Antonin Scalia

SCOTUS Arguments Seem to Bode Ill for Public-Sector Unions

The Supreme Court hears Friedrichs v. California Teachers Association.

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Credit: Library of Congress

The U.S. Supreme Court heard oral arguments on Monday in the case of Friedrichs v. California Teachers Association. At issue is whether state governments may force public-sector workers to pay union fees, as a condition of employment, regardless of whether or not those workers are union members.

At the center of the case is a California public-school teacher named Rebecca Friedrichs. Because she disagrees with the teachers union on many issues, she has refused to join the union. Yet she is still compelled to pay fees covering the union's collective-bargaining activities. In Friedrich's view, those mandatory fees violate her First Amendment rights by forcing her to associate herself with a political agenda that she has no desire to be associated with. It is a "clear First Amendment violation," her lawyer, Michael Carvin, told the Court on Monday.

California Solicitor General Edward DuMont offered a different view. "California understands the First Amendment interests that are involved in this case," he told the Court. "But the State also has critical interests in being free to manage the public workplace." DuMont also stressed that if Friedrichs and others like her are not forced to pay fees to the union, they will become "free riders" on union efforts that benefit them.

Both sides came in for sharp questioning by the justices. But it was the union side that seemed to get the worst of it.

"The problem," Justice Antonin Scalia declared at one point, "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—all of those questions are necessarily political questions." In other words, Scalia suggested, when the government forces Friedrichs to pay for collective bargaining by a public-sector union, the government necessarily forces Friedrichs to pay for union political speech that she rejects. Doesn't that go against the First Amendment?

Justice Anthony Kennedy made a similar point. "When you are dealing with a governmental agency, many critical points are matters of public concern. And is it not true that many teachers are ­­ strongly, strongly disagree with the union position on teacher tenure, on merit pay, on classroom size?" he told DuMont. "The union is basically making these teachers compelled riders for issues on which they strongly disagree."

"What is your best example of something in a collective bargaining agreement with a public employer that does not present a public policy question?" Chief Justice John Roberts asked DuMont.

"Mileage reimbursement rates or how you're going to have public safety," DuMont responded.

But "that's money," Roberts returned. "That's how much money is going to have to be paid to the teachers." It is still the government forcing its employees to fund union political activity, Roberts suggested. "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."

A decision is Friedrichs v. California Teachers Association is expected by June 2016.