The Friedrichs Case – ��Ӱ��

Behind the Scenes with Rebecca Friedrichs: Teacher Details a Surreal Day at the Supreme Court

Carolyn Phenicie — Sat, 01 Jan 2000 00:00:00 +0000

Updated Jan. 19

(Washington, D.C.) Rebecca Friedrichs is a third-grade teacher in Southern California and the lead plaintiff in a closely watched Supreme Court case that’s challenging the collection of mandatory fees by the teachers union. The Seventy Four has been following the case for months; be sure to check out our coverage of the 9 things you need to know about the groundbreaking case, Justice Scalia’s notable reactions during oral arguments and our legal analysis of how three key votes at the Court seem to be swinging in the plaintiff’s direction.

The day after her case took center stage at the Supreme Court, Friedrichs spoke with The Seventy Four in Washington, D.C. The below transcript has been edited for length and clarity.

The Seventy Four: Tell me about yesterday at the court.

Rebecca Friedrichs: I woke up around 2:15 a.m. and couldn’t fall back to sleep, just so excited. Not nervous, just excited, thrilled, humbled. It’s kind of that feeling where you’re having an out-of-body experience. How did I get here? How did this happen? I don’t deserve this, this is just too incredible … I thought ‘Wow, I get to sit in the greatest courtroom in the world and my name’s on the case?’ And my husband and my son get to be in there with me. [Her son, 20, is a college student studying political science and considering a career in law.] It was just… I have a shortage of words. I wish my vocabulary was larger. It was overwhelming and remarkable.

And how do you think the arguments went?

I was very pleased – you could tell that [the justices] have heard our message. They seemed to understand. I felt things were done very fairly and I really enjoyed learning the process, just watching it all happen. I felt very hopeful at the end.

Take us back to the beginning: Why did you file this lawsuit?

For 25 years of my career, I tried to make my voice heard within my local union. I did that several ways. I did it by serving as a local union rep. I was a rep and I was on the board, the executive board. I couldn’t make my voice heard there. I went to an annual California Teachers Association, National Education Association conference, I couldn’t make my voice heard there. I spoke to administration, over and over and over again, and the answer was always, well, we can’t do that because of the union… Every single time I was met with silence, total inaction.

I finally realized that even as a union board member, I had no voice. So I had to find a way to get my voice out there. I actually started writing editorials before I filed this lawsuit, just because I felt the American people needed to know the truth about what’s going on in unions.

When this lawsuit opportunity came around, oh, I jumped on it. It was wonderful.

Has your life changed at all since you’ve gotten involved in this lawsuit?

My life has changed a lot. The biggest change is hope. I have hope.

I was feeling totally demoralized at school, at work, because of union dominance…. When you constantly are ignored, particularly when you’re representing those who are paying the bill, it’s just demoralizing.

The biggest change I think is that I have hope. I have hope for the future of education.

I have hope for the future of my students. This lawsuit has given me the energy I needed to continue in the negative environment. So that’s the biggest change…

My office is a big giant mess. It used to be clean.

What was your family’s reaction when you came to them and said you wanted to join the lawsuit?

When you take on the union, you know, it’s scary. You’re most likely going to be harassed.

So when I received the little email that I could be a part of this, I’ll never forget this day. I was sitting, my husband and I have an office in our home and both of our desks are in that office and we’re sort of back to back. Email bleeps in, I read it, I have chills from head to toe, oh I really want to do this.

I turn around, ‘Charles, here’s what’s going on, can I do this?’ And he says, ‘Absolutely, you go for it.’ So I said, ‘OK, I have to ask the boys because they could be impacted too.’ [Freidrichs has two sons, now 20 and 24.] You know, their house could be egged, or whatever.

So I called both of the boys in, and both of them had the same exact reaction, ‘Go for it mom, this is great.’ They’ve been a part of my battle. They understand it…

How have your co-workers reacted?

That’s been the biggest surprise. I thought I was going to be ostracized every day.…

When I was a young teacher, there was a voucher initiative and they were coming in telling us how we had to be boots on the ground against the vouchers, knock on doors, phone bank, all of that. And I had done my research and I said, ‘Well gosh, I can’t do that, I’m for vouchers. I think parents should have a right to choose and kids should have options.’

They called me a radical right-winger, right there in front of all my friends. That whole year I was really ostracized. The union reps were the ones that were mean to me. The other teachers just don’t say anything because they’re afraid. I don’t know how they felt.

