The U.S. Supreme Court this week heard arguments about the validity of a fee the California Teachers Association (CTA) charges nonunion members to cover the cost of representing them in contract negotiations.
In the case, Friedrichs v. California Teachers Association, 10 California teachers and the Christian Educators Association International are challenging California’s so-called fair-share law.
California is one of 23 states with a fair-share law. Such laws permit arrangements between government employers and unions requiring nonunion employees to pay an agency fee equivalent to the dues paid by union employees to cover the cost of general union services like collective bargaining, contract administration and grievance adjustment, which benefit both union and nonunion employees.
In California, public school teachers pay an average of $1,000 annually in union dues unless they opt out of the union at the start of each year. Nonunion members pay an average of $600 in agency fees, meaning the other $400 paid by union members is dedicated to ideological expenditures.
Based on questions the U.S. Supreme Court justices asked during the January 11 presentation of arguments, a majority of the court may be inclined to overrule its prior decision permitting agency fees. Significantly, the ruling in the case would affect agency fees for all public unions, not just CTA.
In 1972, the U.S. Supreme Court ruled in Abood v. Detroit Board of Education that fair-share laws are constitutional. In Abood, the U.S. high court said that agency fee provisions do not unnecessarily interfere with nonunion employees’ First Amendment right to freedom of association, but also clarified that nonunion employees cannot be required to fund a union’s “expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to its duties as collective-bargaining representative.”
The court acknowledged that there would not always be a clear distinction between collective-bargaining activities and ideological ones, but left that problem for the lower courts to resolve.
The Supreme Court did not require unions to presume that all nonunion employees oppose political uses of their agency fees. Instead, it held that unions must identify what portion of their dues and agency fees are used on ideological activities and either not collect that portion or return it to those employees who clearly express opposition to the unions’ ideological expenditures.
The plaintiffs in the Friedrichs case are asking the court to revisit the Abood decision, and argue that, at least in the case of public unions, all union activity is inherently political because negotiations involve a government employer and have an impact on public policy. As a result, they argue, fair-share laws force nonunion employees to fund political speech they do not necessarily agree with, in violation of the First Amendment.
Worth noting: Wisconsin repealed its fair-share law in 2011, and since then, a third of the state’s teachers have stopped paying their dues.
If the Supreme Court overturns Abood and a similar percentage of teachers in California opt out, CTA could lose nearly $100 million in annual income. Between 2001 and 2010, CTA spent $211 million on political activities, nearly twice as much as any other organization in the state.