Friedrichs v. California Teachers Association
The California Teachers Association was the defendant in Friedrichs v. California Teachers Association, which Gail Heriot called perhaps the most important case pending when Justice Antonin Scalia died Gail Heriot on the Significance of Justice Scalia’s Passing (2016). Heriot described the issue as whether a person who declines to join a labor union must nevertheless pay union dues on the theory that the person benefits from the union’s collective bargaining, or whether the First Amendment protects them — whether forcing them to pay dues is essentially a violation of their First Amendment rights. At oral argument, she said, everybody seemed to agree the case would be decided 5–4 and that Scalia would be in the majority holding that unions are not entitled to money from people who do not want to be members.
Bob Zadek noted that the vote would be 4–4, which basically affirms the decision of the lower court, but without an opinion, and that a 4–4 vote does not create precedent. Heriot agreed there was no precedential value, adding that if the Court wanted something with precedential value it could wait and order reargument, though her guess was that in most of these cases it would not. Zadek characterized the case as a teachers union case and asked what the effect on life in America would be assuming a 5–4 decision with Scalia on the bench. Heriot said the effect would be very profound: people who were not union members would stop putting money into union coffers, and many who were members might decide they did not need to be members after all. The unions would have a whole lot less money to affect political issues and less clout generally in the nation. Zadek said many rational people believed that would be the death knell of the power public service unions have over the political process; Heriot said that is how people are putting it and that a lot of people would be opting out.
Rebecca Friedrichs and the agency-fee challenge
Rebecca Friedrichs was described by Zadek as a teacher in California who brought a lawsuit asking the courts not to require her to contribute her own money in support of causes she did not agree with — specifically, the California Teachers Association A Teacher’s Brave Stand Against Her Union – Rebecca Friedrichs and Terry Pell (2017). She was represented by Terry Pell of the Center for Individual Rights. Zadek said the case was argued before the US Supreme Court and that although it was expected Rebecca would be victorious, when Scalia died it changed everything. He described her as a teacher for about 28-plus years in the California school system and a tenured teacher.
Pell said the Supreme Court would be receptive to the Friedrichs case because in several decisions in recent years a majority of the court had expressed doubt that Abood, the 1977 decision, continued to be good law, and that a majority of the justices were on record saying the area needed to be revisited. He said they were encouraged to bring the case against the California Teachers Association and to get it to the Supreme Court as fast as they could, and that during oral argument in January it appeared a majority of justices agreed with them — that it is not the teachers who are free-riding on the union but the union that is free-riding on the teachers, collecting money from people who disagree with it and spending it for purposes those individuals do not support.
Zadek put the unions’ argument to Pell: that Rebecca was only paying agency fees, not dues, paying less than a dues payer, and that the union did not charge her for purely political positions, doing careful accounting and charging her only for workplace issues of working conditions, salary and benefits. Pell responded that in their view the collective bargaining positions the union takes are every bit as political as its overt lobbying. He gave salary as an example: the union constantly ratchets up and negotiates for higher salaries, and in California certain localities are going bankrupt because of the high cost of public employee salaries resulting from public employee union bargaining. A teacher in an economically depressed district might not agree with constantly raising salaries, especially during a time of economic contraction when many parents of students are out of work or working part-time. He said a teacher who preferred somewhat lower salaries and more teachers, so that class sizes could be smaller, should not be forced to pay dues to an organization fighting against what that teacher takes to be the best course for the school district.
Pell said the case of Friedrichs v. California Teachers does not have automatic applicability to the private sector and is special to public employee unions, because the First Amendment governs the state and it is the state law requiring public employees to join a union as a condition of employment that they were challenging. If they won, he said, it would have very little, if almost no, relevance to the private sector. Zadek framed the case as not brought to destroy or even harm unions but to adjust the power of unions to deny free speech to members and agency payers and place that free speech back with the individual — not a union-busting case but a First Amendment free speech case.
