For nearly forty years, the Supreme Court’s decision in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), has reigned. Under Abood, unions are permitted to collect agency fees from public employees who are not union members, as long as the fees go toward the costs of collective bargaining and not politics. But a group of California public school teachers has now challenged this practice. These teachers contend that such “fair share” fees violate their First Amendment rights.
According to the claimants, every year, they are required to financially support a group who advocates for viewpoints that they oppose and do not wish to subsidize. They argue that spending by public-sector unions always includes politicized speech, and since they are required to pay “fair share” fees, their First Amendment rights are violated. Counsel for the claimants has been quoted as stating that even something as seemingly un-politicized as mileage reimbursement rates is political because it is monetary – and public policy is always an issue when dealing with the government’s allocation of funds to public education as opposed to public housing, welfare, or some other state initiative.
Opponents, however, insist that teachers’ First Amendment rights are not violated by “fair share” fees. According to them, the Supreme Court made the right decision in Abood, and unions and school districts should be allowed to agree that non-members pay a share of the union’s costs of operation. While collective bargaining arrangements certainly involve some controversial and politicized issues, many issues dealt with are not politicized – including when teachers must arrive to work, duration of their lunch break, and how the school district should handle a teacher who wishes to transfer from one school to another. Abood supporters say non-members should be required to contribute to a union’s costs as they benefit from its efforts to secure better working conditions for all teachers.
It remains to be seen how the Supreme Court will rule in this important case. The Court heard oral argument on Monday, January 11th, and the case is certainly worth watching. If the claimants’ challenge prevails in Friedrichs v. California Teachers Association, thousands of collective bargaining agreements nationwide may have to be revised.