Education Unions: Friedrichs v. California Teachers Association

25 Oct

The question which increasingly asked is whether teachers unions help or hinder education. PBS has a great history of teaching, Only A Teacher: Teaching Timeline which discusses unionization:


There are two national teachers unions in the United States today, the National Education Association and the American Federation of Teachers. The NEA was founded in 1857 as a policy-making organization, one that hoped to influence the national debate about schools and schooling. Over the next hundred years, it played a significant role in standardizing teacher training and curriculum. Until the 1960s, the NEA tended to represent the interests of school administrators and educators from colleges and universities.

The AFT, on the other hand, was always much more of a grass-roots teachers’ organization. It was formed in 1897 as the Chicago Teachers Federation, with the explicit aim of improving teachers’ salaries and pensions. Catherine Goggin and Margaret Haley allied the CFT with the labor movement, going so far as to join the American Federation of Labor – an act that horrified everyone who wanted to see teaching as genteel, white-collar employment. At the same time, the union conceived its work in terms of broader social improvement, bettering the lives of the poor and the alienated. By 1916, several local unions had come together to form the AFT. In the 1940s, the AFT began collective bargaining with local school boards, which again horrified some people. Collective bargaining always carries the threat of strikes, and teachers, as servants of the community, were long seen as both too indispensable and too noble to engage in work stoppages. The issue of strikes remains contentious today.

Teacher militancy has waxed and waned over the past 50 years. But many teachers believe that whatever gains they have made — in pay, benefits, job security and working conditions — have come from the efforts of their unions. Today, the NEA and AFT flirt with the idea of merging and have made significant strides towards combining their memberships. Their common interests — greater professionalization, increased authority for educators, enhanced clout in Washington, better working conditions and improved schools — dictate working together, and perhaps even becoming one very powerful union.

See, “Understanding the History of Teachers Unions,” a Panel Discussion with Diane Ravitch                                                                                                                                               

Garrett Epps wrote in the Atlantic article, The End of Public-Employee Unions?

The truth is that since at least Marbury v. Madison, Courts and Justices have hinted, signaled, begged, and reached out to litigants to bring them issues where one or more justice thinks the law needs to change. On the current Court, few of the Justices have signaled quite as vigorously as Justice Samuel Alito. Alito, a man of firm likes and dislikes, has twice questioned the constitutionality of public-employee contracts. Neither case, however, presented the chance to invalidate them.

Now his moment may have come. In response to Alito’s hints, the issue has landed squarely in the Court’s inbox in the form of a petition for review in a suit against the California Teachers Association. If Alito gets his desired result, it will deal a long-lasting blow to union power—and, perhaps by coincidence, the Democratic Party.
Here’s the issue: Even in union states, public employees cannot be required to join a union. Such a requirement, the Court has said, would violate their First Amendment rights, because that would be the government requiring them to speak and associate against their will. However, state governments can sign agreements with unions designating the union as the official bargaining agent for all employees, members or not. The union then must represent both members and non-members—and representation costs money, in the form of lawyers, economists, researchers, and so forth. Non-members are thus potentially “free riders” who get a service paid for by their fellow workers.

In response, a compromise developed called the “agency-fee” or “fair-share” payment. Requiring objectors to pay for political activities or lobbying would be “compelled political speech,” and violate the First Amendment. However, under the “fair share” system, non-members are charged a fee that excludes these political activities and is designated to cover only the chargeable costs of actual representation—negotiating contracts, administering benefit programs, and helping employees with grievances.

The “fair share” fee is Alito’s current target. In a 1977 case called Abood v. Detroit Board of Education, the Burger Court said the fees do not violate the First Amendment: “Public employees are not basically different from private employees,” the Court said. “[O]n the whole, they have the same sort of skills, the same needs, and seek the same advantages.” The subjects of collective bargaining are the same in either case. Wages and working conditions in the public sector have a political quality, but in their essence were more like the issues that private employers and their workers must negotiate. A state could decide that “exclusive representation” would make for a more orderly workplace; it could also decide to disallow “free riders.” Neither decision violated the First Amendment. “A public employee who believes that a union representing him is urging a course that is unwise as a matter of public policy is not barred from expressing his viewpoint,” the Court said. “Besides voting in accordance with his convictions, every public employee is largely free to express his views, in public or private orally or in writing….”

The issue is whether public employees can be required to pay fees.

Antonia Domingo summarizes the issues in Friedrichs v. California Teachers Association Heads to the Supreme Court:

While public employees cannot be required to join a union, they can be required to pay fees associated with union representation. In Abood, public school teachers alleged that these “agency shop” or “fair share” agreements amounted to compelled political speech in violation of the First Amendment. The Court disagreed, finding that fair share agreements did not violate the Constitution as long as the non-member fee was limited to collective bargaining and contract administration expenses.

The Court has repeatedly upheld the Abood decision. Supporters argue that because unions are required to represent all employees, whether they choose to join the union or not, it’s only fair to require everyone to pay their share. Otherwise non-members are allowed to free-ride, enjoying the benefits of union representation without contributing. Critics argue that the line the Abood court drew between political and non-political activities is illusory; collective bargaining in the public sector is inherently political. As such, fair share agreements compel speech (or at least the subsidization of speech) and thereby violate objectors’ right to free speech and freedom of association.

In two recent cases, Justice Alito has strongly suggested a willingness to overturn Abood. In Knox v. Service Employees International Union, the Court found that allowing non-members to opt out of increased special fees was not enough; instead non-members only have to pay if they affirmatively opt in. Justice Alito, writing for the majority, said, “free-rider arguments…are generally insufficient to overcome First Amendment objections.” And while the majority opinion in Harris v. Quinn was fairly narrow, Justice Alito went out of his way to state that Abood is an “anomaly.”

Friedrichs v. California Teachers Association

In the Friedrichs petition, the plaintiffs ask the Court to rule on two questions: 1) whether fair share agreements violate the First Amendment; and 2) whether allowing objecting employees to opt out rather than requiring everyone to opt in also violates the First Amendment. Plaintiiffs make the now familiar arguments that ordinary public sector bargaining topics, like teacher tenure and salary, are political. Thus, requiring non-member employees to contribute to union representation on these issues is a violation of their First Amendment rights….

There must be a way to introduce variation into the education system. To the extent that teachers unions hinder the variation in the system, they become a hindrance.


Friedrichs v. California Teachers Association                                                                                     

Friedrichs v. California Teachers Association et al.                                                                                             

Debate: Are Teachers’ Unions the Problem—or the Answer?

Quiet Riot: Insurgents Take On Teachers’ Unions,8599,2087980,00.html#ixzz1zgjC7qGS

Can Teachers Unions Do Education Reform?

Let a New Teacher-Union Debate Begin

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