So I take this on, thinking that they’re just all going to be mad at me or silent, I’m going to be alone all the time. I’ve experienced the exact opposite. I have had numerous teachers pull me into a dark room and shut the door and, it’s always one at a time, throw their arms around me, thank me, tell me they’re praying for me, or they’ll send me a private email to my home…I’ve just had a ton of support, a lot more support than negative, very little negative.

I get emails from around the country from teachers and other public sector employees…I’ve made all these great friends who are totally behind me. I think that’s been the biggest surprise, is all the wonderful new friends I’ve made through this journey. I thought it was going to be a lonely journey, and it ended up being an inspiring adventure with a lot of like-minded people.

You’ve publicly said you were ostracized in the past because of your position on vouchers, and I’ve read about your opposition to last-in, first-out teacher dismissal policies. Are there other policies the union backs that you don’t support?

I’m totally against tenure. I think if a teacher has become incompetent or is abusive or doesn’t belong there for any reason, an administrator should be able to let that teacher go…I have seen tenure be harmful to students at every level, from kindergarten through college. My own children have been negatively impacted, my own biological children, negatively impacted by tenure…

We have this national discussion about how we don’t have enough teachers…When I hear about this I just think my goodness, if we could just get rid of the steps and columns [salary schedule that sets pay based on education and years of service]…When you’re a first year teacher, even if you’re bringing in 20 years of experience from the science field, you start at the top one on the top left corner, the lowest pay. Don’t you deserve to be paid for all of that wealth of information that you’re bringing in and experience you’re bringing in? No wonder nobody wants to come be a teacher. So I have a problem with that.

I have a problem with outstanding teachers who work incredibly hard, who give of their time, of their hearts, who are so supportive to their students and their students’ families, being paid based on how many years they’ve been there and how much education they have. And then a teacher who just kind of shows up and goes through the motions gets paid the same thing if they have the same number of years and the same number of [education] units. It doesn’t make any sense. It’s not a good business model and quite frankly it’s not fair to the ones who work hard…

Here’s what’s really bothering me. I work in a low-income district. My students need a lot of support. Not all of them, but a big chunk of them, need a lot of support. I cannot remember the last time I had a teacher’s aide, not even for 5 minutes…Instead, my union continually pushes for raises for me. I really would prefer to make a little less and have a teacher’s aide.

If I’m in a dream here, I’d love to have a science lab on my campus, a science teacher running a science lab in every school in America. Well, if we cut our salaries back just a little or don’t get that next huge raise, we could afford that science teacher and that science lab. So it’s those kind of things. I could go on all day.

It’s not all about money. I don’t believe in putting the self-interest of adults above the educational interests of children.

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Opinion: Mehlhorn: How the Unions Lost Three Swing Votes and Pushed the Supreme Court Towards Historic Friedrichs Ruling

Dmitri Mehlhorn — Sat, 01 Jan 2000 00:00:00 +0000

The contingent of lawyers for the teachers union were openly dejected. That much was clear just from standing behind them on the long line to pick up coats at the United States Supreme Court. That wait gave them plenty of time to relive their colleagues’ oral arguments in the case of Friedrichs v. California Teachers Association.

Justice by justice and argument by argument, their hopes for preserving compulsory union dues in the public sector had just crumbled.

“I wish we had just conceded that point, so we could have salvaged something,” one observed.

“So much for that,” a second concluded

“I’m so depressed,” chimed a third.

Counting — and courting — Supreme Court justices

For those just tuning in, check out The Seventy Four’s text and video primer on the nine things you need to know about Friedrichs. Briefly, California law requires all teachers to pay annual dues to the teachers union, even if they are not members.

Veteran teacher Rebecca Friedrichs believes that union-backed policies are bad for students and teachers, and argues that being forced to subsidize the unions’ lobbying for such policies is a violation of her First Amendment right to free speech. She is petitioning the Supreme Court to overrule its prior 1977 decision, Abood v. Detroit Board of Education, which allows such fees.

Heading into this week’s oral arguments, the respondents (the attorneys for the union) knew they were in trouble. In the 2014 case, Harris v. Quinn, involving home health care workers, a five-justice majority did not explicitly overrule the 1977 Abood decision, but expressed discomfort with the case.

The opinion of Associate Justice Samuel Alito, joined by Chief Justice John Roberts and Associate Justices Anthony Kennedy, Antonin Scalia, and Clarence Thomas, notes that:

The Abood Court’s analysis is questionable on several grounds. Some of these were noted or apparent at or before the time of the decision, but several have become more evident and troubling in the years since then.

…

Abood failed to appreciate the difference between the core union speech involuntarily subsidized by dissenting public-sector employees and the core union speech involuntarily funded by their counterparts in the private sector.