The culture of fear and monopoly control
Asked why only about 10% of teachers in the union were agency fee payers rather than dues payers — Pell’s estimate, which Zadek found unusually low — Rebecca Friedrichs said it is not a popular stance to be a fee payer, that you are shunned and bullied if you dare to become one, and that you will be picked on by union leadership within your district A Teacher’s Brave Stand Against Her Union – Rebecca Friedrichs and Terry Pell (2017). She said teachers do value their First Amendment free speech rights, but that the unions control teachers with fear and a lot of misinformation. What a lot of people do not realize, she said, is that the unions have monopoly control: if teachers wanted a second union because theirs was not doing a great job, they could not bring in a different one. She said the union has monopoly control over teacher email and teacher mailboxes, both physical and electronic, so teachers hear only one side of the story. She described a culture of fear in which many teachers fear that if they opt out they will be fired, lose their job, or be picked on by an unscrupulous administrator, and said the unions are very good at dividing — creating a culture of division between teachers and administration and parents.
Section 3550 and the “deter or discourage” standard
A later episode examined a California law, referred to as 3550, providing that elected board members and public employers cannot say anything that would “deter or discourage” someone from union membership California’s New Union Gag Order Violates 1st Amendment (2020). The speaker, reading the language as a lawyer, said almost anything could deter or discourage someone: merely telling someone that they no longer are compelled to pay union dues, as the Janus decision ruled, could deter or discourage somebody from joining the union, so that even factual statements about a ruling of the Supreme Court are off-limits. The speaker said an attorney advising a board would tell members to refrain from saying anything that might cast the union in a bad light or suggest that someone might not want to be a member, or that the union is involved in some sort of controversial position. As an example, the speaker said the California Teachers Association supports the sanctuary city laws, and that if board members pointed that fact out it might deter or discourage some teachers and other employees from joining the union. Because the law is so vague, the only reasonable advice an attorney could give elected officials is to refrain from saying anything, creating a legal cloud over anyone who wants to criticize the union along factual lines. The speaker described a double standard: elected officials who support the union are completely free to say whatever they want, while those who disagree must be careful, and the odds are the board attorney will tell them to be quiet because it is not worth the tens of thousands of dollars it would cost to defend against an unfair labor practice.
School closures and the recall of Gavin Newsom
In an episode on the recall of Gavin Newsom, Kevin Kiley said California had had the most severe school closures of any state in the country and was 50th out of 50 in getting kids back to the classroom, while every other state had done a better job The Case for Recalling Gavin Newsom (2021). He attributed this to the power of Newsom’s largest campaign donor, the California Teachers Association, over his decision-making, saying the governor had caused incalculable harm to millions of California kids at the behest of his biggest campaign contributor, whom he wants to keep happy for his own political purposes.
Kiley said the California Teachers Association, which he called the state’s biggest spending special interest, saw the situation as their Super Bowl — that a long-term school closure would allow them to extract everything they had ever wanted to negotiate. He said Newsom had himself said in early July of last year that he would not do a statewide school closure order because every district is unique and distinct, and that Kiley told his office there was absolutely no evidence to justify a statewide school closure order and that all the evidence pointed in the opposite direction. But then the CTA weighed in, put pressure on him, and he did a complete 180 and ordered the vast majority of schools — schools serving 95% of students — closed for the coming school year. Kiley said 650 physicians in California had written the governor a letter, San Francisco was suing the school district, and even Washington and Oregon had ordered their schools open, yet Newsom was unwilling to take meaningful steps to get schools open again because he was committed to serving his special interest groups.
Across episodes: the union’s power over members and over politics
The excerpts show a consistent account rather than a developing argument. In the 2016 episode, Heriot and Zadek discuss Friedrichs as a pending case whose likely 5–4 outcome died with Scalia; in the 2017 episode, Friedrichs and Pell describe the same case from the plaintiffs’ side, adding the agency-fee figures, the Abood precedent, the January oral argument, and Friedrichs’s account of monopoly control and fear. The 2020 episode shifts to a state statute restricting what board members may say about union membership, and the 2021 episode shifts again to the union’s role in school closures and the Newsom recall. What changes is the forum — from a Supreme Court case, to a state gag-order law, to electoral politics — while the underlying claim that the union wields power over teachers and over California policy is advanced by Heriot, Friedrichs, Pell, and Kiley alike.
What the sources do not cover
The excerpts do not give the California Teachers Association’s founding date, membership figures, governance structure, or its own account of the Friedrichs litigation beyond the arguments Zadek attributes to the unions. They do not state the outcome of Friedrichs after Scalia’s death beyond the anticipated 4–4 vote, nor the holding or date of Janus beyond the reference to its ruling on compelled dues. The name and full text of the statute referred to as 3550 are not given, and the speaker analyzing it is not identified in the excerpt. No excerpt states the result of the Newsom recall or the fate of the school-closure orders.