Opinion

Admission By California’s State Attorney May Blow Union’s Case

During this week’s much-anticipated oral arguments in the Friedrichs v. California Teachers Association U.S. Supreme Court case, which challenges mandatory teacher-union fees, a critical exchange took place between Justice Antonin Scalia, who is viewed as the swing vote in the case, and the attorney representing the State of California.

The result of that exchange could end up freeing teachers from paying for collective-bargaining contracts that hurt them and students.

In California and numerous other states, teachers who choose not to join the teachers union are still forced to pay so-called “agency shop” fees to the union to finance collective bargaining that results in a single contract that covers all teachers.

Rebecca Friedrichs, the lead plaintiff and a longtime California public-school teacher, and her fellow plaintiffs argue that these contracts involve public spending, negotiation with public school officials, and elected school boards. The plaintiffs also argue that these contracts include provisions, such as layoff and discipline policies, that are public policies and are inherently political.

If the Supreme Court decides that the union contract is really a political document, then forcing non-union-members like Rebecca Friedrichs to pay the union to negotiate the contract is a violation of non-members’ First Amendment rights to free speech and free association. The state of California, along with the California Teachers Association, defended the agency-shop status quo in front of the Supreme Court, and the state’s attorney made a critical admission in the case.

Justice Scalia asked Edward Dumont, representing the California Attorney General’s Office, perhaps the most critical questions during oral arguments.

“The problem,” Scalia posited, “is that everything that is collectively bargained with the government is within the political sphere, almost by definition.”

“Should the government pay higher wages or lesser wages,” queried Scalia, or “should it promote teachers on the basis of seniority.” He observed, “All of those questions are necessarily political questions.”

The response of California’s attorney raised eyebrows. “I don’t disagree with that,” acknowledged Dumont. A surprised Chief Justice John Roberts seemingly couldn’t believe what he had just heard.

“You agree with that everything they’re negotiating over is a public policy question?” pressed the Chief Justice. Dumont, obviously realizing he’d made a major faux pas, tried to back-track but ended up becoming more and more muddled.

While saying he didn’t agree that every issue is a public-policy question, he then admitted, “There are deep public policy implications to many of the topics and to the general tenor of public employee bargaining.”

Roberts then asked Dumont to name something in collective bargaining that didn’t represent a public policy question. Dumont replied with the example of mileage reimbursement rates. Roberts then delivered a hammer: “If you have more mileage expenses, that costs more money. And the amount of money that’s going to be allocated to public education as opposed to public housing, welfare benefits, that’s always a public policy issue.”

Dumont’s weak response was that he couldn’t “draw the line by saying that some part of this speech is not a matter of public concern,” meaning that the collective-bargaining contract and its provisions could indeed be public policies and are therefore inherently political. Such a contract would then violate the free-speech and free-association rights of non-union agency-fee-paying teachers – the argument made by Ms. Friedrichs.

It may not have been game, set, and match. But it seemed close.

Lance Izumi is Koret senior fellow and senior director of education studies at the Pacific Research Institute.