…

Abood failed to appreciate the conceptual difficulty of distinguishing in public-sector cases between union expenditures that are made for collective-bargaining purposes and those that are made to achieve political ends. In the private sector, the line is easier to see. Collective bargaining concerns the union’s dealings with the employer; political advocacy and lobbying are directed at the government. But in the public sector, both collective bargaining and political advocacy and lobbying are directed at the government.

Abood does not seem to have anticipated the magnitude of the practical administrative problems that would result in attempting to classify public-sector union expenditures as either “chargeable” (in Abood’s terms, expenditures for “collective-bargaining, contract administration, and grievance-adjustment purposes,”) or nonchargeable (i.e., expenditures for political or ideological purposes). In the years since Abood, the Court has struggled repeatedly with this issue.

In light of this section of Harris, and the jurisprudence of the justices involved, both petitioner Friedrichs and respondent CTA knew that some of the Friedrichs votes were essentially locked in. Respondents could count on votes from Breyer, Ginsburg, Sotomayor, and Kagan. Petitioners could count on the votes of Thomas and Alito.

Respondents thus hoped to peel away Roberts, Kennedy, or Scalia from the Harris majority. Roberts and Kennedy are both reluctant to overturn prior rulings, and so might choose to uphold Abood even if they disagree with it. For his part, Scalia has expressed openness to some of the respondents’ arguments in the cases Lehnert v. Ferris Faculty Ass’n (1991) and Rutan v. Republican Party of Illinois (1990). Failing that, respondents hoped to at least fight for an opinion with caveats that could be exploited in practice and perhaps extended by a future court majority.

Measured against these objectives, the oral arguments were a disaster for them.

“Quite a big deal”

During the arguments, Alito on the one hand, and Kagan and Breyer on the other, argued via questioning about whether the petitioners’ claim was strong enough to justify overruling a prior precedent. This argument was largely intended for the benefit of Roberts and Kennedy, who often uphold prior decisions on the basis of stare decisis, by which judges defer to their predecessors even when they disagree.

Roberts and Kennedy especially believe that if the Supreme Court disrupts society’s reliance on prior Court decisions, then the institution appears motivated by personal preferences rather than impartial legal analysis. Respondents aggressively made this case in their briefs and oral arguments. During oral arguments, Kagan and Breyer emphasized that Abood struck a balance and that millions of employment relationships had been crafted in the wake of the Abood ruling.

Breyer’s longest and most heroic effort on this point, during which he repeatedly glanced meaningfully at Roberts and Kennedy, came in the following exchange with the petitioners’ attorney Michael Carvin:

BREYER: I think there are good arguments on your side, and there are good arguments on the other side. When you go into this, it was, in my view, a kind of compromise 40 years ago. But it was 40 years ago. It was 40 years ago. I mean, maybe Marbury v. Madison was wrong. … [A decision to overrule Abood] would certainly affect the bar. It would certainly affect the integrated bar. It would certainly affect at least student fees at universities. It would require overruling a host of other cases, I think, at least two or three that I can find, and that's quite a big deal.

CARVIN: It certainly is.

BREYER: And so what is it, in your mind, that you can say from the point of view of this Court's role in this society in that if, of course, we can overrule a compromise that was worked out over 40 years and has lasted reasonably well—not perfectly. I guess people could overrule our decisions just as easily. I've had a few dissents. In those dissents I think I'm right and the others are wrong, and they think I'm wrong and they're right. All right? There are a lot of people who think that. Do you see where I'm going? I'd like you to talk for a minute, because it is a matter of considerable concern to me, even when I'm on the other side of something.

CARVIN: Justice Breyer,

BREYER: And you start overruling things, what happens to the country thinking of us as a kind of stability in a world that is tough because it changes a lot?

CARVIN: And I think you put your finger on precisely the same question. I think the principal reason to overrule Abood is that all of the rationales offered in support of Abood's result directly conflict with other precedents of this Court. So by overruling Abood, you don't do what you're saying, you do just the opposite.

Carvin then listed a long line of Supreme Court decisions that appear to contradict Abood (cases which Kagan’s questions and the respondents’ briefs had strenuously tried to distinguish).

Unfortunately for the respondents, for Breyer, and for Kagan, the Harris majority had already established that Abood had proven unworkable because it was impossible for public unions to engage in collective bargaining without infringing upon core free speech regarding public policy.

