October 19, 2017 2:46PM

The Myth of Public‐​Sector Unions’ “Free Rider” Problem

Last month, the Supreme Court’s agreed to review Janus v. American Federation of State, County, and Municipal Employees, Council 31 (Cato filed a brief in support of the plaintiffs). The case is a First Amendment challenge to the “agency fees” that must be paid to a public-sector union by non-members. As a matter of existing First Amendment law, no employee may be compelled to join a union or contribute money to fund a union’s direct political activities, such as political ads. In roughly 22 states (the 28 “right-to-work” states outlaw agency fees), unions may compel non-members to pay agency fees that (ostensibly) only reflect the cost of the union’s representational activities, such as bargaining over wages and working conditions. The agency fee is the product of the Supreme Court’s decision in Abood v. Detroit Board of Education (1977), in which the Court prohibited public-sector unions from compelling non-members to support political speech, but allowed for the compelled support of the union’s other “non-political” activities. 

 

The plaintiff in Janus—like the 2015 Friedrichs case that stalemated after Justice Scalia’s death (in which Cato also filed a brief)—claims that, for public employees, the distinction in Abood between “political” and “non-political” is illusory because the terms and conditions of public employment are inherently a matter of public concern. A teachers union negotiates with a school system over salaries and benefits packages, merit pay versus seniority, the standards for teacher evaluation, and the controversial “tenure” provisions that in some states make it nearly impossible to fire even serial abusers. Each of these represents a core, political issue in education policy, and a teacher who believes that, say, merit-based pay systems would improve the quality of teaching in the school system (where perhaps her own children may attend) can currently be forced to fund negotiations against it.

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July 6, 2016 9:52AM

Should Teachers Have to Pay for Gushing over Clinton? (Or Trump? Or Gary Johnson? Or…)?

At just about the same time FBI Director James Comey was discussing how “extremely careless” Hillary Clinton was with classified information during her time as Secretary of State, the president of the National Education Association, the nation’s largest teachers union, was tweeting this:

And this:

And doing this:

All of this, by the way, took place at the NEA’s national convention.


Now, is there anything wrong with a union endorsing and campaigning for a presidential candidate? Heck no! But there is a huge problem when teachers, as a condition of working at government schools, are required to furnish funds for those unions.


I know the response: The “agency fees” teachers in many states are compelled to supply only cover collective bargaining, which is not political. Of course, such bargaining is absolutely political—negotiating with government entities is inherently political — and somtimes coming in at 65 percent or more of full dues, a lot of agency fee money is almost certainly going to more than just collective bargaining and administrative stuff. And money is fungible. Dollars that free payers supply for collective bargaining ultimately frees up other bucks for, I don’t know, maybe straight‐​out politicking!


Sadly, as you probably know, the U.S. Supreme Court tied up on this 4 – 4 earlier this year, maintaining a lower court ruling that agency fees are not a violation of constitutional speech and association rights. But just because the Supreme Court stumbled doesn’t mean the political branches of government can’t act to end forced union funding. And from I saw on Twitter yesterday, justice requires that compelled support of unions end.

March 29, 2016 4:00PM

Public‐​Sector Unions Survive to Fight Another Day

This morning, the Supreme Court disappointingly, but expectedly, split 4-4 in Friedrichs v. California Teachers Association. With Justice Antonin Scalia’s untimely death, one of the likely blockbusters of the term turned into a terse, one-sentence opinion: “The judgment is affirmed by an equally divided Court.”

“The judgment” was the Ninth Circuit’s decision, which sided with the unions on the question of whether forced union dues for public-sector workers violate the First Amendment. At stake in Friedrichs was whether public-sector unions would continue to be permitted, under a 1977 case called Abood v. Detroit Board of Education, to take forced dues from non-members in order to fund the day-to-day activities of the union. In an alternate universe, one in which Scalia is still alive and sitting on the Court, Friedrichs would have almost assuredly overruled or severely limited Abood, essentially converting public-sector unions into “right to work” unions.  

The lack of a blockbuster decision in Friedrichs is one of the most significant immediate consequences of Scalia’s death. Few issues split the Court more starkly than unions, and there were clearly irreconcilable differences among the justices. Friedrichs was only argued on January 11, so the justices didn’t take too long to conclude that there was no way to decide the case with five justices in the majority, thus the thoroughly unsatisfying opinion today.

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March 29, 2016 2:22PM

Friedrichs Decision Is a Blow Against Educational Excellence

Today, an evenly divided Supreme Court affirmed a lower court's decision in Friedrichs v. California Teachers Association to permit unions to continue charging nonmembers "agency fees" to cover collective-bargaining activities that the union supposedly engages in on their behalf. About half the states require agency fees from public-sector workers who choose not to join a union.

Not only do agency fees violate the First Amendment rights of workers by forcing them to financially support inherently political activities with which they may disagree (as my colleague Ilya Shapiro and Jayme Weber explained), but the unions often negotiate contracts that work against the best interests of the workers whose money they're taking. For example, union-supported "last-in, first-out" rules and seniority pay (as opposed to merit pay) work against talented, young teachers. Moreover, a teacher might prefer higher pay to tenure protections, or greater flexibility over rigid scheduling rules meant to "protect" them from supposedly capricious principals.

