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Law & Courts Opinion

The Aftermath of Friedrichs v. California Teachers Association

By Rick Hess — March 31, 2016 3 min read
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On Tuesday in a 4-4 split decision, the U.S. Supreme Court was unable to reach a verdict in the case of Friedrichs v. California Teachers Association. This was the case in which several California teachers wanted the Court to overturn a state law requiring non-union teachers to pay “agency fees” to support the union’s collective bargaining work. The plaintiffs regarded state laws that order them to pay the union hundreds of dollars a year as a condition of employment as a violation of their First Amendment rights to free association and free speech. A verdict for the plaintiffs would have overturned agency fee laws in place in 25 states and the District of Columbia. The Court’s split decision means that those laws remain in place.

There are at least three things worth understanding in the aftermath of the Supreme Court ruling.

First, the teacher unions caught a huge break. If not for Justice Antonin Scalia’s recent death, it’s universally assumed that the Court would have ruled 5-4 for the plaintiffs. That would have dealt a crushing blow to union coffers and membership. Given the stakes, the future shape of the Court looms large, since this isn’t the last time the constitutionality of agency fees will be tested. If Obama nominee Merrick Garland winds up on the Court, the betting is that he’d vote with the liberal wing and for the unions. If Hillary Clinton or Bernie Sanders wins in November and names the new justice, it’s a safe bet any appointee would be union-friendly. If Ted Cruz wins, it’s assumed any appointee would be in the mold of Scalia. And if Donald Trump were to win . . . nobody has a clue (though there seems a fair chance he’d appoint TV’s Judge Judy).

Second, the unions have sought to portray Friedrichs as some kind of invidious war on organized labor. I find that an ugly, ludicrous characterization. These are teachers who don’t want to keep paying hundreds of dollars a year to an organization they disagree with in order to be allowed to keep their jobs. (Indeed, if it weren’t a matter of state law, a less polite word for agency fees would be “extortion.”) The plaintiffs, quite rightly, think that funds collected for “collective bargaining” also wind up subsidizing a political agenda with which they happen to disagree. The public interest attorneys who have supported the plaintiffs are the kind of passionate, principled defenders of First Amendment rights who would normally be celebrated by the unions and the left—if they were working on nearly any other case under the sun.

Third, there are inevitable comparisons and linkages to California’s famed Vergara lawsuit. In that case, the plaintiffs are asserting that they have a right to “effective teachers” under the terms of the California constitution, and that policies relating to tenure, dismissal, and LIFO (“last in, first out” termination) are unconstitutional. Both suits represent a profound challenge to teacher unions. The big difference, to my eye, is that Friedrichs is a simpler determination of whether state compulsion is trampling fundamental rights, while Vergara requires the courts to tell the legislature how to organize particular elements of educational policy. I’m quite comfortable with Friedrichs, which strikes me as precisely the kind of case that we expect the courts to adjudicate. On the other hand, for reasons I’ve previously explained, I have real concerns with Vergara—even though, on substance, I wholly support the plaintiffs. I think would-be reformers are asking the courts to wade into areas that are beyond judicial expertise, where rulings are more likely to yield paralysis and bureaucracy-inducing compliance, and want the courts to substitute their policy determinations for those of legislators.

In any event, rest assured that more cases are coming. The litigation-as-reform strategy that first appeared in education desegregation and finance cases has now been adopted more broadly. It’s a safe bet that we’ll see much more legal activity around agency fees, tenure, teacher dismissal, and the rest. The split decision in Friedrichs is only a pause in this action—it is far, far from the last word.

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