The U.S. Supreme Court today took up a teachers’ union case that even several justices said left them befuddled.
At issue in Ysursa v. Pocatello Education Assocation (Case No. 07-869) is an Idaho law that prohibits school districts and other local governments from using their payroll systems to let workers deduct amounts from their paychecks for political causes, such as for teachers’ unions’ political action funds.
The Idaho Education Association, its Pocatello affiliate, and several other public-employee unions in the state challenged the law as an infringement of their First Amendment rights of free speech and association. The restriction would “significantly decrease the revenues available” to the state teachers’ union for political activities, its executive director said in earlier proceedings in the case.
The Idaho statute “is a content-based restriction on speech which is therefore presumptively invalid,” Jeremiah A. Collins, the lawyer representing the unions, said during the oral arguments this morning. (The unions’ brief is here.)
Clay R. Smith, Idaho’s deputy attorney general, told the justices that the case raised questions of the state’s sovereignty over the operations of its political subdivisions.
The goal of the law is “to avoid either the appearance or the reality of public employer involvement in ... electoral politics,” Mr. Smith said. (The state’s brief is here.)
A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled unanimously in October 2007 that the Idaho provision as applied to local government employers violates the First Amendment free-speech and association rights of the unions.
“This restriction on voluntary political contributions burdens political speech,” the 9th Circuit court said. “The law does not prohibit [the unions] from participating in political activities, but it hampers their ability to do so by making the collection of funds for that purpose more difficult.”
The unions’ view appeared to have support from some of the justices.
Justice Ruth Bader Ginsburg, noting that the law was construed as being inapplicable to private employers, questioned the state’s lawyer about whether in practice it ends up only restricting paycheck deductions for political contributions to public-employee unions.
“It seems that what is burdened by the statute is union speech,” Justice Ginsburg said.
Justice John Paul Stevens asked Mr. Smith whether school districts and other local governments could allow deductions for employees’ contributions to “united fund” charities.
Those wouldn’t be political causes covered by the statute, Mr. Smith said.
“But why differentiate political activity from charity contributions?” Justice Stevens wondered.
But some more conservative justices appeared to side with the state.
Justice Antonin Scalia suggested that the state’s differential treatment of paycheck deductions for politics “doesn’t seem to me particularly discriminatory” because the beneficiary—public-employee unions—is “a narrow class that has a special benefit.”
In 2007, Justice Scalia wrote the opinion for the court in Davenport v. Washington Education Association, a decision upholding a Washington state law that made it more difficult for teachers’ unions to raise political funds through school district paychecks.
Several justices indicated they were struggling with how to apply the court’s many First Amendment tests and precedents to the Idaho law.
“Public-forum doctrine doesn’t work for me. Subsidy [doctrine] doesn’t work,” Justice Anthony M. Kennedy said to Mr. Smith, about two of the court’s lines of free-speech analysis. “It seems to be an unconstitutional condition case. But that doesn’t mean you can’t prevail.”
Justice Stephen G. Breyer later told Mr. Collins, the union lawyer, that he doesn’t understand what “content-based regulation” means.
“I know it’s all over the law, but I’ve never understood it and maybe since you’re relying on it 15 times, you can explain it,” Justice Breyer said.
Mr. Collins said, “One thing that the court has been clear on is that when a government says one form of speech will not be allowed and that will be political speech, that is treated as requiring heightened scrutiny” under the Constitution.
Justice Breyer’s observation prompted Chief Justice John G. Roberts Jr. to say, “Since we’re in confessional mode, I’ve never understood forum analysis"—another way of looking at First Amendment cases that analyzes whether a place or program has been opened up to free-speech activity.
“How you can say that this payroll-deduction system is some kind of a forum,” the chief justice said. “A forum is, you know, the corner at Hyde Park or something,” he added, in reference to the London park famous as a free-speech bastion.
A decision in the case is expected by next June.
A version of this news article first appeared in The School Law Blog.