July 30, 2016 - Freedomain Radio - Stefan Molyneux
27:40
3367 Supreme Court Controversy | Friedrichs v. California Teachers Association
The Center for Individual Rights had been representing Rebecca Friedrichs and nine other California teachers in a lawsuit against the California Teachers Association - arguing that forced union association and dues payments are illegal. The case made it all the way to the United States Supreme Court.Lead plaintiff Rebecca Friedrichs has taught for twenty-six years and says, “the union has become what it used to fight - a powerful, entrenched organization more focused on self-preservation than educating children and protecting teachers.”The CTA has used millions of dollars in compulsory dues to become one of the most powerful political organizations in the state of California - promoting issues with which many teachers fundamentally disagree which highlights the compelled speech inherent in mandatory union membership of any kind.Stefan Molyneux speaks with plaintiff Rebecca Friedrichs and lawyer Terence J. Pell about the nature of the Friedrichs v. California Teachers Association case, the likelihood of victory, the consequences of forced association and what this means for government unions nationwide!Terence J. Pell is President of the Center for Individual Rights: https://www.cir-usa.orgRights for Teachers: https://twitter.com/Rights4TeachersFreedomain Radio is 100% funded by viewers like you. Please support the show by signing up for a monthly subscription or making a one time donation at: http://www.freedomainradio.com/donate
This is Stefan Molyneux from Freedom, Maine Radio.
Back to chat about a contentious and challenging Supreme Court, I guess you could say, decision, if you could put it that way.
We have Terence Pell.
He's the president of the Center for Individual Rights, which you can find at cir-usa.org.
And Rebecca Friedrichs, who is a teacher who has been working for yeoman's years on this particular issue.
Thanks so much for joining us today.
Thanks for having us.
So for those of us who didn't watch our previous conversation, can you give us some background on the impetus and principles behind the court case that has been wending its way to the top of the pyramid for quite some time?
Well, we were challenging the laws in 23 states that require all public employees to pay union dues, even in cases where they do not support what the union is pushing for.
In our view, compulsory union dues violate the First Amendment.
Unfortunately, although it looked like we were going to win in January, a month later Justice Scalia passed away and we lost the fifth vote that we had for our side of the case.
We then petitioned the court to hold the case over until a new justice could be appointed next term.
But last week, the court denied that petition.
So the case is effectively over, although we're free to file a new case, which we obviously will consider seriously doing once we see what the new Supreme Court looks like.
Right.
The idea that you're forced to pay for collective bargaining is challenging, I think, on First Amendment grounds, but there seemed to be an odd decision floating around legally, which was something like this, and perhaps you can help me sort of unpack it.
It's something like, well, it's fine if you disagree with what the union is doing in your own mind.
However, you cannot act upon it by refusing to provide them the funds to pursue a political agenda that you don't agree with.
In other words, you can have a thought crime against the left, but you can't actually act on it.
Does that make any sense to anyone?
Like you have freedom of speech, but you can't speak in public and you can't have a newspaper and you can't act on it in any way whatsoever.
Well, it makes very little sense and in fact runs counter to over a hundred years of case law and tradition in which the Supreme Court has repeatedly held that if the First Amendment means anything, it protects people's right to express their point of view it protects people's right to express their point of view even when that point of view is unpopular or runs counter to what the state favors.
So, look, during the Vietnam War, the Supreme Court upheld the right of high school students to wear black armbands.
The court didn't say, as the school officials had hoped it would say, well, these students are free to disagree with the Vietnam War in their own mind.
The court correctly held that if speech means anything in a democracy, it means people expressing their point of view so that others can hear it.
And we have a tradition in this country of broadly protecting expression, We generally do not let the government silence speech or silence the expression of speech based on the point of view being expressed.
That's the key point here.
The government has to remain neutral between all points of view and allow the citizens themselves to make up their own mind on the basis of what they actually hear, not on the basis of what the government wants them to hear.
And there seems to be a question about the political activism of unions.
Now, from the outside, it looks to me like unions are inherently political.
They're not just out there saying, well, we'd like some additional parent-teacher days.
We'd like a little bit of pay, some more benefits and so on.
