Amicus Curiae Brief — Friedrichs v. Cal. Teachers Ass'n, 135 S. Ct. 2933 (2015) (No. 14-915)

No. 14-915

IN THE

Supreme Court of the United States

REBECCA FRIEDRICHS, ET AL..,

Petitioners,

v.

CALIFORNIA TEACHERS ASSOCIATION, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

BRIEF OF FORMER CALIFORNIA GOVERNOR

PETE WILSON, FORMER CALIFORNIA SENATE

MAJORITY LEADER GLORIA ROMERO,

PACIFIC RESEARCH INSTITUTE, AND BIPARTISAN

CALIFORNIA EDUCATORS AND SCHOLARS AS

AMICI CURIAE IN SUPPORT OF PETITIONERS

KEVIN J. RING-DOWELL THEODORE B. OLSON

GIBSON, DUNN & CRUTCHER LLP Counsel of Record

555 Mission Street AMIR C. TAYRANI

San Francisco, CA 94105 GIBSON, DUNN & CRUTCHER LLP

(415) 392-8200 1050 Connecticut Avenue, NW

- DEAN MCGRATH, JR. pete = pms —

CGRATH & ASSOCIATES

1025 1 Jefferson St., NW tolson@gibsondunn.com

Suite 110G

Washington, DC 20007

(202) 295-2304

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIEG.............cccccseccsseseeseseeseees ii

INTEREST OF AMICI CURIAE .0.0.....0.cc.cs0ss0seceeeeeeees 1

SUMMARY OF ARGUMENT ...........c.cccsecceseseeseseeseoes 4

CET TE 7

I. COLLECTIVE BARGAINING IN’ THE

PUBLIC EDUCATION CONTEXT IS

INEXTRICABLY INTERTWINED WITH

TEACHERS’ PROFESSIONAL LIVES,

STUDENTS’ ACHIEVEMENT, AND

NONMEMBERS FIRST AMENDMENT

Il. THE FREE-RIDER JUSTIFICATION FOR

AGENCY SHOP ARRANGEMENTS IS

FUNDAMENTALLY FLAWED................00c0ceceeeees 19

IE inintentcrntinnennensnntienesmanennsavicnmmenreenetias 23

APPENDIX OF SIGNATORIES ..............ccccccseeseeeeees la

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Abood v. Detroit Bd. of Educ.,

Se es I icinitcctinnincnesscetesssatees 4,6, 8,17, 19

Borough of Duryea v. Guarnieri,

ee ctiiccicnnseviinscetinnninisenenneniie 18, 19

Harris v. Quinn,

134 S. Ct. 2618 (2014)... eeeees 16, 17, 18, 19

Keyishian v. Bd. of Regents of the Univ. of N.Y.,

Se iacittecnscncancnintenssmmmicnennctecie 15, 16

Knox v. Serv. Emps. Int'l Union,

fee 6, 17,19

McDonald v. Smith,

ial reainlsadacial 18

Regents of the Univ. of Cal. v. Bakke,

ee Se tiicinscntininccnsnicismniisiianennennietsion 15, 22

Riley v. Nat'l Fed’n of the Blind of N.C., Inc.,

a errerialiedersieenelinaeienniieninaanisid 4

Roberts v. U.S. Jaycees,

ee i dnereiiisinsipmntiniininiancininetnnniaternsnsenies 18

United Jewish Orgs. of Williamsburgh, Inc. v.

Sy Es HE CO icctccensecnenicncscnnnnntccnesases 22

United Mine Workers of Am. v. Ill. State Bar

Ass'n, 389 U.S. 217 (1967) .........ccccccccccccsssssseseseceses 18

Vergara v. California,

No. BC484642 (Cal. Sup. Ct. Aug. 27, 2014)

Wooley v. Maynard,

TS OTT AN TTT ETO 18

STATUTES

6 Sanaa aaae nas 9

{eno Enna naan TOES 9

a a ssaelieeantnniiianaaal 9

a scaisensieibiibbamoesimaetin 10

OTHER AUTHORITIES

Agreement between L.A. Unified Sch. Dist. Bd.

of Educ. and United Teachers L.A.

esnenenenssnssencosascnsquenpnsesassunseousensseonenenoues 9,10, 11, 12, 16

Agreement between Oakland Unified Sch. Dist.

Bd. of Educ. and Oakland Educ. Ass’n ........... 11, 13

Agreement between Sacramento City Unified

Sch. Dist. Bd. of Educ. and Sacramento City

, ERE ERED T A SAO 12

Agreement between San Jose Unified Sch. Dist.

Bd. of Educ. and San Jose Teachers Ass’n .....13, 16

Elaine Allensworth et al., Consortium on Chi.

Sch. Research, The Schools Teachers Leave

Joshua Barnett & Gary W. Ritter, When Merit

Pay Is Worth Pursuing, 66(2) Educ.

Leadership (2008), available at

http://www.ascd.org/publications/educational-

leadership/oct08/vol66/num02/When-Merit-

Pay-Is-Worth-Pursuing.aspx.....................00000: 14, 22

IV

Bhavini Bhakta, Op-Ed., California’s Pink-Slip

Shuffle, L.A. Times, Dec. 16, 2012,

http-//articles.latimes.com/2012/dec/16/

opinion/la-oe-bhakta-teaching-20121216.............. 20

Cal. Teachers Ass’n, About CTA, Mission

Statement, http://www.cta.org/About-

CTA/Who-We-Are/Mission-Statement.aspx ........... 5

Raj Chetty & Alex Olssen, The Impacts of Last-

In, First-Out vs. Effectiveness-Based Teacher

er brccntncinctetectsitintatenmimascsseetenes 11

Raj Chetty et al., Measuring the Impacts of

Teachers II: Teacher Value-Added and

Student Outcomes in Adulthood, 104(9) Am.

I ius 8

Contract between Elk Grove Unified Sch. Dist.

