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Published in Print: October 4, 2006, as Supreme Court To Hear Case On Union Fees

Supreme Court to Hear Case on Union Fees

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The U.S. Supreme Court agreed last week to take up the issue of when a teachers’ union may spend the money it collects in the form of “agency fees” from nonmembers on political causes.

The justices said they would review a Washington state law that requires nonmembers to “affirmatively consent,” or opt in, before a union may spend money from such fees on political campaigns and similar activism. A decision by the high court upholding the law could give ammunition to union critics to push for similar restrictions on union clout in other states.

On another education front, the court also agreed to take up a case involving the federal impact-aid statute and when states may reduce their funding to districts with large federal land holdings or installations by the same amount of aid provided by the federal government.

The court announced Sept. 26 that it would add the two cases to its docket for the term that was set to begin officially on Oct. 2. The justices had already accepted two major school cases, both dealing with the use of race as a factor in assigning students to schools, for this term.

In the teachers’ union case, the high court accepted appeals from the state of Washington and five nonunion workers of a ruling by the state supreme court that struck down the consent provision as a violation of the Washington Education Association’s First Amendment rights of free speech and association. The union and its opponents have jousted for years over the rules for political spending by the WEA.

The appeals in Washington v. Washington Education Association and Davenport v. Washington Education Association (Cases No. 05-1589 and 05-1687) involve fees paid by workers who choose not to join the union but who benefit from the collective bargaining process. Unions collect what is called an agency fee from such workers.

Under a 1986 U.S. Supreme Court ruling, states that allow unions to collect agency fees from nonmembers are required to give them the opportunity to opt out of having their fees used for political purposes.

In Washington state, the procedure under a 1992 law that the state’s high court overturned was seen as more burdensome to unions because it said they must annually get affirmative consent from each nonmember before using any dues for political purposes.

In its decision earlier this year, the Washington Supreme Court said the provision violated the WEA’s First Amendment rights. The court held that the union’s annual offer to reduce the fees—by the portion spent on politics—for those who objected to the use of their dues for political causes was sufficient.

A Full Accounting?

Michael Reitz, a lawyer for the Evergreen Freedom Foundation—a conservative think tank in Olympia, Wash., that first filed the complaint against the WEA that led to the case—said that getting an annual upfront opportunity to opt out of having agency fees go for political purposes, as required under a U.S. Supreme Court decision, was insufficient protection.

The WEA, an affiliate of the National Education Association, has in the past used leftover collective bargaining funds for political purposes, violating the wishes of such employees who did not want to contribute to the union’s political causes, he said.

The organization joined a friend-of-the-court brief on the side of the state of Washington, which is defending the state law, and the five nonmembers.

Mr. Reitz said he welcomed the agreement by the U.S. justices to take up the case. “We're very ex-cited that the court is taking this step,” he said. “We feel this is the first step toward securing the free-speech rights of teachers.”

Teachers’ union officials and their advocates say that they calculate the opt-out portion of a nonmember’s agency fee based on the previous year’s expenditures on political causes. WEA nonmembers pay $700 a year in agency fees; those who opt out of the political expenses pay 25 percent less than that.

John M. West, a Washington, D.C., lawyer representing the WEA, said that the state union sends every nonmember a lengthy notice on how it spends its money.

“They get a full accounting of how much goes for collective bargaining, how much goes for lobbying, public relations, organizing, as well as for political expenditures,” he said.

Charles Hasse, the president of the WEA, which is based in Federal Way, Wash., pointed out that nonmembers constitute only about 3,000 of the nearly 80,000 workers the union represents. Of those 3,000, fewer than 10 percent typically choose not to pay the agency-fee portion that goes toward political causes, he said.

“What’s much more important to us [than the money] is the good name, reputation, and integrity of WEA, and that’s why we are ready to litigate this,” Mr. Hasse said.

But those who want the 1992 law reinstated point to the past when they say the teachers’ union has “flagrantly violated” it, Mr. Reitz said. The state probe began after the WEA in 1994 instituted a dues increase for what it called the Community Outreach Program, partly to offset an anticipated drop-off in political contributions because of the 1992 law.

In 1998, the state reached a $430,000 settlement in a case against the union. In a subsequent legal action by the state, the union faced a judgment of $590,000. But the union used that action to challenge the law in state courts. In March the state supreme court struck down the 1992 law.

In its appeal to the U.S. Supreme Court, the state of Washington argued that unions do not have a First Amendment right to use nonmembers’ fees for political purposes.

In the separate appeal of the five current or former educators who paid agency fees to the WEA, their lawyers argue that Washington’s highest state court “turned the First Amendment on its head” by “concocting” a principle that unions have a free-speech and -association interest in their dues policy. The five are being represented by the National Right to Work Legal Defense Foundation, a Springfield, Va.-based organization that has long led a movement to restrict the influence of unions.

A One-State Law

Union-watchers last week were weighing the possible repercussions for unions nationwide if the U.S. Supreme Court allows the reinstatement of the Washington state law.

“On the one hand, it could have no effect, but on the other it could have a great effect on how unions interact with the people they cover,” said Mike Antonucci, an independent watchdog of teachers’ unions who is based in Elk Grove, Calif.

Currently, 22 states allow public-employee unions to charge agency fees to those who do not wish to become members. A potential effect of a Supreme Court ruling against the WEA, Mr. Antonucci said, could be a decline in membership numbers.

“Once teachers realize that they can get representative services and collective bargaining services without having to pay for political races and campaigns and ballot initiatives, they could opt for that status” of nonmember, he said, “and that could create a whole different organizational problem” for the unions.

But a lawyer for the 3.2 million-member National Education Association sought to downplay the potential of the case by pointing out that the Washington law requiring affirmative consent from nonmembers is unique to that state.

“There are no statutes like Washington’s anywhere else in the country where public-sector unions are required to collect fees from nonmember fee-payers,” said Michael Simpson, the assistant general counsel of the NEA. “For this reason, we anticipate that a decision from the Supreme Court in these cases will have no impact outside of the state of Washington.”

Impact-Aid Case

Meanwhile, in the case involving the federal impact-aid law, the justices agreed to hear an appeal from two New Mexico districts whose state aid was reduced by the amounts of such aid they had received from the federal government.

A federal appeals court had upheld the U.S. Department of Education’s regulation allowing a state to redistribute impact aid as long as the federal secretary of education had determined that the state had an equalized state funding system.

The appeal is Zuni Public School District No. 89 v. Department of Education (No. 05-1508).

Both the union and impact-aid cases will likely be argued early next year.

Vol. 26, Issue 06, Pages 1,26

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