Law & Courts

Court Hears Case on Use of Fees by Teachers’ Union

By Andrew Trotter — January 17, 2007 5 min read
  • Save to favorites
  • Print

The U.S. Supreme Court is contemplating the difference between saying yes and not saying no.

That distinction came up repeatedly in arguments last week in a case testing the constitutionality of a Washington state law that requires nonunion teachers to “affirmatively consent,” or opt in, before a teachers’ union may spend money from “agency fees” on political campaigns and similar activism.

Five nonunion teachers and the state of Washington sued the Washington Education Association, the state’s largest teachers’ union, for allegedly violating the state law, resulting in two appeals that were consolidated by the high court, Davenport v. Washington Education Association and Washington v. Washington Education Association (Case Nos. 05-1589 and 05-1657).

The case argued Jan. 10 is being watched nationally as part of a struggle between anti-union and pro-labor groups over the influence of unions in political campaigns.

The teachers’ union only ends its political use of a nonunion teacher’s agency fees when the teacher sends a letter opting out of such use. State law authorizes the agency fees, which ostensibly cover the costs of collective bargaining activities from which even nonunion members benefit.

The Washington Supreme Court, the state’s highest court, ruled last year that the opt-in provision in Section 760 of a campaign-integrity law that was passed by voter initiative in 1992 places an impermissible burden on the union’s First Amendment free-speech rights.

But in arguments last week, the question that seemed especially to bother the justices was why the union should be presumed to speak politically for teachers who have chosen not to join its ranks.

“If I’m a union member, I get various benefits,” Justice Samuel A. Alito Jr. said to John M. West, the lawyer for the 80,000-member WEA, an affiliate of the National Education Association. “If I choose not to be a union member, I don’t get those benefits. Why would I choose to give up the benefits of union membership and yet want to allow the union to spend my money for its political purposes?”

Mr. West replied that a nonmember of the union might still support union political goals such as increases in teachers’ cost- of-living raises and higher tax levies for education.

Teachers might choose not to join a union “whether from a free-rider motivation [or] whether from just not being a joiner,” not necessarily out of opposition to its views, Mr. West said.

“The union here is using this money for purposes that it has every reason to believe is in the interest of the vast majority of teachers,” he said at another point.

“Well, surely [the nonunion teachers] get to make that decision, don’t they?” Chief Justice John G. Roberts Jr. interrupted. “Under the state statute, it’s their decision whether or not. You don’t get to say, ‘Well, this is in your interests,’ ” he said.

Gary Davenport, a former high school history teacher who was one of the five nonunion teachers who challenged the WEA’s political use of his agency fees, was present in the courtroom for the hour of argument on the case.

“To say that the First Amendment rights of a large organization are more important than my First Amendment rights seems absurd,” Mr. Davenport said afterward, on the outdoor plaza of the Supreme Court building.

Competing Speech Rights

That comment echoed a line of argument taken by U.S. Solicitor General Paul D. Clement, representing the Bush administration in support of the nonunion teachers and Washington state.

Washington’s highest court “struck the [opt-in] statute down only by treating the worker’s minimum constitutional rights as a constitutional ceiling as well as a floor,” Mr. Clement said.

In fact, however, “the rights that are at issue in this area principally are the rights of the individual workers,” Mr. Clement said.

He went on to remind the justices that, because of the potential impact on workers’ First Amendment rights, the Supreme Court has found “forced extraction of fees is justified only to the extent that it can be justified by the government’s interest in maintaining labor peace or in avoiding free ridership.”

Robert M. McKenna, the attorney general of Washington state, argued that the state “opt-in” law was intended to preserve the integrity of the election process, in part, by reducing the influence of large organizations.

“We believe that the integrity of the election process … is in fact served by helping ensure that individuals make voluntary contributions,” he said.

One subtle difference in the arguments of the two parties challenging the WEA in the consolidated cases is that Mr. Davenport and the other teachers are asking the Supreme Court to stop the union from taking mandatory dues for union politics from the paychecks of nonunion members in the first place.

Washington state urges the court simply to uphold its “paycheck protection” law that requires teachers to opt in before political use.

Fees an ‘Anomaly’

Mr. Clement, the Bush administration lawyer, did not join the nonunion teachers in their position on collection of agency fees, but he defended the state’s right to put the union’s political use of them under a microscope.

“That the unions have a right to effectively take a claim on the paycheck on people who are nonmembers of the union—these are individuals who have already opted out of union membership, and that is a sufficient anomaly, and sufficiently unlike any other context, that I think there is nothing that prevents the state of Washington from targeting that problem and that problem alone,” Mr. Clement said.

