Freedom Foundation
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Friedrichs, Freedom Foundation File Brief Asking Court To Ban Forced Agency Fees

The Freedom Foundation has submitted an amicus brief in partnership with Rebecca Friedrichs in support of a federal lawsuit that, if taken up by the U.S. Supreme Court, has the potential to extend right-to-work protections to all public employees in the country by establishing they can no longer be fired for refusing to financially support a labor union.

Friedrichs was the lead plaintiff in Friedrichs v. California Teachers Association, a case that asked the court to hold that forcing her to join a union if she wants to work in the state as a teacher violates her First Amendment rights to free speech and association.

The brief asks the court to hear Janus v. AFSCME 31, a similar case, but also requests the resulting decision include language making it enforceable.

“History has shown it’s pointless to issue a ruling that lacks a mechanism by which the losing party can be made to comply with it,” said Ray Nhan, litigation counsel for the Freedom Foundation, a free-market think tank that’s spent much of the past three years filing lawsuits against government employee unions in Washington, Oregon and California.

“That’s especially true when you’re dealing with labor unions,” he said, “which stand to lose billions of dollars if the court decides they can no longer compel people to pay for things they don’t want.”

Janus, he explained, mirrors Friedrichs,which the court considered in 2015. Unfortunately, with the justices seemingly poised to rule in Friedrichs’ favor, Justice Antonin Scalia died suddenly, leaving the vote deadlocked at 4-4 and upholding the 9th Circuit Court of Appeals’ decision against her.

With the confirmation this spring of Justice Neil Gorsuch, the court is once again at full strength and right-to-work advocates are encouraging the court to take up a case with similar ramifications, such as Janus.

“We believe there are millions of government workers who’d gladly decline to join unions and pay dues if they could,” Nhan said, “and they deserve a better fate than to lose on a technicality. This case needs to be heard and decided.”

At issue is a compromise reached in an even earlier court case, Abood v. Detroit Board of Education (1977). In that decision, the justices agreed unions cannot simply confiscate union dues and spend it to support candidates and causes the worker doesn’t agree with.

But rather than allow workers to disassociate themselves from the union entirely, the ruling only allowed them to opt out of their union’s political activities while still requiring a so-called “agency fee” to compensate the union for collective bargaining activities.

In her Supreme Court case, Friedrichs asked the court to overturn Abood, arguing that any action taken by a union whose members are paid with taxpayer dollars is, by definition, a political activity. Since she disagreed with many of the positions the union would take in bargaining, she contended that forcing her to subsidize the union in any way was unconstitutional.

Moreover, Friedrichs argued in her case that violating actual constitutional rights trumps the perceived “unfairness” of workers opting out of the union yet still working for a union-negotiated wage.

Because those questions were never fully resolved in Friedrichs, many of them are being revisited in Janus.

“The sad fact is that parents and educators no longer have a say in our public schools because teachers unions and the policymakers they help to elect have too much control over our education system,” Friedrichs said. “Wins for these cases could restore the voices of parents and teachers and aid us in doing what’s right for the children we love and serve.”

If the court follows the recommendations of the Freedom Foundation, Janus will not only give public employees the right to decide for themselves whether to join a union, but it will also outlaw a technique unions frequently employ to avoid complying with the law.

“When the courts started ruling against the unions,” Nhan said, “the unions started cooking up ways to get around the law.”

Among these are so-called “opt-out” schemes under which the union simply assumes every new employee wants to be a member and starts deducting dues from their paycheck without permission until he or she can navigate a complicated opt-out process imposed by the union.

“Teachers have paid significant dues to the unions,” Friedrichs said, “and the value isn’t always clear – especially when they support policies that don’t improve education for students. Public employees shouldn’t be forced to pay dues that support unions and politicians who don’t share our values.”

“Constitutional rights undermined by deceptive schemes are no constitutional rights at all,” the Freedom Foundation’s amicus brief states.

“If the court grants certiorari and overrules Abood without addressing this issue, the freedom granted to public employees will prove illusory. So long as opt-out schemes are legal, public workers’ First Amendment rights will remain elusive.”