The Supreme Court’s conservative majority appeared ready Monday to strike down mandatory fees collected by the California Teachers Association and other public-sector unions from workers who do not belong.
In what would be a landmark decision with consequences far beyond the teachers union, the conservatives repeatedly voiced skepticism about the practice, which the teachers say violates their First Amendment rights.
“The problem that’s before us is whether or not individuals can be compelled to support political views that they disagree with,” said Chief Justice John Roberts Jr.
Three of Roberts’ fellow Republican appointees shared his obvious skepticism, Justices Antonin Scalia, Samuel Alito and Anthony Kennedy.
Kennedy, often the swing vote on conservative-liberal issues, sounded particularly vehement.
“Many teachers think that they are devoted to the future of America, to the future of our young people, and that the union is equally devoted to that but that the union is absolutely wrong in some of its positions,” Kennedy said, adding that the fees “require that employees and teachers who disagree with those positions must nevertheless subsidize the union on those very points.”
Liberal justices said striking down mandatory union fees would affect far more than the 7.2 million public-sector employees who belong to unions nationwide. Ruling against the obligatory payments, which unions call “fair-share fees,” would almost certainly mean overturning a 1977 precedent that’s been entrenched for some four decades. Mandatory bar association and student fees would be the next to fall, the liberal justices warned.
“It would require overruling a host of other cases,” Justice Stephen Breyer noted, “and that’s a big deal.”
This is a case in which there are tens of thousands of contracts with these provisions. Those contracts affect millions of employees.
Justice Elena Kagan
The unusually long, 80-minute oral argument focused on a case called Friedrichs v. California Teachers Association.
Rebecca Friedrichs is an elementary school teacher in Orange County. Along with San Luis Obispo County teacher Irene Zavala, Harlan Elrich, a math teacher at Sanger High School near Fresno, and others, Friedrichs opposes mandatory fees charged by a teachers association to which they do not belong.
“Every year, (the teachers) are required to provide significant support to a group that advocates an ideological viewpoint which they oppose and do not wish to subsidize,” attorney Michael A. Carvin told the court.
The Supreme Court, in the 1977 case involving Michigan teachers called Abood v. Detroit Board of Education, ruled that fees charged by public-sector unions are consistent with the First Amendment because the nonmembers aren’t paying for political action but for the union’s contract-bargaining services.
California and more than 20 other states permit public-sector unions to charge nonmembers mandatory fees that support collective bargaining work. In 2013, the California Teachers Association collected $173.9 million in what attorneys characterized as dues. California teachers say their individual fees can exceed $1,000 a year, though nonmembers can avoid paying for expenses that are considered strictly political.
Twenty-five briefs have been filed in support of Friedrichs, representing a wide range of interests from former California Gov. Pete Wilson and the National Federation of Independent Business to the attorneys general of 18 states, including Georgia, Idaho and Florida.
On the flip side, 24 briefs supporting unions and the California Teachers Association were filed, from the Obama administration to 21 states including Kentucky and Washington. U.S. Solicitor General Donald B. Verrilli Jr. joined the arguments on the teachers association’s side.
“If we are going to have collective bargaining in the public sector, mandatory agency fees can serve important state interests without unduly burdening citizens’ speech,” said California Solicitor General Edward C. DuMont.
Conservative justices, though, seemed sympathetic to the argument that even the collective bargaining positions of a union are political speech, meaning that even that portion of the mandatory fees that supposedly pays for collective bargain is effectively subsidizing political action.
“The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition,” Scalia said, citing as an example, “Should the government pay higher wages or lesser wages?”
Conservative Justice Clarence Thomas, in keeping with his customary practice, was the only one of the nine justices Monday not to speak or ask questions. A court decision is expected by the end of June, when the current term expires.