Antonin Scalia

Supreme Court Justice Antonin Scalia died over the weekend, potentially affecting cases before the court, including an attempt to limit the financial reach of teachers unions. (Manuel Balce Ceneta / Associated Press)

Howard Blume
February 14, 2016

The death of Supreme Court Justice Antonin Scalia could deal a major blow to a California lawsuit that had been widely expected to weaken the financial muscle of teachers unions across the country.

In Friedrichs vs. California Teachers Assn., many court watchers had expected Scalia to deliver the deciding vote against unions, limiting their ability to collect membership dues and other fees. Without Scalia, a 4-4 split is considered likely. That would maintain the status quo — a huge win for unions, at least for now.

Though union opponents could mount a new case, that would probably take at least another year, said Jeffrey H. Keefe, a research associate at the liberal-leaning Economic Policy Institute.

“So the conflict shifts to President Obama’s ability to appoint a replacement or who will win the presidential election,” Keefe said.

The case was brought by Rebecca Friedrichs, an elementary school teacher in Orange County. She and nine other plaintiffs opted not to join their local teachers unions but were required to pay the union so-called fair-share fees because they benefited from representation in contract negotiations that determined salaries and benefits. These fees cannot be used to support the union’s political activities.

Friedrichs challenged the constitutionality of those fees, arguing that being forced to support an organization whose views they disagreed with violated their free-speech rights.

The plaintiffs also complained about a law that requires teachers to opt out of union membership every year. If they don’t, they become members by default, with dues automatically deducted from their pay.

Instead, the plaintiffs want the law changed so that teachers who wish to be union members would have to opt in every year. A similar change in Wisconsin contributed to a more than 50% decline in membership over the last five years in the Wisconsin Education Assn. Council, that state’s largest union for grade school educators.

In the past, Scalia had considered employees like Friedrichs to be “free-riders.” If these free riders didn’t have to pay the union for its work representing them at the bargaining table, no one would have an incentive to join.

That reasoning was enshrined in a unanimous 1977 Supreme Court case called Abood vs. Detroit Board of Education.

Since Abood, the legal and political landscape has shifted and polarized, said Trevor Burrus, a research fellow at the libertarian Cato Institute.

“Academics have built up a scholarly case against [fair-share] agency fees for public-sector unions. On the other side, those on the left believe that unions are a necessary foundation for a prosperous society, and, if anything, they should be expanded. There is no middle ground between these positions.”

Gloria Romero, a Friedrichs supporter and founder of California Center for Parent Empowerment, said that the case is fundamentally about limiting the flow of money to unions — and properly so. Union leadership does not reflect the views of many teachers, and unions block reforms that would benefit students, she said.

Dues and fees are the “main source” of union funds, she added: “It’s an autopilot infusion of cash. Until the money stream is stopped, there is no fair playing ground.”

When the case was argued before the Supreme Court in January, Scalia was “dubious about both the need to charge non-members a fee and the consequences [to unions] if the court were to strike down the fees,” wrote attorney Amy Howe, editor of the influential SCOTUSblog, after reviewing comments and questions from the justices.

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