Teachers vs Union

Teacher Jeff Leer's first-person account of his trip to Washington, D.C. is up on the Alliance for School Choice blog, edspresso:

As I stood shivering in the frigid morning air, my mind scrolled back to all the events that have transpired to bring me to this moment. In particular I remembered a conversation I had with a seasoned veteran teacher at my school who told me that the wheels of justice turn slowly, but they do turn. My reminiscing was brutally interrupted by the cutting wind that was blowing at 5:00 a.m. as I held on tightly to my cup of coffee, hoping to suck out every ounce of heat I could. Here I was standing with a number of teachers on the steps of the Supreme Court of the United States, hoping to get a seat to hear oral arguments in a case that had it origins some 14 years ago....

From the Snoqualmie Valley Record:

Beryl Griner, a Snoqualmie Valley School District teacher, and her husband Dan Griner, a retired Carnation teacher, recently returned from Washington, D.C., where they attended a pivotal U.S. Supreme Court hearing Jan. 10 that directly affects thousands of Washington teachers.

At issue was whether the First Amendment right of unions to speak on behalf of its members trumps the free speech rights of nonunion members who do not want to pay for the union's politics but who are forced to pay for collective bargaining. The consolidated cases are Davenport v. Washington Education Association and Washington v. Washington Education Association. The Court has not issued a decision in the case.

The Griners - members of Northwest Professional Educators, a nonunion professional educators organization offering many of the same benefits of unions such as liability insurance and legal services - joined teachers from around the country to advocate for individual teachers' free speech rights not to fund union politics they do not support.

From columnist James J. Kilpatrick:

Justice Clarence Thomas stayed mum, as usual, but all eight of his colleagues got into the act two weeks ago when the Supreme Court heard argument in the case of a teachers union. When oral argument ended at noon, most observers probably thought the union's luck had run out with the clock, but these things are tough to call....

Seven years ago the free-spirited Evergreen Freedom Foundation, the National Right to Work Legal Foundation and the Washington State Public Disclosure Commission combined in suits against the union. The plaintiffs won in a trial court, where Judge Gary R. Tabor hit the WEA with a $600,000 judgment. In March of last year, the free spirits lost in the state Supreme Court. Their appeal followed to the U.S. Supreme Court.

In his closing statement of oral arguments AG Rob McKenna nailed it with this line:


MR. MCKENNA: The State of Washington's position is that non-members should not be required to say no twice. They said no when they chose not to join the union. The union's position now is, well, we get to use your money for political purposes unless you say no a second time. That does not seem to be a reasonable default position to take. P 49


“Should not be required to say no twice” is really just a lawyer’s way of saying “No should mean No.”


Lots of people understand this concept and why it is so important.


The National Education Association’s website even features a column with this line:


“"No” means “no way, no how.” In some cases, legal action might be necessary.”


For once we couldn't agree more with the NEA. We just wish they would agree with themselves.

Teacher and longtime friend of EFF, Jeff Leer, is featured in an Everett Herald article:

A Lake Stevens teacher recently got a first-hand view of U.S. Supreme Court proceedings in Washington, D.C., as it heard a dispute involving the Washington Education Association, the state teachers' union.

"It was absolutely worth every goose bump," said Jeff Leer, a member of Northwest Professional Educators. Leer, a health teacher at North Middle School, doesn't belong to the WEA. But it represents him as part of collective bargaining.

Nonunion members can't be forced to pay for the union's political activism, the court has ruled, but they can be charged a fee for labor negotiations.

"No one should have money taken from their paycheck to pay for someone else's politics," Leer said.

Allison Hayward, an assistant professor of law at George Mason Law School, attended the oral arguements and posted some coments on her blog, Skepticseye.com. Here is an excerpt:

No Fur Flying

The argument in Davenport was engaging and worrisome. I fear that if the Court adopts an election integrity” rationale for the opt-in dues requirement, that could open an entirely new area of regulations applicable to the private internal arrangements of groups. Unions here argue that they are being singled out - but unions in general are singled out in the law since they have the capacity to collect agency fees from nonmembers in the first instance. The Junior League or Chamber of Commerce can’t come by your house and force you to pay dues.

