Amicus Curiae Brief — Janus v. Am. Fed'n, 138 S. Ct. 54 (2017) (No. 16-1466)

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No. 16-1466

IN THE

Supreme Court of the United States

MARK JANUS,

Petitioner,

Vv.

AMERICAN FEDERATION OF STATE, COUNTY, AND

MUNICIPAL EMPLOYEES, COUNCIL 31, ET AL.,

Respondents.

On a Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

BRIEF OF AMERICAN FEDERATION OF

TEACHERS AS AMICUS CURIAE IN SUPPORT

OF RESPONDENTS

Rhonda Weingarten Kevin K. Russell

David J. Strom Counsel of Record

Mark Richard Erica Oleszczuk Evans

AMERICAN FEDERATION GOLDSTEIN &

OF TEACHERS RUSSELL, P.C.

555 New Jersey Ave. NW 7475 Wisconsin Ave.

Washington, DC 20001 Ste. 850

(202) 393-7472 Bethesda, MD 20814

(202) 362-0636

kr@goldsteinrussell.com

Mosaic - (301) 927-3800 - Cheverly, MD

eS:

INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

TABLE OF CONTENTS

Requiring All Employees To Share In The Cost

Of Developing And Implementing Their

Contracts Does Not Trigger Strict Scrutiny.......

A. The Strict Scrutiny Petitioner Invokes

Only Applies When The Government

Burdens A Worker’s Right To Lobby As A

CURSO CORTES BENS DOW occ ccccccscccscscccccccccessss

B. Fair Share Fees Finance Workplace

Speech, Not Lobbying, And Therefore Do

Not Trigger Strict Scrutiny........................6.

1. The Contracting Process Routinely

Requires Limitations On Employees’

Speech Within The Workplace

Without Giving Rise To Substantial

Constitutional Concern......................006.

2. Soliciting Employee Input During

Contracting, And Passing The Cost

Of That Participation On To

Employees As A Whole, Does Not

Trigger Strict First Amendment

PIII i acthinsdodihonscinseubinnesabaiakersinevoleteases

3. Collective Bargaining Is Another

Means Of Soliciting Employee Input

Into Employment Contracts .................

eee

ll. The History Of Labor-Management

Cooperation In Public Education Lllustrates

How Collective Bargaining Is An Essential

Part Of State Agencies’ Internal Process For

Contracting With Teachers And Improving

I iiscdedainndactdisighsidimidiepiaticnsaiiubinianadeanaenss 15

A. States Have A Compelling Interest In

Preserving The Educational Benefits

Made Possible By The Labor-Management

Collaboration Collective Bargaining

SPT chiles ciisinassacnsindiniinbeintendaissinoninterisbaabiailideaiddi 15

1. Collective Bargaining Is Essential To

The Effective Implementation Of

Innovative Programs To Improve

acl ciasteidaniaitintaipileninlaScrmbinerninacrtininies 15

2. Collective Bargaining Promotes

Health And Safety Within Our

I iled nicl na icstinieaiadsitlaclatedchthoninoniiansans 23

3. Collective Bargaining Provides A

Framework For Myriad Other Labor-

Management Collaborations As Well.... 25

4. The Labor-Management

Collaboration Made Possible

Through Collective Bargaining

Improves Educational Outcomes.......... 26

B. Eliminating Fare Share Fees Would

Seriously Disrupt The Management Of

Thousands Of Schools, To The Detriment

Of Education Nationwide.....................:00000+ 28

ili

Ill. Petitioner’s Facial, All-Or-Nothing Challenge

To All Aspects Of Every Fair Share Fee Ever

Charged Anywhere, On The Basis Of No

Record At All, Is Itself Facially Defective .......... 31

A. Petitioner’s Bare-Record Facial Challenge

Ignores The Substantial Variation In The

Uses Of Fair Share Fees And The

Resulting First \mendment And

Government Interests At Stake................... 32

B. Petitioner’s Facial Challenge Defies

Ordinary Principles Of Sound Judicial

Administration And Restraint..................... 36

SAPD teninctcibinnciatnsacnensesiineundighitntentisnianivnivesien 39

TABLE OF AUTHORITIES

Cases

Abood v. Detroit Bd. of Educ.,

BE Tey, ee ee passim

Bd. of Educ. v. Round Valley Teachers Ass’n,

Pe ae BO CEs WD nccrvsccccsecosccsecccsssoeccccrsceosees 14

Bd. of Regents of the Univ. of Wis. Sys. v.

