PUBLISHED January 2016
This case seeks to overturn Abood v. Detroit Board of Education (1977) where the U.S. Supreme Court that upheld the constitutionality of the payment of mandatory service fees in the public sector – so-called “agency fee” arrangements. In Abood, the Supreme Court concluded that agency fees in the public sector are constitutional so long as the “service charges are applied to collective-bargaining, contract administration, and grievance-adjustment purposes.” The Court drew a distinction, however, between such fees and compulsory fees for “ideological activity” by the union, which the Court concluded violated the First Amendment. California, like many states, permits agency fee arrangement in school districts, which requires teachers to either join the union or pay a “fair share service fee.”
The plaintiffs in Friedrichs attack the distinction in Abood, arguing that collective bargaining necessarily involves political speech by bargaining such matters as class size, and must therefore be subjected to the most searching level of judicial scrutiny. The two governmental interests noted in Abood – promoting labor peace and preventing “free riding” – arguably cannot withstand this scrutiny. According to the plaintiffs, Abood’s creation of an “exception” for collective bargaining speech is an “anomaly” that conflicts with First Amendment jurisprudence.