I predict the Washington Supreme Court’s decision will be reversed,….

Justice Alito asked the best question, I think, which was along the lines of “If an opt-in requirement isn’t that burdensome and these people aren’t members anyway, how is it that the First Amendment tolerates anything except an opt-in requirement.”

Solicitor General Clement tried to distinguish “compulsion” as in not being able to object, with needing to assent in order for the unioin (sic) to use your money. He got a little bogged down in what standard a court might look at to determine whether the union’s “consent” procedures were sufficient.

The whole point, of course, is that people are busy and unions may not be completely straightforward about providing a process for oppting-out (sic). One could argue that if there’s such a record, a state could decide to protect nonmember political association interests by enacting something like Washington’s law.

Also, Rick Hasen, law professor at Loyola Law School, author of “The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore,” and editor of Election Law blog posts on the case and says he “would not be surprised to see a 9-0 reversal (though perhaps multiple opinions).”

Supreme Court Times Blog

The editors at the Supreme Court Times Blog posted some blurbs on the case and they follow in part.

Davenport v. WEA will go for Davenport

A public sector union collects money from nonmembers, as required by a collective bargaining agreement backed up by a state statute. The state statute says the union can spend the money for political purposes only if the nonmember first "affirmatively authorizes" it. The union wants to spend the money first, subject to a possible refund later on. The Supreme Court of the State of Washington ruled in favor of the union, saying the statute requiring nonmembers to "opt in" was a violation of free speech.

I have previously said I thought the state court was wrong in this case. Davenport v. Washington Education Association - Review granted. Therefore, I expect a reversal from the US Supreme Court and a loss for the Washington Education Association. [Details, briefs, etc.]

Davenport v. Washington Education Association - Review granted

Can a state tell a public-sector union that it has to get non-members' consent before it uses "fair share" fees for political purposes?

Further down in the post:

The Supreme Court of Washington held (State ex rel Public Disclosure Commn v. Washington Educ Assoc (Washington 03/16/2006) (6-3) Majority opinion Dissenting opinion) that this requirement is a violation of the 1st amendment.

My view:

I think the Washington court was wrong. To the extent that unions have 1st amendment rights of their own, the states probably have the power give individuals added rights that impair the union's rights somewhat. I thought the Washington court exaggerated the burden on the union….

More goodness from the oral arguments transcript:


JUSTICE KENNEDY: You want us to consider this case as if the First Amendment rights of non-union members were not involved? (WEA attorney John West)
MR. WEST: Absolutely -- absolutely not, Justice Kennedy. We recognize -
JUSTICE KENNEDY: But that's been your whole argument so far.
MR. WEST: Absolutely not. I'm sorry, Justice Kennedy, but that's certainly not what I intend to be saying. We recognize that the non-members have First Amendment rights. We also recognize that those rights are protected by the Hudson procedures which the union uses. The non-members have the absolute right to prevent the use of their funds not only for this kind of electoral speech but for any kind of political ideological speech and other nonchargeable activities with which they disagree simply by sending in a letter.
JUSTICE STEVENS: So it's a First Amendment right that is waived by failing to make a timely objection.
MR. WEST: Well, it's not that a right is waived. What it is -
JUSTICE STEVENS: It's gone under your theory. P38-39


JUSTICE ALITO: Explain to me the thinking of somebody who chooses not to join, the 5 percent who choose not to join, and yet they would like to make this contribution. Now maybe there's some, but what would be the thinking of such a person? P 40


JUSTICE ALITO: I still don't understand the thinking of these hypothetical people. If I'm a union member, I get various benefits. If I choose not to be a union member, I don't get those benefits. Why would I choose to give up the benefits of union membership and yet want to allow the union to spend my money for its political purposes? P 42


The union never provided a good answer to Justice Alito's question. Maybe the union should write a book about their difficulties.