Bd. of Trs. and Elk Grove Educ. Ass’n.................. 16

Contract between S.F. Unified Sch. Dist. Bd. of

Educ. and United Educators of S.F............. 9, 12, 16

Dan Goldhaber & Roddy Theobald, Assessing

the Determinants and Implications of Teacher

Layoffs (Nat'l Ctr. for Analysis of

Longitudinal Data in Educ. Research,

Working Paper 55, 2010)..................ccccceceeeeeee 10, 11

Eric A. Hanushek, Valuing Teachers: How

Much Is a Good Teacher Worth?, 11(3) Educ.

ESTEE AEE Nae ane eae CA RR 13

Eric A. Hanushek et al., Why Public Schools

Lose Teachers, 39(2) J. Hum. Resources 326

Vv

Lance T. Izumi et al., Pac. Research Inst., Not

as Good as You Think: Why the Middle Class

Needs School Choice (2007), available at

http://www.pacificresearch.org/docLib/200709

TELIA A ET TED 3

John P. Papay & Susan Moore Johnson, Js PAR

a Good Investment? Understanding the Costs

and Benefits of Teacher Peer Assistance and

| | IE ETE 12

Michael Podgursky, George W. Bush Inst.,

Reforming Educator Compensation

Charles C. Read, Collective Bargaining and

Academic Freedom in Lower Education: A

Practical Inquiry, 1 Berkeley J. Emp. & Lab.

aie lec bieciartitaeinsadaridaiaddiasenes 15

Pamela A. Riley et al., Pac. Research Inst., The

Impact of Teacher Union Contracts on the

Quality of California Schools (2002),

available at http://www.pacificresearch.org/

docLib/20070205_contractforfailure.pdf................. 3

Students Matter, Vergara v. California 2013

California Educators Survey Results (2014),

available at http://studentsmatter.org/wp-

content/uploads/2014/03/SM_Research-Now-

Poll-Results_03.05.14.pdf..............-.ccccccccseseeessereeees 20

Daniel Weisberg et al., The New Teacher

Project, The Widget Effect (2009) ..................c00c00+4 21

BRIEF OF FORMER CALIFORNIA GOVERNOR

PETE WILSON, FORMER CALIFORNIA

SENATE MAJORITY LEADER GLORIA

ROMERO, PACIFIC RESEARCH INSTITUTE,

AND BIPARTISAN CALIFORNIA EDUCATORS

AND SCHOLARS AS AMICI CURIAE IN

SUPPORT OF PETITIONERS

INTEREST OF AMICI CURIAE!

Amici are a bipartisan group of former officials

that includes a former Republican governor of Cali-

fornia and a former Democratic majority leader of

the California Senate; a non-partisan public-policy

organization; and a bipartisan group of California

educators and scholars. Amici have a longstanding

and deep-rooted interest in California’s education

system, and are bound by a common concern that

agency shop arrangements—which compel public-

school teachers who are not union members to fi-

nance unions’ collective bargaining activities—have a

profoundly detrimental impact on California’s teach-

ers, the well-being of California’s public-school stu-

1 Pursuant to this Court’s Rule 37.2(a), amici gave at least 10

days’ notice to counsel for petitioners and counsel for all re-

spondents who entered an appearance in the court of appeals

(the union respondents and intervenor California Attorney

General Kamala D. Harris) of their intent to file this brief, and

letters of consent from these parties to the filing of this brief

have been submitted to the Clerk. Pursuant to this Court’s

Rule 37.6, amici state that no counsel for a party authored this

brief in whole or in part, and no counsel or party made a mone-

tary contribution intended to fund the brief’s preparation or

submission. No person other than amici or their counsel made

a monetary contribution to the brief’s preparation or submis-

sion.

2

dents, and ultimately the entire public-education

system in the State.

Pete Wilson was governor of California from

1991 to 1999, and a U.S. Senator from California

from 1983 to 1991. Gloria Romero served in the Cali-

fornia Senate from 2001 to 2010, including as Major-

ity Leader from 2005 to 2008 and as Chairwoman of

the Education Committee from 2008-2010. Both

Governor Wilson and Senate Majority Leader

Romero have extensive experience with matters of

education policy and collective bargaining.

Eric Hanushek is the Paul and Jean Hanna Sen-

ior Fellow at the Hoover Institution of Stanford Uni-

versity. He studies educational issues from an eco-

nomic perspective, and has promoted the idea that

teacher proficiency should be measured by increased

student achievement.

Peter H. Hanley is Executive Director of the

American Center for School Choice. He has three

times been elected president of the San Mateo Union

High School District Board and is currently board

president of Amethod Public Schools, a charter

school management organization. He has also

served four terms in the California School Boards

Association Delegate Assembly.

Pacific Research Institute (“PRI”) is a non-profit,

non-partisan 501(c\3) organization that champions

individual freedom, opportunity, and personal re-

sponsibility through the advancement of free-market

policy solutions and private initiative. The PRI Edu-

cation Studies research center publishes research

and promotes outreach regarding a number of im-

portant topics in the education field, such as teacher

quality, academic standards, school finance reform,

3

and parental choice in education. For example, in

March 2002, PRI researchers published a compre-

hensive study analyzing the collective bargaining

agreements used in 460 California school districts.

See Pamela A. Riley et al., Pac. Research Inst., Con-

tract for Failure: The Impact of Teacher Union Con-

tracts on the Quality of California Schools 1-2 (2002),

available at http://www.pacificresearch.org/docLib/

20070205_contractforfailure.pdf. Based on this

study, PRI researchers concluded that many of the

policies in collective bargaining agreements “erode| |

the authority of the school board and district man-

agement to make important decisions,” “harm| |

teachers,” and are “detrimental to student achieve-

ment.” Jd.; see also Lance T. Izumi et al., Pac. Re-

search Inst., Not as Good as You Think: Why the

Middle Class Needs School Choice 109 (2007),

available at http://www.pacificresearch.org/docLib/

20070924 _Middleclass. pdf.