I mean, they seem to be using their legal crane to scoop up vast amounts of resources from their members and generally pump them nine times out of ten to the Democratic Party, which is a very political approach.
They're not politically neutral.
The idea that, from the union perspective, I'm sure it's something like this.
They say, well, don't be a free rider.
We're out here collectively bargaining.
On your behalf, we're raising your standard of living.
We're getting you more time off.
We're getting you better benefits, more job security.
If you don't pay for that activity, you're kind of being a free rider.
My understanding is it's not that collective bargaining with regards to salaries and so on that is the major contention.
But rather the degree to which forced union dues are being applied to political causes that go against the wishes of many members.
Well, I think that what we're challenging is not just the overt political expenditures, the contributions to the Democratic Party.
Public employees can already opt out of at least a portion of those direct political expenditures.
What we're talking about is the political agenda the union furthers through its collective bargaining.
When a local teachers union negotiates for higher salaries, it's basically arguing for a bigger slice of the tax pie going to education rather than, say, parks or libraries or any other thing that local officials might decide is important.
That's a political issue.
Many public employees agree with the union's priorities, but some teachers and some public employees do not, and they should be free to not have to financially support the union's political agenda that it pursues even during collective bargaining.
So I think it's across the board.
As you say, the unions are very political.
They're not just political in their affiliation with the Democratic Party.
They're also pursuing a political agenda during collective bargaining.
And that's what we think individuals have a right to decide for themselves whether they want to support or not.
I'd like to add a little bit to that if I could.
And that is that what the unions do with the money that they say is overtly political, the portion that we are permitted to opt out of, is they place People in office who are on the union side.
So then you have, during collective bargaining, they use the money that's supposedly for collective bargaining, and they're bargaining with people who agree with the union.
So you have the union on both sides of the table.
And that's highly political.
So no matter how you slice whether the money is overtly political or part of collective bargaining, it's all political.
And then they take very political stances.
For example, this last in first out is a collectively bargained decision.
So when layoffs come, Whoever is the last one hired is the first one fired, even if it's the teacher of the year.
That's political.
That's bad for children.
So those of us who are forced to fund these ideas, for many of us, we're funding things that go against our very moral integrity.
So it's very troubling, whether it's politics or collective bargaining.
To what effect did the death of Justice Scalia, in a sense, predetermine the outcome of the latest or the last round?
Well, we had five votes, and when Justice Scalia died, we had four votes, and that made it into a split decision, a 4-4 tie vote.
And in those circumstances, it means that the existing law remains in place.
And in this case, the existing law, we feel, violates the First Amendment.
So essentially, the death of Justice Scalia meant this was a lost opportunity.
We had In our hand, the opportunity to fix this problem once and for all, and we lost that opportunity.
So we will now be looking for another case, another opportunity, to get the issue back before the court.
I mean, the reality is that there are Tens of thousands of public employees are highly dissatisfied with the political agenda of their union.
They don't want to support it.
And under the First Amendment, they shouldn't have to support it.
So we will look for a legal remedy.
If we can't find a legal remedy or we're unsuccessful in pursuing a legal remedy, then I think it's likely that we will see situations like we saw in Wisconsin several years ago where public employees pursue a legislative fix.
And with the result being that it's a highly contentious, you know, very divisive fight before the state legislature to try to trim back and make the union more accountable to the actual wishes of its individual members.
Either way though, either in the courts or through state legislatures, this problem is going to get fixed eventually.
And can I add to that as well?
Please.
When Justice Scalia died, that was a very rough day for myself and for all the folks out there that have been following our case.
And what I want to say is We all worked very hard to gain a voice.
We were all voiceless.
We've been voiceless for decades, ever since we've been forced to fund these unions against our will.
So we finally were able to get out there and make our voices heard.
And so we were all so full of hope.
And so what I've noticed from sort of the boots on the ground perspective is since Justice Scalia died and since our petition for rehearing was denied that there are a lot of people out there who are feeling hopeless today so the reason I wanted to add this is I just want to say to those people I'm in this for the long haul I'm going to keep fighting I may not have a case in front of the court anymore and my fellow plaintiffs don't as well but I'm in it for the long haul and I hope and hope and
pray That your listeners out there are in it, too, because we need their help.