An editorial from the Pittsburgh Tribune-Review:

A case argued before the U.S. Supreme Court last week could rewrite labor law and redefine minority rights for the smallest minority on Earth....

"We are very comfortable saying there is a strong likelihood the court will uphold the law," says Michael Reitz, legal counsel of the Evergreen Freedom Foundation, a nonpartisan free-market think tank in Washington state. The case originated in 2000 when the foundation filed a complaint against the union on behalf of nonmember teachers. He expects a decision by June.

Oral arguments had some sweet questions/comments by the Justices (transcripts available here). If you haven't taken a look, it's well worth your time.


Here are some of my favorites:


JUSTICE KENNEDY: And absent some direction that we have to consider this as only being for a, for purposes of election transparency, it seems to me that Washington acted quite properly in saying we will use this mechanism in order to protect our workers' First Amendment constitutional rights. P 25


JUSTICE SOUTER: And you're saying (Editor's note: referring to WEA attorney John West), first you said well, segregating the funds does not answer the problem. And I thought the reason it didn't answer the problem was that the, that it was, that the purposes of the, of the act were underinclusive. And now you're responding to Justice Ginsburg by going back to making the assumption that the segregated funds would be the union's funds. P 29-30


JUSTICE SCALIA: Here is the Government acting as a coercer. It's because of the Government that you're allowed to get this money from these non-union members.
(WEA attorney) MR. WEST: Well, I don't believe the Court has ever put it quite that way in the Government speech cases, the Government funding cases. P 31-32


JUSTICE STEVENS: Could you just tell me yes or no, and then explain?
MR. WEST: Certainly. Well, the answer is yes and no. The answer is, if you're talking about - (Laughter.) P 33


If you have any favorite lines, feel free to post them. I'll have more later.


Note: This is not an attempt to provide stunning legal commentary, for that see fine posts by Ryan here and here.

A hard-hitting article from the Columbian's Elizabeth Hovde:

"...But thanks to state attorney generals past and present, along with several determined teachers and right-to-work organizations, the question is now before the U.S. Supreme Court. Early surmise says individual teachers will win this round, not the union....

...(T)he Legislature and the WEA should be motivated to end the legal wrangling once and for all by making union dues optional in Washington state. No one should be required to pay a union to work as a school employee. It's undemocratic. With optional unionism, the WEA would have more freedom over how it spends its dollars. And if the union is as valuable to school employees as it boasts, it won't have any trouble getting people to sign up. It could lobby for all the campaigns and candidates it wanted without ever being accused of hijacking employees' wages for off-base political purposes."

D.C. was a great place to visit, and being a part of this Supreme Court case was an honor. I've been sick the past few days, but wanted to share some pictures from the trip.

From Kristen's camera:
We actually saw cherry blossoms in January!

The Supreme Court (with Labor Policy Analyst Ryan Bedford on the steps).

Labor Policy Director Mike Reitz, NWPE Executive Director Cindy Omlin, and the aforementioned Ryan Bedford on the steps of the Supreme Court.

A fun picture Ryan took of me.


As teacher Jeff Leer said, "If 'equal justice under the law' is really what the court is all about, then we win!"


About thirty of our teachers went on a tour of the Capitol after the Supreme Court hearing on Wednesday. The Capitol rotunda, in which several deceased presidents (Abraham Lincoln was the first, and Gerald Ford the most recent) and great persons have laid in state.



The view of the Washington Monument from the Capitol steps.

Early in the proceedings, a dispute arose in which Justice Alito questioned how the Washington State Supreme Court could determine the voter’s intent when they passed I-134.

