Supreme Court to Reconsider Key Precedent on Teachers’ Union Fees

By Mark Walsh — June 30, 2015 4 min read
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The U.S. Supreme Court on Tuesday agreed to decide whether to overrule a nearly 40-year-old precedent that authorizes teachers’ unions to collect service fees for collective bargaining from those who refuse to join.

The justices granted review in Friedrichs v. California Teachers Association (No. 14-915), a case 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 unions and object on First Amendment 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-employee 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.

In its decision a year ago 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.

The California teachers’ case was soon teed up as another opportunity for the Supreme Court to reconsider Abood. The nonunion teachers lost in a federal district court, and the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled last year that they could only win if Abood were overruled, which only the Supreme Court could do.

“Twice in the past three terms, this court has recognized that its decisions permitting public-sector agency shops misinterpreted the vital First Amendment rights at stake when governments compel public employees to subsidize political speech with which they disagree,” says the appeal on behalf of the nonunion teachers, which was filed by Center for Individual Rights in Washington and Michael A. Carvin, an experienced Supreme Court litigator.

The lead plaintiff in the case is Rebecca Friedrichs, a 25-year teacher in the Savanna school district who resigned her union membership in 2012, saying she objects to many positions taken by the teachers’ unions. She said in court papers in 2013 that her annual agency fee as a part-time teacher is $500 to $600, which is deducted automatically from her paycheck. The agency fee for a full-time teacher is $1,000, she said.

“I object to many of the public-policy positions that the unions advocate, including positions that they have taken and continue to take in collective- bargaining with the Savanna School District,” Friedrichs said in the court declaration. “I believe that many of the unions’ positions are not in the best interests of me or my community.”

Unions, State Urged Against Review

The NEA, the CTA, and the several local affiliates had urged the high court not to grant review, arguing that Abood has been repeatedly reaffirmed and not seriously undermined by last term’s decision in Harris, or a 2012 case, Knox v. Service Employees International Union.

California Attorney General Kamala D. Harris, a Democrat, had filed a brief at the Supreme Court‘s request, which also had urged the court to not take up the case.

“Overruling Abood‘s long-established rule would undermine important state interests and cause unwarranted disruption in states, such as California, that have structured and maintained their public employment systems based on this court’s precedents,” the attorney general’s brief said.

[UPDATED 10:06 a.m., with reaction from both sides.]

In a statement issued after the grant, Terry Pell, the president of the Center for Individual Rights, a Washington group that is representing the non-union teachers, said the case “is about the right of individuals to decide for themselves whether to join and pay dues to an organization that purports to speak on their behalf. We are seeking the end of compulsory union dues across the nation on the basis of the free speech rights guaranteed by the First Amendment.”

Meanwhile, the heads of several public-employee unions issued a joint statement critical of the Supreme Court’s decision to take up the case.

“The Supreme Court is revisiting decisions that have made it possible for people to stick together for a voice at work and in their communities—decisions that have stood for more than 35 years—and that have allowed people to work together for better public services and vibrant communities,” the statement says.

It was signed by NEA President Lily Eskelsen García; CTA President Eric C. Heins; American Federation of Teachers President Randi Weingarten; Lee Saunders, the president of the American Federation of State, County, and Municipal Employees; and Mary Kay Henry, the president of the Service Employees International Union.

The Supreme Court acted June 30 in a brief order on the day after the formal end of its 2014-15 term. The justices will consider the case in their next term, which begins the first Monday in October.

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