Anti-Union Right-Wingers Try to Win at Supreme Court After Losing at Ballot Box

The latest chapter in the right's effort to undermine public employee unions.

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The right-wing war against public employee labor unions came to the U.S. Supreme Court on Monday morning, where a handful of California public school teachers who don’t like paying union dues claimed that their First Amendment rights were violated because some of those dues invariably pay for union political advocacy.

The case, Friedrichs v. California Teachers Association, did not arise from the 10 teachers who signed on as plaintiffs, but from lawyers at the Center for Individual Rights, a right-wing libertarian law group, who apparently cold-called and recruited them. The Center’s funders include a who’s who of anti-union activists—from the Koch brothers, to the conservative Scaife, Olin and Bradley Foundations, and GOP donors and activists who played pivotal roles in Wisconsin Gov. Scott Walker’s repeal of state employee collective bargaining rights.

What’s notable about the case now before the Supreme Court is it signals conservatives are now relying on their political friends in high places to impose anti-union policies as dictates, rather than convincing the general public that they are needed. Since the 1990s, proposals to make union dues optional have been the subject of many failed statewide ballot measures in California (1998, 2005, 2012), Colorado (2008) and Oregon (2008).

Voter rejected all of them, which underscores the anti-union forces’ turn to heavy-handed dictates, such as in Wisconsin, or this recently fabricated federal court challenge from 10 teachers in a 325,000-member union.

In the Friedrichs case, the Center for Individual Rights took its cues from a 2012 decision written by conservative Justice Samuel Alito that all but invited anti-union activists to file a lawsuit challenging a 1977 decision by the court, Abood v. Detroit Board of Education. That ruling held that requiring payment of a “fair-share service fee,” also known as an agency fee, was constitutional to prevent freeloading on union-negotiated benefits and to ensure “labor peace.” Alito wrote, “We do not revisit today whether the court’s former cases have given adequate recognition to the critical First Amendment rights at stake.”

Alito’s invitation sparked the current challenge to California’s labor laws, which are on the books in 20 states. In California, public employees who do not choose to join labor unions still have to pay the agency fee—where they usually get a refund of a portion of their dues that otherwise would have paid for the union’s political advocacy. However, that refund policy apparently did not suffice for the Friedrichs’ plaintiffs, according to comments in The New York Times.

One plaintiff, high school math teacher Harlan Elrich, said he didn’t need the union to negotiate for his salary and benefits. Another, elementary school music teacher Karen Cuen, said she disliked union rules that include seniority-based layoffs. Observors have noted that these complaints primarily are employment issues, and not taking political stances, such as CTA advocacy against rapidly expanding public charter schools.

However, under the wide banner of the First Amendment, the Center for Individual Rights’ lawyers are claiming that there is no way to separate negotiating salaries, benefits and other issues affecting taxpayers from using one’s dues to support political positions. (The lawsuit only concerns public employee unions; private-sector unions are governed by different legal rules.)

“If you look a little bit deeper, you look at the money that’s behind this case, it’s the same group of people who have been attacking labor and attacking unions in state after state,” Eric Heins, President of the California Teachers Association, told “And in California they haven’t been very successful. So now they’re trying this new tactic.”     

According to reports of Monday’s Supreme Court hearing, the Obama administration’s lawyers—which sided with the California Teachers Association’s legal team—received a cold reception from the court’s conservatives.

If the unions lose, it is likely that they would see a drop in union dues in the 20 states with laws similar to California. Various estimates suggest that public employee unions—which is where most of the labor movement growth has been in recent decades—could lose between 10 and 15 percent of dues-paying members.




Steven Rosenfeld covers national political issues for AlterNet, including America's democracy and voting rights. He is the author of several books on elections and the co-author of Who Controls Our Schools: How Billionaire-Sponsored Privatization Is Destroying Democracy and the Charter School Industry (AlterNet eBook, 2016).

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