Are Teachers Unions a State Agency?

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Are Teachers Unions a State Agency?

On January 11, 2016, lawyers for ten California teachers who don’t want to pay fees to a union that uses their money to support candidates and positions with which they disagree presented their oral arguments to the Supreme Court. They say forced payment results in a violation of their rights to free speech and to free association. The ruling will have far-reaching affects because teachers unions in 23 states collect compulsory union fees from all teachers, whether they choose to be union members or not. In the remaining states union membership and fees aren’t mandatory.

George Will makes it clear that Friedrichs v. California Teachers Union is about political spending and much more. Will says:

In the 2014 off-year elections, the NEA was the third-largest political spender, almost entirely for Democratic candidates, groups or causes. In 36 states, from 2000 through 2009, teachers unions spent more on state elections than the combined spending of all business associations.

But of equal importance, according to Will, is the fact that even the use of fees that support internal union activities such as collective bargaining is also unconstitutional. He says, “Unions, the dissident teachers say, bargain about issues that ‘go to the heart of education policy’ — teacher evaluation and tenure, class size, seniority preferences, etc. — as well as quintessentially political matters such as government’s proper size, its fiscal policies and the allocation of scarce public resources.” He emphasizes, “Private-sector collective bargaining does not influence governmental policymaking.” Teachers unions contracts do influence policymaking.

Union WordcloudWill hopes the Supreme Court “is ready to undo 39 years of damage to the First Amendment rights of millions of government employees.” (Washington Post, 1-8-16)

A ruling favorable to Friedrichs and her fellow teachers would herald changes in the 23 agency-fee states. But Mike Antonucci, director of the Education Intelligence Agency, points out that even more impact might be felt in the states that don’t collect agency fees. He predicts, “[I]n places where they have never even heard of agency fees, teachers’ unions will go from not being strong to not being able to do much of anything at all.”

Antonucci says:

Agency fee states have been so healthy for so long [that] their members have been propping up weak affiliates in non-agency fee states. When those revenues begin to dissipate, the struggling state affiliates have no reserves on which to draw. They will either begin to fail financially, or [the] National Education Association [union] will have to devote an increasing share of a decreasing pot of revenues to keep them viable. (, 1-25-16)

Justices React

A ruling on the case won’t be made until June, but two remarkable things happened during the oral arguments and deserve mention.

The first is that the questions asked by some of the Justices seem to signal their inclination to agree with the California teachers who argue that it is a violation of their First Amendment rights to freedom of speech and of association. The more conservative Justices’ grilling of the union lawyers indicates at least a firm understanding of the teachers’ complaints.

As one of the California teachers explains, “In our view, paying fees to a union should not be a prerequisite for teaching in a public school.” Harlan Elrich, one of the ten plaintiffs suing the California Teachers Union (CTU), continues, “No one in the U.S. should be forced to give money to a private organization he or she disagrees with fundamentally.” (Wall Street Journal, 1-3-16) The CTU is associated with the National Education Association union

The second notable event during oral arguments was that liberal Justice Sonia Sotomayor questioned whether the teachers union is, in fact, a private organization. Her questioning indicated that she believes unions are, instead, a part of the state governing body. She cited from the legal case: “When recognized as the exclusive bargaining representative, a union assumes an official position in the operational structure of a school.”

Then Sotomayor suggested that the government could subsidize the union’s collective bargaining efforts and that union dues might be considered as a sort of tax, saying, “. . . can’t they assess all of their employees a tax for that contribution?” The plaintiff’s attorney Michael A. Carvin explained to her that would be a violation of the National Labor Relations Act.

Later revisiting this issue, Justice Samuel Alito asked California Solicitor General Edward C. Dumont, “Do you think that the California Teachers Association is an agency of the State of California?”

Many were astonished by Sotomayor’s claim, (or was it an admission), including Mike Antonucci. (, 1-12-16) Antonucci commented, “Some of us here in California have often worried that the California Teachers Association [union] was a de facto part of the government.”

Read the November, 2015 Education Reporter for more background on this case.