Friedrichs And The Ability To Push Back Against The Progressive Vision
/Earlier today the Supreme Court heard arguments in the case of Friedrichs v. California Teachers Association. You have probably heard of the case. Rebecca Friedrichs and several other public school teachers in California are suing to stop forced payment of dues by them to the teachers union. Under prior Supreme Court precedent these dissenting teachers have been entitled to a refund of a portion of their dues (about a third) that the union concedes to be devoted to explicitly political activities, such as lobbying or contributions to candidates or parties. But the union contends that the remainder of the dues go to supposedly core union functions of collective bargaining and employee representation, which are non-political and outside First Amendment protection under prior Supreme Court precedent. A Supreme Court case from the 70s (Abood) supports the union's position that it can compel payment of most of the dues; but a more recent Supreme Court case from 2014 (Harris) questioned that proposition without explicitly overruling Abood.
Friedrichs now directly takes on the issue of whether the subjects of collective bargaining and employee representation are so clearly and obviously political and public policy issues that they must come within First Amendment protections that prevent forced speech and forced association. Here is an excerpt from Petitioners' brief on that subject:
[P]ublic-sector bargaining involves countless matters “relating to education policy.” . . . In California, for example, state law authorizes teachers unions to bargain over “class size,” CAL. GOV’T CODE § 3543.2(a), a hotly debated policy issue. Unions also collectively bargain for seniority preferences in transferring and reassigning teachers. Id.; see also, e.g., JA129 (“seniority ... will be the deciding factor” in filling vacant positions). Such policies have an important—and, many believe, detrimental—effect on education policy. . . .
The same is true nationally. One recent study analyzed the collective-bargaining agreements in the nation’s 50 largest school districts and found that unions have generally bargained for:
• teachers to be “paid on a rigid salary scale that evinces little regard for individual competence,” . . .
“extensive labor rules” that “hobble[]” managers from efficiently assigning and terminating teachers, . . . ; and
“contracts” that “routinely stipulate the number of students a teacher will instruct, the number of preparations (i.e., courses) a teacher may have, the number of parent conferences that a teacher will hold, what time they will leave school at day’s end, what duties they can be asked to perform, and even how and how often they will evaluate students’ written work,” . . . .
In my naiveté, those things seem to me among the highest public policy concerns in today's political debate, on which people of differing political persuasions hotly disagree. Could it really be that people who honestly think that things like strict hours limitations and seniority restrictions for teachers are bad for the students are forced in our system to pay billions of dollars to support the opposite viewpoint? To me, it seems amazing both that the Supreme Court could have made such a terrible mistake, and also that it has taken until now to get the issue back before the Court for correcting.
Reports from this morning's argument express the strong view that the Court is likely to overrule Abood. For example, here is the lede from the USA Today story:
The Supreme Court left little doubt Monday where it stands on forcing teachers and government workers to contribute to public employee unions against their will: It's ready to strike the requirement down.
But it's by no means unanimous. Instead, it's very likely to be the usual five-to-four conservative/liberal split, with the "liberal" justices Ginsburg, Breyer, Kagan and Sotomayor in dissent. From Lyle Denniston at ScotusBlog:
The four Justices who were in dissent in the Harris case appeared to be headed toward dissent again, even as they made no headway in shaking [Petitioners' lawyer] Carvin’s assault on the teachers’ union as a state-compelled advocate for workplace policies that the non-union members appear to find objectionable. Those four appeared to be clinging to the Court’s usual reluctance to overturn a constitutional precedent that had been followed for nearly four decades.
Well, stare decisis can be a strong argument in many circumstances, but it's rather unusual when it's the only argument; usually one would expect at least some principled basis to support the prior decision.
Obviously this case is of substantial political importance to the Democratic Party, since nationally the teachers unions are their single biggest contributors, with the large part of that money coming from compelled dues. A very discouraging phenomenon is that the four "liberal" justices almost always vote as a bloc on any issue that is politically important to the Democratic Party and its allies.
The ultimate question is, how can it be possible to push back against the failed progressive vision of governance if that vision is backed by billions of dollars of compelled contributions from those who fundamentally disagree?