Utah Educ. Assoc. v. Shurtleff, No. 06-4142 (10th Cir. Jan. 10, 2008)
The U.S. Court of Appeals for the Tenth Circuit (CO, KS, NM, OK, UT, WY) has invalidated Utah’s Voluntary Contributions Act (VCA) as that act applies to independent local government entities and school districts. VCA prohibits any state or local public employer from withholding voluntary political contributions from its employees’ paychecks. This violates those employees’ First Amendment political speech rights, the court ruled. Several public employee unions, including the Utah Education Association, sued the State of Utah in U.S. district court, seeking a declaration that the law is unconstitutional as applied to all public employees other than those employed by the state itself. The unions moved for summary judgment on the ground that VCA was a constitutionally impermissible content-based restriction on political speech. Agreeing, the district court subjected the act to strict scrutiny and concluded that it was not “narrowly tailored” to serve a “compelling state interest.” Utah appealed to the Tenth Circuit, arguing that the payroll systems of local governments and school districts are nonpublic fora and, therefore, subject only to a reasonableness standard of review, rather than strict scrutiny.
The Tenth Circuit began by determining that payroll deductions for political advocacy constitute protected political speech. The court then rejected the state’s nonpublic forum argument. Based on its consideration of the purposes and previous applications of the nonpublic forum doctrine, the Tenth Circuit agreed with the union’s distinction “between property owned and controlled by the government seeking to implement the speech restrictions, and property owned and controlled primarily by independent entities.” As a result, the question became, “Is Utah acting in a proprietary role and controlling its own property, or merely regulating third-party property?” Applying the analysis used to determine if school districts and local governments are arms of the state or independent political subdivisions for purposes of Eleventh Amendment sovereign immunity, the court found that both Utah state law as well as Tenth Circuit precedent point to the latter.
Nevertheless, the Tenth Circuit did not subject VCA to strict scrutiny. The activity regulated by VCA was political contributions, the court noted, and the U.S. Supreme Court has held that such activity is subject to a “less rigorous” level of scrutiny that only requires VCA to be “closely drawn to match a sufficiently important interest.” Applying this test, the court concluded that VCA was not “closely drawn” because Utah was unable to provide a coherent explanation for how a prohibition on payroll deductions would reduce politicization in the workplace. The court rejected Utah’s argument that VCA was just one of many state laws governing the political activities of government employees. None of the statutes cited by the state shared any commonality with VCA based on the activity regulated or the particular employees subject to the regulation, the court found.
Utah Educ. Assoc. v. Shurtleff, No. 06-4142 (10th Cir. Jan. 10, 2008)
[Editor’s Note: The U.S. Court of Appeals for the Ninth Circuit recently struck down Idaho’s VCA as well. See below. Unlike the Tenth Circuit, the Ninth Circuit conducted a lengthy forum analysis. Political activism by public employee unions also was the focus of a Washington state law that the U.S. Supreme Court upheld against a First Amendment challenge in the decision summarized at the second link. That law requires public-sector unions to receive affirmative authorization from a nonmember before spending that nonmember’s agency fees for election related purposes.]
NSBA School Law pages on Pocatello Educ. Assoc. v. Heideman
NSBA School Law pages on Davenport v. Washington Educ. Assoc. & Washington v. Washington Educ. Assoc.