New Challenge to Teachers’ Union Fees Takes Up After Friedrichs Deadlock

By Mark Walsh — February 10, 2017 3 min read
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The same group behind the challenge to teachers’ union service fees for nonmembers that ended in a U.S. Supreme Court deadlock last year in Friedrichs v. California Teachers Association has filed a new lawsuit.

The Center for Individual Rights, in Washington, has found a new set of plaintiffs: eight California teachers who object on First Amendment free speech and association grounds to the “agency” fees their local, state, and national teachers union charge them as nonmembers for costs associated with collective bargaining.

The group filed the case of Yohn v. California Teachers Association on Feb. 6 in U.S. District Court in Santa Ana, Calif. The teachers work in the Carlsbad Unified, Eureka Union, Pittsburg Unified, Porterville Unified, Riverside Unified, San Juan Unified, and Westminster school districts throughout the state.

The defendants are the CTA, the National Education Association, the local affiliates in the teachers’ districts, the superintendents of those districts, and California Attorney General Xavier Becerra.

“California’s agency-shop arrangement violates plaintiffs’ First Amendment rights in two distinct ways,” the suit says. “First, it violates plaintiffs’ rights of free speech and association by forcing them to contribute to so-called chargeable union expenditures that are germane to collective bargaining, even though those contributions provide economic support to nonchargeable union activities and even though many of the chargeable expenditures and collective-bargaining activities are contrary to plaintiffs’ political beliefs and personal interests.”

Second, the suit says, the system forces objecting non-members to undergo a cumbersome opt-out process each year to avoid paying the full amount charged to union members. The suit says that in recent years, the NEA has deemed some 48 percent of its spending to be “chargeable” to agency-fee payers, while the CTA has charged 70 percent of expenditures, and most locals charge the state percentage or more.

Terence J. Pell, the president of CIR, said in an interview that the group will seek to speed the suit along to the U.S. Supreme Court on the basis that only the justices may overrule the key precedent—Abood v. Detroit Board of Education—, the 1977 decision that authorized agency-fee arrangements for public-employee unions.

“The issue here is purely a legal issue,” said Pell. “It concerns the question of whether compulsory dues do or do not violate the First Amendment. The Supreme Court has said that this is an exception to normal free-speech principles.”

Pell said that under his best-case scenario, the new suit could be before the Supreme Court by the fall of 2018.

Eric C. Heins, the president of the CTA, said his union had not been served with the suit yet but that it was a matter that fit a Yogi Berra aphorism.

“It’s deja vu all over again,” Heins said in an interview. “The problem is this suit says nothing about improving schools or helping students. It’s an attack on the unions.”

“We saw from the arguments in Friedrichs that even school districts and states support Abood,” he said. “It has created a stable environment for 40 years.

In the Friedrichs case, it appeared after oral arguments last January that Justice Antonin Scalia was prepared to join his fellow conservatives and overrule Abood. But Scalia died in February, and the court soon after announced a 4-4 deadlock that upheld a federal appeals court ruling in favor of the teachers’ union but setting no national precedent.

The objecting non-members, led by teacher Rebecca Friedrichs, also filed a rehearing request in the hopes the high court would keep their case alive until Scalia’s seat was filled. But after holding on to the request for more than two months, the justices denied it last June at the end of their 2015-16 term.

Pell notes that CIR was willing to keep the agency-fee case before the justices even with the possibility that President Barack Obama or Hillary Clinton, who seemed at the time to be in a good position to be his successor, would fill Scalia’s seat.

“Our view is that this is an important issue that affects teachers in 23 states” that authorize agency-fee arrangements, Pell said. “We do not take any justice’s vote for granted.”

A version of this news article first appeared in The School Law Blog.