Published Online: December 19, 2006
Published in Print: December 20, 2006, as Speech Impediment

Federal File

Speech Impediment

Bush administration will back nonunion teachers in high court arguments.

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The chief courtroom lawyer for the Bush administration will try to convince the U.S. Supreme Court next month that the Washington Education Association does not have the right to spend money for political activities that it collects from the paychecks of the state’s nonunion educators.

Last week, the court allocated time for U.S. Solicitor General Paul D. Clement to argue in support of five nonunion teachers and Washington state when their appeals are heard by the court on Jan. 10.

The solicitor general, or one of his deputies, will help defend a 1992 state law that requires nonunion educators to “affirmatively” opt in before their so-called agency fees for union-representation activities may be used to support the union’s political agenda.

The federal government is wading into the dispute over a state law because federal election laws similarly prohibit unions from using nonmembers’ fees for political activities, Mr. Clement explained in the Bush administration’s friend-of-the-court brief.

WEA argues that by requiring it to track down nonunion teachers to ask them to consent to the political use of their agency fees, the law puts a burden on the First Amendment free-speech rights of union members and of nonmembers who support the union’s political expression.

State law requires the union to represent nonmembers in collective bargaining, though they constitute fewer than 5 percent of the school workers the 70,000-member union represents.

In a 6-3 decision in March, the Washington Supreme Court held that the “opt in” law is unconstitutional because it imposes significant costs on the union, while presuming that nonmembers dissent from its political speech.

That ruling was upside-down, Mr. Clement argues in the Bush administration’s brief.

The law’s “simple proviso” that a teacher who is not a union member “must say ‘yes,’ instead of failing to say ‘no,’ not only fails to raise any constitutional concern, but actually promotes First Amendment interests by protecting the freedom of speech and association of workers who chose not to join the union and may well oppose its political activities,” the brief says.

The consolidated appeals are Washington v. Washington Education Association (Case No. 05-1657) and Davenport v. Washington Education Association (No. 05-1589).

Vol. 26, Issue 16, Page 22

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