September 1, 2015 9:53AM

Hotel California: Teachers Union Edition

If a teacher opts out of her union, but the union refuses to hear it, did she really opt out?

Even where state lawmakers have passed "right-to-work" laws legally enabling teachers to opt out of paying union dues, the practical ability to opt out is far from guaranteed. In Michigan, for example--where dues can cost up to $640 a year--the teachers union surreptitiously created new bureaucratic hoops for teachers attempting to opt out.

In an apparent effort to make it even more difficult or even stop school employees from exercising their right under right-to-work to not pay union dues or fees, the state’s largest teachers union has quietly set up an obscure post office box address to which members must send the required opt-out paperwork. It's P.O. Box 51 East Lansing, MI 48826.

Based on a letter the Michigan Education Association sent to members who had tried to get out, and discussions with some of them, resignation requests sent to the regular union headquarters address will not be honored.

An extensive search of the union's websites found references to the post office box address on just one page of MEA's main website, and on one affiliate union’s website. There is no record of this post office box address existing before this month. In the past, union members who wanted to opt out just had to send notification to the address of the MEA's headquarters in East Lansing.

The MEA had previously restricted the union dues opt-out period to the month of August until a judge ruled that the restriction was illegal. As reported in Michigan Capitol Confidential, about 5,000 teachers left the MEA last year despite the obstacles.

The MEA's "Hotel California" policies may be in jeopardy as the U.S. Supreme Court is preparing to consider a challenge to the state of California's compulsory union dues law, which has the potential to end similar laws across the country. Unions claim they require the legal authority to compel nonmembers to pay dues to prevent them from "freeriding" on the union's collective bargaining efforts. The U.S. Supreme Court previously upheld state laws granting unions the ability to force nonmembers to pay "agency fees" (the equivalent of dues) to cover their collective bargaining activities, but forbid them from compelling nonmembers to pay their blatantly political activities.

However, as Ilya Shapiro and I explained in July, the collective bargaining activities of public sector unions are inherently political. Compulsory dues laws therefore compel citizens to pay for speech with which they might disagree as a condition of employment. That has clear First Amendment implications which the Court will address in Friedrichs v. California Teachers Association:

As the Supreme Court has held countless times, the freedom of speech includes the right not to support someone else's speech. Unions shouldn't be able to force nonmembers to finance their activities just because the union thinks they'll benefit. As the court noted in Harris, "preventing nonmembers from freeriding on the union's efforts" is a rationale "generally insufficient to overcome First Amendment objections."

Even if SCOTUS refrains from striking down compulsory dues laws entirely, at minimum the majority should make the blatantly political portion of the union dues opt-in rather than opt-out. The law should not presume that nonmembers consent to political spending.

For more information, read the Cato Institute's amicus brief in Friedrichs v. CTA.