JUSTICE ALITO: Well, how can the State Supreme Court determine what is the
purpose, the intent, of the ballot initiative?
MR. MCKENNA: I'm not certain, Your Honor. They referred to the-
JUSTICE ALITO: A lot of people voted for it.
MR. MCKENNA: Right.
JUSTICE ALITO: But is the State Supreme Court in a position to determine why they voted for it?
MR. MCKENNA: They simply hold, Your Honor, in their opinion that this is what the voters intended.
JUSTICE ALITO: How do they know that?
MR. MCKENNA: I don't know how they know it, Your Honor.

The question posed to Attorney General McKenna required him to perform a difficult task; explain, from a legal and logical standpoint, a political ideal that six justices haphazardly stuffed into a legal opinion. Consider also that the majority waited until one of their number retired and then gave her the task of writing the opinion. Why didn’t one of the five currently sitting justices in the majority write the opinion? Were they afraid of voter backlash?


Regardless, the answer to Justice Alito’s question is simple. The first part of the answer, he gave himself, “A lot of people voted for it.” In the case of I-134 an overwhelming 72 percent of voters approved it.

What then, did voters vote for? In this case, we must refer to the “Intent” language of the initiative.

PART I
Findings and Intent

NEW SECTION. Sec. 2. INTENT. By
limiting campaign contributions, the people intend to:
(1) Ensure that individuals and interest groups have fair and equal opportunity to influence elective and governmental processes;
(2) Reduce the influence of large organizational contributors; and
(3) Restore public trust in governmental institutions and the electoral process.

Sec.2.(1) says it all and, as applied to this case, implies that Washington state voters intended to give individuals a fair and equal opportunity to influence elections. This naturally includes protecting their First Amendment rights by prohibiting them from being forced to contribute, or not contribute, to candidates and causes they disagree with.


The Washington State Supreme Court is often called upon to interpret voter intent, but little re-interpretation is needed when the initiative specifically included intent language.

This is my favorite picture so far...although I think we have a few hundred left to go through.


WA state Attorney General Rob McKenna has just come from oral arguments and is preparing to speak at our press conference. He is surrounded by some of the teachers whose First Amendment rights he has just defended from the WEA.


Any caption ideas? Below, I've included some I just came up with, but I know there are genius caption-making people reading this blog. Amuse us or make fun of the ones I came up with.


I'll even send the writer of the best caption a T-shirt based on this cartoon. Rest assured it's pretty rockin.

With those gloves on, I personally think AG Rob McKenna looks ready to defend the First Amendment rights of teachers against the union, without waiting for the Court's ruling.

With those gloves on, I think AG Rob McKenna may have told the WEA attorneys to meet him by the flagpole after oral arguments.

Does AG Rob McKenna look like a boxer right here, or is it just me?

Don’t make him take the gloves off.

Rest assured, the gloves came off in the courtroom.

As promised, here's Round 2 of pictures...

EFF Communications guru Booker T. Stallworth, Joe Lehman (from the Mackinac Center), EFF CEO Lynn Harsh, and Davenport attorney Steve O'Ban discuss.

A teacher asks a question at our night before the case meeting.

And there was much discussion.

So we went to the airport to get video footage of the arriving teachers (which I accidentally recorded over later - but don't tell my boss), so all we really got was this lousy photo.

We also went to the Lincoln memorial on Tuesday night (the day before the case) for a segment that will be included on the outtakes of our DVD and we also got to see how gorgeous D.C. is at night.
Teacher Gordon Kenney walks down the Supreme Court steps after the conclusion of oral arguments.

Lynn and teacher Jeff Leer. In black and white, because we can.

Many thanks to the teachers who gave up their time to let the Court know it needs to defend the Free Speech Rights of All Workers.

Statue outside the Supreme Court. I think it's Lady Justice.

EFF President Bob Williams explains EFF's role in the case to the media.

We did not just gather for our own amusement. Camera crews know the power of pictures.

EFF Policy Analyst and Chief Organizer Kristen Mercier. The person most responsible for coordinating the arrival and accommodations of 40+ attending teachers.