So we'll just tackle this from a different angle.
Looking at it from the outside again, it seems to me that the Supreme Court has one job, and that job is to adjudicate where other courts have failed to resolve the issue.
It seems strange to me that when you have one job, you know, like you go to the barber and say, can you cut my hair?
And he says, no, I'm not going to cut your hair.
It's like, well, then why are you a barber?
And the idea that the Supreme Court, which is responsible for adjudicating what to be adjudicated outside of the Supreme Court, the sort of last port of call for decision-making, says, well, we're not going to really make a decision.
And not only are we not going to make a decision right now, but you can't even refile when the Supreme Court vacancy has been filled.
That seems so overtly political that I don't even know really how to process it.
Well, I think the problem that we've got right now is the two sides on the court are politically very divided.
And while there are certain issues that they can decide together and reach a compromise and it sort of all works out, there are some issues where one side of the other just simply refuses to give.
And that's what we have here.
We have four votes on one side and four votes on the other.
Until there's a ninth justice, the court really can't function.
I mean, you're absolutely right about that.
So, look, democratic institutions are imperfect.
Sometimes they take time.
This is an example where we should have had a decision in hand by now, but we're going to have to wait.
The way it may be worth it, though, because at the end of the day, we will get an authoritative decision from the court, and it will be binding, and the country will respect it, and that's, you know, when the court works, it works very well, and sometimes we just have to wait for that, and that's the situation we're in right now.
What does the non-precedential per curiam opinion mean, the idea that their decision sets no precedent?
That seems very against the sort of common law traditions of the West.
Well, if there were a majority of justices for one side or the other, there would be a precedent and it would be binding.
But since there aren't, it's really essentially a null decision.
There's no decision.
The court can't make a decision under these circumstances.
So existing law remains in place until the Supreme Court is able to act.
Now, the situation that came up recently in Chicago, Joseph Ocala, math teacher and chess coach, he seemed to get heavily penalized.
So there was a strike with the Chicago Teachers Union on two dates.
And he said, look, I want to show up for the kids.
It's bad for the kids if I'm on strike.
And I think his chess team actually won some championship, probably partly as a result of his dedication to his children and their education.
Or his students and their education.
And he got kicked out of the union.
Is that not a violation of freedom of movement, of freedom of employment?
How does that relate to what you guys are up to?
Well, you know, I'd love to take that one.
I can so relate to Joseph Foucault.
I cannot wait to meet this man.
I'm trying to find him.
He is the perfect example of why teachers like myself and public sector employees across this country are so discouraged that we are forced to fund organizations that run Totally, completely against our moral code, our beliefs, even just our commitment.
So Joseph Foucault is committed to these low-income students who probably would have no other opportunity to do so well in chess.
They've won and been recognized at a national level for their chess playing skills.
Imagine what that's doing for their brain power and for their futures, the connections they're making.
What a great teacher!
We should be celebrating him.
But what happens?
Because he refuses to go on strike.
By the way, they'd already received several pay raises.
They're one of the highest paid districts in the country.
And he says, I'm doing what's right for my students.
So here's the kicker.
The union kicks him out because he dares to cross the picket line.
He dares to do what's right for the kids that he is paid to serve.
So he does what's right.
And here's what didn't make it into the story.
He was kicked out of the union.
That's right.
But he still has to pay forced fees to the union to supposedly represent him.
So they're not representing his best interests, his desires.
They claim they represent the children and do what's right for the children.
They're doing exactly what's wrong for the children.
So he's a great example.
I'm glad you brought him up.
More power to Joseph O'Kuhl.
And Terence, is there anything you wanted to add to that?
Well, Rebecca's exactly right.
The problem here isn't that the union kicked him out.
They're free to kick, you know, it's a private organization.
They can kick anybody out they want.
The unbelievable part of this and the unconstitutional part of it is that he has to continue to pay dues to this organization, even though there's a complete split between his interests and the union's interests, between his views of what's important and the union's views of what's important. between his views of what's important and the union's views
The First Amendment protects his right to decide for himself how to spend his money and what views to support, and yet Illinois state law requires him to support this union that has absolutely no interest at all in furthering or representing his views.
Right, right.
