Seeing an opening to weaken public-sector unions, a conservative group is asking the Supreme Court to strike down laws in California, Illinois and about 20 other states that require teachers and other government employees to pay union fees, even if they are personally opposed.
Suing on behalf of an Orange County elementary school teacher, attorney Michael Carvin called the case "a challenge to the largest regime of state-compelled speech for public employees in the nation," according to his appeal filed at the high court last week.
Carvin, a former Reagan administration attorney, also launched the pending lawsuit against President Obama's healthcare law, which could unravel the insurance subsidies for about 5 million Americans who receive coverage through the federally run exchange. That case will be heard March 4.
His latest case targets the California Teachers Assn. and the National Education Assn. Plaintiff Rebecca Friedrichs and several other California teachers say they object to paying about $650 a year to the union.
"I am not a member of the union, and I'm opposed to forced fees and forced unionism," she said in an interview.
Her case could pose a major threat to public-sector unions whose clout grew in the 1970s after the high court upheld laws requiring all employees who benefit from collective bargaining to contribute to the union. Although teachers and other public workers may refuse to pay dues used to support a union's political activities, they can still be forced to pay a so-called "fair share" fee that covers operation costs.
But twice in the last three years, Justice Samuel Alito has written opinions dealing defeats to public unions and hinting the court may be prepared to strike down those forced fees. The "bedrock principle" of the 1st Amendment, Alito said last year, is that "no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support."
Alito spoke for a 5-4 majority last year that said Illinois may not force state-funded home healthcare aides to pay union fees. In 2012, he rebuked a service employees union in California for collecting a special election-year fee from worker Dianne Knox and others who objected.
Conservative activists took note. "When we read Alito's opinion in Knox, we saw it as an invitation to bring the 1st Amendment back to the Supreme Court," said Terry Pell, president of the Center for Individual Rights, a conservative legal advocacy group. His group funded the Friedrichs suit in federal court in California, fully expecting to lose there. A federal judge and the 9th Circuit ruled for the CTA and rejected the challenge.
But the aim was to get the issue squarely before the high court in hopes a conservative majority would overturn the 1977 decision in Abood vs. Detroit schools, which upheld "fair share" fees.
Pell is convinced "compulsory union dues" will not survive. "The free rights of teachers are being violated every day by powerful and politically partisan unions," he said. "This case is about restoring the basic constitutional rights of teachers and other public employees to decide for themselves whether to support the unions' agenda."
Laura P. Juran, acting chief counsel for the CTA, said she will urge the court later this month to turn down the appeal. "This is no surprise. They have said from the start they want to go to the Supreme Court and overturn decades of settled law," she said.
She said the required fees are justified because the union has a legal duty to represent all the employees, whether or not they are members. "We have to process grievances for everyone, and everyone benefits from a wage increase," she said. "That's the reasoning underlying Abood."
At least 24 states have "right to work" laws, which forbid forced-fee arrangements for unions. They include all the Southern states, most of the Great Plains, and more recently, Republican-controlled states in the North such as Michigan and Indiana. The Democratic-dominated states in the North and West have maintained pro-union laws.
Justice Elena Kagan argued that since this issue is being fought in the political arena, the high court should stand aside. She wrote a sharp dissent last year for the court's liberal bloc and jabbed at Alito for pressing the issue.
"Readers of today's opinion will know that Abood does not rank as one of the majority's top-ten list of favorite precedents…and that majority could not resist from saying (and saying and saying) so," she wrote. "The good news out of this case is clear: The majority declined the radical request" to overturn Abood.
Her dissent suggested the court's five conservatives had come close to barring forced fees for public employees but stopped just short of doing so. It is not clear why. Chief Justice John G. Roberts has been wary of overturning precedents, and Justice Antonin Scalia has backed the idea that unions have a legal duty to represent all the employees. If so, he said, the "fair share" fees make sense.
The appeal in the California case should settle the matter. If the court turns it down this spring, it will signal that union fees have survived.
Catherine Fisk, a labor law expert at the UC Irvine Law School, said if the court were to strike the forced-fee law, unions would have to try harder to win the support of the workers. "They need to convince the employees that paying dues is worth it," she said.
She said the court is likely to deny the appeal in the teachers case. "I think there may have been five justices to overturn Abood [last year], and they lost a vote," she said. If so, the conservative justices probably would not vote to revisit the issue.
But she said anti-union groups such as the National Right to Work Committee and the Center for Individual Rights have had a major effect. "They bring one case after another, year after year, chipping away at labor law. Over time, they've made a dramatic change," she said.