Friedrichs v. California Teacher Association hinges on a central question: can a public employee union compel all of the employees its represents in collective bargaining to pay for representing them in negotiations? Understand that no one is ever forced to join a union, as doing so would violate the First Amendment. But governments can and do designate in law that unions are the representatives of public employees in collective bargaining agreements.
Because these unions must represent all workers, whether they are members or not, they have a problem: free riders can benefit from negotiations yet not have to pay the costs for having unions represent them at the bargaining table. So unions charge "agency fees" to all of the employees they represent. These fees are a fraction of the total costs of membership dues, albeit a large fraction. If any public employee chooses to opt out of membership, they are refunded a part of those dues.
Ostensibly, this keeps public employees from subsidizing political activities, like lobbying, that members may disagree with. Of course, the workers who opt out can still benefit from those political activities, which means there is plenty of potential for free-riding already baked into the system.
A 1977 case called Abood v. Detroit Board of Education upheld the constitutionality of this agreement. I'm not a Supreme Court expert by any means, but it's been fairly well known that Samuel Alito, one of the court's most politically conservative justices, has wanted to overturn Abood for some time. Given the current make up of the court, he may well get his wish this year.
Friedrichs is being argued by a cabal of anti-unionists, hoping to smash the union movement once and for all by attacking it in the public sector where it is currently at its strongest. Nearly everyone agrees that overturning Abood would be both a radical rejection of precedent and an enormous blow to the power of all public employee unions, especially those representing teachers.
In fact, the only people who don't seem to see it this way are Rebecca Friedrichs and her fellow teacher-petitioners.
The Washington Post recently interviewed Friedrichs and Harlan Elrich, another one of the plaintiffs. Friedrichs is clearly comfortable in the spotlight (take a look at her posed photo) and will undoubtedly be trotted out in front of the media this fall by the anti-union forces backing the case's prosecution.
But if she wants to garner any sympathy from her fellow teachers, she really should work out her talking points a little more:
These are the sorts of stories I hear all the time from teachers who hold contrarian views -- and you know what? They always ring false. A first grade teacher was man-handling students and yelling in their faces, and Friedrich's "outstanding" mentor just shrugged her shoulders? In my experience, that teacher would have been dressed down immediately by her principal and her colleagues and put on warning to get her act together.What have your experiences been with your union?Friedrichs: When I was a student teacher in 1987, I was being trained by an outstanding master teacher, but next door to us was a teacher who had become, in my opinion, abusive to her little first graders. I would witness every day as she would be lining them up outside the classroom. She’d grab them by the arms, she’d yank them over, she’d yell right in their faces. I asked my master teacher, “What can we do about this awful situation?” She sat me down and she said, “Today is your lesson on the teachers union.” She told me about tenure and that districts really struggle to rid themselves of these teachers. And I was shocked.At that point I was really soured on union representation.
In any case, these are the sort of anecdotes that are impossible to verify. Certainly, there are bad teachers out there; no one thinks otherwise. All any of us who advocate for tenure have said, however, is that after a teacher demonstrates over a period of years that she is competent, there should be a hearing before that teacher is dismissed for incompetence. And if we don't get to retain this basic protection, we run the great risk of turning our schools into political patronage factories.
Friedrichs goes on to complain that she has been shunned by her fellow teachers for having anti-union views. She says she was "abused" for her pro-voucher stance (seems to me this sort of hyperbole is fair ground to question whether those first graders she saw as a student teacher really were "abused" as well).
Well, boo-freakin'-hoo: believe it or not, holding unpopular views can tend to make you unpopular, especially when you are actively undermining the workplace protections and rights to collective bargaining teachers have fought to retain for decades.
Elrich also appears to revel in his contrarian ways:
Recently in California they had the vote on same-sex marriages. I am against same-sex marriages, and from my understanding the union put a lot of money into supporting them. And they have put money into many Democratic candidates, all the way up to presidential elections — candidates I do not support.
I never knew I could opt out until a few years ago.Well, whose fault is that? Were you deceived or simply ignorant? Does the union have an obligation to hold your hand, or are you an adult who can figure these things out for yourself?
According to the CTA's brief, all employees are provided with a "Hudson notice," which allows them simply check a box to receive the rebate of their dues that go toward non-negotiating activities. Furthermore, by simply checking another box, that employee triggers a process, entirely at the union's expense, where they can challenge whether the agency fee is properly set. It's absurd to think Elrich was in the dark for years except for his own indifference.
