Justice Clarence Thomas stayed mum, as usual, but all eight of
his colleagues got into the act two weeks ago when the Supreme
Court heard argument in the case of a teachers union. When oral
argument ended at noon, most observers probably thought the
union's luck had run out with the clock, but these things are
tough to call.
The facts are not seriously in dispute. In the state of
Washington, 70,000 public school employees work under an agency
shop contract. All but 3,500 of them belong to the Washington
Education Association (WEA). The 3,500 non-members, by law, must
pay the union a fee equal to their share of the demonstrable
costs of collective bargaining. They are entitled to a rebate
equal to the union's per capita outlays for other,
non-chargeable, expenditures.
The system sounds simple, and in theory it is. In practice,
the WEA is understandably unwilling to disgorge a single penny it
has collected from the "fee payers." These are the scabs whom
willy-nilly the union must represent. Thus, for a non-union
teacher to "opt out" of a non-germane outlay -- say, for the cost
of soft drinks at a union picnic -- the union lawyers have made a
rebate procedure as difficult as they can devise. The rebates,
per capita, are penny-ante. Between 1996 and 2000 they ranged
only from $44 to $76 a year. In principle, they're large.
Seven years ago the free-spirited Evergreen Freedom
Foundation, the National Right to Work Legal Foundation and the
Washington State Public Disclosure Commission combined in suits
against the union. The plaintiffs won in a trial court, where
Judge Gary R. Tabor hit the WEA with a $600,000 judgment. In
March of last year, the free spirits lost in the state Supreme
Court. Their appeal followed to the U.S. Supreme Court.
The case was argued Jan. 10 before Chief Justice John Roberts
and his colleagues. It was not a great argument, but it was a
good argument. Robert M. McKenna, the Washington state attorney
general, was joined by U.S. Solicitor General Paul Clement on
behalf of the non-union plaintiffs. John M. West of Washington,
D.C., representing the union, argued vigorously that the "opt
out" procedure unconstitutionally burdens the union's First
Amendment right to engage in political advocacy.
Justice Anthony Kennedy asked about the First Amendment rights
of non-union teachers. West said these teachers "certainly have a
First Amendment right not to be compelled to finance political,
ideological and other non-germane expenditures over their
objection." Their rights, he insisted, are "fully protected."
Kennedy nodded agreeably.
West continued: "When there is the availability of a ready
means for opting out of the participation in financing these
causes, there is no compelled speech."
Kennedy stopped nodding. He seemed to be wondering how "ready"
are these "ready means" in practice, but he let it go. After a
few minutes, he returned with another question: "You want us to
consider this case as if the First Amendment rights of non-union
members were not involved?"
"Absolutely not," West insisted. Non-members have an "absolute
right" to prevent the use of their funds for any kind of
political speech "simply by sending in a letter."
Justice John Paul Stevens was openly skeptical: "So it's a
First Amendment right that is waived by failing to make a timely
objection?" It's not that a right is waived, said West, but
Stevens persisted: "It's gone under your theory."
In the concluding minutes of oral argument, Justice Samuel
Alito joined in expressing concern for the rights of teachers who
have chosen not to join the union: "Isn't it overwhelmingly
likely that if you spoke to them and you said, 'Would you like to
give money to the union to spend on elections,' they would say
no?"
"I absolutely disagree with you," said West. "It's not asking
them to make a contribution. It's asking them, Is it OK with you
if your money is used for this purpose?"
Alito asked, "What's the difference between asking, 'Would you
like to make a contribution," and 'Would you like to allow us to
use (your) money that we possess for our purposes rather than
returning it to you'?"
"Well," said West, "whether there is a difference or not, the
point is the union is using this money for purposes that it has
every reason to believe are in the interest of the vast majority
of teachers."
Roberts: "Surely they get to make that decision, don't
they?"
Counsel's response appeared to be "yes and no," an answer that
earlier provoked laughter in the courtroom. Justice Kilpatrick,
meaning me, left the press benches thinking that the union's
counsel had done his best -- but his best wasn't quite good
enough. |