A full list of the signatories to this brief is set

forth in the Appendix.

All of the amici have a significant interest in the

outcome of this case, which tests the constitutionali-

ty of agency shop arrangements. Collective bargain-

ing agreements between unions and school districts

address virtually every aspect of teachers’ profes-

sional lives and students’ classroom experiences, in-

cluding policies on teacher discipline, retention, and

compensation that provoke heated debate within the

teaching profession and that have a substantial ef-

fect on student outcomes. By requiring nonmember

teachers to subsidize unions’ viewpoints on these

matters—including positions that many teachers be-

lieve to be detrimental to their own professional ca-

reers and to the well-being of their students—agency

4

shop arrangements violate the core First Amend-

ment guarantee that individuals are free to decide

“both what to say and what not to say.” Riley v. Natl

ed’n of the Blind of N.C., Inc., 487 U.S. 781, 796-97

(1988). The Court should grant review to reconsider,

and ultimately reject, the constitutionality of these

coercive union-funding obligations, which disregard

the First Amendment rights of public-school teachers

and the well-being of the students for whom they are

responsible.

SUMMARY OF ARGUMENT

I. In Abood v. Detroit Board of Education, 431

U.S. 209 (1977), this Court held that a State cannot

compel public employees who are not union members

to make financial contributions to unions’ “political”

and “ideological” causes because those mandatory

exactions violate the principle, residing “at the heart

of the First Amendment,” that “one’s beliefs should

be shaped by his mind and his conscience rather

than coerced by the State.” Jd. at 234-35. At the

same time, the Court upheld agency shop arrange-

ments that require nonmember public employees to

finance unions’ “collective bargaining, contract ad-

ministration, and grievance-adjustment” activities.

Id. at 225-26.

This distinction is constitutionally insupportable

in any public-employment context, but is especially

problematic in the public-school setting. Abood fails

to appreciate that, during the collective bargaining

process, teachers’ unions advocate positions on in-

tensely divisive educational policies, some of which—

from the perspective of nonmember teachers—are

harmful to both teachers and the students in their

cherge. Under Abood, however, nonmember teachers

have no choice but to bankroll the very policies to

5

which they so strenuously object as detrimental to

their own careers and the well-being of their stu-

dents.

In particular, school districts and teachers’ un-

ions negotiate discipline, layoff, assignment, and

compensation policies, as well as protections for aca-

demic freedom, all of which directly affect teachers’

professional lives and students’ classroom perfor-

mance. Most of these issues are the subject of exten-

sive disagreement among members of the teaching

profession. For example, many teachers disagree

with teacher discipline, layoff, assignment, and com-

pensation policies that operate exclusively (or princi-

pally) based on seniority, without regard to teachers’

performance, and object to school district policies

that place limitations on teachers’ freedom to intro-

duce students to diverse or unconventional areas of

study. These policies, in the minds of many public-

school teachers, are antithetical to the teaching pro-

fession’s central mission of “enhancling] the quality

of education for students.” Cal. Teachers Ass’n,

About CTA, Mission Statement, http://www.cta.org/

About-CTA/Who-We-Are/Mission-Statement.aspx

(last visited Feb. 26, 2015).

Yet, despite the strong opposition of many non-

member teachers to the educational policies that

teachers’ unions espouse, nonmember teachers can

be (and commonly are) compelled to subsidize unions’

collective bargaining activities on these matters as a

condition of their public employment. Moreover,

agency shop arrangements effectively designate un-

ions as the advocates for the interests of both non-

member and member teachers in negotiations with

school districts, even though nonmembers may well

have very different views from the unions that they

6

have no means of airing during the collective bar-

gaining process. These intolerable burdens on non-

member teachers’ speech and petition rights—

countenanced in Abood based on reasoning that has

failed to withstand the test of time—should be recon-

sidered and rejected by this Court.

II. According to Abood, the “primary purpose” of

agency shop arrangements is to prevent nonmember

employees from “free riding” on dues-paying union

members during the collective bargaining process.

Knox v. Serv. Emps. Int'l Union, 132 S. Ct. 2277,

2289 (2012) (citation omitted); see also Abood, 431

U.S. at 224. It is far from the case, however, that

nonmember public-school teachers necessarily bene-

fit from the policies advocated by teachers’ unions

during collective bargaining. To the contrary, many

teachers—particularly those who perform at or near

the top of their profession—are, in fact, harmed by

the policies that unions advance during collective

For example, teachers who are new to the profes-

sion or to perticular school districts often find them-

selves at risk of being laid off or involuntarily trans-

ferred to another school—even when they have

achieved extraordinary success in the classroom—

due to provisions in collective bargaining agreements

that make important employment decisions depend-

ent primarily, if not entirely, on teacher seniority.

Moreover, many union-supported policies make it ex-

ceedingly difficult for school districts to discipline

underperforming or incompetent teachers, which

creates a disincentive for school district administra-

tors even to initiate disciplinary proceedings. As a

result, failing teachers remain in the classroom year

after year, and the teachers who teach alongside

7

them are forced to spend valuable classroom time

trying to repair the academic damage that these sub-

standard teachers have inflicted on their students.

In addition, “single salary schedules”—another prod-

uct of the collective bargaining process—require

teachers of the same seniority and education levels to

be compensated exactly the same as one another, re-

gardless of the schools to which they are assigned,

the subject matter that they teach, or how effective

they are in the classroom. This lock-step compensa-

tion model penalizes teachers in disadvantaged

schools and hard-to-staff teaching fields, as well as

the most effective teachers in our public-school sys-

tem, all of whom would be better off under a compen-

sation system designed to reward teacher quality

and improve student outcome.

Thus, the only “free ride” that teachers’ unions

can conceivably offer to many nonmember teachers is

one that takes them further from the destination

they aspire to reach—a merit-based teaching profes-

sion dedicated, first and foremost, to the well-being

of its students. Coerced financial support for public

unions cannot be justified on so flawed a rationale.

