Expected but Disappointing: SCOTUS Splits on Important Union Tribute Case

Good afternoon, fellow policy nerds. I’m a little strapped for time today thanks to some exciting stuff going on at the Capitol. The drama surrounding the School Finance Act continues, and I’m going to be watching the second half of SB 148’s Senate Education Committee hearing. If you’ll recall, I’m sort of a fan of that bill. So is my policy friend Ross Izard, who took to the Denver Post to make the case for the bill. (Funny how often Ross’s and my viewpoints line up, isn’t it?)

Anyway, we don’t have much time to chat this afternoon, so today’s post will be a short one. That’s probably for the best; nobody likes to dwell on bad news.

Back in February, I wrote about what Justice Scalia’s tragic death might mean for some important education-related cases before the U.S. Supreme Court. I (and every other education wonk in the country) predicted then that the 4-4 split between conservative and liberal justices could spell serious trouble for the very important Freidrichs case, which deals with forced payment of “agency shop fees” by teachers. I wrote:

The most immediate ramifications of the tie vote rule work in favor of unions, and particularly the teachers unions. Tough questions asked from the bench during oral arguments in the Friedrichs case led many to believe that a decision against agency shop fees was all but inevitable. Such a decision would have been a significant victory for teachers and other workers forced to pay tribute to deeply political (i.e., Democratic) unions with which they disagree, and would have put a big dent in teachers union budgets in many states across the nation (though unfortunately not Colorado). Justice Scalia’s untimely departure has changed all that. A tie now seems unavoidable, which will result in the unions getting to keep their forced tribute payments for now. Ick.

Unfortunately, that prediction turned out to be accurate. SCOTUS did indeed divide 4-4 on the case, which means the lower court decision stands for the time being. Sadly, that lower court decision was to allow public-sector unions to continue collecting forced tribute fees from folks who have chosen not to belong to a union at all—even if those folks disagree with what the organizations stand for (and work toward) politically or philosophically. To demonstrate how big of a deal this case was, consider this: There are more than 90,000 agency fee payers in the National Education Association alone.

The good news is that the SCOTUS split does not create a legal precedent. The high court didn’t rule against Rebecca Friedrichs’ First Amendment argument. It simply didn’t reach a definitive conclusion one way or the other. That means the door remains open to try again. Thankfully, Rebecca Friedrichs’ attorneys have said that they plan to seek rehearing before SCOTUS. Whether or not that happens—and whether or not it leads to a victory for non-union teachers’ First Amendment rights—will depend on who ultimately winds up filling Justice Scalia’s empty seat.

In the meantime, I won’t say I’m not disappointed with this outcome. It was expected, but that doesn’t make it any less frustrating. I know I’ve said this before, but I really, really miss Justice Scalia.

If you want to read more about this case and why it matters, check out my friend Jason Bedrick’s helpful blog post on the subject. This little guy has to run. See you tomorrow!