By Gary Cohn
Last November unions won a resounding victory when voters defeated Proposition 32, a ballot measure that would have crippled labor’s political influence in California, partly by barring public-employee unions from using payroll-deducted funds for political purposes. The initiative, which enjoyed a huge lead in early opinion polls, was heavily funded by wealthy conservatives and far-right groups.
Union leaders were overjoyed by its defeat.
“You can’t buy California,” Dean Vogel, president of the California Teachers Association (CTA), told an election-night victory party in Sacramento. “We’re not for sale.”
The celebration hasn’t been long lived. In a little-noticed move in April, a conservative legal organization that has pushed to overturn the 1964 Voting Rights Act filed a lawsuit in federal court in Santa Ana that could accomplish in the courts what Prop. 32 couldn’t at the ballot box. The players behind the suit may not be household names but the millionaires and private foundations covering their legal fees represent a familiar klatch of extreme libertarians who, since the 1980s, have been attempting to move the country in a hard-right direction.
The main plaintiff, the Christian Educators Association International (CEAI), firmly opposes reproductive rights and marriage equality – two of the same movements opposed by Prop. 32′s various backers. CEAI also supports school voucher programs and the teaching of Creationism – also causes championed by some of Prop. 32′s supporters, who saw unions as an obstacle to imposing their political will on California when it came to these and other issues.
The lawsuit, known as Friedrichs v. California Teachers Association, challenges the constitutionality of laws that allow teachers’ unions to collect fees from teachers who don’t want to be members. The lawsuit also seeks to outlaw an automatic payroll deduction process, under which teachers who don’t want a portion of their fees to go for political activities must “opt out” of funding those activities. It claims that California’s “agency shop” law violates the First Amendment by compelling public school teachers to pay fees to teachers unions involved in political activities.
Comments made by the lawsuit’s supporters suggest that they are hoping for an ultimate victory before the U.S. Supreme Court that would be applied to all public-sector unions. Could this happen?
“It’s a little unclear from the papers the plaintiffs have filed,” says Jacob Rukeyser, a CTA staff attorney working on the case. “The novel legal theory they are using would directly affect public educators. Read broadly, it seems like a possibility that other unions could be affected.”
Nevertheless, at the very minimum the lawsuit would require teachers wishing to support their unions’ political activities to now “opt in” to fund them – a change whose largest practical effect would be to greatly reduce the unions’ money for political activities and to erode their influence.
“It would be a national Prop. 32,” says J. Felix De La Torre, chief counsel of the Service Employees International Union Local 1000, California’s largest state employee union.
Says Peter Scheer, executive director of the First Amendment Coalition: “For public employee unions, it’s the biggest thing to come down the pike in 20 years.”
The lawsuit’s supporters agree.
“If this lawsuit is successful, it conceivably could make California into a right to work state,” says Larry Sand, a retired middle school history teacher and president of the California Teachers Empowerment Network. “It goes beyond California – this case could be a huge deal. It would affect workers, union political spending and ultimately children because unions are the number-one impediment to education reform. This definitely could go further than Proposition 32.”
The lawsuit was filed by the Washington D.C.-based Center for Individual Rights (CIR) on behalf of CEAI and 10 California teachers. Besides the California Teachers Association, the suit names the National Education Association, 10 affiliated union locals and 10 local school officials as defendants.
“There is no Constitutional right to have mandatory public-sector bargaining,” says Patrick J. Wright, a senior legal analyst for the conservative Mackinac Center for Public Policy. “We think voluntarism is a better public policy because it enhances peoples’ freedom of choice.”
The plaintiff-teachers include case namesake Rebecca Friedrichs, who has been a public school teacher in Anaheim’s Savanna School District for 25 years. She resigned her union membership in 2012 and opted out of paying the portion of her fees that were earmarked for political-type activities, paying only the required base fee.
“But for California’s ‘agency shop’ arrangement, Ms. Friedrichs would not pay fees to or otherwise subsidize the teachers’ union,” the lawsuit states.
Michael Carvin, a partner at the Washington, D.C. firm of Jones Day and lead counsel for CIR in the lawsuit, said that the issue involves free speech rights. “Forcing educators to financially support causes that run contrary to their political and policy beliefs violates their First Amendment rights to free expression and cannot withstand First Amendment scrutiny,” Carvin said, according to a CIR press release.
However, John Logan, director of the San Francisco State University’s labor studies program, says that given the current ease with which employees can opt out, “The purpose of the legal challenge is not to protect the rights of individual employees. The real purpose is to diminish the political voice of public-sector unions.”