Southworth,

4 5 SET ty eee e me Ree oe 35

Citizens United v. FEC,

SE ade 37

Connick v. Myers,

Re IID a icceciccncpissiiapocssomibsvevarbedions 7, 33

Ellis v. Bhd. of Ry., Airline & S.S. Clerks,

Re MI IID aissiis is'vaicoveniuitiensnevedaccsnesécbucoumvons 34

Garcetti v. Ceballos,

I I a on 8,14

Harris v. Quinn,

Be ie Gres PO COED once ecincccicovessevcsssecasenesoses passim

Keller v. State Bar of Cal.,

STRING BEIT in ic trserchesecnmanessbnegbeicadbausseiacsocies 35, 37

King v. Burwell,

EP Ay Gly A CP RIED <ccecnccsosccvccccocsossesvercosusoons 28, 29

Knox v. SEIU,

0 cisccsalss cacnciupnunbunebececuioees 8, 30

Lehnert v. Ferris Faculty Ass’n,

es 34

Locke v. Karass,

I II ssi cccramsannliepilimmasanedsnivtocsonans 38

Minn. State Bd. for Cmty. Colls. v. Knight,

re SR Ge RIE oven sdacdncsvnomiadtovnsssccaiicens 11, 12, 13

Wash. State Grange v. Wash. State Republican

FOrey,, FEB CF: SE Ge vi ccscnsiscetaviccasnistdmanicien 36

Constitutional Provisions

UE. CGE, GUIDIIIE,. Biicsvicctsuneseveseetinencediveedcisdals passim

Statutes

SD UE BGs. SB GIG Sete pvictstniccsevchacncinncecsbsttetedsentinasieal 16

Cal. Buc. Code § 440BD.E1 ....cccccccssssscsssseccseseseceosecses 14

Cal. Educ. Code § 44932 et seq. ..............cccecssesersseseees 14

Ca. Goer 'S CARE B Dia scx sccinecsvisccsicccévesdicacocobssoniinss 14

Every Student Succeeds Act, Pub. L. No. 114-95,

SEP OO, Fe GO hececsnistvveissthcignatddunibeenibapbnets 16

Other Authorities

AFT, A ‘Big Bet’ on Educator-Led Collaborations

and Solutions: The AFT Innovation Fund

(2009-16) (2017), https://www.aft.org/sites/

default/files/if_big-bet_2017.pdf.......... 18, 19, 22, 23

AFT, ER&D: Twenty-Five Years of Union-

Sponsored, Research-Based Professional

Development, Am. Educator, Winter 2006-2007,

http://www.aft.org/periodical/american-

educator/winter-2006-2007/erd-twenty-five-

YORTS-UNIOM-GHONGOTOG 0..0cccescsercscscscccccccsossosososcsccaves 17

AFT, Member Uses Union CPR Training to Save

a Life, PSRP Reporter, Spring 2015,

http://www.aft.org/sites/default/files/periodical

FOU, DA i ia arcsenctacdinitinsenndannatenacisonbantea 24

Alliance for Excellent Educ., On the Path to

Equity: Improving the Effectiveness of

Beginning Teachers (2014),

http://all4ed.org/wp-content/uploads/2014/07/

UIE SURI ssccnscssesvevesmnsensitennaaaaiuaacaadiaaeailin 20

Baltimore City Schools Collective Bargaining

Agreement for 2013-2016,

http://www.baltimoreteachers.org/wp-

content/uploads/2015/01/Balt-City-BTU-2013-

2016-Teacher-Agreement-03-10-14-kjz1.pdf......... 25

Boston Schools Collective Bargaining

Agreement for 2010-2016, http://btu.org/

wp-content/uploads/Final_ BTU_Contract

GE EO 21, 24, 25

Chicago Schools Collective Bargaining

Agreement for 2012-2015,

http://www.ctunet.com/for-members/text/

CTU_Contract_As_Printed_2012_2015.pdf.......... 25

Steven Elbow, Jndiana and Michigan, a Tale of

Two New Right to Work States, Cap Times

(Feb. 27, 2015), http://host.madison.com/

ct/news/local/writers/steven_elbow/indiana-

and-michigan-a-tale-of-two-new-right-

to/article_dae6b5d3-e85b-5f1 4-ad5b-

a ndeuineunsccccutonsene 37

Jennifer Goldstein, Taking the Lead:

With Peer Assistance and Review, the

Teaching Profession Can Be in Teachers’

Hands, Am. Educator, Fall 2008..................... 19, 20

Harvard Graduate Sch. of Educ., Project on the

Next Generation of Teachers, A User’s Guide

to Peer Assistance and Review,

http://connectingthedots.aft.org/sites/aft/

files/documents/UsersGuideToPAR. pdf ................ 20

Health & Safety for All, AFT,

http://www.aft.org/health-safety-all

ER, Bs SID vc ccccceccceccccveccneaccsscessessoce 25

vii

Sean Higgins, Wisconsin Public Sector Unions

Still Losing Members, Wash. Examiner

(Aug. 12, 2014),

http://www.washingtonexaminer.com/

wisconsin-public-sector-unions-still-losing-

members/article/255 1945.............cccccsecesseeceeeeeeeeeees 29

Julia E. Koppich, Using Well-Qualified Teachers

Well: The Right Teachers in the Right Places

with the Right Support Bring Success to

Troubled New York City Schools,

pe N 22

David Lewin et al., The New Great Debate About

Unionism and Collective Bargaining in U.S.

State and Local Governments,

65 Indus. & Lab. Rel. Rev. 749 (2012)................... 17

Los Angeles Schools Collective Bargaining

Agreement for 2008-2011, http://Awww.utla.net/

sites/default/files/Final_ UTLA_2008-

ee i hitcinincnmapetncsnseneniacinensnessens 21, 24, 25

John E. McCarthy & Saul A. Rubinstein,

National Study on Union-Management

Partnerships and Educator Collaboration

in US Public Schools (Oct. 2017),

https://www.cecweb.org/wp-content/

uploads/2017/11/Cornell_Rutgers_

Ck EEE eee 26, 27

Minneapolis Schools Collective Bargaining

Agreement for 2013-2015,

https://www.nctq.org/dmsView/

Minneapolis Final CBA 2013-2015......... 24, 25, 26

viii

Brian Minnich, Our Battle with SEIU Gets a

Thumbs Up in Wall Street Journal,

Freedom Found. (Nov. 4, 2015),

http://(www.myfreedomfoundation.com/blogs/

liberty-live/our-battle-with-seiu-gets-a-

thumbs-up-in-wall-street-journal.........................

Montgomery County, Maryland, Schools Collective

Bargaining Agreement for 2015-2017,

http://www.montgomeryschoolsmd.org/

uploadedFiles/departments/associationrelations/

refresh2014/MCEA%20Contract%20

pg) gis, SS eos 18,

New York City Schools Collective Bargaining

Agreement for 2007-2009, http://www.uft.org/

files/contract_pdfs/teachers-contract-

Saul A. Rubinstein & John E. McCarthy,

Public School Reform Through Union-

Management Collaboration, in 20 Advances in

Industrial & Labor Relations 1

(David Lewin & Paul J. Gollan eds. 2012)............

San Francisco United School District Collective

Bargaining Agreement for 2014-2017,

http://www.sfusd.edu/en/assets/sfusd-

staff/contract%20and%20salary%20schedules/

Certificated%20Collective%20Bargaining™% 20

Agreement%207-1-14%20thru%206-30-

IIIT stictcscinlesnbsesnsceasmineentnieneastnencese

David Shepardson, Michigan Union Membership

Falls Sharply in ’14, Detroit News

(Jan. 23, 2015), http:/Awww.detroitnews.com/

story/business/20 15/0 1/23/michigan-union-

I ermriecincasenictceeientttancinvanenesinnes

Valerie Strauss, Why Collaboration Is Vital to

Creating Effective Schools, Wash. Post (May 2,

2013), https://(www.washingtonpost.com/

news/answer-sheet/wp/20 13/05/02/why-

collaboration-is-vital-to-creating-effective-

schools/?utm_term=.2fb1d4686c35........................ 26

U.S. Dep’t of Educ., Advancing Student

Achievement Through Labor-Management

Collaboration (2011),

http://www.ed.gov/sites/default/files/labor-

management-collaboration-program.pdf............... 20

U.S. Dep’t of Educ., Shared Responsibility:

A U.S. Department of Education White Paper

on Labor-Management Collaboration (2012),

http://www?2.ed.gov/documents/labor-

management-collaboration/white-paper-

labor-management-collaboration.pdf.............. 19, 20

United Fed’n of Teachers, Environmental seat

N.Y. Teacher (June 2, 2016),

http://www.uft.org/know-your-

rights/environmental-safety ........................ceeeeeeeee 24

INTEREST OF AMICUS CURIAE'

The American Federation of Teachers (AFT), an

affiliate of the AFL-CIO, was founded in 1916 and

today represents 1.7 million members in more than

3,500 local affiliates nationwide. Many AFT affiliates

represent members in States where, either by statute

or through collective bargaining agreements,

represented employees are required to pay fair share

fees to cover the costs of collective bargaining and

contract administration. The AFT has had a long-term

commitment to striking the appropriate balance under

the First Amendment between members’ and fee

payers’ rights. Indeed, it was an AFT affiliate that was

involved in the original decision at issue in this case,

Abood v. Detroit Board of Education, 431 U.S. 209

(1977).

! No counsel for a party has authored this brief in whole or

in part, and no person or entity other than amicus or their counsel

made any monetary contribution intended to fund the

preparation or submission of this brief. Blanket consent letters

on behalf of all the parties are on file with this Court.

SUMMARY OF ARGUMENT

I. States have a compelling interest in the

effective management of their workforces — the success

of every government program and function depends on

it. Managing a workforce requires developing and

administering employment contracts, which

necessarily and uncontroversially entails limits on

employee speech. For example, managers may be

required to advance proposals — including on issues of

public concern — with which they personally disagree.

Support staff may be required to lend their time and

talents to that effort, despite personal reservations.

That is permitted by the First Amendment because in

imposing those restrictions the Government acts as

employer, not sovereign, regulating the workers as

employees within the confines of their employment,

not as citizens in the public square.

The Government as employer may also elect to

solicit employees’ views on contract matters, believing

that such input improves the contract and the

administration of its programs. It might, for example,

hire a consultant to survey workers and use that

information to make recommendations to

management. Or it might pay a handful of workers

overtime to participate on a workers’ advisory panel.

Given agencies’ finite budgets, some of these costs

(as well as the cost of management’s time) may then

be passed on to employees, in the form of reduced

raises or benefits, particularly when pay for

administrators and consultants comes from the same

portion of the budget available to pay workers. This is

so even though the workers effectively paying the bill

may disagree with the positions taken by the

administrators, consultants, or their fellow employees

during the development or administration of the

contract. To our knowledge, no one has ever suggested

that there is any First Amendment problem with that

arrangement.

Many States have reasonably chosen to solicit

workers’ views on contract matters by working with a

union, rather than a consultant or a more ad-hoc

workers’ advisory committee. The question in this

case is whether the First Amendment treats the costs

associated with the union’s participation in collective

bargaining differently than these expenses or the

management-side costs that may be passed on to

workers.

It does not. Fair share fees burden First

Amendment rights no more, and no differently, than

the reductions in pay workers regularly endure to

defray the cost of the speech of other participants in

the contracting process. That the cost is spread

through a fair share fee line-item deduction in each

paycheck — rather than by the State paying the union

directly from funds that would otherwise go to finance

worker pay and benefits — cannot be determinative.

Surely the First Amendment does not penalize

government transparency.

At the same time, fair share fees burden speech

and association rights only within the workplace,

leaving employees entirely free to express their views

on any bargaining, professional, political, or other

issue in multiples ways that enjoy complete protection

under labor law and the First Amendment.

II. The role of collective bargaining in

administering government agencies, and the State’s

compelling interest in preserving the present system,

is well illustrated in the context of public education.

A. Collective bargaining is a principle means

through which local administrators flesh out and

operationalize new education initiatives mandated by

federal or state law, or developed by local school

districts. In participating in that process, unions bring

their members’ informed insights to the project and

promote educator buy-in. Fair share fees also help

support union-provided training to implement new

initiatives, such as mentoring, professional

development, and evaluation programs. Unions, using

fair share fees, also play a central role in ensuring

proper implementation of such reforms on an ongoing

basis, both in bargaining and through the grievance or

other contractual processes.

Fair share fees further support union

participation on school health and safety committees

that identify school hazards (from leaking roofs to

asbestos), design and implement programs to improve

students’ health (such as training school employees in

CPR or how to respond to asthma attacks), and help

plan for emergencies (such as natural disasters or

incidents of school violence).

Recent studies demonstrate that such union-

management collaboration through the collective

bargaining process is extremely effective, improving

outcomes in some of the most challenged school

districts in the nation.

B. Eliminating States’ ability to require all

employees to share in the union-side costs of

bargaining would seriously disrupt the management

of essential state institutions, including public schools.

For example, with reduced funds, unions would have

fewer resources for implementing school improvement

measures, sitting on health and safety committees, or

engaging in other collaborative projects.

It is no answer to suggest that unions should

make up the difference by trying harder to recruit

dues-paying members. That shift in priorities is itself

harmful to States’ interests in promoting collaborative

working relationships with their unions. The presence

of free-riders in a school sows discord and interferes

with the close working relationships necessary to

provide high quality education. Moreover, in AFT’s

experience in right-to-work States, recruiting new

members sometimes requires a much greater focus on

pursuing individualized grievances and taking a more

confrontational approach with administrators.

IfI. Although unnecessary to obtain relief for

their client, petitioner’s lawyers have asked this Court

to declare that the First Amer.dment prohibits the

imposition of even a single penny of fair share fees by

any public employer in any context anywhere in the

country, regardless of the extent of the First

Amendment or government interests implicated by

any given activity supported by the fees. Particularly

in the absence of any record, that astonishingly broad

facial challenge should be rejected on its face.

This Court has repeatedly analyzed constitutional

challenges to the assessment of fees on a category-by-

category basis, weighing the competing constitutional

and governmental interests implicated by particular

types of expenditures. Having forgone this restrained

approach, petitioner’s all-or-nothing claim can be

accepted only if he can show that employees’ First

Amendment interests in every use to which fair share

fees are put will always outweigh any conceivable

countervailing state interest. This he cannot do,

particularly in the absence of any record establishing

the full range of uses to which fair share fees are put.