Even Justice Ruth Bader Ginsburg, who seemed the most sympathetic to the union, was troubled by the WEA’s apparent sense of entitlement to the nonunion members’ fees.

She told Mr. West, the union’s lawyer, “You were very careful in your brief to say funds lawfully possessed by the union, as distinguished from what’s in a corporate treasury or—there is something peculiar about this—and you recognized it by saying ‘we possess them,’ because if the nonmember wants it back, the nonmember would be entitled. So it’s not like money in the corporate till.”

“Well it is, Justice Ginsburg,” Mr. West objected. “This is why the purpose of the statute is so important.”

Mr. West explained that the statute’s main goal was to protect the integrity of elections and suggested that the question of whether political spending represents the views of those who contributed the money could also be asked about other organizations—for example, the Michigan chamber of commerce.

At that point, Justice Anthony M. Kennedy asked Mr. West whether he placed the speech rights of nonunion workers at the same level as that of the union.

“We recognize that the nonmembers have First Amendment rights,” but believe that those are amply protected by the ability to opt out, Mr. West said.

The court is expected to rule in the case by late June.

A version of this article appeared in the January 17, 2007 edition of Education Week as Court Hears Case on Use of Fees by Teachers’ Union

Events

Jobs Virtual Career Fair for Teachers and K-12 Staff
Find teaching jobs and other jobs in K-12 education at the EdWeek Top School Jobs virtual career fair.
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Reading & Literacy Webinar
Science of Reading: Emphasis on Language Comprehension
Dive into language comprehension through a breakdown of the Science of Reading with an interactive demonstration.
Content provided by Be GLAD
English-Language Learners Webinar English Learners and the Science of Reading: What Works in the Classroom
ELs & emergent bilinguals deserve the best reading instruction! The Reading League & NCEL join forces on best practices. Learn more in our webinar with both organizations.

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Supreme Court Declines Case on Selective High School Aiming to Boost Racial Diversity
Some advocates saw the K-12 case as the logical next step after last year's decision against affirmative action in college admissions
7 min read
Rising seniors at the Thomas Jefferson High School for Science and Technology gather on the campus in Alexandria, Va., Aug. 10, 2020. From left in front are, Dinan Elsyad, Sean Nguyen, and Tiffany Ji. From left at rear are Jordan Lee and Shibli Nomani. A federal appeals court’s ruling in May 2023 about the admissions policy at the elite public high school in Virginia may provide a vehicle for the U.S. Supreme Court to flesh out the intended scope of its ruling Thursday, June 29, 2023, banning affirmative action in college admissions.
A group of rising seniors at the Thomas Jefferson High School for Science and Technology gather on the campus in Alexandria, Va., in August 2020. From left in front are, Dinan Elsyad, Sean Nguyen, and Tiffany Ji. From left at rear are Jordan Lee and Shibli Nomani. The U.S. Supreme Court on Feb. 20 declined to hear a challenge to an admissions plan for the selective high school that was facially race neutral but designed to boost the enrollment of Black and Hispanic students.
J. Scott Applewhite/AP
Law & Courts School District Lawsuits Against Social Media Companies Are Piling Up
More than 200 school districts are now suing the major social media companies over the youth mental health crisis.
7 min read
A close up of a statue of the blindfolded lady justice against a light blue background with a ghosted image of a hands holding a cellphone with Facebook "Like" and "Love" icons hovering above it.
iStock/Getty
Law & Courts In 1974, the Supreme Court Recognized English Learners' Rights. The Story Behind That Case
The Lau v. Nichols ruling said students have a right to a "meaningful opportunity" to participate in school, but its legacy is complex.
12 min read
Associate Justice of the U.S. Supreme Court William O. Douglas is shown in an undated photo.
U.S. Supreme Court Justice William O. Douglas, shown in an undated photo, wrote the opinion in <i>Lau</i> v. <i>Nichols</i>, the 1974 decision holding that the San Francisco school system had denied Chinese-speaking schoolchildren a meaningful opportunity to participate in their education.
AP
Law & Courts Supreme Court Declines to Hear School District's Transgender Restroom Case
The case asked whether federal law protects transgender students on the use of school facilities that correspond to their gender identity.
4 min read
People stand on the steps of the U.S. Supreme Court on Feb. 11, 2022, in Washington, D.C.
People stand on the steps of the U.S. Supreme Court on Feb. 11, 2022, in Washington, D.C.
Mariam Zuhaib/AP