Teaching Profession

Justices Weigh Cases on Teachers’ Union Fees, Federal Impact Aid

By Jessica L. Tonn & Andrew Trotter — January 10, 2007 5 min read

The U.S. Supreme Court heard arguments today in a case testing the constitutionality of a Washington state law that requires non-union teachers to “affirmatively consent,” or opt in, before a teachers’ union may spend money from “agency fees” on political campaigns and similar activism.

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

It was one of two education-related cases the justices heard today. The other dealt with the federal Impact Aid Act and how it is carried out in the states.

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 cover the costs of collective bargaining activities from which even non-union members benefit. The Washington Supreme Court, the state’s highest court, ruled last year that the opt-in provision in the law, passed by voter initiative as part of a 1992 campaign integrity law, places an impermissible burden on the union’s First Amendment free-speech rights.

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

“If I’m a union member, I get various benefits,” noted Justice Samuel A. Alito to John M. West, the lawyer for the WEA. “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 new 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 of the union.

Gary Davenport, a former high school history teacher who was one of the five nonunion teachers who challenged the union’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 is more important than my First Amendment rights seems absurd,” Mr. Davenport said afterward, on the outdoor plaza of the Supreme Court building.

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,” with the government’s interest in labor peace or in avoiding free ridership by non-union members being secondary, he said.

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.

Impact Aid Case

Meanwhile, the Court also heard arguments today in a lawsuit filed by two school districts in New Mexico that contend that their federal impact aid payments are being unfairly usurped by their state under federal regulations for the program.

The districts object to the methodology the U.S. secretary of education uses that ultimately determines whether districts eligible for impact aid for educating children who live on federal land or near federal installations get to keep the extra money.

At issue in Zuni Public School District No. 89 v. Department of Education (Case No. 05-1508) is a provision of the federal Impact Aid Act that requires the secretary to administer a “disparity test” between districts in order to determine whether a state’s funding system is “equalized.” If the disparity in per-pupil revenue between the state’s wealthiest and poorest districts, excluding the top and bottom 5 percent, is less than 25 percent, then the system is equalized and the state can take impact aid payments into account when calculating state aid to districts.

New Mexico reduced the state aid to the districts in the case by 75 percent of their federal impact aid amounts. The districts argue that the secretary’s formula for determining which districts to exclude incorrectly identifies New Mexico as an equalized state because the formula contains an extraneous step that eliminates districts based on their attendance numbers.

Under the methodology that the districts contend is mandated by the statute, New Mexico would not qualify as having an equalized finance system and the state would not be able to reduce its aid to the districts by the amount of their federal impact aid.

In an hourlong argument that sometimes left the members of the court openly puzzled about math concepts, the justices appeared more sympathetic to the school districts’ arguments, questioning lawyers for the Bush administration and New Mexico about whether Congress left enough ambiguity in the impact aid statute to allow the secretary to adopt the formula.

“[Revenue] is only ‘per-pupil’ when you’re dealing with an aggregation of the pupils,” Chief Justice John G. Roberts Jr. told Leigh M. Manasevit, a special assistant attorney general arguing on behalf of New Mexico. “I would have thought a reference to per-pupil numbers suggests you’re grouping according to district.”

“If you’re going to break it down pupil by pupil, which is what you do, you don’t have a per-pupil number associated with each pupil. You have a number,” the chief justice said.

Both cases are expected to be decided by the end of the court’s term in late June.

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