ARGUMENT

I. COLLECTIVE BARGAINING IN THE PUBLIC

EDUCATION CONTEXT IS INEXTRICABLY

INTERTWINED WITH TEACHERS’ PROFES-

SIONAL LiVES, STUDENTS’ ACHIEVEMENT,

AND NONMEMBERS’ FIRST AMENDMENT

RIGHTs.

In Abood, this Court acknowledged that agency

shop arrangements “interfere” with public employ-

ees’ “freedom to associate for the advancement of

ideas, or to refrain from doing so, as [they] see[ | fit.”

8

Abood v. Detroit Bd. of Educ., 431 U.S. 209, 222

(1977). The Court nevertheless deemed this inter-

ference justified to the extent that nonmembers’ fi-

nancial contributions are used to fund collective bar-

gaining activities that establish school district poli-

cies on “bread and butter” issues like “wages, hours,

vacations, and pensions.” Jd. at 258 (Powell, J., con-

curring). In so holding, the Court failed to appreci-

ate that many of the policies that are established

during the collective bargaining process—even those

that ostensibly govern only the “terms and condi-

tions” of teachers’ employment—heavily influence

teachers’ professional trajectories and the achieve-

ment of their students, and therefore rest at the very

core of teachers’ First Amendment interests. Jd. at

220 (majority opinion).

A. School district policies that emerge from the

collective bargaining process affect which teachers

school districts may employ (or continue to employ)

and the schools to which those teachers are ultimate-

ly assigned. This, in turn, shapes the quality and

equality of students’ educational opportunities. See

Raj Chetty et al., Measuring the Impacts of Teachers

II: Teacher Value-Added and Student Outcomes in

Adulthood, 104(9) Am. Econ. Rev. 2633, 2634 (2014)

(explaining that teacher effectiveness “has substan-

tial impacts on a broad range of [student] outcomes”).

Agency shop arrangements compel nonmembers to

fund unions’ views on these policies—despite the det-

rimental impact the unions’ negotiating positions

may have on some teachers’ professional lives and

the well-being of their students.

For example, unions commonly negotiate for pro-

visions in collective bargaining agreements that re-

quire school districts to overcome a gauntlet of pro-

9

cedural obstacles—verbal reprimands, meetings, and

notices—before they can discipline underperforming

or failing teachers. See, e.g., Agreement between

L.A. Unified Sch. Dist. Bd. of Educ. and United

Teachers L.A., art. X, § 11.0 (“L.A. Agreement”) (re-

quiring school district to provide notifications and

meetings to underperforming teachers before a notice

of unsatisfactory service or act may be issued); Con-

tract between S.F. Unified Sch. Dist. Bd. of Educ.

and United Educators of S.F. (effective July 1, 2012),

art. 28 (“S.F. Agreement”) (requiring school district

to provide verbal reprimands, written reprimands, a

statement of incident or misconduct, and a statement

of discipline before a teacher may be suspended

without pay).

These contractually-mandated steps—which op-

erate in tandem with various statutory requirements

governing teacher dismissals in California, see Cal.

Educ. Code §§ 44934, 44938, 44944—<can constitute

“tortuous” impediments to an effective disciplinary

process, “caus[ing) districts in many cases to be very

reluctant to even commence” the discipline of a fail-

ing teacher. Vergara v. California, No. BC484642,

slip op. at 11, 12 (Cal. Sup. Ct. Aug. 27, 2014), avail-

able at http://goo.gl/ThBjNQ. The inevitable result is

that underperforming or incompetent teachers re-

main in the classroom year after year, imposing “a

direct, real, appreciable, and negative impact on a

significant number” of students. Id. at 8; see also id.

at 7 (“[A] single year in a classroom with a grossly

ineffective teacher costs students $1.4 million in life-

time earnings per classroom.”). Those poorly per-

forming teachers occupy positions that would other-

wise be available to highly motivated, entry-level

teachers eager to embark on a new career and to cre-

10

ate the optimal classroom environment for their stu-

dents.

Teachers’ unions also frequently advocate, and

persuade school boards to adopt, policies requiring

district-wide reductions in force to be implemented

on the basis of teacher seniority. See L.A. Agree-

ment, art. XIII, § 3.6 (“The order of termination with-

in a teaching or service field ... shall be based on

seniority within status... .”); see also Dan Goldha-

ber & Roddy Theobald, Assessing the Determinants

and Implications of Teacher Layoffs 3 (Nat'l Ctr. for

Analysis of Longitudinal Data in Educ. Research,

Working: Paper 55, 2010) (“[IJn the overwhelming

majority of [collective bargaining] agreements, sen-

iority is the determining factor in which teachers are

laid off first with ‘last hired, first fired’ provisions.”).

These quality-blind reduction-in-force policies—

together with overlapping statutory provisions, see

Cal. Educ. Code § 44955—result in the termination

of countless highly-effective, well-liked teachers and

the retention of a disproportionately high percentage

of below-average teachers. See Goldhaber & Theo-

bald, supra, at 2 (“[A] very different group of teach-

ers would be targeted for layoffs under an effective-

ness-based layoff scenario than under the seniority-

driven system that exists today.”). Indeed, seniority-

driven layoff policies are a barrier to the ability of

many newer teachers—including teachers from di-

verse backgrounds with unique viewpoints—to re-

main in the public-school teaching profession at all.

It is well-documented that these last-in-first-out

layoff policies impose severe and potentially irrepa-

rable harm on students. In a recent study, research-

ers implemented a hypothetical 5% reduction in the

teaching force of the Los Angeles Unified School Dis-

11

trict, and compared the effects of a seniority-based

reduction in force (as currently mandated by the Dis-

trict’s collective bargaining agreement) to a reduction

based on teacher effectiveness. See Raj Chetty &

Alex Olssen, The Impacts of Last-In, First-Out vs. Ef-

fectiveness-Based Teacher Layoff Policies 1 (2013),

Vergara, No. BC484642, Pls.’ Exhibit 9. The results

are alarming: a seniority-based reduction in force

decreases student test scores by an average of 11

percentile points relative to an effectiveness-based

reduction in force, and these test-score decreases

translate into a loss in lifetime earnings of $87,000

per student. Jd. at 2-3.

