If the California Teachers Association and its parent, the National Education Association, represent Goliath, then ten teachers and a small union alternative called the Christian Educators Association International are fitting stand-ins for David. They’re taking on the CTA with a lawsuit aimed squarely at California’s “agency-shop” law, which they claim violates public school teachers’ First Amendment rights by forcing them to pay annual union fees, even when they’re not union members. The Washington, D.C.–based Center for Individual Rights is representing the teachers, with help from Jones Day, an international law firm. Needless to say, the CTA isn’t happy. Spokesman Frank Wells denounced the suit as a “baseless challenge intended to dilute worker rights,” insisting that “the concept of agency fees is sound.”
But is it? California law does allow for “mandatory monopoly bargaining,” which means, where public education is concerned, that teachers must pay dues or “fees” to a labor union in order to work at a public school. Teachers may “resign” from the union, which frees them from paying the portion of their dues that would be spent for politics. They’re still required, though, to pay an “agency fee” for other union services, such as collective bargaining—whether they want those services or not. And even if a teacher does resign from the union, he must send a letter every year by a specified date to receive a rebate for the political portion of his dues. In short, the onus is on the teacher if he wants the union to respect his independence.
The rationale for collective-bargaining fees is that even nonmembers benefit from collective bargaining; there should be no “free riders.” But the line between what counts as a “chargeable” fee and what constitutes outright political activity has become blurrier over the years. As the plaintiffs’ lawyers argue, unions use their power “to extract compulsory fees as a convenient method of forcing teachers to pay for activities that have little to do with collective bargaining.” They point to The California Educator, CTA’s highly political magazine, which the union claims as a chargeable collective-bargaining expense. They also note how union leaders deemed a recent Gay-Lesbian-Bisexual-Transgender (GLBT) conference to be “predominantly chargeable.” The plaintiffs also maintain that the NEA, which receives a portion of fees from every CTA member, classifies expenditures that have little to do with collective bargaining—such as expensive staff junkets—as chargeable.
Thus, the teacher-plaintiffs want the court to “declare that California’s practice of forcing non-union members to contribute funds to unions, including funds to support their collective-bargaining activities, violates the First Amendment, and enjoin Defendants [the union] from enforcing this unconstitutional arrangement.” The legal terrain for such an argument is more favorable than it has ever been, thanks to recent Supreme Court rulings.
Some background: in 1977, in Abood v. Detroit Board of Education, the Court ruled that compulsory dues are unconstitutional and that unions could collect only those fees necessary for collective bargaining and sundry other representational activities. (The justices extended their ruling to private unions 11 years later, in Communication Workers of America v. Beck.) In 1986, in Teachers v. Hudson, the Court set out specific requirements that unions must meet to collect fees from nonmembers without violating their First Amendment rights. But nonmembers blanched as unions took a more expansive interpretation of the Court’s decisions. And so the justices last year issued a somewhat sterner rebuke in Knox v. Service Employees International Union,Local 1000. In that case, brought by the National Right to Work Foundation, the justices ruled 7–2 that the SEIU could not force its nonmembers to pay the portion of union dues spent on political activities—even if the union believed it was for the workers’ own good. In 2005 and 2006, as part of its campaign to defeat Governor Arnold Schwarzenegger and a pair of ballot initiatives that would reduce union power and reform pensions, the SEIU imposed a temporary, 25 percent across-the-board dues hike on its dues-paying members and some 28,000 fee-paying nonmembers alike. The union argued that campaigning against the initiatives would benefit all workers. Had this view prevailed, it would have eradicated the legal distinction between politics and collective bargaining. But even liberal justices Sonia Sotomayor and Ruth Bader Ginsburg saw through it and voted with the majority.
Further, Justice Samuel Alito’s majority opinion in Knox raised two crucial points that may bode ill for future forced political activity by public-sector unions, especially as it pertains to nonmembers. Alito said that the unions’ existing “opt-out” rules aren’t sufficient to protect individuals. “An opt-out system creates a risk that the fees paid by nonmembers will be used to further political and ideological ends with which they do not agree,” he wrote. Instead, unions should afford nonmembers the chance to “opt in” to special fees if they want to contribute to organized political campaigns. At the same time, Alito questioned whether public employees who want no part of the union should have to pay fees at all. “[B]y allowing unions to collect any fees from nonmembers and by permitting unions to use opt-out rather than opt-in schemes when annual dues are billed, our cases have substantially impinged upon the First Amendment rights of nonmembers,” Alito wrote. “In the new situation presented here, we see no justification for any further impingement. The general rule—individuals should not be compelled to subsidize private groups or private speech—should prevail.”
The Center for Individual Rights cites Knox in the opening paragraph of its suit. How things will play out in district court in California isn’t clear yet. But it’s worth noting that right now, workers in 26 states and the District of Columbia must pay union dues as a condition of employment. The other 24 states are “right-to-work” states, where workers can choose whether or not to join. If the California case winds up before the Supreme Court, the justices will get an opportunity to extend their Knox reasoning to its logical conclusion and give all workers a real choice.
Larry Sand, a retired teacher, is president of the California Teachers Empowerment Network. This article originally appeared in City Journal on July 11th, entitled “Opportunity Knox,” and is republished here with permission from the author and the publisher.