The courts may be ready to overturn mandatory union dues-paying

Kevin Mooney Kevin is a journalist and investigative reporter for the Commonwealth Foundation in Harrisburg, Pennsylvania, and the Heritage Foundation in Washington D.C.
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As a condition of their employment, California school teachers must pay a portion of their union dues to support political activism that runs counter to their own personal convictions. That’s because the U.S. Supreme Court effectively carved out an exception to the First Amendment where labor law is concerned in a series of decisions that reach back to the mid-20th Century. That’s why classroom instructors like Harlan Elrich feel disadvantaged each Election Day. But this could all begin to change in just a few weeks if a pending legal complaint gains traction, as is widely expected.

“I’m against gay marriage, the union is for gay marriage,” Elrich explained in an interview. “I’m for school choice, and I support vouchers, but the union is opposed to vouchers. I’m against raising taxes in difficult economic times, but the union is for raising taxes no matter how bad the economy is.”

While he is free to vote his convictions in the ballot box, Elrich has done so knowing that his union dues are used to support the ballot propositions he opposes and to oppose the ballot propositions he supports. Somehow, this doesn’t seem to square with freedom of speech and freedom of association, which are essential to the First Amendment.

The problem began with the 1956 ruling in Railway Employees’ Dept. v. Hanson, which upheld the closed shop provision of the Railway Labor Act. Since all employees were at least theoretically the beneficiaries of the collective bargaining process, the Court allowed for employment agreements that compelled workers into unions. Even then, the Court attached provisos to the collection of dues and warned that they could not be “used as a cover for forcing ideological conformity or other action in contravention of the First Amendment this judgment will not prejudice the decision in that case.”

That last sentence from the 1956 ruling is now operative as a result of the legal challenge Elrich and nine other school teachers filed against the National Education Association (NEA), and its state affiliates, back in April. While California law does not make union membership a requirement, non-union members must still pay dues. This means that school teachers who dissent from their union’s public policy stances spend part of their workday financing political activities that are offensive to their core beliefs and at odds with the best interests of their communities and the educational system, at least as they see it. Here in the 21st century, this irony can only exist in public education.

“Whenever the union did a survey before an election and listed the candidates and each of the ballot propositions, I was always on the opposite side of what the union stood for,” Elrich said. “I don’t think I should have to spend money to support the union position. In fact, I don’t think the union should be involved in politics at all. An education union should be representing its members and supporting teachers. It should not be out politicking all the time.”

Since the collective-bargaining process is itself laced with political overtones, the union argument, previously accepted by the Court, that there should be “no free riders,” is out of step with contemporary realities. As a major benefactor of the Democratic Party, the NEA hardly sits in a position where it can claim to be representative of all employees. Moreover, it has become harder to distinguish between what is “chargeable” and “germane” to collective bargaining and what is “non-chargeable” and overtly political, according to the suit, which is now sits before the U.S. District Court for the Central District of California. For example, the California Teachers Association classifies expenditures made for “Human Rights Programs” that include a session on gay and lesbian concerns as 100 percent chargeable.

The Center for Individual Rights (CIR) and Jones Day, a public interest law firm based in Washington D.C. and an international firm respectively, have taken up the case on behalf of the teachers and the Christian Educators Association International (CEAI), an non-profit group. The NEA, CTA and several local unions are named as defendants.

The suit is the first of its kind to challenge the use of mandatory agency fees for collective bargaining expenses, which the plaintiffs view as being inherently political. Specifically, the suit is looking to overturn the “opt-out” system the Supreme Court approved in the 1977 Abood v. Detroit Board of Education ruling. Here, the justices said public employees who did not want to pay for political expenditures still had to pay all their dues up front, but could receive a refund later. This arrangement was later extended to include private unions in the 1986 Communication Workers of America V. Beck ruling. But just last year, Associate Justice Samuel Alito signaled that a dramatic shift is in order. In Knox v. Service Employees International Union, Alito made it clear that the Court is now willing to revisit these earlier decisions and issue a broader ruling in defense of the First Amendment.

“We have arrived at a juncture where compelled speech in any other context would be unconstitutional,” Michael Greve, a law professor with George Mason University, observes. “But in the union context, we are still dealing with very ancient precedents. In general, I would say cases like this are overdue.”

California Attorney General Kamala Harris recently announced that she will intervene to defend existing statute, which allows for the mandatory collection of dues. But there appears to be a consensus on both sides that the case can only be settled at the appellate level, which means it could very well wound up before the U.S. Supreme Court. Terry Pell, the CIR president, expects that a decision from the district court moving the case up to the Ninth Circuit Court of Appeals will come in late November.