# Amicus Curiae Brief — Friedrichs v. Cal. Teachers Ass'n, 135 S. Ct. 2933 (2015) (No. 14-915) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0322%3A15 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2015 ## Text 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—