Teachers: Mandatory Union Dues Are 'Free Speech Violation'

Wednesday, 29 Jan 2014 05:01 PM

By Andrea Billups

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A group of California public school teachers is suing to stop the state's largest teachers union from collecting dues from nonmembers.

The group claims that forcing educators to support causes they disagree with through mandatory dues violates their First Amendment rights to free speech.

The lawsuit, Friedrichs v. California Teachers Association, is expected to be heard soon in the 9th U.S. Circuit Court of Appeals after a lower court judge in December sided with the teachers union and dismissed the case.

"Because nonmembers benefit from this work to ensure they have quality teaching and learning conditions, the U.S. Supreme Court has repeatedly ruled it is only fair that they contribute toward these expenses," said Dean Vogel, president of the teachers association, or CTA, in a statement after the decision was announced.

"It's gratifying to see that this court has ruled that these fair share fees are lawful and entirely constitutional."

In spite of the victory claims, the Friedrichs suit is not going away, and it presents a unique argument in the national debate over the fairness of compulsory union dues.

The suit "shifts focus away from the unions and the union activism and focuses instead on the right of employees to decide for themselves what their interests are," said Terence Pell, president of the Washington, D.C.-based Center for Individual Rights and an attorney representing the 10 nonunion teachers in the case.

"We want to put this decision back in the hands of teachers so they can make their own decision for themselves whether a particular union represents their individual interests," Pell told Newsmax.

"That's exactly the virtue of deciding this as a matter of First Amendment principle, rather than on whether union activities are bad or good."

Under California law, teachers are not required to join the union but must pay union dues as a condition of their employment.

The lead plaintiff in the case is veteran teacher Rebecca Friedrichs, who works in Buena Park and resigned from the union.

Friedrichs is joined in the lawsuit by nine other public schools teachers and some members of the Christian Educators Association International, who, like their public school colleagues, must pay about $1,000 annually in union dues.

The dues fund union activities, including collective bargaining, as well as lobbying and activism on political issues that teachers say they disagree with.

California teachers may opt out of the portion of their mandatory dues — about $300 — that the union says goes to political activities, but Pell noted that directions for such an opt-out are often unclear and cumbersome, forcing teachers to pay the full annual dues amount up front and then write letters each year advising the union of their opt-out election.

Most are then forced to wait for a refund, he said. If they miss the opt-out date, they don't get the refund.

For that reason, the lawsuit, in addition to its First Amendment focus, includes as a secondary issue a challenge to the opt-out procedures, Pell said.

"We are encouraging the court to change the opt-out to an opt-in where teachers won't automatically have deductions taken from salaries unless they affirmatively decide to support the union activities."

The case is being watched by union supporters and opponents around the country, and if it reaches the Supreme Court and wins, could have a major impact on teacher union membership and dues collections by unions in other states.

Legal experts point to a recent case, Knox v. SEIU, which the Supreme Court ruled upon in June 2012. In a majority opinion written by Justice Samuel Alito, the court held that the First Amendment doesn't allow public sector unions to impose dues without the consent of individual members.

The Knox decision charted new ground over a previous teacher union case, Abood v. Detroit Board of Education, which was decided by the Supreme Court in 1977 and remains law.

In Abood, the court upheld the legality of a union shop for public-sector unions. Nonmembers working in a union shop could be assessed dues for purposes of collective bargaining, contract administration, and grievance adjustment purposes, the court held.

In the 7-2 ruling in Knox, Alito noted that previous cases have gone over the line of what the Constitution tolerates. Alito expressed strong reservations to the current law and noted he was willing to reconsider the notion of forced union dues.

In Knox, the court said that unions can't take contributions without first having consent, said James Sherk, a senior policy analyst in labor economics at the Washington, D.C.-based Heritage Foundation.

Sherk told Newsmax that central to Friedrichs is the notion that "freedom of speech can't mean you're forced to subsidize speech you disagree with."

Other concerns, Sherk said, include the deeper questions of whether teachers are government employees and if it is constitutional to force them to pay dues for collective bargaining when the union is lobbying the government over government policies.

"There is one argument that says anything a government union is arguing is in fact a public policy and political question," Sherk said. "There is this argument that teachers are making that everything their union is doing is political in nature — lobbying, for example, to make it harder to have charter schools, opposing performance pay, and merit-based evaluations."

The teachers "don't want to pay a union to negotiate a contract in their behalf on matters of public policy they oppose," Sherk said.

Sherk thinks Knox is on target and Abood was wrong, opening a window for Friedrichs to move ahead. A loss in the 9th Circuit appeals court could lead to a Supreme Court review.

Pell said his plaintiffs are all longtime teachers — most have been in the classroom for 25 years. They enjoy their work but are "disenchanted, largely because the CTA is so powerful in the state and gets involved in so many political issues that have nothing to do with education."

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