Monday, the Supreme Court hears oral arguments in a case that could stop forcing unionized workers to pay for activities they disagree with.
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” So proclaimed the Supreme Court more than 60 years ago in West Virginia State Board of Education v. Barnette (1943).
Yet in 1977, in Abood v. Detroit Board of Education, the court went astray from its dedication to protecting freedom of speech and association in one particular but significant context. It ruled that states could require public-sector workers who were not union members to pay “agency fees” to support union politicking, so long as this political activity was pursued in the context of collective bargaining. Today, half the states have such “agency shop” laws.
The rationale is that whatever concessions the unions secure benefit all workers, so even non-members should be forced to pay if the state (at the behest of the union) wants them to. Rebecca Friedrichs and nine other teachers in California decided they don’t necessarily like those “benefits”—maybe they prefer merit pay to tenure protections, or smaller class sizes rather than pension guarantees—and filed a lawsuit, which has now made it up to the Supreme Court.
On January 11, the justices will hear oral argument in Friedrichs v. California Teachers Association, a case that gives the court an opportunity to correct the First Amendment anomaly it created in Abood. More than 50 briefs have been filed in the case, with numerous nonprofits, social scientists, politicians, unions, public policy organizations, and others weighing in.
I Shouldn’t Have to Fund My Opponents
Although the defendant unions characterize the case as an attack on the labor movement generally, that mischaracterizes the teachers’ concerns and arguments. As Friedrichs and her colleagues say in their briefs, the issue is that many workers disagree not only with their unions’ openly political activities—electioneering and the like—but also with the positions their unions take in collective bargaining.
The plaintiffs aren’t asking the court to dismantle unions. They’re simply asking it to acknowledge workers’ rights under the First Amendment not to pay for speech and de facto lobbying with which they disagree.
Continue reading below…