Worse still, minority and low-income students

“bear the brunt” of these seniority-driven teacher

layoff policies. Vergara, No. BC484642, slip op. at 15

(internal quotation marks omitted). Minority and

low-income students are assigned to junior teachers

at a disproportionately high rate, and are therefore

forced to endure a constant “churning . . . of teach-

ers” when district-wide reductions in force become

necessary. Id. As one California court recently con-

cluded after a ten-week bench trial, this relentless

revolving door of teachers “greatly affects the stabil-

ity of the learning process to the detriment of such

students.” Jd.; see also Goldhaber & Theobald, su-

pra, at 15 (“[T]here are achievement consequences

associated with the churn of teachers.”).

Teachers’ unions similarly promote teacher trans-

fer and assignment policies that afford preferential

treatment to teachers on the basis of seniority. See,

e.g., L.A. Agreement, art. XI, § 6.c (“[W]hen there is

an over-teachered condition, the teacher with the

least District seniority . . . will be displaced ... .”);

Agreement between Oakland Unified Sch. Dist. Bd.

12

of Educ. and Oakland Educ. Ass’n (effective July 1,

2005), art. 1242 (“Oakland Agreement”)

(“[SJeniority .. . shall be given preference in granting

an assignment.”). In practice, teachers with seniori-

ty tend to invoke this preferential treatment by

transferring to or seeking assignments at schools

with higher percentages of Caucasian and/or affluent

students. See Eric A. Hanushek et al., Why Public

Schools Lose Teachers, 39(2) J. Hum. Resources 326,

328 (2004). As a result, schools that serve predomi-

nately minority and low-income students are forced

to staff their teacher ranks with the very same junior

teachers who are most vulnerable to seniority-based

reductions in force, thus feeding into and exacerbat-

ing oe churn that is so detrimental to student out-

comes.

2 Collective bargaining agreements also establish and regu-

late district-wide Peer Assistance and Review (“PAR”) pro-

grams, which provide underachieving teachers with individual-

ized goal-setting plans, mentorship meetings with other teach-

ers, periodic reports and evaluations, and additional profes-

sional development activities. See, e.g., L.A. Agreement, art. X-

A; Agreement between Sacramento City Unified Sch. Dist. Bd.

of Educ. and Sacramento City Teachers Ass’n (effective July 1,

2004), Appx. H; S.F. Agreement, art. 39. Although there is

widespread agreement that struggling teachers should receive

some measure of assistance, some PAR programs can operate,

in practice, to delay the discipline or dismissal of failing teach-

ers who are entirely unable or unwilling to meet basic satisfac-

tory performance standards. Thus, in the view of many educa-

tors, while PAR programs may have admirable goals and may

achieve some measure of success, the time and money that is

dedicated to PAR programs would be better spent enriching the

lives of students in other ways because “it takes more resources

to serve struggling veterans than new teachers, many of

whom are likely to succeed.” John P. Papay & Susan Moore

Johnson, Js PAR a Good Investment? Understanding the Costs

and Benefits of Teacher Peer Assistance and Review Programs

13

In addition, collective bargaining sets school dis-

trict policy on teacher compensation, and has result-

ed in the near-universal adoption of “single salary

schedules”—uniform pay schedules that compensate

teachers based almost exclusively on their number of

years of teaching experience and level of education.

Michael Podgursky, George W. Bush Inst., Reform-

ing Educator Compensation 4-5 (2014); see also Oak-

land Agreement, art. 24.2.4 (“All unit members shall

advance one step on the salary schedule for each

year of service in the District .. . .”); Agreement be-

tween San Jose Unified Sch. Dist. Bd. of Educ. and

San Jose Teachers Ass’n, art. 36110 (“San Jose

Agreement”) (stating that teachers’ salaries are

based on “graduate units” and “years of experience”).

Many nonmember teachers, however, profoundly

disagree with this “homogenization of public school

teachers,” which harms teachers and students alike

in several significant ways. Podgursky, supra, at 7.

“Single salary schedules” equalize teacher com-

pensation regardless of how effective teachers are in

the classroom, thereby disincentivizing the very “best

people [from] enter[ing] or remain|ing] in the profes-

sion” in service of students. Hanushek, supra, at 44.

In contrast, a compensation system that rewards its

most effective teachers would have a “selection ef-

fect,” and would draw “teachers into the workforce

who are relatively more effective at meeting . . . per-

formance targets” in the classroom. Podgursky, su-

pra, at 7. The equalized pay system that arises out |

13 (2011); see also Eric A. Hanushek, Valuing Teachers: How

Much Is a Good Teacher Worth?, 11(3) Educ. Next 41, 44 (2011)

(“[T}here is no substantial evidence that . . mentoring pro-

grams systematically make a difference in whether teachers are

in fact effective at driving student achievement.”).

14

of the collective bargaining process therefore “tends

to lower overall [teacher] effectiveness” and, as a re-

sult, student achievement. Id.

“Single salary schedules” do further harm to stu-

dent outcomes—as well as the ability of school dis-

tricts to staff their schools in a sensible way—by ig-

noring the very real differences that exist in. school

environments and teaching fields. Podgursky, supra,

at 7. Because all teachers of equivalent seniority and

education level are compensated exactly the same,

regardless of the schools or fields in which they

teach, teachers are less likely to seek employment in

schools with difficult working conditions and in hard-

to-staff teaching fields, such as special education,

high-school mathematics, and high-school science.

Id. at 5-7; see also Joshua Barnett & Gary W. Ritter,

When Merit Pay Is Worth Pursuing, 66(2) Educ.

