Unions on thin ice

The Supreme Court seemed ready to strike a blow to public-sector unions Monday as it heard arguments on a case from 10 public-school teachers and the Christian Educators Association International (CEAI) against the California Teachers Association (CTA). CEAI is a California-based association for Christian teachers in public schools, and six of the 10 teachers in the suit are members.

“There is a direct conflict between CEAI’s mission and the challenged agency-shop arrangements,” the plaintiff teachers argued in a lower-court suit.

Public-school teachers can opt out of paying for unions’ political activities through their union dues. Labor unions have consistently backed Democratic measures and candidates. The CTA, for example, spent more than $1 million to oppose Proposition 8, the measure in California that defined marriage between a man and a woman.

But teachers who opt out of the union’s political activity must still pay reduced dues, known as an agency fee, to cover basic union costs like collective bargaining. The teachers argue that the agency fee infringes on their free speech because it can cover related efforts like a public-relations campaign against merit-based pay.

They also argue that any bargaining for higher wages or the like affects the state budget and therefore is a matter of public policy. This isn’t theoretical: Public-sector pension costs, for one, have contributed to budget woes in places like Detroit.

The unions, along with the state of California and the federal government, argued the fees were essential for maintaining an orderly bargaining system with a single employee representative. U.S. Solicitor General Donald Verrilli Jr. said the court should not apply heightened constitutional scrutiny to such a basic employment arrangement.

But a majority of the Supreme Court seemed convinced of the Christian teachers' arguments Monday. The court is now considering overturning its 40-year precedent, set in Abood v. Detroit Board of Education, which said the agency fee did not infringe on free speech. Justices Anthony Kennedy and Antonin Scalia, two question marks on overturning Abood, seemed decidedly on the teachers’ side.

“The union basically is making these teachers compelled riders for issues on which they strongly disagree,” said Kennedy, who then launched into a statement that seemed a first draft of a philosophical Kennedy opinion. “Many teachers think that they are devoted to the future of America, to the future of our young people, and that the union is equally devoted to that, but that the union is absolutely wrong in some of its positions. And agency fees require … that employees and teachers who disagree with those positions must nevertheless subsidize the union on those very points.”

The solicitor general for California, Edward Dumont, responded that “many of [these decisions] are controversial, but we need to have concrete decisions with one group of employees represented by one union.”

“I sympathize with the need of the state to have an efficient system for dealing with its employees,” Scalia said, but added he did not think compelling the agency fee was necessary, since the federal employee unions function without it.

Kennedy was even more pointed with the union’s lawyer David Frederick over his argument that the agency fee was the only way to have a “reasonable system of management.”

“I suppose, Mr. Frederick, we could assume that a state is always benefitted, and is more efficient, if it can suppress speech,” he said. Kennedy called teachers in the unions “a whole class of persons whose speech has been silenced.”

Chief Justice John Roberts and Kennedy contended at different points that if employees really wanted collective-bargaining representatives, they would proactively join the union and pay the fee.

The case could significantly weaken public-sector unions, which have become the last bastion of organized labor in the United States. Private-sector unions have all but disappeared, but public-sector unions represent about 36 percent of government workers. The court’s decision will come sometime before the end of the term in June.