When pressed, the respondents simply were unable to come up with a defensible boundary line. Alito, who had authored the Harris majority, pressed California’s Solicitor General Edward DuMont with the following question:

ALITO: Where does the State of California think the line should be drawn? A provision of California law … says that agency fees may be used for “the cost of lobbying activities … in addition to … meeting and negotiating with the employer.” Is that constitutional?

In response, DuMont tried to dodge the provision in question, so as to avoid the issue of whether compulsory lobbying violates the First Amendment. Instead, DuMont said “I don’t think that’s the question presented here. … if there is a need to adjust that line, which there might be, that would be a question about where to draw the line that Abood draws.”

But, as Alito replied, “one of the questions is whether Abood is workable. So I do think it's relevant to know whether you think that is on one side of the line or the other. “

DuMont again tried to change the subject.

This exchange was devastating for respondents’ stare decisis claims. By admitting that “there might be” “a need to adjust that line,” DuMont essentially conceded Alito’s prior argument from Harris that the Abood ruling required constant judicial tinkering. This undermines stare decisis in two ways. First, it suggests that the Court would need to clarify Abood even if it chooses to reaffirm it. This reinforces the argument made by the petitioners that some legal change will be necessary no matter which way the court decides, eliminating small-c conservatism as an argument for either side. Second, it confirms Alito’s claim in his Harris opinion after four decades of experience, the judiciary continued to intervene to tinker with making Abood work in practice.

This learned experience of the judiciary is precisely the type of “new information” that the court often uses to justify overturning prior precedent.

Free speech and Hail Mary

Breyer tried to distinguish Friedrichs’ claims from other famous cases where the Supreme Court had reversed itself by suggesting that the First Amendment rights at issue here were somehow more mundane than other important constitutional rights. Again from the transcript:

BREYER: You go through the cases and you draw the line here, there, and the other place. And I'm trying to abstract from that in a very basic way for this reason. I think Plessy v. Ferguson [the 1896 case that said that segregation was legal] was a case that certainly should have been overruled [as it was in Brown v. Board of Education in 1954]. It certainly should have been overruled because it was basic, because it was a right to treat people equally, and there were millions of people who were not. Now, you see the level of abstraction I'm working at? Now, if I put that same level of abstraction here, I see the following: You will go out this door, and you will buy hundreds of things, if not thousands, where money will go from your pocket into the hands of people, including many government people, who will spend it on things you disagree with. I don't see anything too basic in the lines you're drawing there. …We're talking about six people in a room bargaining about wages, hours, and working conditions. That's pretty far removed from the heart of the First Amendment, and pretty close to ordinary physical activity carried on through words. Regulation, if you like. So I can't find a basic principle there that's erroneous as in these major cases that we have overruled.

With this intuitive and subjective appeal, Breyer was trying to rescue a failing legal argument by appealing directly to Roberts and Kennedy, and hinting that a decision for Friedrichs would be seen as judicial activism by the country rather than acknowledgement of fundamental rights. Breyer seemed to be hoping for the type of reasoning that had led previous justices in tough cases to use language such as “shocks the conscience” (used to define a violation of in 1952) and “I know it when I see it” (used to define in 1964).

Breyer’s Hail Mary was swatted away by Kennedy, Roberts, and Scalia, in part because Kennedy seemed to understand the fundamental issues involved in school reform. In a blistering series of questions, Kennedy focused on the unions’ budgets for public relations and media advocacy on issues that Breyer claimed were “mundane.”

Kennedy noted that employment issues such as merit pay, in the education context, actually go to the heart of how the country educates its children and also whether individual teachers such as Friedrichs were “free riders” (who benefitted from union negotiations) or instead are compelled to support positions which hurt them personally and professionally by forcing them to work in an environment they dislike.

Roberts, for his part, pressed the respondents to name the most mundane idea they could imagine, and when they said “mileage reimbursement rates,” he responded that even such a seemingly mundane matter would have an impact on public budgets and thus would implicate core free speech values.

Scalia, in turn, made clear that his prior jurisprudence would not compel him to treat public unions the same as private unions in this case. As he said, “the problem is that it is not the same as a private employer, that what is bargained for is, in all cases, a matter of public interest. And that changes the situation in a way that may require a change of the rule.”

Cue cheering from progressives — really

All of this explains why the union lawyers were depressed. They were hired by current union leadership and the respondents to defend Abood, and by losing those three swing justices, they clearly lost the case.

Of course, oral arguments do not have precedential weight, and the justices might change their mind upon review, but it does not look good for those lawyers on the coat check line.

In the long term, however, they should be celebrating. As I’ve written elsewhere, Abood was bad for , . Now that Abood’s reasoning has collapsed under its own weight, the progressive movement can look forward to building a new and brighter future.