As to Elrich's objection to same-sex marriages: hey, this is America, and everyone is entitled to be as bigoted as they want. Abood made certain that Elrich doesn't have to have his dues go toward supporting to right of two people who love each other to get married: that's the whole point of the ruling. He only has to pay for the union's activities as related to representing him in bargaining. Does Elrich even understand what this case is actually about?
You have opted out of the portion of union dues that goes to political activities. You’re just paying for the union’s collective bargaining activities, which directly benefits you. But you say that you’re still subsidizing the union’s political speech. Explain that.
Elrich: I believe they’re using my money for politics, whether they say they are or not. I just think they’re putting my money into other things besides the negotiations and they call it collective bargaining. I don’t feel good about it. Pretty much everything the union does is political.If Elrich thinks his agency fees are being used to advance other sorts of political activities, he's making a different argument than the one found in the petition that bears his name. Because the central argument there is not that the unions are calling other sorts of political activity negotiating -- it's that negotiating, in and of itself, is an inherently political activity. Again, does Elrich even know this?
I'll give Friedrichs a little credit; she does seem to at least partially get this point, even if her thinking is rather muddled:
Funny thing: if teachers unions are so damn powerful, why are they suffering a wage penalty? Why do even the reformiest reformsters like Frank Bruni understand that teachers are underpaid relative to their education and the importance of their work? Why is teacher pay in the US so lousy compared to other industrialized countries?Friedrichs: Here in California, most public officials have been put into office by union dollars. So you’ve put them into office and now you come to the bargaining table. The official you put into office is one side and the union is on the other side and you’re bargaining for taxpayer money, only the taxpayer doesn’t get invited to the table. That’s political, in my opinion.Collective bargaining is being used to push for things that I would never agree to.
The idea that teachers unions have stacked school boards with their favored candidates and are now rolling in dough is laughable on its face. And, of course, teachers are taxpayers, too.
Again, the central argument put forward in these teachers' own petition is that negotiating is inherently political speech. Teachers, therefore, can't be compelled to subsidize bargaining, as their First Amendment rights would be violated.
I'm no lawyer, but this strikes me as wrong for two reasons. First, California law says that the union must negotiate on behalf of all employees; more specifically, it says the union can't make deals for its members that are better than the deals made for non-members. But if the union must negotiate, how can it possibly do so without the necessary resources? How can the law force the union to do something without creating a revenue stream for it?
Second, nothing is stopping any teacher from exercising his or her First Amendment rights to speak out about a negotiation -- even if they want to engage in speech antithetical to their own interests. I mean, no one is stopping Friedrichs from saying, for example, this:
We have this huge pension crisis in our country and they keep pushing for these defined-benefit plans. I’d be happy with a defined contribution plan. We’re being asked to fund collective bargaining that’s highly political using taxpayer money and I don’t have a choice.That's wrong; you do have a choice. You can choose to teach in a non-unionized private school. You can choose to teach in a non-unionized charter school. You can choose to lead a movement in your district to de-certify your union. You can run for union office on a platform of gutting pensions, gain support from your fellow teachers who are just going to love the idea of giving them up, and then surrender your retirement.
In fact, if you two think you're so overpaid, why don't you exercise your First Amendment rights and give back the money that you think you don't deserve? I'm sure your district's business manager will happily take your check.
The idea that anyone has unrestricted rights to free speech is, of course, silly -- but it's particularly true for teachers. You can't publicly discuss a child's IEP. You can't indoctrinate students with your personal views -- an act of speech, in my view, that is far more political and, consequently, far more entitled to First Amendment protections that merely engaging in collective bargaining.
The notion, then, that Friedrichs' and Elrich's rights are being grossly violated because they are being forced to pay for a service they are benefitting from is, in my view, absurd. They have a plethora of ways to express their dissatisfaction with the union's bargaining positions; moreover, they have the ability to take action and change how their union operates.
But that would require work on their part. It's much easier to grouse about how unfairly you're being treated while freeloading off of others:
Pal, you're free to also believe the moon is made of cheese -- but that don't make it so. You are a freeloader, and you're going to hurt a lot of families, including your own, with your flippant disregard for your colleagues' hard-earned collective bargaining rights.Getting the benefits of the union’s collective bargaining efforts without paying anything to support the union — some people call that freeloading.Friedrichs: I’ve never asked the union to represent me in the first place. They’re the ones who asked for laws to give them this authority to negotiate on behalf of everybody.Elrich: There are enough people who believe in the union that it will stay strong. Does that make me a freeloader? I don’t believe so.
Sorry if that hurts your feelings.