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The Center for Individual Rights
JANUARY 12, 2016

The Supreme Court heard oral arguments in Friedrichs v. CTA on Monday, January 11th. Rebecca’s attorney, Michael Carvin, faced the Solicitor General of California, the union attorney, and the Solicitor General from the Obama administration. Oral arguments lasted eighty minutes, with the time divided equally between the two sides. If the tenor of the questions is any indication, it appears that a majority of the justices seemed favorable to the argument put forth by Rebecca Friedrichs.

A majority of the justices focused their time and questions on the merits of the primary issue before the court: whether compelled union dues violate the first amendment. The other justices, however, spent a great deal of time discussing ways to avoid the merits of the primary issue. Several of the justices, for instance, suggested that even if Rebecca Friedrichs has the stronger legal argument, she should still lose her case because of the legal doctrine of stare decisis. That the Justices spent so much effort on this line of reasoning indicates they may have already conceded that Rebecca Friedrichs has the stronger arguments on the merits.

While union members protested on the steps of the Supreme Court with signs that echoed the union talking points and insisted that compelled agency fees are not political speech, the union attorneys inside the court spoke out of the other side of their mouth. Contrary to the talking points the unions have promoted through the internet and protests, they have always conceded in their legal briefs and before the court that agency fees and collective bargaining are political.

At an event following oral arguments, attorney Michael Carvin hesitated to make a prediction about the case, but suggested the unions were at a loss to square their position with established constitutional principles.

While oral arguments are not always indicative of the way the court will decide, the level of skepticism that the Justices expressed at the union arguments makes us optimistic that Friedrichs v. CTA will be a victory for the First Amendment and a victory of public school teachers.

A decision is expected by June.

CIR is representing ten California teachers and the Christian Educators Association International in a landmark effort to re-establish the right of individual teachers and other public employees to decide for themselves whether to join and support a union. The suit claims state “agency shop” laws, which require public employees to pay union dues as a condition of employment, violate well-settled principles of freedom of speech and association. While many teachers support the union, others do not and the state cannot constitutionally compel an individual to join and financially support an organization with which he or she disagrees.

Collective Bargaining is Inherently political

Typically, California teacher union dues cost upwards of a $1,000 per year. Although California law allows teachers to opt-out of the thirty percent or so of their dues devoted to overt political lobbying, they may not opt out of the sixty to seventy percent of their dues the union determines is devoted to collective bargaining. Requiring teachers to pay these “agency fees” assumes that collective bargaining is non-political.  But bargaining with local governments is inherently political.  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.

Political Opt-Out is Burdensome

To opt out of the thirty percent of their dues that even the union concedes is used for overtly political activities, teachers must must file for a refund each year according to a precise procedure that effectively discourages its use. As a result, many teachers contribute hundreds of dollars in dues each year to support political positions in a variety of areas having nothing to do with education and with which many of them disagree.

For example, the CTA spent over $211 million in political expenditures from 2000 through 2009. CTA’s largest single expenditure (over $26 million) was made to successfully oppose Proposition 38 on the November, 2000 ballot, which would have enacted a school-voucher system in California (and thereby increased the potential employment pool for teachers). CTA also spent over $50 million to oppose three ballot initiatives in 2005, including Proposition 74, which sought to make changes in the probationary period for California school teachers; Proposition 75, which sought to prohibit the use of public employee agency fees for political contributions without individual employees’ prior consent; and Proposition 76, concerning state spending and minimum school-funding requirements.

Case Speeds to Supreme Court

On June 30th, the Supreme Court granted CIR’s petition asking it to review the case.  To date, over 20 amicus briefs have been filed in support of CIR’s efforts at the Supreme Court. The case likely will be heard in the fall of 2015, with a decision expected by June, 2016.

The speed with which the case moved through the lower courts reflected a deliberate litigation strategy.  From the beginning, CIR argued that the lower courts do not have the authority to overturn existing Supreme Court precedent. As a result, we asked the trial court and the Ninth Circuit Court of Appeals to decide against our clients on the basis of the pleadings (without trial or oral argument) so as to send the case on to the Supreme Court as quickly as possible.  The Supreme Court is the only forum that can vindicate the First Amendment rights of our clients and other teachers.

Posted by Admin on 01/13 at 08:23 AM