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Published in Print: September 30, 2015, as Union Fees, Affirmative Action on High Court's 2015-16 Docket

Union Fees, Affirmative Action on High Court's 2015-16 Docket

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The power of the U.S. Supreme Court may reach into teachers' paychecks, union treasuries, and college admissions offices in the new term beginning next week.

The biggest education case of the 2015-16 term involves the fees charged by teachers' unions for collective bargaining to those who do not want to join the union.

It's a case that conservatives on the high court practically invited in recent years with decisions that were at the edges of the question that is now squarely before the court: Whether it should overrule a key precedent that for nearly four decades has authorized public-employee unions to extract such fees from objecting workers.

The other big education case involves the return of affirmative action, or race-conscious policies, in college admissions. A white student, Abigail Fisher, continues to challenge the admissions plan of the University of Texas at Austin. The justices wrestled with her case two terms ago before asking a federal appeals court to give greater scrutiny to the system that was in use when Fisher was denied admission in 2008.

The justices will continue to add cases to their docket for the new term for several months. Even if they do not add another education case, the new term will be the most significant for educators in several years. As Education Week reported at the start of the term last year, the justices had not heard a case involving school districts or public school administrators in five years.

High-Stakes for Unions

That drought will end with the union-fees case, Friedrichs v. California Teachers Association (No. 14-915), which includes several Southern California school districts as parties. The basic conflict in the case, though, is between teachers who don't want to join the union and pay service fees that can equal as much as 98 percent of dues for union members, and the local, state, and national labor organizations that collect such fees.

"I think both sides of the debate would agree that the stakes are quite high," Paul D. Clement, a prominent Supreme Court litigator who is not involved in the case, said at an event last week sponsored by the Heritage Foundation.

The Friedrichs case was brought by 10 California public school teachers, and a Christian educators' group to which they belong, against the state affiliate of the National Education Association and several of its local affiliates. The teachers decline to join the union and object on First Amendment free-speech grounds to paying service fees, or "fair share" fees, for being represented by the bargaining unit.

The teachers are asking the Supreme Court to overrule a 1977 decision, Abood v. Detroit Board of Education, that authorizes public-sector unions to charge such fees to union objectors. Such fees bring in millions of dollars to the public-employee unions, and right-to-work groups have long sought to undo the precedent.

The teachers say undoing Abood is necessary for them to challenge California's system of allowing school districts to require teachers to either pay dues to join the union or pay a service fee. They also object to having to take steps to opt out of the union every year.

"Every year, California law requires thousands of public school teachers to pay hundreds of millions of dollars to the NEA, the CTA, and their local affiliates," the objecting teachers argue in a legal brief. "This annual tribute subsidizes those unions for the quintessentially political act of extracting policy commitments from local elected officials on some of the most contested issues in education and fiscal policy."

Framing the Issue

The unions have until late October to file their merits briefs, and an NEA official didn't respond to a request for comment. In a brief filed when the court was deciding whether to take up the case, the NEA, the CTA, and their local affiliates said that Abood "rests on solid constitutional footing and has been repeatedly reaffirmed."

In a 2014 decision in Harris v. Quinn, the Supreme Court stopped short of overruling Abood when it held that a group of Medicaid home-health workers were really not government employees and could not be forced to pay agency fees to a union representing the majority of such workers in Illinois.

Writing for a 5-4 majority in Harris, Justice Samuel A. Alito Jr. wrote at length about Abood's "questionable foundations," but he concluded it wasn't necessary to overrule the 1977 decision in the Illinois case. Alito had raised similar concerns in a separate case two years earlier.

Justice Elena Kagan wrote a dissent for the court's liberal bloc that said, "For some 40 years, Abood has struck a stable balance—consistent with this court's general framework for assessing public employees' First Amendment claims—between those employees' rights and government entities' interests in managing their workforces."

The unions' best hope for gaining a fifth vote to retain the status quo, many scholars agree, is Justice Antonin Scalia, who was in the majority in Harris but has expressed some support for the Abood system.

"Where the state imposes upon the union a duty to deliver services, it may permit the union to demand reimbursement for them," he wrote in a 1991 concurrence in Lehnert v. Ferris Faculty Association, a case about multiple issues involving agency fees.

Still, noting the potentially pivotal role of Justice Scalia in the Friedrichs case, Clement said, "I don't know that that would warm my heart if I were the public-employee unions."

No argument date had been set for the case as of last week.

Race-Conscious Admissions

Meanwhile, the new court term will bring a return of the case of Fisher v. University of Texas at Austin (No. 14-981). At issue is the same distinctive admissions program at the flagship UT campus that the justices reviewed during their 2012-13 term.

The state's so-called Top Ten Percent plan, involving those at the top of their high school graduating classes, fills about three-quarters of the spots in the entering class. For the rest, the university uses a "holistic review" in which an individual's race can sometimes be the make-or-break factor in admissions.

In its 2013 decision in Fisher, the Supreme Court had demanded that a federal appeals court apply "strict scrutiny," the most stringent level of judicial review, to the UT plan. Writing for a 7-1 majority in that decision, Justice Anthony M. Kennedy had said the appeals court could not accept the university's own assertions that its admissions plan used race in a permissible way.

In 2014, on remand from the high court, a panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, rejected arguments that the holistic review plan acts as a form of racial quota.

The university told the Supreme Court last spring that the appeals court had gotten it right, faithfully applying its precedents on the use of race in admissions.

"The last time this case was before the [Supreme] Court, [Fisher] did not seriously contest that UT's plan considers race only in an individualized way," the university's brief said. "Because it does."

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The high court took up the case anyway, leading most scholars to believe that the court's conservatives are prepared to reject the UT system. But whether they are ready to use the case for a broader pronouncement on affirmative action is less clear. Fisher never asked to overturn the high court's key precedents in this area.

"It seems incredibly improbable that the [Supreme] Court took the case to pat the 5th Circuit on the back and say, 'Job well done'," said Justin Driver, a law professor at the University of Chicago.

The Fisher case was not yet scheduled for argument as of last week.

Vol. 35, Issue 06, Pages 14,16

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