Jade Thompson v. Marietta Educ. Ass'n

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0277p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JADE THOMPSON, ┐

Plaintiff-Appellant, │

│

> No. 19-4217

v. │

│

│

MARIETTA EDUCATION ASSOCIATION; MARIETTA CITY │

SCHOOL DISTRICT BOARD OF EDUCATION, │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 2:18-cv-00628—Michael H. Watson, District Judge.

Argued: August 5, 2020

Decided and Filed: August 25, 2020

Before: GIBBONS, GRIFFIN, and THAPAR, Circuit Judges.

_________________

COUNSEL

ARGUED: Robert Alt, THE BUCKEYE INSTITUTE, Columbus, Ohio, for Appellant. Scott

A. Kronland, ALTSHULER BERZON LLP, San Francisco, California, for Appellee Marietta

Education Association. Bryan M. Smeenk, BRICKER & ECKLER LLP, Columbus, Ohio, for

Appellee Marietta City School District Board of Education. ON BRIEF: Robert Alt, THE

BUCKEYE INSTITUTE, Columbus, Ohio, Andrew M. Grossman, Patrick T. Lewis,

BAKERHOSTETLER LLP, Washington, D.C., for Appellant. Scott A. Kronland, P. Casey

Pitts, ALTSHULER BERZON LLP, San Francisco, California, Eben O. McNair, IV, Timothy

Gallagher, SCHWARZWALD MCNAIR & FUSCO LLP, Cleveland, Ohio, for Appellee

Marietta Education Association. Bryan M. Smeenk, Nicole M. Donovsky, BRICKER &

ECKLER LLP, Columbus, Ohio, for Appellee Marietta City School District Board of Education.

No. 19-4217 Thompson v. Marietta Educ. Ass’n, et al. Page 2

_________________

OPINION

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THAPAR, Circuit Judge. By signing on the dotted line, public employees accept the

government as their employer. In Ohio, the law requires them to also accept a union as their

exclusive bargaining representative. It’s a take-it-or-leave-it system—either agree to exclusive

representation, which is codified in state law, or find a different job. This take-it-or-leave-it

system is in direct conflict with the principles enunciated in Janus v. AFSCME, 138 S. Ct. 2448

(2018). But when the Supreme Court decided Janus, it left on the books Minnesota State Board

for Community Colleges v. Knight, 465 U.S. 271 (1984). And because Knight directly controls

the outcome of this case, we affirm the district court’s decision upholding the challenged Ohio

law.

I.

Marietta is a small town in southeast Ohio that sits on the banks of the Ohio and

Muskingum Rivers. The Marietta Board of Education governs the town’s public schools. And

the Marietta Education Association, a teacher’s union, serves as the exclusive bargaining

representative for the school district’s employees.

Jade Thompson is a Spanish teacher at Marietta High School. After the Supreme Court’s

decision in Janus, Thompson sued the Marietta Education Association and the Marietta Board of

Education, arguing that Ohio’s scheme of exclusive public-sector union representation violates

the First Amendment.

Under Ohio law, a union may become the exclusive bargaining representative for all

public employees in a bargaining unit. To become an exclusive representative, the union must

submit proof that a majority of the bargaining unit’s members wish to be represented by the

union. Ohio Rev. Code § 4117.05(A)(1). Once a union has done so, public employers are

required to collectively bargain with it. Id. § 4117.04. And they are prohibited from bargaining

with anyone else. Id. This includes both individual employees and other labor organizations.

No. 19-4217 Thompson v. Marietta Educ. Ass’n, et al. Page 3

Ohio law sets a broad scope for collective-bargaining negotiations. Public employers

must bargain over “[a]ll matters pertaining to wages, hours, or terms and other conditions of

employment” as well as over any “existing provision of a collective bargaining agreement.” Id.

§ 4117.08(A). And public employers may bargain over almost all other topics. Id. § 4117.08(C).