RAW VIDEO: High Drama at the High Court, as Advocates Rally Outside Teachers Union Case

��Ӱ�� and Bellwether Education Partners — Sat, 01 Jan 2000 00:00:00 +0000

For those who closely monitor the Supreme Court, the attention Monday was focused on what was happening inside the imposing white marble building. There, attorneys and justices debated whether requiring teachers and other public employees to pay union fees, to support in essence positions they don’t support, violated their First Amendment rights. (Read our dispatch from inside the Court, as Justice Scalia seemed to distance himself from the teachers unions)

While those inside argued about hypothetical characters, future situations and 50-year-old precedents, dueling groups of protesters outside held competing rallies in the biting cold. Our video crew captures the scene:

Those aligned with the unions, more numerous than their opposition, held handmade signs, for example, tying support for unions to support for the middle class. They also said unions have aided the expansion of rights for women and people of color.

Advocates aligned with plaintiff Rebecca Friedrichs and her like-minded teachers, meanwhile, had pre-printed signs on sticks that said “I Stand with Rebecca” and said the issue boiled down to a fundamental violation of First Amendment rights.

There were dueling chants shortly after oral arguments let out, which died down as the attorneys for both sides held press conferences on the courthouse steps. Here’s everything you need to know about the legal particulars of the case, boiled down into 9 simple facts:

Inside the Supreme Court: Scalia, Once Seen as Key Friedrichs Swing Vote, Turns on Teachers Unions

Carolyn Phenicie — Sat, 01 Jan 2000 00:00:00 +0000

Washington, D.C.

Supreme Court Justice Antonin Scalia – once seen by high court observers as a possible fifth vote in favor of continuing mandatory union fees – seemed to align Monday with the teachers who argue that such dues violate their First Amendment rights.

California teacher Rebecca Friedrichs and the other plaintiffs suing the California Teachers Association argue that even seemingly standard labor activities that govern things like pay and layoffs are inherently political when the employer is a governmental entity. Overturning the governing precedent – which created the ongoing distinction between chargeable dues for contract negotiations and non-chargeable political activities – could have huge ramifications on the membership and financial clout of public-sector unions.

(Check out The Seventy Four’s primer on the nine things you need to know about the case. The Supreme Court has also posted an official of Monday’s oral arguments.)

Scalia repeated the plaintiffs’ argument, essentially verbatim: “The problem is that everything that is collectively bargained with the government is within the political sphere.”

Scalia also, while saying he sympathized with the argument that it is easier for employers to negotiate with just one employee representative, questioned whether unions would fail without mandatory funding. Federal employee unions don’t charge agency fees, and they survive and even prosper, he said.

Finally, Scalia knocked down the idea, espoused by Solicitor General Donald Verilli and the more liberal justices, that there is a distinction between government-as-employer and government-as-sovereign, and that government-as-employer should have the same rights as private employers.

“The problem is that it is not the same as a private employer,” Scalia said, dismissing the line of thought. “It’s one thing to provide [the right to compel employees to support unions with which they disagree] for private employers. It’s another thing to provide it for the government, where every matter bargained for is a matter of public interest.”

Outside the Supreme Court, advocates rally while justices debate teachers unions

Scalia had been seen as a possible adherent to the unions’ arguments because he has a long record of supporting stare decisis, or maintaining existing precedents. The current system is based on a 1977 case called Abood that allows public employees to opt out of subsidizing unions’ political costs but requires them to support collective bargaining and other more traditional labor activities. Scalia has also written in favor of agency fees, also called fair-share fees, in the past.

Meanwhile, members of the court’s liberal bloc emphasized through comments and questions the idea that the court shouldn’t easily overturn an existing precedent.

Justice Stephen Breyer, for instance, asked the plaintiffs’ attorneys how to connect the court’s position as a constant in an ever-changing American landscape with the demand that precedent should be upended.

“It is a matter of considerable concern to me, even when I’m on the other side of something,” he said. “You start overruling things, what happens to the country thinking of us as a kind of stability in a world that is tough because it changes a lot?”

Twitter reacts to Friedrichs oral arguments at the Supreme Court

Justice Elena Kagan said the attorney for Friedrichs and the other plaintiffs comes to the court “with a heavy burden. That’s always true in cases where somebody asks us to overrule a decision. It seems particularly true here.”

Kagan and other liberals also focused on the potential ramifications and fallout of overturning the Abood precedent. There are “tens of thousands” of contracts with provisions ruled by the Abood precedent governing “maybe as high as 10 million employees,” she said.

