Months after reaching a 4-4 tie in Friedrichs v. California Teachers Association, the Supreme Court has denied the petitioners’ request for a rehearing. The Court waited until its final conference of the Term to vote on the petition, after postponing its decision eight times since April. No opinion was included with the Court’s denial.
While today’s announcement effectively brings the case to a close, the questions presented by Friedrichs — (1) whether Abood v. Detroit Board of Education should be overruled and public-sector “fair share” arrangements invalidated under the First Amendment, and (2) whether it violates the First Amendment to require that public employees affirmatively opt out of subsidizing nonchargeable speech by public-sector unions — may be litigated again and brought back before a (presumably full) Court in the future.
At the Friedrichs oral argument, Edward Dumont, the lawyer representing the State of California tried to make the point that collective bargaining for public employees often involves mundane workplace issues rather than major public policy issues. Chief Justice Roberts pressed Dumont to give examples of issues that do not present public policy questions. When Dumont suggested mileage reimbursement rates, Roberts pounced on him to make the point that “It’s all money…. If you give more mileage expenses, that costs more money. And 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.”
What the Chief Justice is missing is that collective bargaining serves two separate purposes for workers. On the one hand, by joining together, workers can increase their bargaining power and gain a larger piece of the pie than they would if they each bargained individually. But, particularly for public employees, where budgets are generally set by legislatures, bargaining allows workers to have a say in how to divide their share of the pie. And, while setting the size of the public school budget may be a public policy issue, a school district’s decision to devote a tiny fraction of that budget to mileage reimbursement rather than more paid leave is hardly a matter of public concern. Even where a school district has a finite amount of money to spend on compensation for teachers, the process of collective bargaining is valuable for workers because it gives them a voice regarding how to spend those dollars. In the absence of collective bargaining, administrators would unilaterally decide whether to put more money into wages than benefits, or whether to add more paid leave even if that meant less money for health insurance.
Ben Levin is Climenko Fellow and Lecturer on Law at Harvard Law School.
Trying to read the tea leaves in oral argument questions can be a risky proposition. But, one particular exchange during Monday’s argument in Friedrichs v. California Teachers Association between Chief Justice John Roberts and California Solicitor General Edward DuMont is worth a second read because of what it tells us about the so-called “free rider” problem and judicial assumptions about unions.
As Ben Sachs, Catherine Fisk, and others have highlighted, the central concern for unions in Friedrichs is that a decision overruling Abood could give rise to a serious free rider problem: because of the rule of exclusive representation, unions are required to represent all the workers in a given bargaining unit; but, if a union can’t compel members of the unit to pay dues, then some group of workers could act as free riders, taking advantage of the benefits won by the union, but refusing to pay their share to fund the union’s work.
About half way through oral argument, Chief Justice Roberts rejected this argument out of hand: “If your employees have shown overwhelmingly that they want collective bargaining, then it seems to me the free rider concern that’s been raised is really insignificant.” In other words, if employees like the benefits that unions have bargained for, then why wouldn’t an employee want to pay union dues?
At the Friedrichs oral argument, Justice Ginsburg asked Michael Carvin, the attorney for Rebecca Friedrichs, how a decision overruling Abood v. Detroit Board of Education, would affect Supreme Court decisions authorizing mandatory fees to bar associations. Whether intentional or not, Carvin’s answer was more than a little misleading.
To back up, a number of states require all lawyers to pay dues to a state bar association as a condition of practicing law in a State. In 1961, in a case called Lathrop v. Donohue, the Supreme Court considered a case brought by a Wisconsin lawyer who was required to pay an annual fee to the state bar. Six of the nine justices found that the case was “no different” from an earlier case where the Court had rejected challenges to mandatory union fees. Subsequently, in Keller v. State Bar of California, the Court agreed that objecting lawyers could withhold funds that were used by the state bar on matters unrelated to “advancement of the science of jurisprudence or to the improvement of the administration of justice.” The Court stated that it might be hard to draw the line in some cases, but that “[c]ompulsory dues may not be expended to endorse or advance a gun control or nuclear weapons freeze initiative.”
This gets us back to the Friedrichs argument. Justice Ginsburg asked whether Keller would fall if the Court overturns Abood. Carvin responded that it wouldn’t because the rationale of Keller is “significantly different” than the rationale of Abood. In making this argument, Carvin initially relied upon the Supreme Court’s decision in Harris v. Quinn, where the Court majority tried to distinguish Keller by explaining that mandatory bar dues are justified for two reasons. First, they serve “the State’s interest in regulating the legal profession and improving the quality of legal services,” and second, “[s]tates also have a strong interest in allocating to the members of the bar, rather than the general public, the expense of ensuring that attorneys adhere to ethical practices.” But, in Friedrichs, the State of California has similarly argued that it has a strong interest in maintaining its current fair share system because fair share fees both “ensure that an exclusive bargaining representative has the resources necessary to discharge its responsibilities to all employees,” and “head off the resentment and conflict that an unfair allocation of the funding burden would predictably cause among employees, which could otherwise present a serious workplace problem for public employers.” Thus, if the plaintiffs in Friedrichs are to prevail, the Court must explain why it accepted the State of California’s judgment in Keller while rejecting a similar judgment here.