This latter category includes “the functions and programs of the public employer”; the

employer’s “overall budget” and “organizational structure”; the methods “by which

governmental operations are to be conducted”; and even “the mission of the public employer as a

governmental unit.” Id.

Thompson is not a member of the Marietta Education Association. She objects to its

policies and to any association with it. But because the union has been designated as her

bargaining unit’s “exclusive representative,” the union has a statutory right to represent her “for

the purposes of collective bargaining.” Id. § 4117.05(A). So while Thompson believes layoffs

should occur based largely on merit rather than seniority, the union advocates to the contrary.

And while Thompson believes teachers’ benefits should be cut to save academic programs, the

union takes a different view. These are just a few of the many issues on which Thompson and

the union disagree. Indeed, when Thompson’s late husband—Representative Andy Thompson—

ran for the Ohio General Assembly, the union published advertisements and sent emails to

teachers at Marietta High School opposing his candidacy.

Two years ago, Thompson filed this lawsuit, arguing that Ohio’s system of exclusive

public-sector bargaining violates her First Amendment rights. Both parties soon moved for

summary judgment. The district court held that Thompson’s challenge was foreclosed by Knight

and thus granted summary judgment to the defendants. This appeal followed.

II.

Thompson raises two challenges to Ohio’s system of exclusive representation: (1) that it

violates her rights to be free from compelled speech and association, and (2) that it violates her

right to meaningfully communicate with the government. We agree with the district court that

both arguments are foreclosed by Supreme Court precedent.

No. 19-4217 Thompson v. Marietta Educ. Ass’n, et al. Page 4

A.

Thompson’s first claim is that Ohio law impermissibly allows the Marietta Education

Association to speak on her behalf during collective-bargaining sessions, and that this amounts to

compelled speech and association in violation of the First Amendment. See Ohio Rev. Code

§§ 4117.05(A), 4117.11(B)(6).

The First Amendment protects “both the right to speak freely and the right to refrain from

speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714 (1977). Likewise, “[f]reedom of

association . . . plainly presupposes a freedom not to associate.” Roberts v. U.S. Jaycees, 468

U.S. 609, 623 (1984). These rights capture the more basic truth that “[f]orcing free and

independent individuals to endorse”—either implicitly or explicitly—“ideas they find

objectionable is always demeaning.” Janus, 138 S. Ct. at 2464. The Supreme Court has thus

explained that “designating a union as the exclusive representative of nonmembers substantially

restricts the nonmembers’ rights.” Id. at 2469. And the Court has deemed exclusive public-

sector bargaining “a significant impingement on associational freedoms that would not be

tolerated in other contexts.” Id. at 2478.

Given the Supreme Court’s language, one might think that Thompson should prevail.

Yet Supreme Court precedent says otherwise. And lower courts must follow Supreme Court

precedent. See Agostini v. Felton, 521 U.S. 203, 237 (1997).

The primary precedent blocking Thompson’s way is Knight. There, a group of non-union

community college instructors challenged Minnesota’s collective-bargaining statute. They

objected to the State’s recognition of an exclusive representative to speak for all employees at

“meet and confer” sessions. These sessions concerned subjects outside the scope of mandatory

collective bargaining. See 465 U.S. at 274–78. But the Supreme Court rejected the challenge. It

held that Minnesota had “in no way restrained [the instructors’] freedom to speak . . . or their

freedom to associate or not to associate with whom they please.” Id. at 288. To the contrary, the

Court held that the instructors’ First Amendment rights were not unduly infringed because they

remained “free to form whatever advocacy groups they like” and were “not required to become

members of [the union].” Id. at 289.

No. 19-4217 Thompson v. Marietta Educ. Ass’n, et al. Page 5

Knight controls here. If allowing exclusive representatives to speak for all employees at

“meet and confer” sessions does not violate the First Amendment, we see no basis for concluding

that the result should be different where the union engages in more traditional collective-

bargaining activities. It appears that every other circuit to address the issue has agreed. See, e.g.,

Reisman v. Associated Faculties of Univ. of Maine, 939 F.3d 409 (1st Cir. 2019); Mentele v.

