Friedrichs Amici Brief: AFT & AAUP

In the run-up to oral argument in Friedrichs v. California Teachers Association, OnLabor will be reviewing some of the significant amicus briefs that have been filed in the case.

The AFT and AAUP also filed an amici brief for the Friedrichs respondents on Friday. In contrast to the AFL-CIO and AFSCME, the AFT and AAUP focus more so on the practical implications of overruling Abood than on Abood‘s doctrinal footing.

First, the amici direct the Court’s attention to the fact that fair share fees “fund a wide range of . . . activities that promote the state’s compelling interest in providing students a high quality education and directly benefit nonmembers like petitioners”:

For example, fair share fees are used to help implement educational reforms as part of the collective bargaining process. Unions spend substantial resources working with local administrators to flesh out and operationalize reforms mandated by federal or state law, or developed by local school districts. In doing so, unions bring their members’ informed insights to the project and promote educator buy-in. Fair share fees also help support union-provided training to implement the reforms, for example, by training union representatives and members who participate in new teacher mentoring and evaluation programs. And unions, using fair share fees, also play a central role in ensuring proper implementation of such reforms on an ongoing basis, both in bargaining and through the grievance process.

Fair share fees also support union participation on school health and safety committees that identify school hazards (from leaking roofs to asbestos), design and implement programs to improve students’ health (such as training school employees in CPR or how to respond to asthma attacks), and help plan for emergencies (such as natural disasters or incidents of school violence).

Thus, “[w]hile nonmembers like petitioners may not always agree with their union, they cannot claim that they disagree with everything their union does or says, or deny that they benefit substantially from union activities that improve school safety and other working conditions, as well as the bargaining and grievance services unions are compelled by law to provide them.”

Nevertheless, were the Court to overrule Abood — and thereby create what amounts to “a constitutional right to a free ride” — such a result would be highly “disruptive to state educational systems.” Not only would unions “have fewer resources to devote” to the causes described above, but also states may experience an “unraveling of the careful balance of interests struck by the exclusive bargaining systems” that “many states have deemed essential to maintaining labor peace and promoting effective school management.” This is because unions are presently required “to represent the interests of nonmembers in bargaining and grievances — a mandate that comes with its own serious First Amendment costs.” Yet this requirement “becomes dramatically less defensible if nonmembers cannot be compelled to pay their fair share,” which may lead states “to reconsider laws imposing that obligation” upon unions.

The unions also attack petitioners’ strategy of bringing an “astonishingly broad facial challenge” without developing a record in the lower courts as facially defective in its own right:

This Court has repeatedly analyzed constitutional challenges to the assessment of fees on a category-by-category basis, weighing the competing constitutional and governmental interests implicated by particular types of expenditures. Having forgone this restrained approach, petitioners’ all-or-nothing claim can be accepted only if they can show that the First Amendment interest affected by every use to which fair share fees are put will always outweigh any conceivable countervailing state interest. This they have not attempted, and cannot do, particularly in the absence of any record establishing the full range of uses to which fair share fees are put.

And given the context in which the case was brought, the unions call upon the Court to exercise judicial restraint:

Departing from the Court’s traditional restrained approach would be particularly regrettable in such a politically charged case, where it is all too easy for the public to perceive the Court’s willingness to rule broadly, and in the absence of a record, as proof that its decision is in furtherance of a broader policy agenda that is premised on individual Justices’ world views.

Finally, even if the Court were to entertain petitioners’ facial challenge, the unions ask the Justices to “hold petitioners to their strategic decision not to challenge the underlying system of exclusive representation”:

The Court should preclude petitioners from relying on any burden to their First Amendment interests that is inherent in the exclusive bargaining system they have elected not to challenge. Their failure to even attempt that disaggregation is yet another reason to reject petitioners’ broad claims in this case.

The full AFT/AAUP brief is available here.

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