Justice Ruth Bader Ginsburg said overturning Abood could force the court to overturn cases that allow the mandatory collection of bar association dues from attorneys and student activities fees from college students.

Scalia wasn’t the only justice, of course, to align with Friedrichs and the other plaintiffs.

Justice Anthony Kennedy took some of the strongest swings at the arguments presented by the unions, California and the U.S. solicitor general.

“When you are dealing with a governmental agency, many critical points are matters of public concern,” he said to California Solicitor General Edward Dumont. “Is it not true that many teachers strongly, strongly disagree with the union position on teacher tenure, on merit pay, on merit promotion, on classroom size?”

Forcing people to subsidize views they disagree with makes them “compelled riders,” Kennedy said. He was riffing on unions’ arguments that allowing employees to benefit from contract negotiations without helping pay for them makes them “free riders.”

Unions and the other respondents also argued that the matters negotiated in contracts – things like teachers’ lunch hours or mileage reimbursement rates — did not rise to the level of public policy questions.

Chief Justice John Roberts indicated he didn’t see such a distinction. “It’s all money,” he said. “The amount of money that’s allocated to public education as opposed to public housing, welfare benefits, that’s always a public policy issue.”

While matters of precedent, procedure and policy were taking center stage inside the Supreme Court Monday, dueling groups of protesters outside held competing rallies in the biting cold.

Those aligned with the unions, more numerous than their opposition, held handmade signs tying support for unions to support for the middle class. They also said unions have aided the expansion of rights for women and people of color.

Advocates aligned with Friedrichs, however, flashed pre-printed signs with the mantra "I Stand with Rebecca" and said the issue boiled down to a fundamental violation of First Amendment rights.

There were dueling chants shortly after oral arguments let out, which died down as the attorneys for both sides held press conferences on the courthouse steps. The Supreme Court’s final decision is expected to be handed down in June.

Teachers Unions At the Supreme Court: 9 Things You Need to Know About the Friedrichs Case

Carolyn Phenicie — Sat, 01 Jan 2000 00:00:00 +0000

Washington, D.C.

This Monday, the U.S. Supreme Court will hear oral arguments in the case of Rebecca Friedrichs vs. California Teachers Association. The high-stakes challenge to mandatory union dues could dramatically alter the political reach and financial muscle of public sector unions across the country if Friedrichs and the other plaintiffs prevail.

Here’s what non-lawyers need to know ahead of the arguments.

Who is Rebecca Friedrichs? Friedrichs is a longtime teacher in southern California whose personal history with the union is bumpy. She first soured on unions while a student teacher, after witnessing another teacher abuse students and learning how difficult it was to dismiss her, . For the first 10 years of her career, she only paid agency fees — the part of dues that cover collective bargaining and other labor activities, but not political activity. Eventually she decided to become a full union member in the hopes of changing the culture from within, she . When that didn’t work, she switched back to being an agency fee member in 2012 and filed the lawsuit in 2013.

What is the current law? Each state sets laws governing whether employees must pay at least some dues to a union active in their workplace. About half of states are what’s known as “right to work.” They don’t require employees to pay dues. In the other half of states, unions may charge employees what’s known as an agency fee or fair share fee, though not all employees have to be members of the union or fund its more explicitly political activities, like get-out-the-vote efforts or lobbying.

That distinction for public employees comes from a case called Abood from the late 1970s. In that case, teachers in Detroit sued to overturn the requirement that they pay union dues, arguing that they opposed the concept of public worker unionization and disagreed with the union’s lobbying and political endorsements. The Supreme Court ruled that public sector unions could no longer charge dues for political or other ideological activities, but that they could continue to charge non-members fair-share fees to cover costs of contract negotiation, grievance processes, and other similar collective bargaining activities. (The same principle had applied to workers in the private sector since the 1950s.)

What’s Harris vs. Quinn? In this case from 2014, home health aides paid through Illinois’ Medicaid system said they shouldn’t have to pay mandatory union dues. Rather than consider the broader legality of the Abood precedent, justices in a 5-4 decision said that because the Medicaid patients set some of the aides’ working hours and conditions, the aides aren’t public employees.

Although the Friedrichs case started several years before the Harris decision, many see Justice Samuel Alito’s majority opinion as inviting a case that could directly challenge the Abood precedent. It’s also a possible indication that five votes exist on the court to overrule the 38-year-old precedent.