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January 11, 2016 5:56PM

What if Compulsory Public‐​Sector Union Dues Violate the Guarantee Clause?

Today, the Supreme Court heard oral argument in Friedrichs v. California Teachers Association, a challenge to public-sector unions’ ability to extract forced dues from non-members. As my colleague Ilya Shapiro writes, and Ian Millheiser at Think Progress agrees, the Court seems poised to strike down “fair share” fees for public-sector workers who do not want to join the union. This would essentially mean that “right to work” would be constitutionally mandated for public-sector workers.

Such a ruling would correct a 40-year-old mistake the Court made in Abood v. Detroit Board of Education. There, the Court ruled that public-sector union dues can be meaningfully separated into the “political” and the “non-political,” and that, while the First Amendment forbids forcing people to support political causes with which they disagree, public-sector unions can extract a “fair share” fee for non-political purposes.

From the very beginning, this distinction was under attack. As Justice Lewis Powell wrote in concurrence in Abood:

Collective bargaining in the public sector is "political" in any meaningful sense of the word. This is most obvious when public-sector bargaining extends . . . to such matters of public policy as the educational philosophy that will inform the high school curriculum. But it is also true when public-sector bargaining focuses on such "bread and butter" issues as wages, hours, vacations, and pensions.

In other words, public-sector unions are just another political special interest that seeks favors from the government, and what they can’t get at the ballot box they’ll get at the bargaining table.

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January 11, 2016 9:04AM

Teachers v. the Union

In less than an hour, the U.S. Supreme Court will hear oral arguments in one of the most important cases of the year, Friedrichs v. California Teachers Association. The plaintiffs in Friedrichs are ten California teachers who are suing their union because they believe that laws forcing government employees to join a union or pay them “agency fees” as a condition of employment violate their First Amendment right to free speech, which includes the freedom not to speak, and not to be compelled to subsidize the speech of others.


SCOTUS has previously held that the agency fees may cover collective bargaining activities but not the unions’ political activities. However, as the plaintiffs argue, public‐​sector collective bargaining is inherently political. For example, more funding for teachers means higher taxes or less money for public parks, etc. The Cato Institute has filed an amicus brief in support of the plaintiffs, and several Cato legal eagles, such as Ilya Shapiro, Andrew Grossman, and Trevor Burrus, have already weighed in


Much of the constitutional analysis floating around the interwebs has focused on whether or not overcoming the supposed “free rider” problem constitutes sufficient grounds for states to grant unions the right to expropriate funds from non‐​members to cover collective bargaining activities that supposedly benefit them. Champions of free speech have generally attacked the other side’s strongest case, therefore their arguments assume that all teachers do, in fact, benefit from that collective bargaining, but that freedom of speech entails the freedom not to be forced to pay for someone else to advocate even on your supposed behalf. In an op‐​ed for the Orange County Register, however, Ilya Shapiro and I explain how collective bargaining can actually come at the expense of some teachers:

[E]ven if collective bargaining weren’t inherently political, it’s easy to see how workers could object to the supposed “benefits” negotiated on their behalf. For example, a teacher might prefer higher pay to tenure protections, or a defined‐​contribution pension plan – such as a 401(k) – to one that has defined benefits.

There are countless ways in which union‐​negotiated contracts or laws that the unions lobbied to enact can actually harm the interests of individual teachers. For example, “last‐​in, first‐​out” laws protect long‐​serving teachers regardless of ability at the expense of talented, young teachers. Worse, as we explain, such contracts and laws can harm the interests of the very children our education system is supposed to be designed to serve:

Collective bargaining also can come at the expense of students. When schools lack high‐​quality math teachers because the union contract requires they be paid the same amount as gym teachers, kids lose out. And when that contract has “last in, first out” (LIFO) rules that force a district to lay off a talented young teacher before a low‐​performing teacher with seniority, students suffer.


Last year, a judge in California struck down such tenure and LIFO rules after finding “compelling” evidence that making it hard to fire low‐​performing teachers had a negative impact on students, especially low‐​income and minority students. The judge pointed to research by Harvard professor Thomas Kane showing that Los Angeles Unified School District students who were taught by an English teacher in the bottom 5 percent of competence lose the equivalent of several days of learning in a single year relative to students with average teachers.


“Indeed,” the judge concluded, “it shocks the conscience.”


Sadly, the deleterious effects of collectively bargained tenure rules can be serious and long‐​lasting. In a 2012 study of more than 2.5 million students, Harvard professors Raj Chetty and John Friedman and Columbia professor Jonah Rockoff found that students who had just a single year in a classroom with a teacher in the bottom 5 percent of effectiveness lose approximately $50,000 in potential lifetime earnings relative to students assigned to average teachers.

If the Friedrichs plaintiffs win, it won’t solve all these problems. Some states will still have LIFO rules, teacher salary and benefits schedules, or related matters enshrined in statute. Nevertheless, if the Friedrichs plaintiffs prevail, it will mean that district school teachers will no longer be forced to support advocacy that they believe works against their interests or the interests of their students. In the long run, less funding for such advocacy may well translate into fewer policies that come at the expense of some teachers and students. Ultimately, a win for the plaintiffs in Friedrichs would be a victory for teachers and their students.

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.

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