At the very least, the Court should restrict any

constitutional ruling to the context before it, leaving

for another day how the constitutional balance must

be struck in other States or other sectors, like

education, where the State’s interest in promoting

effective collaboration with its unions may be more

pronounced.

ARGUMENT

I. Requiring All Employees To Share In The

Cost Of Developing And Implementing Their

Contracts Does Not Trigger Strict Scrutiny.

A central premise of petitioner’s argument is that

“bargaining with the government is political speech

indistinguishable from lobbying the government.” Br.

10-11. This analogy permits him to lay claim to the

heightened First Amendment scrutiny applied when

“the government forciles} individuals to support a

mandatory lobbyist or political advocacy group.” Jd. 12.

The analogy, however, is inapt. Modern collective

bargaining is an indispensable part of many public

agencies’ internal decisionmaking process, informing

how States structure and run their agencies.

Participants in that process — whether they be

members of management, consultants, employees

voicing their views through internal surveys or focus

groups, or more formalized employee groups like

advisory committees or unions — engage in speech as

employees, not as citizens. Of course, participants

remain free to speak to the issues as citizens as well,

but during the workplace deliberation process, their

First Amendment rights are necessarily curtailed in

order to permit effective management. Assessing all

employees a portion of the cost of that process —

including the cost of a union’s involvement in it — does

not trigger the full spectrum of First Amendment

restrictions applied to lobbying.

A. The Strict Scrutiny Petitioner Invokes

Only Applies When The Government

Burdens A Worker’s Right To Lobby As A

Citizen Outside His Job.

As petitioner himself insists, public sector

collective bargaining plays a role in state agencies’

decisionmaking regarding a wide range of issues —

from employee pay and benefits to how the agency is

operated day-to-day. Petr. Br. 11, 14. Some of those

matters, he argues, touch upon matters of great public

concern (although, as we discuss infra, a great many

do not). AFT agrees that when employees speak as

citizens upon such matters outside of work, that

speech is entitled to fulsome First Amendment

protection. That is why, for example, this Court held

in Abood v. Detroit Board of Education, 431 U.S. 209

(1977), that workers cannot be assessed funds for

traditional lobbying outside of collective bargaining

without their consent. See id. at 232-36.

A central question in this case is whether

requiring financial support for collective bargaining is

subject to the same exacting scrutiny. That

bargaining touches upon issues of public concern does

not answer that question — the Court has long held

that context in which the employee speaks also

matters. See, e.g., Connick v. Myers, 461 U.S. 138,

147-48 (1983). When she is speaking in the

employment context, addressing the Government as

an employer rather than as a sovereign, an employee’s

interest in speaking freely even on matters of grave

public concern must be balanced against the State’s

interest in effectively managing its workforce and

institutions. See, e.g., Garcetti v. Ceballos, 547 U.S.

410, 418-20 (2006). After all, management of

government institutions unavoidably is conducted

through speech and often requires dictating what

speech employees can (or must) engage in. /d. at

418-19, 422-23.

This means that the Government necessarily has

substantial leeway to control the speech of employees

sitting around a conference table as they develop

government policies or negotiate contracts that will

substantially affect the agencies’ effectiveness, even

though the decisions may affect questions of deep

public concern. Allowing employees unfettered ability

to speak their minds during internal agency

deliberations (and a right to sue when they feel that

right has been infringed) would undermine effective

Government to an extent the drafters of the First

Amendment could never have envisioned.”

* This Court’s decisions in Knox v. SEIU, 567 U.S. 298

(2012), and Harris v. Quinn, 134 S. Ct. 2618 (2014), are not to the

contrary. Knox addressed the process for collecting fees to fund a

political campaign in opposition to certain ballot initiatives, not

fair share fees to finance the development and enforcement of an

employment contract. See 567 U.S. at 303-05, 315. And the Court

determined that the home health care workers in Harris were not

“full-fledged public employees,” 134 S. Ct. at 2634, but were

employed by a “person receiving home care,” id. at 2624. As a

B. Fair Share Fees Finance Workplace

Speech, Not Lobbying, And Therefore Do

Not Trigger Strict Scrutiny.

Collective bargaining serves the same proprietary

function in the private and public spheres. It is a

method by which an employer regulates its workforce

and makes decisions about many of the details of its

basic operations. How that bargaining is conducted

and paid for is determined by the Government acting

as employer, not sovereign, and any burden on speech

interests fall upon workers in their capacities as

employees without restricting their abilities to speak

their minds as citizens outside of their employment.

I. The Contracting Process Routinely

Requires Limitations On Employees’

Speech Within The Workplace Without

Giving Rise To Substantial

Constitutional Concern.

State employees are regularly required to re ‘rain

from, engage in, or support speech on issues of public

concern with which they disagree in the course of

participating in an agencies’ development and

enforcement of contracts and policies.

For example, a manager may be required to

convey to workers a bargaining position with which

she strongly disagrees (e.g., on student testing). And

her assistants may be required to lend support to that

position in various ways (e.g., by drafting a speech,

consequence, collective bargaining did not play its usual role as a

part of the management of the State’s own workforce and the

operation of its own agencies. See id. at 2634-36.

scheduling a meeting, or fielding calls from others in

the organization on the topic).

At the same time, a/l/ employees may be required

to bear a portion of the expense of developing and

conveying management’s positions on issues of

mundane or public significance, even if they disagree

with those positions. As a practical matter, the funds

for paying administrators will often come from the

same pot of money available to pay for other

employees’ wages and benefits. When that happens,

the cost of management-side speech in collective

bargaining is effectively paid by workers, whether

they like it or not. As far as we know, no one has ever

suggested that a First Amendment objection to that

reality.

That is because all of the burdens involved — the

restricticns on speech, the compelled speech, the

forced sutsidization — are imposed by the Government

in its capacity as employer in the course of governing

its workplace, not in its role as sovereign regulating its

citizens.

2. Soliciting Employee Input During

Contracting, And Passing The Cost Of

That Participation On To Employees As A

Whole, Does Not Trigger Strict First

Amendment Scrutiny.

Given all this, it is difficult to see how the First

Amendment would preclude an agency from soliciting

employee input during contracting, and passing along

a portion of that cost to the affected workers as well.

a. Suppose, for example, that an agency decides

to implement a new family leave policy. It needs to

resolve various details about the program and wants

input from the affected employees. It could hire an

outside consultant to survey employees, hold focus

groups, etc., then report on the workers’ views and

make its own recommendations.