Leadership (2008), available at http://www.

ascd.org/publications/educational-leadership/oct08&/

vol66/num02/When-Merit-Pay-Is-Worth-Pursuing.

aspx (“Because the current system includes no mone-

tary rewards directly tied to effectiveness, many ef-

fective teachers seek more ‘compensation’ through

better working conditions, often choosing to leave

schools with a high population of disadvantaged stu-

dents and challenging teaching conditions for schools

serving more advantaged students.”). This, in turn,

leads to unfilled teacher rosters at high-poverty

schools, vacancies in hard-to-staff teaching fields,

and an ineffective practice of assigning teachers “out

of field” or with substandard licenses simply to fill

vacant positions. Podgursky, supra, at 5-7.

As these examples make clear, the policies that

are established during the collective bargaining pro-

cess have far-reaching consequences for teachers’

15

professional lives and the achievement of the stu-

dents for whom they are responsible. Yet, despite

the serious misgivings that many nonmember teach-

ers have about the effect of these policies on their

own careers and the success of their students, agency

shop arrangements leave nonmember teachers with

no choice but to provide financial support for the un-

ions’ positions on these intensely personal, and pro-

foundly important, policy matters.

B. In addition to setting the terms of teachers’

discipline, transfers, layoffs, and compensation, col-

lective bargaining between unions and school dis-

tricts also establishes district policy regarding the

scope of teachers’ academic freedom, a speech inter-

est that this Court has held to be a “special concern

of the First Amendment.” Regents of the Univ. of

Cal. v. Bakke, 438 U.S. 265, 312 (1978) (opinion of

Powell, J.) (internal quotation marks omitted). Giv-

en the vital importance of a robust and open ex-

change of ideas in the classroom, many teachers be-

lieve that expansive guarantees of academic freedom

are crucial to ensure that controversial subjects are

brought “out in the open for discussion” and deliber-

ation. See Charles C. Read, Collective Bargaining

and Academic Freedom in Lower Education: A Prac-

tical Inquiry, 1 Berkeley J. Emp. & Lab. L. 249, 256

(1976) (citation omitted); see also Keyishian v. Bd. of

Regents of the Univ. of N.Y., 385 U.S. 589, 603 (1967)

(“[A]cademic freedom ... is of transcendent value to

all of us and not merely to the teachers concerned.”).

Teachers’ unions, however, commonly agree to

collective bargaining agreements that place substan-

tive limitations on teachers’ academic freedom. In

particular, some collective bargaining agreements

narrowly define the type of academic expression that

16

is entitled to protection. See, e.g., L.A. Agreement,

art. XXV, § 1.c (prohibiting lesson plans that reflect

“personal opinion”); San Jose Agreement, art. 34200

(“An employee . . . shall not utilize his/her position to

attempt to influence students with his/her own per-

sonal .. . views.”); Contract between Elk Grove Uni-

fied Sch. Dist. Bd. of Trs. and Elk Grove Educ. Ass’n

(2013-2015), art. 4, § 4.402 (“Academic freedom is not

an absolute.”); cf. S.F. Agreement, art. 6.2 (“[T]he

teacher is free to present in the field of his or her

professional competence his/her opinions or convic-

tions and with them the premises from which they

are derived.”).

Many teachers—including many teachers who de-

cide not to join a union—believe that these limita-

tions create an unwarranted risk that students will

be denied “exposure to [a] robust exchange of ideas”

and the benefit of a vibrant, free, and open learning

environment. Keyishian, 385 U.S. at 603. Under

agency shop arrangements, however, nonmember

teachers who hold such beliefs are coerced into

providing financial support for the collective bargain-

ing efforts of unions that promote, or otherwise ac-

cede to, these policies.

C. The “heavy burden” that agency shop ar-

rangements impose on the First Amendment rights

of nonmember public-school teachers, Harris uv.

Quinn, 134 S. Ct. 2618, 2643 (2014)—who are com-

pelled to fund bargaining in which unions advocate

policies that the teachers may view as detrimental to

their own careers and the success of their students—

is incompatible with this Court’s First Amendment

jurisprudence.

In fact, Abood itself recognized the severity of this

burden, declaring that agency shop arrangements

17

interfere with the “moral” and “religious views,”

“economic” and “political” beliefs, and “ideological”

viewpoints of nonmember employees. 431 U.S. at

222-23. In more recent cases, the Court has repeat-

edly underscored this “significant impingement on

[the] First Amendment rights” of nonmember em-

ployees, reiterating that it is equally abhorrent to the

First Amendment for the government to “compel the

endorsement of ideas” as it is for the government to

“prohibit the dissemination of ideas that it disfa-

vors.” Knox, 132 S. Ct. at 2288, 2289.

While Abood drew a distinction between union

fees used for “political” and “ideological” causes, on

the one hand, and “collective bargaining activities,”

on the other, subsequent decisions have exposed the

artificiality and unworkability of that division. In-

deed, it is no longer open to dispute that a “public-

sector union takes many positions during collective

bargaining that have powerful political and civic

consequences.” Knox, 132 S.Ct. at 2289; see also

Harris, 134 S. Ct. at 2632 (“In the public sector, core

issues such as wages, pensions, and benefits are im-

portant political issues ....”). With respect to each

of the policies discussed above—teacher discipline,

transfers, layoffs, and compensation, as well as aca-

demic freedom—the objections of nonmember teach-

ers to unions’ collective bargaining activities are of-

ten based on deeply-rooted personal, political, and

ideological concerns, including the impact that such

activities will have on their professional lives, the

well-being of their students, and ultimately, the suc-

cess of the public-education system as a whole. The

freedom-of-speech concerns that prompted the Abood

Court to condemn compelled subsidies for unions’

lobbying activities therefore apply with equal force to

agency shop arrangements that compel nonmember

18

teachers to fund unions’ collective bargaining activi-

ties.

