By Ross Pollack.
On March 29, 2016, the Supreme Court issued a divided 4-4 opinion in Friedrichs v. California Teachers Association, thus upholding the decision of the Ninth Circuit Court of Appeals. The one sentence opinion belies the importance of the case, which only two months earlier appeared as though it would nearly certainly cripple public sector unions’ ability to collect funds. At issue in the case was whether a public sector union could charge agency fees (the equivalent of Union Dues) to employees who elected not to join the Union. The teachers who brought the case argued compulsory agency fees violated their first amendment rights to use money as free speech because the Union might spend the money on political or ideological causes the employees did not support. In its 1977 decision, in Abood v. Detroit Board of Education, the Supreme Court ruled that compulsory agency fees were constitutional. Following this precedent in Friedrichs, the Ninth Circuit found that the Union was allowed to charge compulsory agency fees. Since the Supreme Court did not issue a majority opinion, that ruling and the Abood precedent stand.
However, the outcome in Friedrichs does not mean the debate over the legality of compulsory agency fees has been resolved. The two previous Supreme Court cases illustrated that several Justices would like to change the current precedent. In 2012, writing for the majority opinion in Knox v. Service Employees International Union, Local 1000, Justice Alito suggested that with regard to compulsory agency fees, “our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate.” Next, in the 2014 Harris v. Quinn decision, Justice Alito used even stronger language to voice opposition to the precedent on agency fees: “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.” Union opposition groups took these decisions as a signal that the time was ripe to find a case that directly challenged the Abood precedent on First Amendment grounds.
Friedrichs became that case. The Supreme Court granted certiorari to hear arguments on whether compulsory agency fees violate the free speech rights of non-member public employees. Justice Scalia was considered to be the swing vote in this case until reports emerged that the questions he asked during oral arguments indicated he did not support the Abood precedent. The New York Times even ran the headline, “Supreme Court Seems Poised to Deal Unions a Major Setback.” However, after Justice Scalia’s sudden passing in February, the remaining justices were left deadlocked on the issue. Rather than let the case sit indefinitely until a new justice was appointed, the Court issued a divided 4-4 opinion, which by default lets the Abood precedent stand.
However, the issues of whether compulsory agency fees are constitutional has not been definitively settled. In confirmation hearings for the new justice, the public should expect to hear Senators asking questions that allude to this first amendment issue. Also, expect a case with similar facts to arrive on the Supreme Court’s docket once a new justice is appointed.