The Court is taking up a variety of interesting cases this term ranging from affirmative action in undergraduate admissions to redistricting. A particularly interesting case is Friedrichs v. California Teachers Association et al. The case involves 10 nonunion public school teachers who argue their free speech rights are violated by having to pay the equivalent of union dues.
The case presents two issues: (1) whether Abood v. Detroit Board of Education should be overruled, and (2) does it violate the First Amendment to require that employees affirmatively object to fees subsidizing activities unrelated to collective bargaining.
In Abood, the Supreme Court held that public employees may be required to pay union dues, or their equivalent, to their local union affiliate even if they have opted to not join the union. This has become colloquially known as a “fair share” fee. The argument is that since public sector unions negotiate on behalf of all public sector employees, even if they are not part of the union, the union should be compensated for those negotiations by all employees (preventing what unions call a “free rider” problem).
In 2014 the Supreme Court took on a similar case, Harris v. Quinn. In that case the Court declined to extend the Abood precedent to Illinois home-health workers. However the Court stopped short of blocking unions from collecting such fees from other public employees. In his opinion, Justice Alito hinted that the Court would be responsive to a case with a more generally applicable set of facts that challenged Abood head-on. Friedrichs & Co seem to have taken the hint.
The majority of Justices downplayed the free rider problem, which was the California Teachers Association’s, and Abood’s, main justification for compelled dues. Justice Kennedy instead stated that, under the current arrangement, there is a “compelled rider” problem where employees who do not agree with the union’s political positions are forced to pay. Justice Scalia stated that he believed bargaining by public sector unions was inherently political. This echoed Friedrichs’s argument, that because collective bargaining by public sector unions affects government budgets, that bargaining involves political decisions.
Friedrichs’s second argument is that the First Amendment prohibits unions from forcing employees to affirmatively opt-out of fees that subsidize activities unrelated to collective bargaining. Under California law public sector employees must currently affirmatively opt-out of such fees by providing the union with a written notice after the fee has been deducted from the employee’s paycheck. The fee will then be refunded. Friedrichs argues this opt-out procedure is a large enough burden to violate the First Amendment and instead unions should only be allowed to charge fees to those who affirmatively opt-in. The Justices did not dwell on this issue during oral argument.
Overall a majority of the Justices (Roberts, Kennedy, Scalia, Alito, and Thomas) seemed amenable to both arguments made by Friedrichs. A decision is expected in June.