In addition, agency shop arrangements impose an

independent, and equally unacceptable, burden on

nonmember teachers’ right to petition the govern-

ment about matters of public concern, a right that

has long been recognized as “among the most pre-

cious of the liberties safeguarded by the Bill of

Rights.” United Mine Workers of Am. v. Ill. State

Bar Ass’n, 389 U.S. 217, 222 (1967); see also McDon-

ald v. Smith, 472 U.S. 479, 483 (1985) (“[T]he values

in the right of petition as an important aspect of self-

government are beyond question . .. .”). This “essen-

tial” right is “integral to the democratic process” and

ensures that citizens are free to convey their “special

concerns” to the government. Borough of Duryea v.

Guarnieri, 131 S. Ct. 2488, 2495 (2011). And, just as

the freedom of speech “includes both the right to

speak freely and the right to refrain from speaking at

all,” Wooley v. Maynard, 430 U.S. 705, 714 (1977),

the right to petition carries with it a concomitant

right to refrain from supporting or associating with

petitioning efforts with which one disagrees. See

Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984)

(“Freedom of association ... plainly presupposes a

freedom not to associate.”).

Agency shop arrangements, however, coerce pub-

lic school] teachers who elect not to join a union to fi-

nance the petitioning activities of unions “with which

they broadly disagree” on matters of great “public

concern” and to cede their petitioning rights to advo-

cates that are urging different positions from the

ones the nonmembers themselves would take if per-

mitted to bargain directly with the school dis-

trict. Harris, 134 S. Ct. at 2623, 2640; see also Bor-

19

ough of Duryea, 131 S. Ct. at 2491. Because individ-

uals must be permitted to express their own “ideas,

hopes, and concerns to their government and their

elected representatives,” id. at 2495, they cannot be

compelled to finance the petitioning activities of

groups that seek to attain goals inconsistent with

their own personal beliefs and professional aspira-

tions.

Il. Tse FREE-RIDER JUSTIFICATION FOR

AGENCY SHOP ARRANGEMENTS Is FUN-

DAMENTALLY FLAWED.

Abood’s principal justification for upholding

agency shop arrangements—to prevent purported

free-riding by nonmembers on unions’ collective bar-

gaining efforts—is flawed in multiple respects. As

an initial matter, that rationale cannot be reconciled

with this Court’s subsequent precedent. Indeed, on

multiple occasions, this Court has made clear that

the free-rider justification animating Abood is “some-

thing of an anomaly” and that “free-rider arguments

... are generally insufficient to overcome First

Amendment objections.” Harris, 134 S. Ct. att 2627;

Knox, 132 S. Ct. at 2289, 2290.

More fundamentally, the free-rider justification

is impossible to square with the real-world implica-

tions of compelling nonmember teachers to fund edu-

cational policies with which they may velhemently

disagree. In fact, in many settings, the damger that

nonmember public-school teachers will “free ride” on

unions during the collective bargaining process is

wholly illusory because, in the view of many non-

member teachers, they do not “obtain[{] benefits

[from] union representation” during collective bar-

gaining. Abood, 431 U.S. at 221-22. To the contrary,

many nonmember teachers are manifestly harmed

20

by these collective bargaining activities and are

forced to subsidize views contrary to their profes-

sional and economic interests.

For example, new, high-performing teachers

commonly find themselves at risk of losing their

teaching positions, or of being transferred to another

school against their will, due to union-backed policies

that prioritize teacher seniority above performance

in the classroom. See supra Part I.A; see also Bhav-

ini Bhakta, Op-Ed., California’s Pink-Slip Shuffle,

L.A. Times, Dec. 16, 2012, http://

articles.latimes.com/2012/dec/16/opinion/la-oe-bhakta

-teaching-20121216 (recounting that the author lost

her teaching position four times in eight years due to

her relative lack of seniority, even though she was

named a “Teacher of the Year”). Such policies impair

the ability of motivated, student-focused teachers to

progress, or even remain, in their chosen profession.

It should come as no surprise, then, that a signif-

icant proportion of teachers (union members and

nonmembers alike) do not support many of the poli-

cies that are set forth in their collective bargaining

agreements. In fact, a survey of California public-

school teachers released last year shows that the ma-

jority of teachers believe that teacher morale is nega-

tively affected by reduction-in-force policies that are

based, either primarily or solely, on teacher seniori-

ty. See Students Matter, Vergara v. California 2013

California Educators Survey Results 17-18 (2014),

available at http://studentsmatter.org/wp-content/

uploads/2014/03/SM_Research-Now-Poll-Results_03.

05.14.pdf.

Similarly, many teachers oppose discipline poli-

cies contained in collective bargaining agreements

that can lead to the entrenchment of habitually un-

21

derperforming teachers in the classrooms next door

to them. For many reasons, a significant proportion

of “teachers ... do not want grossly ineffective col-

leagues in the classroom.” Vergara, No. BC484642,

slip op. at 12. For example, the continued employ-

ment, and inability or unwillingness to improve, of

these substandard teachers makes it difficult for

high-performing teachers to engage in collaborative

lesson-planning and co-teaching. See Elaine A\l-

lensworth et al., Consortium on Chi. Sch. Research,

The Schools Teachers Leave 25, 30 (2009) (finding

that teachers are more likely to remain in schools

that have a “shared commitment among the faculty

to improve the school” and are more likely to leave

when colleagues are “uncooperative and resistant to

change”). And because students assigned to under-

performing teachers fall far behind their peers, the

presence of ineffective teachers requires high-

performing teachers to expend tremendous effort

simply trying to bring these students back up to

grade level.

Moreover, highly-effective teachers routinely find

that their excellence in the classroom is not ade-

quately recognized in the compensation that they re-

ceive, a product, in part, of the “single salary sched-

ules” that unions and school districts adopt during

the collective bargaining process. See Daniel Weis-

berg et al., The New Teacher Project, The Widget Ef-

fect 6 (2009) (“Fifty-nine percent of teachers . . . say

their district is not doing enough to identify, com-

pensate, promote and retain the most effective

teachers.”). Many teachers desire professional ac-

knowledgment and compensation commensurate

with their achievements, rather than a system that

treats all teachers as interchangeable parts. See id.

