On Monday, the US Supreme Court heard oral arguments in Friedrichs v. California Teachers Association. Rebecca Friedrichs, the plaintiff, is a 28-year-old public school teacher in southern California, and is joined by nine other teachers as well as the Christian Educators Association International. In April 2013, the plaintiffs filed a lawsuit against the 300,000-member California Teachers Association (CTA) to challenge the use of “agency fees” and its effects on two principles of the First Amendment: freedom of speech and freedom of association.
In the state of California, once a union wins the right to become an exclusive bargaining representative for employees in a district — teachers in this case — all employees “shall, as a condition of continued employment, be required either to join the recognized employee organization or pay the fair share service fee.” The “fair share service fee” is what teachers must pay to the union for services it renders on behalf of all teachers: members and nonmembers alike. There are at least 21 fair-share states. Even teachers who do not choose to join the union, including Rebecca Friedrichs, must pay an agency fee to CTA. What do non-union members get for this agency fee?
Gerard Robinson speaks at a rally in front of the US Supreme Court on Monday, January 11, 2016.
According to CTA, agency fees pay a host of collective bargaining services that include negotiating for higher salaries and safe working conditions that benefit all union and non-union teachers. Therefore, non-union members must pay an agency fee for derived benefits of collective bargaining because to do otherwise would result in a “free rider” problem — non-union members reaping benefits paid for by dues-paying members. Here is where plaintiffs in the Friedrichs case disagree.
The plaintiffs claim the California law coerces non-union teachers to pay CTA $650 annually to cover costs for political speech and activities they do not support. Is forcing teachers who are not union members to pay an agency fee good public policy for the teaching profession? Not according to Friedrichs. She says the union is more focused on “self-preservation” than the well being of its members or the education of children.
While union lawyers and parents were inside a warm Supreme Court chamber making their case to nine justices on Monday, hundreds of people braved the cold outside to make their case to the nation. One group supported the union, claiming that the Friedrichs case is a naked attack on public sector unions, the working-class and, without saying so explicitly, women and people of color. According to this group, the culprit is corporate leaders and venture capitalists that rob public schools of scare resources through privatization schemes. Speakers included union teachers and union members in non-teaching professions. Their rally cry was to preserve union voice — specifically, a voice to influence the political system, be it in Sacramento or Washington, D.C.
The second group supported the California teachers. Their speakers claimed that the Friedrichs case is about teacher choice; specifically, the right to work in a public school without fear of being fired for not joining a union or paying an agency fee. For them, the culprit is the California law that supports this practice. Speakers included teachers, legislators, and scholars. Their rally cry of “teacher choice” appeared on signs and in chants led by supporters throughout the rally.
I attended the rallies in front of the Supreme Court. I had a chance to listen to speakers at each rally, and even had the honor to speak to the group in support of Friedrichs and other teachers. At the conclusion of each rally, I walked away with three thoughts.
First, it is rare to see teachers (union or non-union) and school reformers stand in solidarity for a “choice” issue in education. Although the school reform camp includes plenty of teachers, polling data and research show that teachers often oppose school choice when it comes to charter schools, vouchers, or education savings accounts. But teachers, like parents who support school choice, want to have a “choice” about how to spend their money. The Friedrichs case shows that when it was about their own choice, teachers partnered with the school reform camp. Maybe this is a small step toward a better understanding of choice in action between teachers and reformers.
Second, Friedrichs is not an anti-union case, nor a pro-privatization scheme. People have the right to join a union to represent their interests. Even if the Supreme Court rules in favor of the plaintiffs, employees will still have the right to join a union, but the use of agency fees as we know it will change. Friedrichs is not pro-privatization; if anything, it is a pro-liberty cause because if the court rules in favor of the plaintiffs, teachers could decide for themselves what to do with their money and through which channels to fund political speech.
Third, the optics of each rally spoke just as much about class as they did education. Many of the pro-teacher speakers and supporters were white-collar educators and employees. In contrast, many of the pro-union speakers were blue-collar employees, though some were white-collar educators and employees too. Class dynamics are often overlooked in polite conversations about the politics of education, but they were prominent on Monday.
The Court will not make a decision on the case for some time, but as the justices weigh the evidence, they might look to Pierce v. Society of Sisters (1925) and Tinker v. Des Moines Independent Community School District (1969) for guidance. Here is why. The Court noted in Pierce that children are not mere creatures of the state. In Tinker the Court noted that neither teachers nor students “shed their constitutional rights to freedom of speech or expression at the schoolhouse door.” In light of this logic, aren’t teachers also more than mere creatures of the union? If so, shouldn’t teachers retain the power to control the investment of their salary consistent with their First Amendment rights? In deciding Friedrichs, the Court could extend the rationales for these decisions and give a victory to teacher choice.
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