Not For Members Only

Although educators and education officials frequently proclaim themselves to be staunch defenders of free speech, all too often, teachers’ unions, aided and abetted by school district officials can pose a danger to individual freedom.

“I think all of your clients are first amendment violations,” attorney Erik S. Jaffe said to a member of the School Boards Association in a Constitution Day seminar at the libertarian Cato Institute. “The federal government shouldn’t be running schools,” he continued.

“The state shouldn’t be running schools.” An attorney who specializes in first amendment cases and constitutional law, Jaffe knows whereof he speaks.

He summarized for the crowd at Cato the facts at the core of the Supreme Court decision in Davenport v. WEA. The WEA in the case is the Washington Education Association union that all public school teachers must pay dues to whether they want to or not.

“The state of Washington told the union they could charge a 100 % non-members agency fee,” Jaffe said. “The state told teachers they could get the difference back if they filled out a 40-page form within four to five days of making payment.”

Thus, teachers did not have to join the union but the state is a closed shop with the WEA recognized by its authorities as the sole bargaining agent for public school teachers. Since they were represented at the bargaining table when bargains were made, the reasoning goes, they had to pay for the privilege even if they never wanted it.

At the same time, though, a U. S. Supreme Court ruling nearly two-decades-old gives members the right to pay only that portion of their dues or “fees” that goes for collective bargaining so that they are not subsidizing political activity that they may or may not agree with.

The Supreme Court put the collective bargaining portion that members and non-members alike are on the hook for at about 80 % of dues or fees. “The state passed an opt-in amendment where the union had to show a breakdown of expenses and give non-members a chance to opt-out,” Jaffe related. “A Washington court overruled it because ‘it violates the union’s first amendment rights.’”

Dissident teachers felt violated by the court-ordered payoff. Ultimately, the Supreme Court ruled in the dissidents’ favor but in a manner which may prove problematic for teachers seeking redress from compulsory union political contributions in the future.

The Supreme Court overturned the Washington court decision, although in a bifurcated decision, “agreeing in part, dissenting in part,” Jaffe explains. Jaffe once clerked for Supreme Court Justice Clarence Thomas.

“The Supreme Court did the right thing for the wrong reasons,” Jaffe asserted. For example, Justice Scalia ruled against the WEA because he argued that its activity “corrupts elections.”

Malcolm A. Kline is the executive director of Accuracy in Academia.