In Harris v. Quinn, which we have covered extensively, the Supreme Court stopped short of declaring public-sector fair share fees unconstitutional. However, several commentators have noted that Justice Alito seemed to invite a case that would allow the Court to overturn Abood v. Detroit Board of Education and thereby invalidate public-sector agency shop arrangements. The Center for Individual Rights (CIR) may have presented the Court with just such a case. CIR represents the plaintiffs in Friedrichs v. California Teachers Association, teachers who claim that contracts requiring them to contribute to collective bargaining and administration costs violate their First Amendment rights.
While public employees cannot be required to join a union, they can be required to pay fees associated with union representation. In Abood, public school teachers alleged that these “agency shop” or “fair share” agreements amounted to compelled political speech in violation of the First Amendment. The Court disagreed, finding that fair share agreements did not violate the Constitution as long as the non-member fee was limited to collective bargaining and contract administration expenses.
The Court has repeatedly upheld the Abood decision. Supporters argue that because unions are required to represent all employees, whether they choose to join the union or not, it’s only fair to require everyone to pay their share. Otherwise non-members are allowed to free-ride, enjoying the benefits of union representation without contributing. Critics argue that the line the Abood court drew between political and non-political activities is illusory; collective bargaining in the public sector is inherently political. As such, fair share agreements compel speech (or at least the subsidization of speech) and thereby violate objectors’ right to free speech and freedom of association.
In two recent cases, Justice Alito has strongly suggested a willingness to overturn Abood. In Knox v. Service Employees International Union, the Court found that allowing non-members to opt out of increased special fees was not enough; instead non-members only have to pay if they affirmatively opt in. Justice Alito, writing for the majority, said, “free-rider arguments…are generally insufficient to overcome First Amendment objections.” And while the majority opinion in Harris v. Quinn was fairly narrow, Justice Alito went out of his way to state that Abood is an “anomaly.”
Friedrichs v. California Teachers Association
In the Friedrichs petition, the plaintiffs ask the Court to rule on two questions: 1) whether fair share agreements violate the First Amendment; and 2) whether allowing objecting employees to opt out rather than requiring everyone to opt in also violates the First Amendment. Plaintiiffs make the now familiar arguments that ordinary public sector bargaining topics, like teacher tenure and salary, are political. Thus, requiring non-member employees to contribute to union representation on these issues is a violation of their First Amendment rights.
The case seems specially crafted for the Supreme Court. In the California district court CIR took the unusual move of filing a motion asking the court to rule in favor of the union. The court, in an opinion that can be found here, agreed. Because Abood is still good law the lower courts must follow Supreme Court precedent. California law also allows unions to collect agency fees to support collective bargaining. The district court recognized that a ruling in favor of the union would allow CIR to quickly appeal the case to the Supreme Court: “Plaintiff’s ultimate aim — and thus their request for judgment on the pleadings in favor of Defendants — is to have these precedents overturned on appeal.” CIR filed the same motion in the Ninth Circuit, which the court granted. The plaintiffs then filed their petition for writ of certiori on January 26, 2015. The Court has not yet announced if it will hear the case.