by Mitch Kokai
Senior Political Analyst, John Locke Foundation
George Leef devotes his latest Forbes column to the U.S. Supreme Court’s recent hearing in the Friedrichs case.
The plaintiffs, teachers in California public schools, challenge the constitutionality of a rule that they must pay dues to the C.T.A. to keep their jobs, even though they don’t choose to join the union and object to the way it uses money involuntarily taken from them to advance political causes they oppose.
This raises First Amendment issues, since it protects not only the right to speak freely against governmental interference, but also protects the right not to be compelled to speak. By taking dues money from these teachers and spending it on a host of political objectives, the union forces the teachers to subsidize speech they disagree with.
During the arguments, Justice Breyer asked the attorney for the teachers, Mike Carvin, how this case is different from laws that require lawyers to pay mandatory dues to state bar associations. Carvin’s response turned the tables. The Court, he pointed out, has held that while lawyers can be compelled to pay dues for the regulation of the legal profession, they cannot be compelled to pay for any political or ideological activities undertaken by bar associations. (The case in point is Keller v. State Bar of California.)
The main line of defense for the union’s “all teachers must pay” system is that all teachers benefit from its collective bargaining and therefore should have to pay their “fair share” through an agency fee. Unless they have to pay, teachers will be tempted to become “free riders” on the dues of others, reaping the supposed benefits without helping defray the costs. If too many try to become free riders, then union would not be able to do its job.
In the 1977 case Abood v. Detroit Board of Education, the Court accepted that argument and held that a “fair share” system was permissible under the First Amendment. Solicitor General Donald Verrilli, arguing for the Obama administration that the Ninth Circuit’s decision for the union should be upheld, contended that the Court should stay with the Abood precedent and not disrupt the status quo in the 23 states that have similar arrangements.
Where First Amendment rights are at issue, however, stare decisis and the convenience of teachers’ unions seem very small considerations. Suppose that in the arguments over Brown v. Board of Education, the defenders of segregated schooling had said, “The Court settled this long ago in Plessy v. Ferguson; separate but equal is not unconstitutional and besides, a ruling against the state will lead to a lot of inconvenience. Just uphold current law.” That argument was made, and the Court rightly rejected it.