What are the teachers’ arguments? Who’s backing them? Friedrichs and the nine other teachers argue, in short, that even traditional collective bargaining activities by public-sector unions are political. Fights over teachers’ wages, for instance, affect state budgets and individual taxpayers. Contract provisions governing how teachers are dismissed or disciplined affect public education policy. Requiring teachers who disagree to pay union dues to back those ideas violates their First Amendment rights, the educators say.

Plaintiff Harlan Elrich, a California math teacher, Jan. 3 that he came to realize that even the portion of his roughly $1,000-a-year dues allotted to collective bargaining was supporting positions he fundamentally disagreed with — such as making it nearly impossible to remove bad teachers and to push for ever-higher teacher salaries in the hard-hit Central Valley.

“The teachers in my family disagree about the union. Some support it and others don’t. But everyone agrees that each of us should have the right to decide whether to join. So I’m not against the union; I’m against the state forcing me to pay union fees against my will.”

Friedrichs and the other teachers argue that the Abood precedent should be overturned. If not, they argue, teachers should have to opt-in to paying the political portion of dues rather than opting-out as they do now. (Teachers in states that require dues payments usually must pay the entire year’s worth of dues and then wait to be reimbursed the portion that would go toward political activity.)

The Christian Educators Association International, a faith-based group that serves Christian principals, teachers and other educators, is also a party. The petitioners are being supported by the Center for Individual Rights, a libertarian-leaning public interest group.

A variety of conservative advocacy groups, some Republican legislators, and a group of parent advocates have filed briefs backing Friedrichs.

And what do the unions say? Who has supported them? The unions argue that the Abood precedent should stand. Its rationale was to prevent “free riding,” or a situation in which employees who aren’t union members and don’t support it financially still reap benefits the union negotiates. It also makes it easier for employers to negotiate with employees, and promotes “labor peace” among potentially competing groups of employees.

The unions in their briefs also argue that the Supreme Court’s principle of stare decisis — that is, sticking with existing precedent — is particularly important when “literally tens of thousands of contracts governing millions of public employees” were written with the Abood precedent in mind. They also argue it would “remove from ongoing policy debate” an issue that states have chosen to address differently based on local circumstances. Doing so, the unions say, would violate principles of federalism that give states great latitude.

Union leaders have that the case is an “assault on working people.” AFL-CIO President Richard Trumka in a said the case was brought by “billionaires and wealthy CEOs like the Koch brothers who want to rewrite the rules to only benefit them.”

A coalition of major civil rights group, the attorneys general of 21 states and the District of Columbia, some school boards and the City of New York have all filed briefs backing the unions. The solicitor general and California Attorney General Kamala Harris will also argue on behalf of the union’s position.

How will arguments proceed? The court will convene Monday at 10 a.m. and arguments will begin shortly thereafter. Most cases are allotted an hour for arguments, but there will be more time for Friedrichs. Attorneys for Friedrichs and the other teachers will have 40 minutes to make their case. The time for the responding parties will be split among attorneys for the unions (15 minutes), the state of California (15 minutes) and the U.S. government (10 minutes.)

Attorneys will have prepared statements but the justices will interrupt frequently with questions or to raise arguments of their own. No cameras are allowed in the courtroom, nor are reporters allowed to bring in recording devices. Media stories from reporters in the courtroom should start popping up online around lunchtime, and the court usually releases a transcript later in the afternoon. SCOTUSblog is a great resource for all things Supreme Court, and check back with The Seventy Four for coverage later in the day.

Who’s the swing vote? In most cases that split the court on ideological lines, it’s Justice Anthony Kennedy. In this case, though, many commentators say the swing is Justice Antonin Scalia. He’s deeply committed to the idea of stare decisis, so the unions’ emphasis of that point could appeal to him. He also wrote in a 1991 case in favor of fair-share fees. But he did side with the majority — with Kennedy, Alito, Chief Justice John Roberts and Justice Clarence Thomas — in Harris, an opinion that called Abood “quite questionable on several grounds.” Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented in that case.

When will there be a decision? There’s no set timetable for the court to issue decisions. Controversial rulings, as this one is likely to be, are frequently left until the end of the term. The Supreme Court is scheduled to adjourn June 27, though they can and, in recent years, frequently have, issued rulings past their planned adjournment.

What’s the potential impact of this case? If the Abood precedent is overturned, unions will have to totally revamp their strategies. Some experts say unions are likely to turn to state legislatures to write new laws that will help them enroll members, like giving them set-aside time to make their case. Unions’ substantial lobbying and campaign expenditures also will take a hit, though the exact impact depends on how many teachers end their membership.

