Southworth Precedent Not Helpful For Forced-Union-Fee Proponents in Friedrichs Case


Today more than 20 states have laws on the books explicitly requiring all or some types of front-line public workers to pay dues or fees to a union they may not want as a condition of employment. And the vast majority of unionized state and local government employees in the U.S. reside in these Big Labor-dominated states.

However, next month the U.S. Supreme Court will be hearing a case that directly challenges the constitutionality of compulsory financial support for government unions (often euphemistically labeled as the “agency shop”).

The plaintiffs in Friedrichs v. California Teachers Association are a group of Golden State K-12 educators who must fork over hundreds of dollars a year to state and local affiliates of the mammoth National Education Association union and the NEA itself in order to keep their jobs, even though they are not union members.

These independent-minded educators contend, drawing largely on recent precedents argued and won on behalf of employee clients by National Right to Work Legal Defense Foundation attorneys, that the statute under which they are required to pay forced fees to unions they never asked for violates their First Amendment rights.

Federal courts have repeatedly conceded over the years that public-sector forced union dues and fees are constitutionally problematic. For example, Supreme Court Justice Antonin Scalia admitted in the 2007 majority opinion for the Foundation-won Davenport case that it is “undeniably unusual for a government agency to give a private entity the power, in essence, to tax government employees.”

Up to now, the judiciary has permitted this “unusual” practice in part because it has (unthinkingly) accepted Big Labor bosses’ premise that all employees who are subject to union monopoly bargaining in the workplace somehow “benefit” from it economically.

For example, Justice John Paul Stevens’ 1986 opinion for a unanimous High Court in Chicago Teachers Union v Hudson indicated that the only Big Labor expenditures for which union nonmembers can constitutionally be forced to pay are “collective bargaining and contract administration . . . provided for the benefit of nonmembers as well as members . . . .”

But as the time for the Friedrichs oral arguments (now scheduled for January 11) approaches, this convenient Big Labor premise is no longer operative.  Confronted with undeniable evidence presented by the teacher plaintiffs that officials of the NEA and its subsidiaries “advocate numerous policies that affirmatively harm [many] teachers,” the respondents aren’t contesting the point.

Instead, they’re insisting that, despite what Stevens said in Hudson and multiple similar statements in High Court decisions concerning public-sector forced union dues over the past 38 years, it doesn’t matter whether or not public employees “benefit” from being subject to a union monopoly. They should be forced to bankroll the union regardless!

California Attorney General Kamala Harris, who along with teacher union bosses is urging the High Court to uphold compulsory union financial support as a condition of public employment, explicitly dismissed the understanding that “the constitutionality” of the forced-fee “system” depends “on whether every fee payer perceives a benefit” in her November merits brief.

To back up her effective claim that it’s constitutional for California to force teachers to pay for unwanted union “representation” that affirmatively harms them as individuals, Harris did not cite Abood v. Detroit Board of Education, the 1977 Supreme Court case that the Friedrichs plaintiffs are trying to overturn, or any other case directly in the Abood line.

Instead, Harris sought support for California’s practice of forcing public employees to pay union bosses to, in her words, “advance bargaining positions” that “run counter to the economic interests” of those same employees in Keller v. State Bar of California.   This 25-year-old High Court case upheld states’ ability to require attorneys to join a state bar in order to practice law while upholding attorneys’ First Amendment right to refrain from subsidizing bar associations’ political or ideological activities.

Harris also invoked another Supreme Court decision, 2000’s Board of Regents of the University of Wisconsin System v. Southworth.  In this case the justices unanimously found that a public university may use mandatory student fees to subsidize independent campus organizations without violating students’ First Amendment rights.

Unfortunately for Harris and teacher union officials, neither Keller nor Southworth sets a precedent for upholding forced union dues for harmful workplace “representation.”  The rest of this post focuses on why Southworth actually is more helpful to the plaintiffs in Friedrichs than it is to the respondents.  Keller‘s very limited relevance for Friedrichs will be discussed in a future post.

While Justice Anthony Kennedy’s opinion denied former Badger State law student Scott Southworth’s petition to stop the University of Wisconsin from distributing his and other students’ mandatory student funds to groups that he found objectionable, Kennedy at the same time ruled that such programs are constitutional only if they are “viewpoint neutral.”

That is to say, while a public university is free to distribute different levels of funds taken from mandatory student fees to different campus groups, and may deny some groups any funding whatsoever, university officials may not use the process to promote or silence any perspective held by one or more students. Kennedy explicitly found funding decisions based on a majority vote of the student body to be impermissible.  All viewpoints, including those espoused only by a minority of students, must be allowed to compete for funding.

Kennedy’s opinion actually favorably cited a point made by three appeals court judges who had dissented from the circuit’s denial of the University of Wisconsin’s motion for an en banc hearing to reconsider an earlier panel decision prohibiting the use of mandatory student fees to subsidize campus groups:

In their view, the panel overlooked the “crucial difference between a requirement to pay money to an organization that explicitly aims to subsidize one viewpoint to the exclusion of other viewpoints, as in Abood and Keller, and a requirement to pay a fee to a group that creates a viewpoint-neutral forum, as is true of the student activity fee here.” (Citation omitted.)

If government union bosses collecting forced fees from nonmembers were required in contract negotiations to represent fairly the individual views of all employees in the bargaining unit, then Southworth might be a good case for Kamala Harris to cite in contending that the High Court should uphold Abood next year.  But since union bosses aren’t required to do any such thing, Southworth actually bolsters the plaintiffs’ case in Friedrichs.

In deciding a case brought by former Badger State law student Scott Southworth a decade and a half ago, a U.S. Supreme Court majority found that a public university may distribute mandatory student fees to private organizations, but only if it is “viewpoint neutral” when allocating the money. Image: Jeff Miller/American Bar Association

Brief For the Attorney General of California

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