Municipal Government

Supreme Court Tie Preserves Fair-Share Fees

March 29, 2016
By Steven Wishnia 

Washington, DC –  In a 4–4 tie vote, the Supreme Court today upheld a lower-court ruling that said it was constitutional for public employees to have to pay “fair-share fees” if they don’t want to join the unions representing them.

“This outcome affirms what we know to be true: Strong union rights are bedrock to the fabric of our democracy and an economy that works for all Americans,” New York State United Teachers said in a statement. “In affirming fair-share fees as a sensible compromise that has served the nation for nearly four decades, today’s court ruling is a blow to the corporate, anti-worker groups… who wish to deny workers the strong voice on the job they both need and deserve.”

American Federation of Teachers President Randi Weingarten, posting on Twitter, called the decision “a big win for working families” and “a significant blow to special interests who wanted to strip working families of a voice on the job.”

The Court announced its decision in Friedrichs v. California Teachers Association in a terse one-sentence statement: “The judgment is affirmed by an equally divided Court.” While it was delivered “per curiam,” meaning “by the court” without opinions by individual justices, it was obvious which justices had lined up on each side. If Justice Antonin Scalia had not died in February, he would have been the fifth vote to overrule the Ninth Circuit Court of Appeals decision that fair-share fees were constitutional.

The main legal issue was whether the Court should overturn Abood v. Detroit Board of Education, the 1977 decision that established the current agency-fee rule. That ruling held that because unions are required to represent all workers in a bargaining unit, all workers must pay a fair share of the costs of that representation, but they can opt out of contributing to the union’s explicitly political activities. In other words, teachers who disagree with the AFT and the National Education Association’s endorsements of Hillary Clinton for President cannot be compelled to pay the part of dues that would go to political campaigns, but they can’t have the union represent them for nothing.

The plaintiffs in the Friedrichs case, Rebecca Friedrichs and nine other California teachers, argued that because public employees’ salaries come out of taxes and their work rules are often controversial, all public-sector collective bargaining is inherently political—so having to pay anything to the union violated their free-speech rights. In the Court’s January oral arguments on the case, Justice Scalia said that rather than workers who refuse to pay for representation being “free riders,” teachers who disagree with union positions on tenure and merit pay are “compelled riders.” Another plaintiff, the fundamentalist Christian Educators Association International, argued that having to pay fees to the NEA forced teachers to support the “homosexual agenda.”

Friedrichs and the others were represented by the Center for Individual Rights, a far-right legal organization that has also litigated against affirmative action and provisions of the Voting Rights Act of 1965. They were also backed by an array of politicians and policy groups that denounced “forced unionism,” including Illinois Gov. Bruce Rauner, the National Right to Work Legal Defense Foundation, the Mackinac Center for Public Policy in Michigan, and the attorney generals of 18 states, among them Wisconsin, Texas, and Michigan.

The NEA called the case a “thinly veiled attempt to weaken collective bargaining” and “an example of how corporations are using the Supreme Court for political agendas.” The political questions that come up in collective bargaining, it says, are important issues that affect the well-being of both students and teachers.

“Collective bargaining rights allow educators, like me, to speak up for their students on important issues such as class sizes and high-stakes standardized tests,” California Teachers Association President Eric C. Heins said in the NEA statement. “Today’s ruling by the Supreme Court reaffirms that it is in the best interest of our students and our communities for educators to have a strong voice on the job.”

CIR says it plans to file for a rehearing once the Court has nine members.

March 29, 2016

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