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Education Matters: Free speech rights for teachers vs. financial security of unions

Marsha Sutton
Marsha Sutton

It was fascinating to listen to oral arguments Jan. 11 in the Supreme Court’s Friedrichs v. California Teachers Association case and to hear the justices vigorously question attorneys.

The lawsuit was brought by 10 California teachers (lead plaintiff is Orange County teacher Rebecca Friedrichs) who are challenging the CTA by claiming it’s their First Amendment right not to have their dues money applied to advance political issues with which they disagree.

A Supreme Court decision in favor of Friedrichs could seriously diminish the union’s political power and impact its historically secure cash flow.

EdSource, a nonprofit education-focused organization, explained that a favorable ruling for Friedrichs would overturn the Abood v. Detroit Board of Education decision made 40 years ago, which required employees represented by a public employee union to pay “fair share” dues.

The rationale for Abood – and the argument the CTA is making in this case – is that the dues structure is needed because the union represents all employees (union members and nonmembers alike) in its negotiations for wages and benefits.

CTA attorneys argued that if dues were voluntary, then those choosing not to pay would become “free riders” who gain from the advantages of collective bargaining for higher pay and increased benefits without paying into the system.

Teachers currently have the choice to opt out of that portion of dues specifically earmarked for advancing political candidates and causes.

But it’s not just the money allocated for political action that the plaintiffs find objectionable. They claim that even the union’s negotiations for increased wages and benefits are political in nature, so even fair-share fees required of union nonmembers are therefore unconstitutional.

“Whether the union is negotiating for specific class sizes or pressing a local government to spend tax dollars on teacher pensions rather than on building parks, the union’s negotiating positions embody political choices that are often controversial,” argued Friedrichs attorneys.

Representing Friedrichs is the conservative Center for Individual Rights law firm, which on its website says agency shop laws require public employees to pay union dues as a condition of employment, and that violates the Constitution’s First Amendment principles of freedom of speech and association.

Teachers pay about $1,000 per year in union dues.

California law, CIR explains, “allows teachers to opt out of the thirty percent or so of their dues devoted to overt political lobbying,” but “they may not opt out of the sixty to seventy percent of their dues the union determines is devoted to collective bargaining.”

Even opting out, CIR states, is an undue burden.

“To opt out of the thirty percent of their dues that even the union concedes is used for overtly political activities, teachers must file for a refund each year according to a precise procedure that effectively discourages its use,” the website claims.

Plaintiffs’ attorneys obviously hope for the Supreme Court’s acceptance of their arguments. But if not, they say they would request that the opt-out practice be changed to an opt-in system.

This would mean that instead of requiring teachers to apply for a refund each year, the union would need teacher authorization “to support union political activities before withholding dues for that purpose.”

District contract language

For context, in the recently adopted San Dieguito Union High School District’s union contract, Article 15:01 outlines the requirements of teachers to pay union dues each year. It’s handled through monthly payroll deductions or a one-time pay in full.

Payroll deductions mean district involvement, cooperation, time and resources are embedded in the contract.

Religious objections are allowed, but the amount of money owed for union dues still must be relinquished, as stated in the SDUHSD contract:

“Any unit member who is a member of a religious body whose traditional tenets or teachings include objections to joining or financially supporting employee organizations shall not be required to join or financially support the San Dieguito Faculty Association/CTA/NEA, as a condition of employment.”

But they still have to pay.

Members shall pay, “in lieu of a service fee, a sum equal to such agency fee to one of the following non-religious, non-labor organizations …,” the contract reads. Choices are United Way, Community Resource Center or the Foundation to Assist California Teachers.

The Solana Beach School District’s master contract has a similar clause, which states that any teacher “who objects to joining or financially supporting employee organizations shall not be required to join or financially support the Association as a condition of employment.”

It further states that members who object must pay a sum equal to the association fees to one of the following charitable funds: the Solana Beach Foundation for Learning, United Way or the American Cancer Society.

For teachers who choose a charitable fund, the union requires them to notify the district every year. If they fail to do so, the money is automatically redirected to the union.

As stated in the SBSD contract, “Proof of payment and a written statement of objection shall be made on an annual basis to the District as a condition of continued exemption…”

The proof of payment “shall be in the form of receipts and/or canceled checks indicating the amount paid, date of payment, and to whom payment in lieu of the service fee has been made,” the contract reads.

Many contracts also state that the school district is responsible for deducting the appropriate amount from paychecks and notifying the union of who’s paid, who hasn’t, and any changes in membership status.

Further, the time and effort involved in handling this facet of union business is paid by the taxpayers. As it states in the SBSD contract, “There shall be no charge to the Association for such deductions.”

SDUHSD and SBSD contract language is not unique.

Major setback

The tenor of the questioning of the majority of the nine justices indicates support for Friedrichs, experts say, which suggests Abood may be overturned.

This would be a massive setback for public teachers’ unions and strike a major blow in their ability to lobby and influence public policy.

Forcing every teacher to financially support a union that promotes and funds political issues and agendas some vehemently oppose is a compelling anti-CTA argument.

EdSource sums it up: “A victory by the teachers who filed the suit could significantly sap the financial strength and undermine the bargaining and political clout of the CTA and other public-employee unions by making all union dues voluntary.”

Chief Justice John Roberts said, according to an Associated Press report, “Even routine matters can become politically charged if they involve how the state spends money.”

In an article written by lead plaintiff Rebecca Friedrichs in the Orange County Register last year, she said, “For years, many brave teachers have attempted to make our voices heard within our union leadership, but unfortunately the union we’re compelled to hire as our ‘representatives’ doesn’t value our personal liberties.”

She said teachers are required, “as a condition of employment, to financially support teachers unions and their political agendas.”

“Ten teachers in California have had enough,” Friedrichs wrote. “We’re suing the California Teachers Association and its affiliate, the National Education Association, to obtain freedom from compelled support for unionism.”

“This practice,” she wrote, “is unconscionable, especially considering that unions are tax-free ‘corporations’ who long ago abandoned the individual rights and desires of their members.”

The worst part?

“Ironically,” Friedrichs said, “the union is using our involuntary dues monies to fund the court battle against us.”

A Supreme Court decision is expected by June.

Marsha Sutton can be reached at suttonmarsha@gmail.com.