That process should not give rise to any serious

First Amendment concern. Individual employees have

no right to object that they were left out of the process

or that the resulting contract offered to them was

developed in consultation with someone with whom

they might disagree. See, e.g., Minn. State Bd. for

Cmty. Colls. v. Knight, 465 U.S. 271, 288 (1984) (“A

person’s right to speak is not infringed when

government simply ignores that person while listening

to others.”).

Nor would there be any serious First Amendment

objection if the agency effectively required all

employees to bear the cost of the consultant’s services

by paying the consultant out of the money otherwise

available for the new benefit program or pay raises.

As discussed employees pay for internal workplace

speech in that sense all the time without giving rise to

constitutional objections.

b. If the First Amendment permits a _ state

employer to develop its employment contracts in

collaboration with an outside consultant, and to

deduct the cost of that work from the employees’ pay,

it must also permit the State to assess worker

concerns more directly.

Suppose that instead of a consultant, an agency

established a workers’ advisory committee to discuss

the new benefit plan w_th administrators. Although

the committee members’ statements might influence

the contract the agency ultimately offers the workers,

that does not amount to any form of compelled speech

or association implicating First Amendment rights.

See Knight, 465 U.S. at 286-87, 288-90. The committee

may be tasked with conveying the views of the

workforce generally, but it does not represent

individual workers in the sense binding them to the

resulting contract any more than a consultant would.

Nor would the constitutional analysis change if

the agency paid the committee members overtime for

the additional work and deducted that cost from the

funds available for financing the new benefit or the

next year’s raises. That would effectively force each

worker to pay her pro rata share of the expenses. But

as discussed, workers do not have a First Amendment

right to exempt themselves from the economic

consequences of their employers’ internal contracting

processes.

3. Collective Bargaining Is Another Means

Of Soliciting Employee Input Into

Employment Contracts.

Likewise, collective bargaining is means through

which government agencies receive input from their

workers, giving rise to no greater First Amendment

concern than when that input is provided through a

consultant or a more ad hoc worker advisory

committee.

Again, the fact that the union’s speech may affect

the contract offered to workers, or that the

nonmembers may be excluded from _ direct

participation in the negotiations, gives rise to no First

Amendment objection — the Government has complete

freedom to decide with whom it will consult in the

operation of its programs, including when drafting

employment contracts. See Knight, 465 U.S. at

283-87.

Nor is any special First Amendment problem

raised by the fact that the union is sometimes called

the “representative” of all the employees and is

prohibited by law from favoring its own members. The

union represents nonmembers only in the same sense

as the consultant or advisory — it’s speech has an effect

on the contract ultimately offered the workforce. But

having such an affect does not violate the associational

freedom of those who are affected. See 465 U.S. at

288-90. The duty of fair representation — which

restricts what the union can say in its discussions with

management — may burden the uwunion’s First

Amendment rights. But it does not transform what is

otherwise permissible (i.e., the Government’s decision

to listen exclusively to the union, with incidental

effects on the contract offered to petitioner) into

something constitutionally suspect.

Requiring all workers to pay their pro rata share

of the cost for the union’s participation in the

contracting process does not trigger strict scrutiny

either. As mentioned, workers already routinely pay

cost for management’s work in collective bargaining

when management salaries reduce the pool of money

available for other employees’ pay. There is no reason

for a dramatically different treatment of the expenses

incurred by other participants in the contracting

process, whether it be an outside consultant,

particular employees sitting on <n advisory council, or

a more formalized union.

Indeed, it seems clear that petitioner could raise

no constitutional objection if, instead of deducting fair

share fees from nonmembers’ paychecks, his employer

simply reduced all workers’ salaries and used the

savings to reimburse the union for the collective

bargaining activities that directly benefit the agency.

It is difficult to see why the accounting differences

between that method and the current fair share fee

system should be important. Surely, the First

Amendment does not penalize transparency.

* * *

In the end, fair share fees help finance what a

union says to management across an office negotiating

table. They burden his speech and association rights

in his capacity as an employee, in the context of a

workplace discussion.

At the same time, the burden is modest, leaving

every worker “the prospect of constitutional protection

for their contributions to the civic discourse” outside

the workplace. Garcetti, 547 U.S. at 422. Petitioner

remains free to say whatever he likes about the

union’s positions. See, e.g., Abood, 431 U.S. at 230. He

is entitled to lobby his legislature on any topic of

bargaining, asking it to overturn any provision of any

contract or to prohibit bargaining on certain issues (as

States have done). But he does not have a

constitutional right to shift any portion of the cost of

negotiating his contract to his fellow workers or the

taxpayers.

* For example, California prohibits collective bargaining

over teacher tenure or termination procedures, as well as

regarding pension benefits. See Cal. Educ. Code §$§ 44929.21,

44932 et seq.; Cal. Gov't Code § 3543.2; Bd. of Educ. v. Round

Valley Teachers Ass'n, 914 P.2d 193, 203-04 (Cal. 1996).

II. The History Of Labor-Management

Cooperation In Public Education Illustrates

How Collective Bargaining Is An Essential

Part Of State Agencies’ Internal Process For

Contracting With Teachers And Improving

Education.

Collective bargaining’s integral role in the

management of government agencies, and State’s

compelling interest in retaining the benefits of that

system, are especially evident in the public education

contert.

A. States Have A Compelling Interest In

Preserving The Educational Benefits

Made Possible By The _ Labor-

Management Collaboration Collective

Bargaining Facilitates.

Schools and unions have increasingly used the

collective bargaining process to cooperate’ in

implementing initiatives aimed at improving

education, student health and safety, and other

important matters. States have a compelling interest

in continuing the process, which has proven effective

in improving educational outcomes, particularly in

struggling schools.

1. Collective Bargaining Is Essential To The

Effective Implementation Of Innovative

Programs To Improve Education.

Public schools are foundational to our democracy

and the promise of opportunity to all who live in it.