And from a larger perspective, because whenever the topics of unions come up, I think it's important, at least for me, to be clear about the free market case for them.
Unions are a voluntary association and perfectly valid.
Freedom of association allows you to associate and make collective agreements with whoever you want.
In the private sector, of course, the owners of a particular factory have a profit motive, which may be partly incentivizing them to drive down wages.
So they have a certain amount of power they can hire and fire and the workers can get together and make a sort of countervailing weight to that profit motive.
And so in the private sector, in the free market, unions to me seem perfectly appropriate and healthy.
Now, they should not have the power to shut down a business entirely and have no one cross picket lines, you know, because we always want the balance of powers in society.
Whoever gets too much power almost inevitably tends to get corrupt.
But in the public sector, things are very different.
And they're different, I think, on two levels.
One is that there is this closed shop mentality and forced union dues.
And secondly, the desire to oppose the union, there's no particular financial incentive.
If you run a factory and the workers want too much money, well, you're going to fight back because you want your business to continue.
If you can't compete because of excessive labor costs, you're going to have an incentive to fight back.
On the public sector side, though, and originally there was no collective bargaining or even unions allowed in the American public sector because it was kind of recognized that there's not this countervailing balance of wanting to stay in business because you can't not stay in business if you're the government.
When the union, as you point out, when they appoint people to political positions where they're negotiating with people or they help get them elected or appointed, when they're negotiating with people who agree with them, you end up with a very slippery slope to excessive spending, to inefficiency and so on.
I think we're good to go.
In California under CalPERS is a huge problem.
So this capacity to at least say the unions in the public sector must be somewhat more responsive to the preferences of their members is one way of curbing what is not a matter of freedom of association and so on, but the awesome power that a monopoly has when collectively bargaining with people who agree with it and who aren't personally liable for any of the money they promised.
That's exactly right.
In California, teachers have to join the union as a condition of employment.
That means that the unions get tens of millions of dollars each year in essentially mandatory free dues provided to the union by the state no matter what the union does.
The employees have no voice in this whatsoever.
As a result, the union is totally unaccountable to the individual members of the union, the people paying the dues.
Add to that the fact that the union then uses those tens of millions of dollars to elect a state legislature that's very friendly to the union and to its interests, and essentially you have created the largest private political power in the state that's accountable to no one.
There's just no check on the union.
So if we had won this case, we would have introduced some accountability here.
At least some members of the union would have been able to stand up and say, no, we don't want to support this.
And the union would have had to compete for the dues of its members, for the allegiance of its members, with policies that the members actually supported.
So it would not have been, it was not an effort to end unions.
Or to end collective bargaining.
If we'd won, the CTA would have still been the designated collective bargaining agent.
But if we'd won, it would have introduced some accountability into the equation in California.
And for the first time, the union would have had to compete for those dues instead of being able to rely on getting them automatically from the state regardless what positions the unions took.
And I think, and if you could comment on this, Rebecca, it seems to me, maybe this is idealistic, but it's not easy to stand up against the crowd or stand up against the group, and if people find out that you're opposing the union, sometimes they don't like it.
Given the teacher in Chicago's dedication to his students, it would seem to me that the people who would be most likely to oppose what the union is doing may well be composed or overlap with the teachers who are most concerned about their students.
In other words, they're saying, look, something the union is doing, maybe it's the last in first out policy or the job protection that generally exists for teachers who are underperforming, That something the union is doing is negatively impacting the quality of education experienced by the students, and it seems that to give more of a voice, to give more of a pushback to the teachers who seem most concerned with the students couldn't be anything but great in the long run.
Well, we need to help those teachers because you nailed it on the head.
It's the most passionate teachers, the ones who love the kids the most, it's the ones who work the hardest, who are there hour after hour, who are the most frustrated with the unions, particularly when they find out what the unions are up to.
But you know, most of those teachers are too afraid to speak out.
The general teacher personality...
I mean, think about it.
They're people who love little children.
They're mild, meek, kind of go-along-to-get-along kind of people.
So many of them are just terrified.
The most common experience I had during this case...
Was loving teachers pulling me aside, but always in a dark closet or a quiet area, private area, and thanking me or hugging me or telling me they were praying for me and rooting for me.