Inslee, 916 F.3d 783 (9th Cir. 2019); Bierman v. Dayton, 900 F.3d 570 (8th Cir. 2018); Hill v.

Serv. Emps. Int’l Union, 850 F.3d 861 (7th Cir. 2017); Jarvis v. Cuomo, 660 F. App’x 72 (2d

Cir. 2016) (summary order).

Thompson responds, arguing that Knight did not involve a compelled-representation

challenge. But in Knight, the Court framed the question presented in broad terms: whether the

“restriction on participation in the nonmandatory-subject exchange process violates the

constitutional rights of professional employees within the bargaining unit who are not members

of the exclusive representative and who may disagree with its views.” 465 U.S. at 273. Even

assuming plaintiff’s compelled-representation theory is technically distinguishable, such a

cramped reading of Knight would functionally overrule the decision. And that is something

lower court judges have no authority to do.

To be sure, Knight’s reasoning conflicts with the reasoning in Janus. But the Supreme

Court did not overrule Knight in Janus. And when an earlier Supreme Court decision “has direct

application in a case, yet appears to rest on reasons rejected in some other line of decisions, the

Court of Appeals should follow the case which directly controls, leaving to [the Supreme] Court

the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Exp.,

Inc., 490 U.S. 477, 484 (1989). We do so here.

B.

Thompson’s second claim fares no better. She argues that Ohio’s system of exclusive

representation unconstitutionally burdens her First Amendment right to engage with the

government through speech, association, and petition. Thompson’s theory seems to be that by

allowing the Marietta Education Association to serve as her exclusive representative, Ohio

unconstitutionally tilts the playing field against her speech.

No. 19-4217 Thompson v. Marietta Educ. Ass’n, et al. Page 6

But this argument conflicts with two Supreme Court decisions. First, we consider Smith

v. Arkansas State Highway Employees, Local 1315, 441 U.S. 463 (1979) (per curiam). There,

the Court held that the First Amendment imposes no “affirmative obligation on the government

to listen, to respond[,] or . . . [to] bargain.” Id. at 465. And since the government has no

obligation to bargain with Thompson, it is difficult to see how the government’s decision to

bargain with someone else violates her rights.

Second, in Knight, the Supreme Court recognized that it was “doubtless true that the

unique status of the exclusive representative . . . amplifies its voice in the policymaking process.”

465 U.S. at 288. But amplification “is inherent in government’s freedom to choose its advisers.”

Id. And a “person’s right to speak is not infringed when government simply ignores that person

while listening to others.” Id. Thus, Knight again forecloses Thompson’s claim.*

***

This case presents First Amendment questions of considerable importance. But they are

controlled by a fair reading of the Supreme Court’s precedents. We therefore affirm the district

court’s order granting summary judgment for the defendants.

*The district court also held that Thompson waived this second claim during an earlier stage of the

proceedings. But we see things differently. To be sure, Thompson did not press this theory while seeking a

preliminary injunction. And some of her arguments during the preliminary injunction hearing implicitly contradict

the theory. Yet our review of the record does not reveal an “intentional relinquishment or abandonment of a known

right.” United States v. Olano, 507 U.S. 725, 733 (1993). To the contrary, Thompson asserted the theory in her

complaint, pressed it in her motion for summary judgment, and continues to pursue it on appeal. Likewise, at every

stage the defendants have had a full opportunity to respond to this theory and have in fact done so. See United

States v. Dillard, 438 F.3d 675, 682 n.1 (6th Cir. 2006) (finding no waiver where the opposing party “had a full and

fair opportunity to consider and address the issue”). Fortunately, the district court addressed the merits of

Thompson’s claim in the alternative. And since both parties fully briefed Thompson’s theory in the district court

and on appeal, there has been no impediment to our consideration of the issue.