Providing that foundation, however, requires constant

attention to changing needs and conditions, and

therefore demands constant innovation in how our

schools are run. Unions play a critical role in the

successful implementation of these initiatives by

working with school districts to operationalize

collaborative programs through the collective

bargaining process, providing training under

collective bargaining agreements, and by helping

ensure the change are actually implemented through

informal communications and, when necessary, formal

grievances.

a. Every significant program to improve

education requires working out innumerable

operational details at the local level, adapting broader

principles to the specific circumstances of individual

schools. Much of that implementation work is carried

out through the collective bargaining process because

most initiatives implicate significant terms and

conditions of employment, such as the length of the

school day, training, teacher evaluations, job security,

class size, etc.‘ By working with the union to

operationalize and tailor a new program, the school

district is able to benefit from the experience of those

workers who are in the best position to anticipate how

changes can be implemented on the ground and how

changes may affect other aspects of the school

program. At the same time, by memorializing the

changes as part of the collective bargaining

* See, e.g., 20 U.S.C. § 6311(d)(4) (savings clause of Every

Student Succeeds Act, Pub. L. No. 114-95, 129 Stat. 1802 (2015),

providing that “[n]othing in this subsection shall be construed to

alter or otherwise affect the rights, remedies, and procedures

afforded to school or local educational agency employees

under . .. the terms of collective bargaining agreements”).

agreement, the schools and the unions institutionalize

the new practices.° And because the union has been

deeply involved in the process, it is able to promote

educator buy-in, which is essential to any initiative’s

success and sustainability.

Unions also play a critical role in implementing

the changes memorialized in the management-labor

contract. For example, fair share fees help fund

extensive collectively bargained training programs

(e.g., train-the-trainer programs on a wide range of

professional development topics, including training for

peer review and mentoring programs, innovative

programs for teaching reading and math, managing

student behavior, and_ general instructional

strategies).°

At the same time, through their constant contact

with the teachers directly involved in implementing

these programs, unions can share information with

administrators about how the changes are being

executed on the ground, their impact on students’

learning outcomes, what problems are _ being

encountered, and advice on how to fix them. Often,

that communication occurs’ through formal

committees upon which both administrators and

° See David Lewin et al., The New Great Debate About

Unionism and Collective Bargaining in U.S. State and Local

Governments, 65 Indus. & Lab. Rel. Rev. 749, 766 (2012).

® See, e.g., AFT, ER&D: Twenty-Five Years of Union-

Sponsored, Research-Based Professional Development, Am.

Educator, Winter 2006-2007, http://www.aft.org/periodical/

american-educator/winter-2006-2007/erd-twenty-five-years-

union-sponsored.

teachers selected by the union serve, sometimes with

direct participation by union officials themselves.’

Other times, the feedback is provided by the union

through the grievance system or other contractual

process.

b. This collaborative process has been applied to

a broad range of innovative programs to improve

education. We describe a few examples below.

Curriculum Initiatives. Unions have worked with

management across the country to ensure the fair and

successful rollout of new curricula over the years.

For example, with the assistance of the AFT

national union, local union leaders in Cleveland, Ohio

worked with school administrators to develop a

strategy for revising curricula to the new Common

Core standards and creating a central Common Core

Training Center for teachers.* Through this process,

more than 250 lesson plans aligned with the Common

Core standards were developed and distributed online

through AFT’s Share My Lesson platform, where they

have been viewed more than 300,000 times.’

’ See, e.g., Montgomery County, Maryland, Schools

Collective Bargaining Agreement for 2015-2017, at 14-20,

http://Awww.montgomeryschoolsmd.org/uploadedFiles/departmen

ts/associationrelations/refresh2014/MCEA%20Contract%20FY 1

5-FY17%20.pdf [hereinafter Montgomery County CBA).

* See AFT, A ‘Big Bet’ on Educator-Led Collaborations and

Solutions: The AFT Innovation Fund (2009-16) at 13 (2017),

https://www.aft.org/sites/default/files/if_big-bet_2017.pdf

|hereinafter Big Bet}.

° Id. at 13-14.

In Peoria, Illinois, the local union worked with the

school district, the City, and local employers to create

a program to align technical education with the local

job market while also connecting students with local

businesses for internships and permanent job

placements. Through a further collaboration with the

local community college, the program allows many

high school students to graduate with college credits

directed toward specific career pathways.'°

Peer Assistance And Review. In another common

example, unions have used fair share fees to

collaborate in implementing Peer Assistance and

Review (PAR) programs in which expert teachers

mentor, support, and partner’ with — school

administrators to evaluate both new and struggling

teachers (union members and non-members alike)."’

The programs are designed to suppor*, improve, and

retain good teachers — which thereby helps recruit new

teachers — while also facilitating removal of ineffective

instructors when these support systems have not

succeeded. The programs are often part of a broader

collaborative evaluation process in which teachers,

union representatives, and school officials jointly

design and oversee implementation of a system, as

' Td. at 18.

!! See, e.g., U.S. Dep’t of Educ., Shared Responsibility: A U.S.

Department of Education White Paper on Labor-Management

Collaboration 11-13 (2012), http://www?2.ed.gov/documents/labor-

management-collaboration/white-paper-labor-management-

collaboration.pdf; Jennifer Goldstein, Taking the Lead: With Peer

Assistance and Review, the Teaching Profession Can Be in

Teachers’ Hands, Am. Educator, Fall 2008, at 4.

well as participate in a standards-based evaluation of

individual teachers. **

PAR programs have proven highly effective and

have been promoted by the U.S. Department of

Education as an example of what can be achieved

through labor-management collaboration. See U.S.

Dep't of Educ., Advancing Student Achievement

Through Labor-Management Collaboration 11-12

(2011).° They have reduced teacher turnover,

particularly among new teachers,'* while at the same

time facilitating dismissal of ineffective tenured

teachers who have been unable to improve through the

assistance PAR offers."”

Successful implementation of a PAR program

requires substantial training and oversight for expert

teachers and mentors. The integrity of any new

evaluation system likewise demands extensive

training and oversight to ensure that all evaluators

are engaged in the same process, and using the same

12 See id.

'S http://www.ed.gov/sites/default/files/labor-management-

collaboration-program.pdf.

“ See, e.g., Harvard Graduate Sch. of Educ., Project on the

Next Generation of Teachers, A User’s Guide to Peer Assistance

and Review 11-13, http://connectingthedots.aft.org/sites/aft/

files/documents/UsersGuideToPAR.pdf [hereinafter A User's

Guide]; Alliance for Excellent Educ., On the Path to Equity:

Improving the Effectiveness of Beginning Teachers (2014),

http://all4ed.org/wp-content/uploads/2014/07/PathToEquity.pdf.