By failing to distinguish among teachers, “single sal-

22

ary schedules” deny outstanding teachers the recog-

nition and compensation that they so justly deserve.

See Barnett & Ritter, supra (“[U)nder a merit-based

[compensation] scheme, the most effective teachers

would consistently earn large bonuses... .”).

In short, many nonmember public-school teach-

ers do not want, need, or seek out a “free ride” that

will continue to deliver them the status quo—a sys-

tem that prioritizes the needs of more-senior teach-

ers (regardless of their performance level) at the ex-

pense of newer, higher-performing teachers and the

students for whom they are responsible. Instead,

these nonmember teachers hold the “deeply rooted”

belief that these employment-related decisions

should be based on teachers’ “individual merit or

achievement,” and that an education system founded

on merit-based principles will ultimately benefit all

students. Regents of the Univ. of Cal., 438 U.S. at

360-61 (Brennan, J., concurring in part and dissent-

ing in part) (citing United Jewish Orgs. of Williams-

burgh, Inc. v. Carey, 430 U.S. 144, 173-74 (1977)

(Brennan, J., concurring, in part)). This Court

should grant review and overrule Abood to enable

public schools throughout the country to realize that

promise.

23

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted.

KEVIN J. RING-DOWELL THEODORE B. OLSON

GIBSON, DUNN & CRUTCHERLLP Counsel of Record

555 Mission Street AMIR C. TAYRANI

San Francisco, CA 94105 GIBSON, DUNN & CRUTCHER LLP

(415) 393-8200 1050 Connecticut Avenue, NW

Washington, DC 20036

C. DEAN MCGRATH, JR. (202) 955-8500

MCGRATH & ASSOCIATES tolson@gibsondunn.com

1025 Thomas Jefferson St., NW

Suite 110G

Washington, DC 20007

(202) 295-2304

Counsel for Amici Curiae

March 2, 2015

APPENDIX

APPENDIX OF SIGNATORIES

Gary Beckner is Executive Director of the Associa-

tion of American Educators, an alternative, non-

union professional organization of teachers that pro-

vides liability insurance and other benefits to teach-

ers who do not want to join their union.

Alan Bonsteel is a physician and long-time public

proponent of school choice, who is president and

founder of California Parents for Educational Choice

(“CPEC”). He is author of A Choice for Our Children:

Curing the Crisis in America’s Schools (1997).

Mark Bucher is President of the California Policy

Center and an attorney who has been active in public

policy since 1993, particularly with respect to Propo-

sition 174 (school choice) and Proposition 226 (union

use of dues for political purposes).

Sandra Crandall, twice elected, is a member of the

Fountain Valley School District Board of Trustees in

Orange County, California. Mrs. Crandall was an

elementary teacher for 39 years, a recipient of the

Fountain Valley School District Teacher of the Year

in 2005, and was an agency fee payer.

Lydia Grant is a California parent activist who

helped get the California “Parent Trigger” law off the

ground. She is a member of the board for Parent

Revolution, the Education Chair for the Saving Los

Angeles Project, and a Los Angeles City Commis-

sioner on the Board of Neighborhood Commissioners.

Ms. Grant also served as the Education Representa-

tive for the Sunland-Tujunga Neighborhood Council.

2a

Peter H. Hanley is Executive Director of the Amer-

ican Center for School Choice. With extensive policy

and business experience, he has three times been

elected president of the San Mateo Union High

School District Board and is currently board presi-

dent of Amethod Public Schools, a charter school

management organization. He has also served four

terms in the California School Boards Association

Delegate Assembly, and has pressed for academic re-

form and accountable professional development,

among other initiatives.

Eric Hanushek is the Paul and Jean Hanna Senior

Fellow at the Hoover Institution of Stanford Univer-

sity. He studies educational issues from an economic

perspective, and has promoted the idea that teacher

proficiency should be measured by increased student

achievement. He is a graduate of the Air Force

Academy and has a Ph.D. from MIT.

Victoria Heggem is a teacher in Arcadia, Califor-

nia, and board member of California Teachers Em-

powerment Network (“CTEN”), a non-profit, non-

union information resource for teachers interested in

education reform. She is a “religious objector” pur-

suant to e provision in California law that allows in-

dividuals who object to unions on religious grounds

to have their compulsory union dues paid to an eligi-

ble charity.

Darren Miller is a high school math teacher in sub-

urban Sacramento and a board member of CTEN.

He previously served as a school site union repre-

sentative, but currently rejects union membership

and is an agency fee payer. He has maintained

3a

“Right on the Left Coast,” a successful blog, for over

10 years.

Pacific Research Institute (“PRI”) is a non-profit,

non-partisan 501(cX3) organization that champions

individual freedom, opportunity, and personal re-

sponsibility through the advancement of free-market

policy solutions and private initiative. PRI believes

that free interaction among consumers, businesses,

and voluntary associations is more effective than

government action in providing good schools, quality

health care, a clean environment, and economic

growth. PRI's activities include publishing books

and studies, giving commentary to media, providing

legislative testimony, hosting public events, and con-

ducting grassroots and community outreach.

Gloria J. Romero served in the California Senate

from 2001 to 2010, including as Majority Leader

from 2005 to 2008, the first woman to hold that lead-

ership position, and as Chairwoman of the Education

Committee from 2008-2010. She founded and cur-

rently heads the California Center for Parent Em-

powerment and leads the California chapter of Dem-

ocrats for Education Reform.

Larry Sand is President of CTEN and a well-known

education-reform activist. Mr. Sand is a retired

teacher who began his teaching career in New York

in 1971. Beginning in 1985, he taught elementary

school as well as English, math, history and ESL in

the Los Angeles Unified School District, where he

also served as a Title 1 Coordinator.

4a

Pete Wilson served as the 36th governor of Califor-

nia (1991-1999), a United States Senator (1983-

1991), the Mayor of San Diego (1971-1983), and a

California State Assemblyman (1967-1971).