Teaching Profession

Union-Fees Case in Limbo Following Scalia’s Death

By Stephen Sawchuk — February 16, 2016 2 min read
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The death of U.S. Supreme Court Justice Antonin Scalia has thrown the Friedrichs v. California Teachers Association union-fees case—a challenge with key implications for teachers’ unions, education, and labor law—into uncertainty.

The case was heard by the Supreme Court in January, with a decision expected this summer.

Most court-watchers thought the writing was on the wall that the court would deal public sector unions a major blow in striking down agency fees, which are charged of nonmembers. But Scalia’s death means that it’s now likely that Friedrichs will result in a 4-4 decision—meaning an appellate court ruling upholding agency fees would stand.

A quick refresher: Friedrichs seeks to eliminate unions’ abilities to collect agency fees on free-speech grounds. (The fees are charged of individuals who don’t want to join a union, but still benefit from its collective bargaining in the form of benefits and wage increases.) The Supreme Court set a precedent 40 years ago in holding, in Abood v. Detroit Board of Education, that agency fees were permissible because nonmembers can get a refund of the portion of dues that goes to political purposes.

Since then, the precedent has been chipped away at by conservative groups such as the Center for Individual Rights and National Right to Work Legal Defense Foundation. And in the Friedrichs case, a group of teachers who oppose of agency fees argue that the very act of collective bargaining is by definition political, since unions take positions on delicate matters like tenure and seniority.

Unsurprisingly, the new tack has seemed to resonate with the court’s conservative justices, who all but invited a focused challenge to agency fees in a 2014 ruling. But Scalia himself was seen as a bit of wildcard on the matter. He had previously expressed concern about the problem of “free riders,” one of the core issues that Abood had sought to balance.

Hopes that Scalia might be inclined to uphold Abood dissolved after January oral arguments in the case, however. Scalia, in his characteristically crusty way, joined the court’s other conservative justices in pointedly grilling the attorneys representing the teachers’ union.

With his death, though, a 4-4 deadlock seems likely. And that means that, for now, the lower court ruling is likely to stand, protecting agency fees for the time being.

It’s hardly a long-term victory, however. Since the lower court’s ruling doesn’t create a precedent for the other states that permit agency fees, the U.S. Supreme Court could easily accept another challenge to Abood. There’s also the possibility that the justices could ask to re-hear Friedrichs after a new justice is confirmed, reports the SCOTUS blog. In both cases, the outcome could hinge on a swing vote by that fifth justice.

So an important thing to watch here will be who ultimately gets to put forth the nominee. President Obama has said he will nominate a successor to Scalia, but there’s a tremendous amount of uncertainty over whether the Senate would confirm that pick—Republicans have promised they will block it until the 2016 election is over.

We’ll be updating this post with reaction from some of the major groups, so stay tuned.

Photo: Associate Justice Antonin Scalia, in a 2005 portrait session with fellow members of the U.S. Supreme Court. —J. Scott Applewhite/AP-File

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A version of this news article first appeared in the Teacher Beat blog.


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