’® A User’s Guide, supra, at 11.

metrics. Fair share fees help fund unions’

participation in these training and oversight efforts.'®

Improving Struggling Schools. Unions have

likewise used fair share fees to fund bargaining and

contract enforcement activities as part of collaborative

efforts to revitalize struggling schools. In the mid-

1990s, for example, a California teacher’s union got

together with local administrators of the ABC Unified

School District outside of Los Angeles to address the

special problems facing a number of low performing

schools with mostly poor students, a majority of whom

were English language learners. In addition to

implementing a peer assistance program, the union

worked with the school district to create a new

recruitment and teacher training system, even to the

point of using union funds to hire substitute teachers

that would allow faculty to attend improved

professional development training. Over time, the

district agreed to involve union representatives in a

broad range of joint governance projects addressing

nearly every aspect of the schools. Throughout, the

educators’ national union, AFT, provided extensive

technical assistance, including through its training,

school improvement, and leadership institutes. The

result has been a dramatic improvement in academic

'® See, e.g., Boston Schools Collective Bargaining Agreement

for 2010-2016, at 86-87, http://obtu.org/wp-content/

uploads/Final_BTU_Contract_No_Index.pdf [hereinafter Boston

CBA]; Los Angeles Schools Collective Bargaining Agreement for

2008-2011, at 77-78, http://www.utla.net/sites/default/

files/Final_UTLA_2008-2011_contract.pdf [hereinafter LA CBA).

achievement and graduation rates, making the

district a nationally recognized success story."

Unions have engaged in similar joint-efforts

elsewhere, for example helping to establish New York

City’s Chancellor’s District to improve its most

disadvantaged and struggling schools.'*

Increasing Instructional Time. More recently, an

AFT affiliate in Meriden, Connecticut worked with

local administrators to implement what research

suggests is one of the most effective methods of

improving educational outcomes — significantly

increasing the amount of instruction students receive

each year.’ Undertaking such a change creates

daunting logistical challenges, affecting nearly every

aspect of a school’s operation. Through collective

bargaining and the close collaboration it can foster,

teachers and administrators worked together to iron

out the difficulties and provide their students the

equivalent of an additional 40 days of instruction time

per year.*° The district has since seen significant

improvements in attendance, as well as in test scores

'’ See generally Saul A. Rubinstein & John E. McCarthy,

Public School Reform Through Union-Management

Collaboration, in 20 Advances in Industrial & Labor Relations 1,

19 (David Lewin & Paul J. Gollan eds. 2012).

'S See, e.g., Julia E. Koppich, Using Well-Qualified Teachers

Well: The Right Teachers in the Right Places with the Right

Support Bring Success to Troubled New York City Schools, Am.

Educator, Winter 2002, at 22.

'° See Big Bet, supra, at 14.

20 Td.

in reading and math, particularly among high needs

students.”!

2. Collective Bargaining Promotes Health

And Safety Within Our Schools.

Fair share fees also fund unions’ important

contributions to health and safety within our

educational institutions.

Because union members have the most direct and

immediate knowledge of school hazards and student

safety needs, they provide an important resource in

identifying health and safety issues. These issues run

the gamut from physical conditions that interfere with

learning and compromise student safety (e.g., leaking

roofs, heating and cooling issues, mold, asbestos, lead

paint, indoor air quality, etc.), to student and staff

health concerns (e.g., protocols for dealing with

children with trauma, asthma, diabetes, and other

chronic illnesses, or training to identify and protect

students from bullying or to minimize the risks of

blood-borne pathogens), to security concerns (e.g.,

school violence and property theft), to emergency

preparedness (e.g., for floods, earthquakes, fires, and

tornadoes).

Unions use fair share fees not only to help identify

particular problems, but also to develop and

implement solutions through collective bargaining

and grievance adjustment. Some issues are addressed

directly in collective bargaining agreements.” Unions

*! Id. at 14-15.

*? See, e.g., New York City Schools Collective Bargaining

Agreement for 2007-2009, at 54-57, http://www.uft.org/files/

have also been instrumental in bargaining for,

staffing, and training school health and safety

committees that identify and respond to problems.**

Union representatives, supported in part by fair share

fees, generally are responsible for recruiting other

union members to participate on the committees and

for providing training and support for panel members.

Union representatives also sometimes sit on the

committees themselves.

Unions also devote resources to implementing

bargained safety improvements. For example, unions

provide employee training on safety issues addressed

in the collective bargaining agreements (e.g., First Aid,

CPR, blood borne pathogen safety, and emergency

preparedness).** Those efforts are supported by

national unions that provide training materials,

contract_pdfs/teachers-contract-2007-2009. pdf [hereinafter NYC

CBA]; Boston CBA, supra, at 93; LA CBA, supra, at 287-90;

Montgomery County CBA, supra, at 35-38; Minneapolis Schools

Collective Bargaining Agreement for 2013-2015, at 159,

https://www.nctq.org/dmsView/Minneapolis_Final_CBA_2013-

2015 {hereinafter Minneapolis CBA).

*8 See, e.g., NYC CBA, supra, at 55-56; Montgomery County

CBA, supra, at 36; LA CBA, supra, at 289; Minneapolis CBA,

supra, at 159.

"4 See, e.g., United Fed’n of Teachers, Environmental Safety,

N.Y. Teacher (June 2, 2016), http://www.uft.org/know-your-

rights/environmental-safety; AFT, Member Uses Union CPR

Training to Save a Life, PSRP Reporter, Spring 2015, at 6,

http://www.aft.org/sites/default/files/periodicals/rep_spring2015.

pdf.

research, and best practices information from other

schools.”

Unions also devote fair share fees to enforcing

these requirements. For example, unions in some

larger school districts have industrial hygienists on

staff to monitor safety compliance. Unions also spend

considerable resources researching safety concerns

from employees (members and nonmembers alike) and

bringing informal and formal grievances when

appropriate.

3. Collective Bargaining Provides A

Framework For Myriad Other Labor-

Management Collaborations As Well.

Unions, using fair share fees, have increased

collaboration between school officials and teachers to

improve education in thousands of public schools

across the nation in many other ways as well. For

example, public schools increasingly rely on joint

labor-management committees to address a wide

range of issues affecting both conditions of

employment and quality of education, including

teacher recruitment and retention, professional

development, and overall strategic planning.”

health-safety-all (last visited Jan. 17, 2018) (collecting resources).

