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.