God bless the Red, White, and Blue and the 1st Amendment rights of individuals it protects

With those gloves on, I think AG Rob McKenna may have told the WEA attorneys to meet him by the flagpole after oral arguments.

Former National Teacher of the Year Tracey Bailey in the court plaza.

It's all in the sign.

Kristen asks teachers for their reactions to the arguments.

Bob and Cindy Omlin, the Executive Director of Northwest Professional Educators head down a Heritage hallway to do a media conference call.

Two in-state editorials support Attorney General McKenna and the rights of non-union teachers. Excerpts below.


Seattle Times Editorial
For dissident teachers, the right to limit dues

"In the Washington Education Association case argued Wednesday at the U.S. Supreme Court, most of the justices seemed to side with Washington Attorney General Rob McKenna, who was representing the rights of the dissident teachers. So do we.


"The case has been portrayed as an attack on unions. It really is not. It has no effect on any union's right to spend its members' money on politics. It is only about nonmembers' money.

"If the union wants to ask nonmembers to donate to a cause, it should be free to do so — but it should not complain that having to ask is an unfair burden, or that it limits its freedom of speech."

The Spokesman-Review takes on the union's self-applied label as a "professional organization" and blasted it for thuggish behavior.


Spokesman-Review Editorial
Dues and don'ts: Union should ask nonmembers before spending
"As recently as the 1970s, leaders of Washington's largest teachers union disputed that label, and members recoiled from it. The Washington Education Association considered itself a professional organization, devoted to instructional quality. A union? No way.


"But times have changed, and nobody would practice that artifice today, not with a straight face. WEA is clearly a union, and its aggressive use of nonmembers' dues for
political causes has come before the U.S. Supreme Court.


"'The state of Washington's position is that nonmembers should not be required to say no twice,' McKenna told the justices during oral arguments.


"That's reasonable. If WEA wants the political use of money from people who don't want to be part of WEA, it's only fair to expect the organization to get permission in advance. If that's too burdensome for WEA, WEA should be willing to do without.


"That's how a professional organization would act."

The Washington Times
Restore workers' constitutional rights

"Despite the fact that 43 percent of voters from union households cast their ballots for President Bush in 2004 (according to a national exit poll commissioned by the Los Angeles Times), labor unions have routinely directed more than 90 percent of their political expenditures to the candidates and causes of the Democratic Party. Of course that's outrageous. However, what has been happening in the state of Washington is even more outrageous. So much, in fact, that the Supreme Court of Washington state has turned the First Amendment upside-down.

"The U.S. Supreme Court should restore the constitutional rights of nonmembers by overturning the Washington Supreme Court, thereby requiring unions to obtain permission from nonmembers before their fees can be used to finance causes they likely oppose."

The cases will be discussed on C-SPAN today.


ON AMERICA & THE COURTS
Washington v. Washington Ed. Assn. The Supreme Court hears oral argument in Washington v. Washington Education Association. The Court will decide if states can require labor organizations to ask non-union employees permission to use fees paid to the union on political activities.


Tune in to C-SPAN or visit c-span.org at 7PM ET/4PM PT.

At one point during oral arguments, Justice Ginsburg asked WEA attorney John West, “Is this all hypothetical, Mr. West, or is there any empirical evidence about what the people who are non-union members, if they had their druthers, would they say not a penny more goes into the union till than we are forced to put there? Is there any empirical evidence that divides up the universe of people who don't, deliberately don't join unions?”

Mr. West responded, “No. Justice Ginsburg, there's a lot of speculation on both sides. I don't think there's any empirical evidence, but there is plenty of reason to think that there are many reasons that people choose not to join the union, whether from a free rider motivation, whether from just not being a joiner, any variety of reasons. Some of them may be….” At which point, Chief Justice Roberts interrupted. Oral Transcripts, page 42-43.

