High Court Mulls Future of Forced Dues

California Republican officials are accustomed to having their legislation killed, given their lack of clout in the Capitol. But the recent derailment of six out of seven bills in their modest education-reform package ??? and the seventh was gutted ??? speaks not just of their minority status, but of the power of the state???s teachers??? unions.

Yet there???s a possibility such power could be eroding. On Tuesday, the U.S. Supreme Court agreed to hear a First Amendment case filed by some Southern California teachers against the California Teachers Association. The Friedrichs case deals with the arcane issue of ???agency shop??? fees teachers must pay their unions ??? but the case has broad implications for teachers??? unions and all public-sector unions across the country.

???The Supreme Court is revisiting decisions that have made it possible for people to stick together for a voice at work in their communities ??? decisions that have stood for more than 35 years ??? and that have allowed people to work together for better public services and vibrant communities,??? said a statement from a broad group of unions.

But those words sidestep the main question at issue: Can government employees be forced to pay dues to unions that lobby for policies they might oppose? A 1977 high-court decision split the baby. In the Abood case, the court said workers could opt out ??? but must pay ???chargeable??? expenses for collective bargaining. They needn???t pay ???nonchargeable??? political expenses.

This case argues all dues in a government setting are political. ???Collective bargaining between a public employee???s union and local officials is inherently political,??? said Terry Pell, an attorney for the plaintiffs. ???When the union is negotiating for higher salaries it???s negotiating with local officials about how best to spend tax dollars.??? That???s a policy question and therefore political ??? and wrong to force people to advance the union side.

Critics of the lawsuit say if the court tosses mandatory dues-paying, it will allow many public employees to become ???free riders??? ??? i.e., enjoy the benefits the union achieves through negotiations without having to pay for their costs.

???The unions see what they are offering us as benefits…,??? responds plaintiff Rebecca Friedrichs, in an interview. ???We feel those benefits aren???t worth the moral costs. ??? If they go and they put pressure to protect teachers who are no longer effective in the classroom ??? we have a moral problem with that. ??? The union basically does this name-calling, you know we???re free riders, but ??? I???m really being forced on this ride. And I think the unions are free-riding off of me.???

There???s evidence the court might sympathize with that free-speech argument. Justice Samuel Alito, in a 2014 case that let home healthcare workers in Illinois avoid paying collective-bargaining fees, wrote the court???s decisions approving of mandatory dues payments ???approach, if they do not cross, the limit of what the First Amendment can tolerate.???

The court could also change the opt-out process. Currently, unions make it difficult for workers to withhold their cash ??? and there???s insufficient oversight of their spending. Friedrichs says her annual notices detailing chargeable expenses are vague and include items not related to collective bargaining (e.g., funding an LGBT conference).

Unions are worried ??? news reports call it a ???life or death??? case for them ??? because making contributions voluntary will reduce their bank accounts even if only a small percentage of workers refuses to pay up. The complaint, for instance, details tens of millions of dollars spent by the CTA in California politics. That???s just one union.

???Maybe we have a better opportunity if this case wins at the Supreme Court level to truly fix our schools in a way that finally achieves the educational excellence that our children in California deserve,??? said Assembly Republican Leader Kristin Olsen of Modesto. She noted that unions fight important reforms ???tooth and nail, every year.???

And it won???t just be the loss in dollars that shifts power away from the unions. If dues-paying becomes voluntary, Friedrichs added, unions will have to listen more carefully to potential members and lure them with their services and ideas. It???s hard to see how that could be a bad idea.