5:45 AM, Jul 12, 2017 | By Alice B. Lloyd
Bhavini Bhakta loved her union—until she got to know it. As a fifth-grade teacher in southern California’s Monrovia Unified School District, she put her trust in her local chapter. But after Bhakta’s principal had to fire and rehire her six years in a row because of a nonsensical seniority law, she eventually learned that her state-level union was to blame: They jealously guarded the last-in, first-out rule that had forced her district to pink-slip her year after year. Bhakta, all of 35, has since changed districts and become a vice principal; back in Monrovia, between her consecutive firings, she was voted her school’s teacher of the year.
Three years ago, she testified in Vergara v. California, a civil rights case alleging the tenure rule that led to her dismissals unfairly disadvantaged students in the low-income districts where engaged and service-minded young teachers tend to start their careers. A lower court ruled in the plaintiffs’ favor, but the decision was overturned by the Ninth U.S. Circuit Court of Appeals. Shortly after, a new case related to the union dollars that support the tenure rules cropped up—this one, Bain v. CTA (California Teachers Association), lists Bhakta among its plaintiffs. Seeking a new way in the aftermath of Vergara to redress her union’s unfairness, she embraced Bain’s arguments. “It was as though they peered into my head and made a case out of it,” she told me in a downtown Washington, D.C. coffee shop last week.
Bain is currently awaiting an argument date from the Ninth Circuit, and it’s significantly different from the usual case that gets branded anti-labor and pinned on evil billionaires. For one thing, its four plaintiffs are all union members. “The union very easily claims this case is backed by right-wing corporate billionaires. No, this policy’s about teacher evaluations,” Bhakta said, invoking Vergara, which in victory would have seen teachers evaluated on more than their staying power. For another, the case has a narrow goal: To allow union members to opt out of the fraction of their dues that goes to lobbyists who defend the seniority rules upheld in Vergara, and to do so without losing the benefits of union membership.
There’s a key distinction between this and union cases tackling the thorny question left unresolved in Friedrichs v. California Teachers Association, which split the Supreme Court 4-4 after Justice Antonin Scalia’s death early last year. Friedrichs asked if workers’ compulsory union membership amounted to unconstitutional “compelled speech”: a matter that could be revisited and decided now that the High Court includes Scalia’s replacement, Neil Gorsuch.
The plaintiffs in Friedrichs defined all public sector union activities, from collective bargaining to overtly political lobbying, as ideological expressions unfairly hoisted on workers, so everything a union does with workers’ money is “compelled speech.” Bain, meanwhile, hinges on a much finer point. Approximately 40 percent of union dues known as “non-chargeable fees” goes toward lobbying and legislative work—but the “chargeable” 60 percent should be enough, Bain argues, not just to retain one’s teaching job but also to keep the benefits of being a CTA member, like representation and fully paid maternity leave. As it stands, if you opt out of the non-chargeable fee, “You lose membership, you lose benefits, you lose collective bargaining rights, you lose voting rights,” said Joshua Lipshutz of Gibson Dunn, which represents the organization sponsoring Bain, Michelle Rhee’s StudentsFirst. “You still have to pay the 60 percent that goes to collective bargaining,” as a paid public employee, or else you’re a “free rider.”
Bain’s boundaries of “compelled speech” are narrower than the norm. And compulsory speech is a slippery concept to begin with, making Friedrichs-style absolutism—that collective bargaining is political spending too—easier to reason. Forced participation in a political view or ideology, as a condition of keeping one’s job or holding onto to a valuable benefit, violates the First Amendment. As does any unwilled political or ideological expression. For example, if you think D.C. statehood is a dumb idea but have to register your car in the nation’s capital, where the standard license plates complain about “Taxation Without Representation”—or if you live in New Hampshire but don’t want “Live Free or Die” on your tags—you have options. According to a Supreme Court precedent passed down in 1977, the DMV that fails to offer an uncontroversial alternative is depriving you an unalienable right.
And so is the teachers’ union that takes a slice of every member’s paycheck to fund lobbying efforts at odds with individual teachers’ actual interests. Abood v. Detroit Board of Education passed down this precedent, also in 1977. A decision that has formed the precedential backbone of American labor law for 40 years, Abood preserved the union shop. But the Burger Court reserved for members ideologically or politically opposed to union policies or programs the right to opt out of funding these objectionable activities, provided the dissenters made their objection known.
A victory for Friedrichs—or since last year’s 4-4 tie, a victory for similar cases Janus v. AFSCME or Hill v. SEIU—would overturn Abood. But a Bain triumph could, theoretically, uphold that landmark decision by firming up the First Amendment protections it provided. Bain’s four plaintiffs are teachers who want a stronger and more representative labor union. They’re not interested in opting out altogether or disempowering Big Labor for ideological reasons: They simply wish to hold their state and national labor leaders to a higher standard. “If Bain is successful, then the unions like any other organization would only be able to get money to support the causes that the teachers actually want to support,” Lipshutz said. “Far from undermining the unions, it would give them more credibility among their rank and file.”
Bain is a rarity among so-called union cases, which typically arise in defense of non-union members who resent having to support activities they oppose. If, for instance, the Supreme Court finds in one of the Friedrichs-like cases that all public sector collective bargaining is political—because public sector pay is taxpayer money—Bain’s argument that only non-chargeable fees are coerced political speech won’t hold up anymore.
“It is a radical argument that they’re making, and it is a hard one,” said the Pacific Legal Foundation attorney Deborah J. La Fetra, who authored an amicus curiae brief supporting the plaintiffs in Friedrichs and will for Janus and Hill as well. If either or both of those two succeed, Bain could seem a logical next step, she added. “People who await Bain would actually gain a better position if we’re successful in Janus and Hill. Then, they’re trying to push a little further.”
It’s after a total reversal of Abood that Bain would be really important, Lipshutz told me. “A victory for Friedrichs or in a similar case will make the situation worse,” he said. If a 5-4 ruling declares the requirement that workers pay union fees unconstitutional—and according to the pessimistic pro-labor position, it’s not an “if” but a “when”—more unions would make the payment of “non-chargeable” fees a conditional requirement for employees seeking those benefits beyond collective bargaining. Unions compelling workers to fund their lobbying activities, as Bain argues CTA does, would be the new standard. Ironically, Bhakta’s case wouldn’t arrive at philosophical currency until Abood’s overturn has already made the practices she protests were practically the law of the land.
With the National Right to Work Foundation as busy as ever at the state level, and multiple Friedrichs repeats in the pipeline ahead of Bain, the Supreme Court will most likely reconsider Abood before Bain can ever hope to get its day in the sun. In the meantime, Bhakta remains the friendly public face of anti-labor union members. Just a teacher asking for more honest representation from CTA, she doesn’t want her union shop disempowered. But, in the long term strategy for systematically dismantling the blob, Bain comes in at a later stage, when it’s time to start hacking off the blob’s regrown tentacles.