruled that the “agency shop” was legal but put restrictions on how the fees could be spent, accounting for the significance that the Detroit Federation of Teachers is a public sector union. This is where we find the precedent for spending restrictions on these fees.
Three decades later, Rebecca Friedrichs has brought new ramifications to essentially the same case. As the CTA is a public sector union and bargains directly with the public school districts, she argues that collective bargaining in itself is inherently political, since the bargaining involves public resources and taxpayer dollars, and affects public policy about how to allocate funds and provide public services. In this way, she believes that forcing her to pay “fair share fees” is a violation of her First Amendment right, as she would be funding a political cause with which she does not agree.
While this may seem like a valid, nuanced legal argument, I recently spoke with the General Counsel of the CTA, Laura Juran, and she explained to me how Friedrichs’s argument is not substantiated by over forty years of significant case law. Juran explained that “collective bargaining is not inherently political in any meaningful sense of the word. Workplace speech for public employees gets little First Amendment protection and is often viewed by the Court as de minimis [concerning trivial things].”
Indeed, as far back as the late 1960s with Pickering v. Board of Education, and as recently as Garcetti v. Caballos, the Court has upheld this view that workplace speech about employment matters, should not be protected under the First Amendment. The Garcetti case, which was argued in 2006, dealt with a district attorney who claimed that he was passed over for a promotion as retaliation for his prior critical remarks about the validity of a warrant. Interestingly, in this case it was the conservative Court, with Justice Anthony Kennedy delivering the ruling, that decided that workplace speech for public employees is not protected. It makes little sense, then, that the conservative justices are poised to overturn a ruling that many of them made themselves just ten years ago. In Juran’s view, the
issue for the Court is whether the employer, in this case the government, is acting in its role as regulator of the citizenry. If it is not regulating the citizenry, as would be the case with collective bargaining, the Court has given a lot of latitude in terms of the First Amendment. For example, if an employee went to their boss and asked for a raise, this speech is not regarded as citizen speech. In the Friedrichs case, collective bargaining should be seen in this way. It is not citizen speech but rather workplace speech, which should not be protected by the First Amendment. We have pointed out that since Abood, workplace speech with regard to “fair share fees” and collective bargaining has no first amendment protection.
Juran described the petitioner’s efforts as “blatantly political given the merits and precedent. There is no doubt we would win on merit.” While Friedrichs's First Amendment rights form the basis of her case, it is hard not to argue that her efforts are, as Juran put it, “blatantly political.” Juran makes an important point. Rebecca Friedrichs is backed by an extremely conservative libertarian organization, the Center for Individual Rights (CIR), which has taken a leading role in the recent “right to work” movements around the country. It is funded by the likes of Ann Coulter and Americans for Prosperity, the Koch Brothers’ political advocacy group. At a time when there is a significant shrinking of the middle class and widening income inequality, this organization is using the guise of the first amendment to weaken the power of organized labor. The lead attorney for Friedrichs, Michael Carvin, dismissed the idea in front of the justices that “anything could happen adversely to unions” as a result of the case. At the news conference directly following the oral arguments, however, he elaborated, “It may limit their revenue somewhat, but of course they can compensate for that by being less involved in things like politics.” This is the true agenda behind the case. Juran says that “it is not hard to connect the dots as they are so close together.” She argues that this case “threatens to be as political as Bush v. Gore.”
Juran also made clear exactly what would happen if the CTA were to lose this case: “This impact would be far reaching. A loss would mean that for all public sector employees, there would be a constitutional ‘right to work’ around the country. It would of course weaken the collective voice of employees. It would also increase the non-member ‘free rider’ problem and would encourage current members to become free riders, which would create a vicious cycle. That is their obvious objective.”
Justice Antonin Scalia’s death will have significant short term effects on cases that currently sit on the Supreme Court docket. For the foreseeable future, there will be eight justices on the bench. Justices Sotomayor, Breyer, Kagan, and Ginsburg will continue to run the liberal wing of the Court, while Justices Alito, Thomas, Kennedy, along with Chief Justice Roberts, will staff the conservative wing. It is very likely that many of the cases currently on the docket will result in a 4-4 tie based on ideology. When this happens, the Supreme Court must uphold the ruling of the lower court from which it agreed to hear the case.
It seemed, before the sad death of Justice Scalia, that the conservative branch would win and overturn the longstanding precedent that they have claimed to cherish and uphold in 2006 with Garcetti. The fact that the conservative Court would reverse its own judicial restraint shows the political nature of this case. Perhaps the petitioners have a First Amendment claim, but they should not win the case because of the possible political outcomes; rather, they should win on the merits of their argument, which frankly, they seem to lack.
Although Scalia’s death is tragic, it is certain that the likely outcome of this case has drastically changed. The probable outcome is a 4-4 tie which would uphold the United States Court of Appeals for the Ninth Circuit’s decision in favor the CTA. It seems that organized labor has likely dodged a bullet, and the right of workers to have effective collective bargaining has been protected. The “right to work” movement has been slowed, at least for now.
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