Upon hearing Justice Ginsburg’s question, I wondered whether she or Mr. West had taken note of page 14 of EFF’s amicus brief where we give evidence that, when given a choice, teachers generally choose not to contribute to union PAC’s. On page 14, Justice Ginsburg can read the following:

"The enactment of the Fair Campaign Practices Act forced the WEA to stop requiring a member donation to the WEA-PAC unless the union first received affirmative consent to the donation from the member. Prior to the enactment of the law, approximately 82% of the WEA membership donated to the WEA-PAC and only 18% affirmatively opted out. Opting out required an affirmative action by the union member, causing that member to stand out from his or her colleagues, potentially bringing unwanted attention and pressures to the member. However, after removing the pressures imposed by the opt-out system, member participation in the WEA-PAC dropped to between 11% and 18%."

"Such results are not unique to Washington. After enacting similar laws, member participation in PACs in Utah fell from 68% to 7%,31 and participation in Idaho fell by 75%.32 When informed of their right to opt-out of union political contributions, the number of members opting out in Colorado increased four-fold."

"Thus even those who elected to become union members, who can reasonably be presumed to share many of the WEA s political views (at least more so than those who opted not to join), when given a choice free of the coercion and exposure endemic to the opt-out system, chose not to support the political activities of the WEA."

While this evidence is not directly on point to her question, Justice Ginsburg can clearly see that teachers, when given a choice, do not contribute to union PAC's. She should also consider that, even in states where teachers are not forced to pay dues (Utah and Idaho are Right to Work states) and are thus 100 percent voluntary members, teachers overwhelmingly choose to opt out of union political spending.

Justice Ginsburg can interpret the massive trend to opt out of union PAC contributions as one of two things: Either 1) teachers, by and large, do not support union politics, or 2) the majority of teachers say, as Justice Ginsburg put it, "[N]ot a penny more goes into the union till than we are forced to put there."

However, one interpretation is more likely than the other. Given the fact that 80 to 95 percent of teachers choose to opt out of PAC spending, but only a small percentage choose to resign from their union and become agency fee payers, we can assume that the "first" option is the case; that teachers, by and large, do not support union politics.

CAVEAT: This analysis does not take into effect the efforts of some unions to bully teachers into remaining full dues-paying members instead of becoming agency fee payers. Teachers report that some union officials use confrontational techniques and play on fears of legal liability by threatening to remove them from legal insurance policies provided by the union. These activities, in part, prevent some teachers from opting out as agency fee payers.

We were busy and we have the photos to prove it. Enjoy.

The night before the case, EFF Communications Director Booker T. Stallworth explains what will happen the next day.

Teacher Jeralee Smith enjoys the proceedings (and wisely brought a scarf).

Just a cool picture.

EFF CEO Lynn Harsh with Congressman Cathy McMorris.

"Free speech for All Workers." That's the case in one picture.

Labor Policy Analyst Ryan Bedford. Looking surprisingly alive for having been up all night giving teachers rides from the hotel to the steps of the court.

Teacher Bruce Gallagher on the left.

Lynn talks to the media.

Joel uses Labor Policy Center Director Mike Reitz to demonstrate his mad picture taking skills.

Attorney General Rob McKenna after a successful round of argumentation before the U.S. Supreme Court.

EFF President Bob Williams prepares to address the media.

Rob and Bob. Surrounded by teachers, former National Teacher of the Year Tracey Bailey addresses the media.
Random cameraman regrets his lack of gloves and hat. I'll bet he ended up with really chapped lips too. The banner says "No Forced Union Dues for Politics!"

After oral arguments and our press conference, Davenport attorney Steve O'Ban gives his thoughts to teachers while they eat lunch at the Heritage Foundation.

At the Heritage Foundation.

Gorgeous - did I mention Joel Sorell is a great photographer?

As a believer in freedom, I'm convinced Abe would applaud our efforts for worker freedom.

Flags are at half-staff due to the passing of former President Gerald Ford.

More to come...