Disappointing Friedrichs Decision Underscores Need for States to Act

Last Tuesday, the Supreme Court handed down a disappointing 4-4 decision in Friedrichs v. California Teachers Association, which with a fifth vote, would have secured the rights of teachers across the country not to be forced to support the teachers unions’ political causes as a condition of employment. Rebecca Friedrichs, the main plaintiff in the case, and her lawyers were hoping that the court would overturn an earlier case allowing public sector unions to charge non-members fees for union collective bargaining on the theory that employment bargaining is non-political in nature. In reality, when union contracts cover subjects such as taxpayer expenditures, class size and teacher tenure, teachers who disagree with union positions on those indisputably political issues find themselves forced to fund their political opponents.

Rebecca Friedrichs lives in California, one of at least 23 states that do not have laws on the books safeguarding public workers’ First Amendment rights through state law. In the nation’s 26 right-to-work states, public employees are able to opt out of paying dues to unions entirely. In non-right-to-work states, public employees can still decline to join the union, but they are usually still required to pay so-called “agency fees” to cover collective bargaining costs—fees that may still fund political positions opposed by those forced to pay for them.

Although the Supreme Court decision is a tremendous disappointment, it underscores the need to affirmatively protect these rights at the state level. States can prevent public sector unions from compelling workers to fund their political positions. In these states, unions must actually convince members that joining the union is beneficial, forcing union leadership to be responsive to the desires of members, rather than being able to count on the financial support of every employee, whether or not that person agrees with union action.

In addition to adopting a right-to-work law, states can also act to protect the free speech rights of public employees by disallowing public sector unions to automatically deduct dues from the paychecks of public employees, a solution that can even operate in non-right-to-work states. States can protect public employees by prohibiting a public sector union from automatically deducting dues from the paychecks of workers and allowing a deduction of dues or fees by a union only after yearly written consent is provided by the public employee. Governor Scott Walker pioneered this worker protection by working with the legislature to end the automatic collection of union dues for public sector workers as part of the Act 10 reforms, long before the state adopted its right-to-work law.

The Missouri Legislature passed legislation earlier this year that prohibits any public sector worker to pay union dues or fees to a labor organization. It also ends the automatic collection of union dues for public employees’ paychecks. The legislation does not prohibit unions or payments to unions by public sector workers—it simply requires that public employees opt-in to a system of automatic paycheck deductions for union dues. That legislation was promptly vetoed by Governor Jay Nixon and is now headed back to the legislature for a veto override attempt. A veto override vote is expected to take place within the next few weeks and will determine whether the free speech rights of public employees will be protected in Missouri.

The 23 states that have not taken legislative action to guard the free speech and association rights of dissenting teachers like Rebecca Friedrichs should follow the example of states that already have. Tuesday’s decision should accentuate the folly of waiting for the federal government or the Supreme Court to defend the rights of public employees who do not wish to support the union’s preferred political positions. As both Wisconsin and Missouri demonstrate, states can act to protect the free speech rights of public employees without relying on the Supreme Court.