On this point Patrick Wright agrees with Logan.
“Obviously, the public policy impact is [that] people would be more free,” Wright says. “The practical effect of it would be a detrimental impact on public-sector unions’ abilities to influence political campaigns. Public-sector unions are some of the strongest supporters of the Democratic Party.”
Over the years the U.S. Supreme Court has generally upheld union practices that require public-sector employees to first pay dues and then opt out if they don’t support a union’s political activities. The practice was upheld in a two-decade old case known as Abood v. Detroit Board of Education. But in an unrelated 2012 case, the Supreme Court suggested that the high court’s earlier Abood decision may have been a mistake.
“Justice [Samuel Alito], writing for five justices, went out of his way to raise doubts about the Abood decision and, in effect, to invite a test case to overturn it,” wrote Peter Scheer in the Huffington Post. “The Friedrichs v. California Teachers Association lawsuit is an RSVP to that invitation.”
The Center for Individual Rights, Friedrichs’ legal sponsor, is backed by numerous right-wing foundations, including the Lynde and Harry Bradley Foundation, the John M. Olin Foundation, the Randolph Foundation and the Carthage and Sarah Scaife foundations (both controlled by ALEC-bankrolling billionaire Richard Mellon Scaife). If CIR’s lawsuit is successful, the relatively modest investment in backing the suit could accomplish what the $60.5 million effort to pass Prop. 32 could not – the erosion of public-sector unions as a political force. (Prop. 32′s opponents were forced to spend about $75 million to defeat that measure.)
Throughout its 20-plus years of existence, CIR has been best known for aggressively pursuing court nullification of affirmative action programs on campuses, most notably through 1996’s Hopwood v. Texas case, in which CIR successfully represented a white woman denied admission to the University of Texas Law School. More recently, it played a key role in 2003’s Grutter v. Bollinger case, in which the Supreme Court eventually upheld the student-diversity goals of University of Michigan Law School’s admission policies.
But CIR has also been at the center of the legal battle to overturn key provisions of the landmark Voting Rights Act of 1964. In LaRoque v. Holder, the firm targeted the same pre-clearance requirements governed by Section 5 of the law that were effectively gutted last month when the Supreme Court issued its decision in Shelby County v. Holder. Here in California, CIR went to bat on behalf of Proposition 209, the 1996 ballot initiative that effectively ended affirmative action in the Golden State and has defended Tea Party video provocateur James O’Keefe in an effort to strike down California’s anti-tape recording statute. And CIR has also represented right-wing columnist and ACORN apostate Anita MonCrief, in her countersuit against a civil suit for damages brought by the community-organizing group.
CIR’s primary client in Friedrichs, the Christian Educators Association International, is run by its executive director, former public school teacher Finn Laursen, from his home in Amherst, Ohio. Positioning itself as a professional teachers association and an alternative to membership in the National Education Association, the CEAI provides some union-like benefits for its members, such as professional liability insurance.
But CEAI also apparently offers its public school teacher members training in how to proselytize their evangelical beliefs to their students. In a video on the website for CEAI’s 40-day seminar in Minnesota called the Daniel Leadership Institute, Laursen says part of the group’s mission is to “change the public education system from within.” Elsewhere on the promotional clip, various California public school teachers are seen praising the retreat for teaching them “how we can share God’s love and truth with our students,” how “to bring them to truth,” and “how to express [the teachers’] Christian lifestyles and biblical values in the classroom.”
In response to a request for an interview, Laursen replied by email, “would love to accommodate, but I am at 40 day teacher training in the wilderness of MN with no phone access…just came out of woods for brief internet access.” He forwarded a copy of CEAI’s press release issued at the time the lawsuit was filed.
Although marbled with phrases about Constitutional rights and personal choice, the CIR lawsuit is clearly about more than the First Amendment. Friedrichs v. CTA comes at a time when California’s Republican Party is shrinking into electoral irrelevance, while at the same time many corporations are pushing Congress to nullify the state’s pioneering laws regulating workplace safety, consumer protection and the environment.
“What this litigation is trying to do by judicial decree is what Prop. 32 and many other ballot initiatives have failed to do,” says Catherine Fisk, a professor at the University of California at Irvine School of Law and an expert in labor relations. “It’s essentially an end-run around legislative or ballot initiatives by trying to get courts to decide what the California legislature and people of California, through their initiative process, have refused to do.”