It has been widely reported that the oral argument in Friedrichs v. California Teachers Association suggests that five justices are poised to strike down fair share fees for public-sector employees in the twenty-plus states that allow them. The crucial votes were thought to be Justice Kennedy (the swing vote, and also the author of the Garcetti opinion limiting government employee free speech rights) and Justice Scalia (whose prior opinions acknowledged, as Ben Sachs and I have explained here, that unions’ duty of fair representation creates a free rider problem). But their questions at oral argument were hostile to the union. Because Kennedy and Scalia are not known to play the devil’s advocate at argument, it seems plausible to speculate that there are five votes to overrule Abood and strike down public-sector fair share fees. Here I explore what the questioning suggests about three crucial points that a decision to overrule Abood would presumably make: (1) How the Court might abandon its usual deference to state governments in managing their workforce; (2) How the Court might find subsidies for collective bargaining to compel speech; and (3) How the Court would justify a First Amendment right to refuse to pay for speech that, if an employee were to make it individually, would be unprotected under Garcetti and Pickering.
(1) Deference to state government employers. Key to the conservatives’ reluctance to defer to states as employers are three notions: (a) agency fees are not an employer-employee matter, (b) they are unnecessary, and (c) they are political. Chief Justice Roberts doubted the California’s Solicitor General’s assertion that states have discretion to manage their workforce by saying “you’re doing something more than simply regulating the employment relationship.” Justice Scalia said he “sympathize[d] with the need of the State to have an efficient system for dealing with its employees.” But, he asked, “Why do you think that the union would not survive without these fees charged to nonmembers of the union?” This reflects a big change in Scalia’s apparent thinking even since the argument in Harris v. Quinn (and, of course, his opinion in Lehnert), when he seemed sympathetic to the free-rider justification for requiring employees to pay for the costs of bargaining. Roberts also suggested “the free-rider concern that’s been raised is really insignificant” because the overwhelming majority of California teachers support the CTA.
Michael Carvin, representing petitioners, distinguished Justice Kennedy’s opinion in Garcetti (which holds that public employers can restrict on the job speech about work-related matters) by saying the Court defers to government employers only when they restrict employee speech but not when they compel it. While no justice adopted this view, Justice Kennedy interjected that agency fees support positions some teachers oppose on matters of public concern.
Deference to states – as employers or in anything else – is usually just a neutral sounding way of approving a decision the justices support on the merits. And so it may be here.
Note: This post was originally published on October 5th, and is being re-published in light of yesterday’s oral arguments in Friedrichs.
Given Justice Scalia’s consistent view that public employees have minimal free speech rights, doctrinal consistency should require him to reject the First Amendment challenge to union fair share fees in Friedrichs. As Professor Sachs points out, Justice Scalia (joined by Justice Kennedy) opined in Rutan v. Republican Party of Illinoisthat compelled membership and activism in the Republican Party did not violate the First Amendment. InRutan, the Court struck down a state policy giving preference in hiring or promotion to workers who were active members of the Republican Party. (In a prior case, Elrod v. Burns, the Court struck down the patronage practice of firing public employees on the basis of political affiliation.) Justice Scalia dissented in Rutan because he does not believe the First Amendment prohibits government from requiring employees to join political parties. If that is so, why does the First Amendment prohibit compelled payment of agency fees?
It is important to note the distinction between what the majority found objectionable in Rutan and Elrod and what public sector labor laws require. Public sector labor laws do not ever require anyone to join a union or to be active in it. All employees are required to do is to pay money for services. Patronage systems, in contrast, not only require membership in an organization (which public sector labor law does not), but also they can effectively compel how employees vote, because in states without an open primary one can only vote for candidates of the party in which one is a registered voter. Unionized teachers, on the other hand, need not join the union, and can be active on behalf of, speak out for, and vote for candidates that oppose the union’s positions. The patronage system at issue in Rutan – which Justices Scalia and Kennedy found constitutionally permissible – compelled employees to be members of a particular party, prohibited voting for the Democratic party candidates (Illinois did not have an open primary), and demanded employees be active on behalf of a party with which they disagreed. Union membership does none of this, nor does paying an agency fee.
Note: This post was originally published on June 30th, and is being re-published in light of today’s oral arguments in Friedrichs.
The Court today granted review in Friedrichs v. California Teachers’ Ass’n. This suggests that four Justices may want to extend to public school teachers the right-to-work regime the Court imposed on home care workers in 2014 inHarris v. Quinn. That is no surprise. But while it takes the votes of only four Justices to grant review in a case, it is not obvious that there are five votes on the Court to overrule 30 years of precedent and hold unconstitutional a settled principle in the public sector labor laws of half the states.
The petitioners in Friedrichs argue that California school districts violate the First Amendment rights of public school teachers by agreeing that all teachers who are represented by the union must pay their fair share of the cost the union incurs negotiating and administering a collective bargaining agreement. Under California’s public sector labor laws, like those of almost every other state, the union owes a duty of fair representation (DFR) to all employees it represents. The DFR requires the union to enforce the contractual rights of all the employees it represents, without regard to whether they are members.
In Abood v. Detroit Board of Education in 1977 the Court rejected the constitutional argument that the petitioners want the Court to accept in Friedrichs. Abood held that, although public school teachers cannot be required to join a union or to contribute to the union’s political expenditures, they can be required to pay their fair share of the costs the union is required by law to incur in negotiating and administering an agreement on behalf of all teachers.
In Harris v. Quinn, the Court had been invited to overrule Abood, but the Court instead distinguished Abood and limited its ruling to home care workers. The majority reasoned that the state agency and the union did not have enough responsibility over the conditions of employment of home care workers to make it necessary for unions to charge fees for the services that the DFR requires them to provide. Justice Alito’s opinion in Harris criticized Aboodat length, but there apparently wasn’t a fifth vote to overrule Abood.