Davenport v. Washington Educ. Assoc., No. 05-1589, Washington v. Washington Educ. Assoc., No. 05-1657 (U,S. June 14, 2007)
In a unanimous decision the U.S. Supreme Court has ruled that a state law requiring public-sector unions to receive affirmative authorization from a nonmember before spending that nonmember’s agency fees for election related purposes does not violate the First Amendment. Justice Scalia delivered the opinion of the Court. Justice Breyer, joined by Chief Justice Roberts and Justice Alito, filed a separate opinion concurring in part and concurring in the judgment. The state sued the Washington Education Association (WEA), which represents the state’s public education employees, for failing to obtain the express consent of nonmembers to use their agency fees for the union’s political activities. The state pointed to the specific "opt in" language in the statute (RCW 42.17.760), i.e. "[a] labor organization may not use agency shop fees" collected from nonmembers for the union’s political activities "unless affirmatively authorized by the individual." The Washington Court of Appeals had struck down the law, declaring the provision could not be reconciled with U.S. Supreme Court decisions placing the burden on nonmember employees to raise objections to a union using their money for political activities. The court said if unions do use nonmember dues to fund political activities, they are required to notify nonmembers of the right to object and to provide a quick and fair process to resolve any objections. The Washington Supreme Court affirmed the lower court’s decision.
In reviewing the state high court’s ruling, the U.S. Supreme Court began by pointing out it was "undeniably unusual for a government agency to give a private entity the power to tax government employees." It rejected the union’s contention that §760’s modest limitation upon that extraordinary benefit violates the First Amendment as counterintuitive, since the state could have restricted public-sector agency fees to the portion of union dues devoted to collective bargaining, or even eliminated them entirely. It found that the Washington Supreme Court had extended the U.S. Supreme Court’s agency-fee cases well beyond their proper ambit in concluding that those cases, having balanced the constitutional rights of unions and nonmembers, required a nonmember to shoulder the burden of objecting before a union can be barred from spending his fees for purposes impermissible under Abood v. Detroit Bd. of Ed., 431 U. S. 209, 235, 236 (1977). The Court said its previous decisions set a floor for unions’ collection and spending of agency fees and were not intended to impose a ceiling on state restrictions on such activities. The Court also rejected the union’s argument that §760 is unconstitutional under the Court’s campaign-finance cases. For purposes of the First Amendment, the Court found that it was immaterial that §760 restricts a union’s use of funds only after they are within the union’s possession. The fees are in the union’s possession only because the state and its union-contracting government agencies have compelled their employees to pay those fees. The campaign-finance cases, on the other hand, deal with governmental restrictions on how a regulated entity may spend money that has come into its possession as the result of government compulsion. Lastly, it concluded that restrictions on use of nonmembers’ fees were not subject to strict scrutiny by the Court because "Washington voters did not impermissibly distort the marketplace of ideas when they placed a reasonable, viewpoint-neutral limitation on the State’s authorization." The Court viewed the provision in the law as voters "seeking to protect the integrity of the election process, and their restriction was thus limited to the state created harm that they sought to remedy." It stated: "The First Amendment did not compel them to limit public-sector unions’ extraordinary entitlement to nonmembers’ agency fees more broadly than necessary to vindicate that concern."
Davenport v. Washington Educ. Assoc., No. 05-1589, Washington v. Washington Educ. Assoc., No. 05-1657 (U,S. June 14, 2007)
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[Editor’s Note: For background on the case, including a link to a summary of the Washington Court of Appeals opinion, see below.]
[NSBA School Law pages on Washington v. Washington Educ. Assoc.]