Bench Memos

Why Friedrichs Matters

By the time a case finally reaches the nine Justices of the U.S. Supreme Court who will sit in judgment and decide its fate, the dispute has likely been stripped of any of the distracting stuff of life and personality—whittled down to the bare bone of just a clean legal issue or two for the lawyers and Justices to gnaw on.

Understandably, then, it is easy to forget the real consequences, the real harms that are often suffered by the men and women who wait patiently behind the cases and controversies that the Court must resolve.  But remember we must.

When the Supreme Court hears oral arguments in Friedrichs v. California Teachers Association today, the Justices will consider the distilled question of whether Abood v. Detroit Board of Ed. was wrongly decided, whether it is so out of step with the Court’s First Amendment jurisprudence that it must finally be overruled.  Such questions may sound academic and esoteric, but the petitioners who brought suit nevertheless seek redress for real-world violations of their First Amendment freedoms of speech and association.  They stand in the stead of a minority of public employees throughout the country—teachers, healthcare providers, police officers, and many more—who suffer the loss of their First Amendment freedoms every time the law compels them to contribute their own hard-earned money to unions that bargain and campaign “on their behalf” for causes in which they don’t believe.  

In my own state of Ohio, Jade Thompson, a Spanish teacher in Marietta, Ohio, took to the Columbus Dispatch over the weekend to share her own unfortunate experience with the Ohio teachers’ union.  Ms. Thompson had not appreciated the extent to which her union actively engages in state and local politics.  She “became keenly aware,” however,

several years ago when the local teachers’ union president began sending emails from my school’s ‘list-serv’ openly campaigning against my husband’s candidacy for the Ohio House of Representatives. Here were detailed emails and glossy, expensive-looking campaign materials opposing my husband, endorsing his opponent, and telling my colleagues and me how to vote in the next election. My union dues were helping to pay for it. 

Spurred by this unpleasant experience with her union representatives, Ms. Thompson discovered how active unions can be politically, and she came to understand what many fail to appreciate.  “[U]nion politics is not confined to campaigns, November elections and glossy brochures,” writes Ms. Thompson. 

Many teachers do not understand that when their unions negotiate for more benefits or larger pensions, they are bargaining for more of the community’s public assets.  They are making political demands and striking a political bargain. And when the union pushes for seniority systems rather than merit systems — as they did in the Reynoldsburg and Strongsville City Schools — the deal they strike is a political one that affects all the students and parents in the school district.

Ms. Thompson echoes the experience and lament of another teacher, Harlan Elrich, who recently explained in the Wall Street Journal why he formally joined with the Friedrichs petitioners.  Mr. Elrich has been teaching math in California’s Sanger Unified School District for thirty years.  He recounts the time he received a phone call from a union representative: 

It was a ‘survey,’ asking teachers whether they would vote for so-and-so if the election were held tomorrow. I disagreed with every issue and candidate the union was promoting. After that conversation, I thought about what the union represents. Eventually, I realized that my dues—about $1,000 a year—went toward ideas and issues that ran counter to my beliefs.

But Mr. Elrich has taken a stand not only for himself and his own ideas, but out of sincere concern for the students that count on him and his colleagues day-in and day-out.  “The union also negotiates policies on discipline, grievances and seniority that make it difficult—if not impossible—to remove bad teachers,” Mr. Elrich explains.  

Over three decades I’ve seen my share of educators who should be doing something else. One example that sticks with me involved a colleague whom everyone, students and faculty, knew was incompetent. All on campus knew that he was biding his time until retirement. . . . Students were relying on this teacher for an education, and he did not deliver. Yet he could do exactly as he pleased because the union had negotiated protections based on seniority. Sometimes the very teachers who shouldn’t be in the classroom are protected from layoffs thanks to seniority rules, while slightly younger but more competent colleagues are given the ax—again, thanks to collective bargaining.

Jade Thompson and Harlan Elrich are just a couple of examples of the public employees who have had to sit by silently for far too long as state laws forced them to pay for collective bargaining that too often made them worse off than if they had no representation at all.  To refuse to pay is to be fired.

Over the past few weeks, some on the Left have tried to denigrate Friedrichs as just another anti-union campaign that will harm middle class workers.  Others have colored the case as part of the “vast right-wing conspiracy.”  But the Friedrichs case is nothing of the sort. 

Rather, beneath all of the legal rhetoric that the Court will hear today, stand real men and women with real rights and freedoms that have been violated and ignored.  A victory for Rebecca Friedrichs will be a victory for them, too.  And it would do the Court and the country well not to forget it.

Robert Alt is the president and chief executive officer of The Buckeye Institute.

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