Michigan, for example, became a “right to work” state in December 2012. The National Education Association state affiliate there had about 20,000 fewer members and took in about $5 million less in dues in the 2015 reporting year than the 2012 reporting year, $56.7 million versus $61.9 million, according to filings with the U.S. Department of Labor.

Parents Tell Supreme Court That Upcoming Friedrichs Union Dues Case Is Also a Classroom Issue

Carolyn Phenicie — Sat, 01 Jan 2000 00:00:00 +0000

Parents fighting for an excellent education for their children have done battle at all levels of government: school boards, statehouses, Congress, and now, the United States Supreme Court.

A group of 12 parents have filed a in support of Rebecca Friedrichs and the other teachers now suing to overturn laws in California that require them to pay dues to their union even if the teachers disagree with the union’s positioning. (The Supreme Court has scheduled oral arguments for the case on Jan. 11)

“It’s important for the court to know this discussion is not in isolation of others, and the others are children,” said Gwen Samuels, president of the Connecticut Parents Union whose four children have or are currently attending public schools.

The parents argue there are three issues that exemplify the overlap between the collective bargaining financed by mandatory dues and education reform: seniority-based compensation and classroom assignment, policies that slow the removal of ineffective teachers, and “last in, first out” (LIFO) rules that require the newest educators be let go when layoffs are necessary, despite their job performance. (Read The Seventy Four’s LIFO flashcards explaining how this union job protection affects learning)

Those policies are “primary reasons for our crumbling public schools in disadvantaged neighborhoods,” the parents wrote. “They have substantially contributed to one of the greatest civil rights crises of our time: sentencing disadvantaged youth, often from poor and minority households, to failing and irremediable schools.”

Gloria Romero, a former California state senator who wrote her state’s parent trigger law allowing parents to petition for changes in their children’s low-performing schools, organized the brief. She described Friedrichs as a “David vs. Goliath fight.”

The parents who signed the brief understand that, historically, the greatest education reforms have come through the courts, Romero said, citing Brown vs. Board of Education and its predecessor, Mendez vs. Westminster, which outlawed the segregation of Mexican-American students in California schools.

Federal law already allows teachers to opt out of paying the portion of their dues that go directly to political activity. Friedrichs and the other teachers argue that traditional union activities, like collective bargaining, amount to political activity because they affect public policy and state budgets. (Check out The Seventy Four’s previous coverage on the difficulty in predicting the classroom impact if Friedrichs is successful.)

Although the legal arguments in the case hinge on whether forcing teachers to support unions violates their First Amendment rights, the parents’ brief to the court focuses on what they say are the educational consequences of mandatory dues.

The court’s rulings on the First Amendment have been fluid recently, said Dmitri Mehlhorn, a co-founder and current board member of StudentsFirst, an education reform group aimed at improving teacher quality and promoting school choice and equity. Mehlhorn (also an occasional contributor to The Seventy Four) said it was important to remind the justices of the “real issues” at stake.

When teachers are no longer forced to pay dues, the “tsunami of money” unions have used to oppose reforms will cease and “minority and poor parents, especially, will be able to see the reforms that we have been fighting for,” Romero said.

“What we’ve done is to make the link — what does freedom of association mean in the realm of education reform,” Romero said.

The parents face plenty of opposition. Samuels was devastated when the attorney general of her home state of Connecticut signed a , with the top lawyers for 20 other states and the District of Columbia, supporting the unions. The U.S. government, via the solicitor general, has also . So has a , including the NAACP and ACLU.

Romero, a Democrat, said it was important to combat the unions’ argument that only “a bunch of right-wingers” and big-money donors like the Koch brothers supported Friedrichs and the other teachers.

“That’s a false narrative, that’s a talking point that the unions will use,” she said. “I thought it was important for rank-and-file parents, activists, to stand up and support rank-and-file teachers like Friedrichs.”

Samuels also was motivated to sign the brief because she sees a parallel between the teachers prohibited from making a choice to support the union or not and parents whose educational choices are limited. “Here, once again, you have a system that forces people to do something that is not in the best interest of children,” she said.

In the end, Samuels hopes the justices stay above the fray.

“To me this is becoming so political, and I am praying that the Supreme Court justices are above politics,” she said.

The Friedrichs Case – ����Ӱ��

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RAW VIDEO: High Drama at the High Court, as Advocates Rally Outside Teachers Union Case

Inside the Supreme Court: Scalia, Once Seen as Key Friedrichs Swing Vote, Turns on Teachers Unions

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Parents Tell Supreme Court That Upcoming Friedrichs Union Dues Case Is Also a Classroom Issue

The Friedrichs Case – ��Ӱ��