Friedrichs v. California Teachers Association et al.

In 2013, CIR filed suit on behalf of nine California teachers and the Christian Educators Association International in a landmark effort to re-establish the right of individual teachers and other public employees to decide for themselves whether to join and support a union. The suit claimed that state “agency shop” laws, which then required public employees to pay union dues as a condition of employment, violated well-settled principles of freedom of speech and association. While many teachers supported the union, others did not and CIR argued the state could not constitutionally compel an individual to join and financially support an organization with which he or she disagreed.

In January 2016, the Supreme Court heard oral argument in Friedrichs. Although there appeared to be five votes in support of Rebecca Friedrichs’ position, the untimely death several weeks later of Justice Antonin Scalia resulted in a tie vote that left state agency fee statutes in place. The Court finally resolved the issue in a later case, Janus v. AFSCME, which it decided in June, 2018. There the Court struck down agency fee laws along the lines argued in Friedrichs.

Collective Bargaining is Inherently political

Typically, California teacher union dues cost upwards of a $1,000 per year. Although California law allowed teachers to opt-out of the thirty percent or so of their dues devoted to overt political lobbying, they could not opt out of the sixty to seventy percent of their dues the union determined were devoted to collective bargaining. Requiring teachers to pay these “agency fees” assumes that collective bargaining is non-political.  But bargaining with local governments is inherently political.  Whether the union is negotiating for specific class sizes or pressing a local government to spend tax dollars on teacher pensions rather than on building parks, the union’s negotiating positions embody political choices that are often controversial.

Political Opt-Out is Burdensome

To opt out of the thirty percent of their dues that even the union conceded they used for overtly political activities, teachers had to file for a refund each year according to a precise procedure that effectively discouraged its use. As a result, many teachers contributed hundreds of dollars in dues each year to support political positions in a variety of areas having nothing to do with education and with which many of them disagreed.

For example, the CTA spent over $211 million in political expenditures from 2000 through 2009. CTA made its largest single expenditure (over $26 million) to successfully oppose Proposition 38 on the November, 2000 ballot, which would have enacted a school-voucher system in California (and thereby increased the potential employment pool for teachers). CTA also spent over $50 million to oppose three ballot initiatives in 2005, including Proposition 74, which sought to make changes in the probationary period for California school teachers; Proposition 75, which sought to prohibit the use of public employee agency fees for political contributions without individual employees’ prior consent; and Proposition 76, concerning state spending and minimum school-funding requirements.

Case Speeds to Supreme Court

On June 30th, the Supreme Court granted CIR’s petition asking it to review the case.  Over 25 organizations filed amicus briefs in support of CIR’s efforts at the Supreme Court. The Court held oral arguments on January 11, 2016.

The speed with which the case moved through the lower courts reflected a deliberate litigation strategy.  From the beginning, CIR argued that the lower courts do not have the authority to overturn existing Supreme Court precedent. As a result, we asked the trial court and the Ninth Circuit Court of Appeals to decide against our clients on the basis of the pleadings (without trial or oral argument) so as to send the case on to the Supreme Court as quickly as possible.  The Supreme Court is the only forum that can vindicate the First Amendment rights of our clients and other teachers.

On March 29, the Supreme Court issued a 4-4 decision. The tied decision left laws in place in 25 states and the District of Columbia that allowed unions to compel non-members to pay “agency fees” to support the union’s collective bargaining work. The outcome of the decision was widely expected after the death of Justice Antonin Scalia on February 13, only a few weeks after oral argument. CIR filed a petition for rehearing soon afterward, but it was denied.

CIR followed Friedrichs with a new challenge to “agency shop” laws in Yohn v. CTA. While Yohn was working its way through the courts, the Supreme Court agreed to hear a similar case, Janus v. AFSCME, which also challenged the constitutionality of agency shop laws. CIR filed an amicus brief arguing that if the court found agency shop laws unconstitutional, they should also ensure that employees could easily exercise their First Amendment rights by requiring affirmative consent to “agency fees,” rather than forcing non-union employees to go through the often burdensome process of opting out of union payments.

On June 27, 2018, the Court issued its opinion ruling 5-4 that agency fees were unconstitutional. The Court agreed with CIR that agency fees must be strictly voluntary, and thus, a non-union employee could not be compelled to pay union dues without his affirmative consent.