If Teachers Have a Constitutional Right to Disagree Publicly With Union Negotiators, They Also Have a Right Not to Bankroll the Union

Among the many brazen power grabs, successful and unsuccessful, Big Labor has assayed over the years, a so-called “unfair labor practice” complaint filed by teacher union bosses against the City of Madison, Joint School District 8, with the Wisconsin Employment Relations Commission (WERC) back in the early 1970’s must surely be one of the most extraordinary.

In December 1971, the Madison Board of Education recognized Albert Holmquist, a teacher and a union nonmember, at a public meeting about currently pending negotiations between the board and teacher union bosses.

Holmquist, speaking for himself and many other like-minded teachers in the district, took the opportunity to oppose the inclusion of a contract provision union bigwigs had proposed which would have forced nonmembers to fork over so-called “agency” fees to the union as a condition of keeping their jobs.

Thanks in part to Holmquist’s willingness to take a public stand and to mobilization by a group he had helped form of independent-minded teachers across the district, union bosses’ scheme to get a forced “agency” fee into the workplace contract that year ultimately failed.

And that’s when teacher union chiefs filed a complaint with the WERC alleging that the Board of Education had violated state law by allowing Holmquist to speak at the meeting.  Subsequently, WERC bureaucrats ordered the Board of Education to cease and desist from permitting any employees but union officials to appear and speak at board meetings “on matters subject to collective bargaining”!

The Board of Education appealed this outrageous decision, but the Wisconsin Supreme Court upheld WERC bureaucrats.  As U.S. Supreme Court Chief Justice Warren Burger later explained in a 1976 opinion, the Wisconsin court “recognized that both the Federal and State Constitutions protect freedom of speech and the right to petition the government, but noted that these rights may be abridged in the face of ‘a clear and present danger’ that the speech will bring about ‘substantial evils’ that lawmakers have ‘a right to prevent.'”  (Citation omitted.)  The Wisconsin court ruled that the abridgment of speech at public meetings called by the Madison Board of Education  was justified in order “to avoid the dangers attendant upon relative chaos in labor management relations.”

But 39 years ago this month, in City of Madison v. WERC, Burger and his eight colleagues unanimously overturned the Wisconsin Supreme Court.

In his opinion, Burger flatly denied that the potential “disruption” to labor management relations caused by allowing teachers who disagree with a recognized union to address a school board on matters subject to collective bargaining at a public meeting presented “such danger as would justify curtailing speech.”  As Burger explained:

Whatever its duties as an employer, when the board sits in public meetings to conduct public business and hear the views of citizens, under the First Amendment it may not be required to discriminate between speakers on the basis of their employment, or the content of their speech.

But only a few months after the unanimous ruling in the City of Madison case, the Supreme Court did a virtual about-face in Abood v. Detroit Board of Education.

In Abood, the High Court found that forcing teachers who aren’t union members to pay so-called “agency” fees to union kingpins in order to advance collective-bargaining objectives with which they disagree “impinges” on their First Amendment rights, but added that it is nevertheless permissible for lawmakers to authorize such coercion for the sake of preserving “labor peace” in K-12 school districts.

In other words, under current case law, the First Amendment bars prohibiting teachers who disagree with union officials about bargaining issues from explaining and defending their position at a public meeting, but permits forcing those same teachers to bankroll the propagation of union officials’ views on bargaining matters. That makes no sense, and it cannot stand.

Early next year, the Supreme Court will at last revisit Abood when it hears oral arguments in Friedrichs v. California Teachers Association. The Friedrichs plaintiffs, relying largely on precedents argued and won by National Right to Work Legal Defense Foundation and their employee clients, contend that the “labor peace” rationalization offered by Abood for curtailing the free speech rights of teachers and other public employees who prefer to remain union free was based on false premises.

In their final brief in the case, submitted on December 14, the Friedrichs plaintiffs alluded to the inconsistency of City of Madison and Abood:

[T]he right to not subsidize speech is the constitutional equivalent of the right to speak or not speak. [Citation omitted.] . . . Petitioners’ right not to subsidize union speech is co-extensive with Petitioners’ well-established right [affirmed in City of Madison] to not praise, or to affirmatively criticize, the unions’ bargaining.

(See the link below to read the entire brief.)

To sum up, if the fear of “disruption” to labor-management relations is not remotely a sufficient reason to deny nonmembers of a government union the freedom to speak out in public about where they stand on collective-bargaining matters, and it isn’t, then the same fear is no justification whatsoever for forcing union nonmembers to bankroll Big Labor bosses’ bargaining activities.

Writing for a unanimous High Court in 1976, Chief Justice Warren Burger declared that the First Amendment prohibits states from denying teachers the opportunity to speak at public meetings about workplace matters simply because they disagree with teacher union bosses. Image: Diana Walker/Time & Life Pictures, Getty

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