And those are the ones that are discouraged today because they're too afraid to speak out.
When you speak out against the union, you're bullied.
You know, they called us all sorts of names, my fellow plaintiffs and me.
None of them were true, but nobody wants to be shunned or called names or made to look like a fool or feel uncomfortable at work.
And boy, they make sure that you feel that way when you speak out against them.
And that's part of the lack of accountability.
I agree with Terry.
If we could have won this case, and we will keep pushing, If we can do that, we create accountability.
And then people won't be picked on when they speak up because guess what?
We're paying the bill.
Shouldn't we be the boss in this situation?
Shouldn't we have a voice?
I'm starting to get this image of teachers taking you into a washroom, turning on the taps, taking the batteries out of the cell phone.
That never happened.
Exactly right.
They literally look up and say, are there cameras in here?
They're that frightened.
And I think the American public needs to know that.
That teachers are being bullied by a union they're forced to fund.
And this is allowed.
This is legal in our free country.
It's just wrong.
So...
Next steps.
I mean, obviously, it's fairly dependent on who gets the next seat on the Supreme Court.
If it's on the left, if it's a Democrat, then I guess things are going to get kind of challenging.
If it's somebody on the right, which I guess would mean that should Trump get in in the fall, that it would be more likely to be along those situations.
Is this a wait and see who's the next Supreme Court nominee or who gets accepted?
Or is there something more proactive that you guys are working on ahead of that information?
Well, there are several avenues that we could take.
One would be to just refile a case exactly like the case we filed on behalf of Rebecca and her co-plaintiffs.
Another would be to file a more modest case that asks the court to strike down the current rules that require teachers to opt out of the political portion of the dues and instead require the unions to encourage the teachers to opt in.
Right now, the system favors teachers going along and paying these political dues.
We would ask the court to create a system that favored the teachers themselves and their individual choice and force the union to approach the teachers and get their affirmative consent before it started withholding money for political expenditures.
That would be a big step forward.
It's sort of a half a loaf compared with what we were looking for in the Friedrichs case.
But it would make a big difference.
So that's a possible legal approach to this problem.
Then if we are totally unable to get anywhere in the federal courts, there are state courts.
There are many states.
In fact, almost every state has a First Amendment or an equivalent of the First Amendment in its state constitution.
So we would look for states where we could file the same kind of case and win it in the state court.
So, you know, I think that...
The short answer is there's a basic fundamental problem here, a constitutional problem with compulsory dues.
There are a number of legal avenues to approach that problem and we will look at all of them and pick the one that seems most effective under the circumstances.
But, again, if we are unable to resolve this in the courts, it's totally open to state legislatures to fix this problem.
It involves a pretty bloody fight in the states where, you know, this has to happen.
But it can happen and it will happen because the reality is there are 30 to 40 percent of public employees who fundamentally disagree with what their unions are doing and are forced to fund that.
And in a free society, That type of a situation is just not likely to last.
People will find a way out of it one way or the other.
I'd like to add that 82% of the American public think that no one should be forced to fund an organization against their will.
The public is definitely on our side.
You know, from my perspective, because I'm not the legal person here, I was the plaintiff, I'm the teacher who's being negatively impacted and whose students are being harmed.
From my perspective, I'm going to speak out as much as I can.
I plan to give ideas toward policy, anyone who will listen to me.
I plan to continue telling my story.
If any of your listeners have a story to share, I'd love to hear it.
Share their story.
Just continue getting our voices out there.
It's so important for the American voter to start paying attention.
To who the unions are funding.
Quit voting for those people.
If you want to have freedom from being compelled to fund a union, you have to stop voting for the people that they're backing.
And that would help us a ton.
Right, right.
Well, I certainly admire your perseverance in pursuing this, and I am, of course, very sorry that, I don't know, Justice Scalia's penchant for Fettuccine Alfredo seems to have blocked his arteries in your progress.
But for people who want to know more about this, please go to cir-usa.org.
We'll put the link below.
You know, they need support, they need encouragement, they need help because...
It can't be considered anywhere close to democracy to force people to pay for that which they oppose.
That's treating them more as livestock than sovereign citizens.
So I really appreciate your time, your efforts in this struggle, and I hope that we can help get the word out.
