Lawyer for Rebecca Friedrichs plans to file for rehearing in challenge of teacher union fees

By April Bamburg | Apr 8, 2016

WASHINGTON – The fight over agency shop laws that require teachers to pay union dues is far from over, despite a split decision in the case of Rebecca Friedrichs et al., v. California Teachers Union. 

On March 29, the U.S. Supreme Court issued a split verdict in the case, more than a month after the death of Supreme Court Justice Antonin Scalia on Feb. 13.

“We’ve looked at cases going back to 1947, where a Supreme Court Justice has died or retired during deliberations, and in that situation, the court has held over the case,” Terry Pell, president of the Center for Individual Rights, told the Northern California Record. “We believe that last week’s decision is part of the court’s procedure to allow this case to be reheard.”

Both parties have the option to petition for a rehearing. Pell said that they do plan to file a petition asking the Supreme Court to rehear this case. The split decision by the remaining eight Supreme Court Justices holds no precedential weight, Pell said. If the court does decide to rehear this case, the decision could still be a year away.

The legal argument presented by Friedrichs’ lawyers, including Pell and Michael Carvin of Jones Day, was that collective bargaining is negotiation about inherently political topics, particularly the best use of tax dollars. Pell said that the teachers union conceded this point, and it was not a point of contention. The question is whether teachers should be required to support the positions of the union, even if these positions go against their personal beliefs.

“In the collective bargaining system, the individual is not free to decide for themselves,” said Pell. “For a smoothly running system, the view is that they should support the union’s position.”

State agency shop laws, which require public employees to pay union dues as a condition of employment, violate well-settled principles of freedom of speech and association. Friedrichs’ lawyers argue that teachers should have First Amendment protection when it comes to union negotiations, because collective bargaining is inherently political.

Friedrichs is one of 10 plaintiffs who filed a lawsuit in 2013 asking the courts to overturn state law that required teachers to pay union dues, or agency fees, despite the fact that Friedrichs is not a member of the California Teachers Union. On Dec. 13, 2015, the U.S. District Court for the Central District of California issued a judgment in favor of the California Teachers Union. On Jan. 26, the Center for Individual Rights petitioned the Supreme Court to hear the case.

“We believe the court will hold the petition until a new Supreme Court Justice is confirmed, at which time they will consider the petition and the case may be re-docketed,” Pell said.

Before Scalia’s death, a ruling was not expected in this case until late June, the end of the term.

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