26 See, e.g., Boston CBA, supra, at 34-38, 72, 87;

LA CBA, supra, at 58-59; Baltimore City Schools Collective

Bargaining Agreement for 2013-2016, at 57,

http://www.baltimoreteachers.org/wp-content/uploads/2015/01/

Balt-City-BTU-2013-2016-Teacher-Agreement-03-10-14-

kjzl.pdf; Chicago Schools Collective Bargaining Agreement for

2012-2015, at 104, = http://www.ctunet.com/for-members/

The infrastructure for partnership created by

such collaborative programs also provides a ready

framework for quickly and effectively addressing new

or unexpected challenges, such as natural disasters,

financial crises, sudden changes in _ student

enrollment, or public health emergencies.

4. The Labor-Management Collaboration

Made Possible Through Collective

Bargaining Improves Educational

Outcomes.

These and many other collaborations made

possible by collective bargaining have paid dividends,

improving educational outcomes, particularly in

disadvantaged schools. See, e.g., Valerie Strauss, Why

Collaboration Is Vital to Creating Effective Schools,

Wash. Post (May 2, 2013) (surveying research).”’

In a 2017 paper, for example, researchers

examined more than 400 schools in six States to assess

the relationship between union-management

collaboration and student achievement. See John

E. McCarthy & Saul A. Rubinstein, National Study on

Union-Management Partnerships and Educator

text/CTU_Contract_As_ Printed_2012 2015.pdf; Minneapolis

CBA, supra, at 23-54; San Francisco United School District

Collective Bargaining Agreement for 2014-2017, at 67-69,

http://www.sfusd.edu/en/assets/sfusd-staff/contract%20and% 20

salary%20schedules/Certificated%20Collective%20Bargaining™

20Agreement%207 -1-14%20thru%206-30-17150106_ 20020.pdf.

*’ https://www.washingtonpost.com/news/answer-sheet/

wp/2013/05/02/why-collaboration-is-vital-to-creating-effective-

schools/?utm_term=.2fb1d4686c35.

Collaboration in US Public Schools (Oct. 2017).” The

authors found that “school-level collaboration

predict[s] the percentage of students performing at or

above standards in English Language Arts (ELA),

after we controlled for poverty (percentage of students

on free or reduced-price lunch), teacher experience,

and school type (elementary, middle, high school).” Jd.

at 2. That association, they reported, “is statistically

significant and suggests that the highest level of

collaboration corresponds to roughly 12.5% more

students performing at or above standards, compared

to the lowest level of collaboration.” /d.

The study also suggested some of the underlying

reasons why such collaboration improves educational

outcomes. For one thing, there is “a strong association

between educator collaboration and reduced teacher

turnover,” an effect that is “particularly pronounced in

high-poverty schools,” where turnover “was 3.5 times

the rate of that in low-poverty schools when school-

level educator collaboration was low.” McCarthy &

Rubinstein, supra, at 3. The authors also found that

in schools with long-standing union-management

partnerships, “many school-level union leaders took on

unique roles and responsibilities to improve teaching

and student learning,” while “teachers in schools with

stronger collaboration are more likely to know about

and implement innovations from other schools.” Id.

at 5.

8 https://www.cecweb.org/wp-content/uploads/2017/1 1/

Cornell_Rutgers_Working_Paper.pdf.

B. Eliminating Fare Share Fees Would

Seriously Disrupt The Management Of

Thousands Of Schools, To The Detriment

Of Education Nationwide.

Petitioner does not contest that States have a

compelling interest in preserving management

practices that improve government services. Nor does

he seriously dispute in this Court that States can

reasonably decide that collective bargaining creates

such improvements. Instead, petitioner principally

argues that allowing workers to avoid fair share fees

will have no material effect on collective bargaining or

school management. See Petr. Br. 36-61. But that

claim has no basis in the record (which does not exist).

Nor is it supported by common sense and experience.

1. It requires no leap of imagination to predict

that a declaration from this Court that public sector

workers are entitled to a free pass on paying their fair

share of union expenses will result in a substantial

decrease in revenue. Petitioner’s supporters certainly

hope so — they have already organized “aggressive

campaign|s|” to persuade workers to opt out of fair

share fees or leave their unions through “emails, direct

mail, phone calls, social media and cable TV

advertising, and even |going| door to door” with “paid

canvassers and volunteers.” In King v. Burwell,

*° Brian Minnich, Our Battle with SEIU Gets a Thumbs Up

in Wall Street Journal, Freedom Found. (Nov. 4, 2015),

http://www.myfreedomfoundation.com/blogs/liberty-live/our-

battle-with-seiu-gets-a-thumbs-up-in-wall-street-journal; see

also Friedrichs et al. Amicus Br. 11 (“After Harris, the [Freedom]

Foundation launched an ongoing outreach program to inform

1358S. Ct. 2480 (2015), this Court accepted the

premise that removing an obligation to purchase

health insurance could dramatically reduce the

number of insured. Jd. at 2493. The same assumption

is even more sensible here — in King, those who refused

to pay for insurance would lose their insurance; here,

employees who refuse to pay for the benefits of union

representation would still get to keep them.

The common-sense conclusion that making fair

share fees voluntary will lead to a substantial

reduction in union revenues is also borne out by the

experience in States that have recently enacted right-

to-work legislation.”

There also should be no question that unions’

ability to provide important benefits to States and

students would be substantially diminished by loss of

fair share fees. Because unions must continue to

provide basic contract negotiation and grievance

services, reduced revenue will predictably require cuts

to other programs and services, like teacher training,

Harris-affected workers on the West Coast about their newly-

acknowledged rights. This outreach includes mailings, emails,

television, radio, social media communications, and door-to-door

canvassing.”).

8° See Sean Higgins, Wisconsin Public Sector Unions Still

Losing Members, Wash. Examiner (Aug. 12, 2014),

http://www.washingtonexaminer.com/wisconsin-public-sector-

unions-still-losing-members/article/2551945; David Shepardson,

Michigan Union Membership Falls Sharply in ’14, Detroit News

(Jan. 23, 2015), http://www.detroitnews.com/story/business/

2015/01/23/michigan-union-membership/22214357/.

peer assistance and review, and school safety

programs.

Reducing fair share fees also risks imposing

greater costs on taxpayers. As noted, unions use fair

share fees to fund a variety of activities that States

have a compelling interest in having performed, e.z.,

evaluating teacher performance, monitoring and

addressing school safety issues, training staff on

emergency preparedness, etc. Were unions to reduce

their participation in these activities, States may have

to shoulder more of the cost of these programs

themselves.

2. Eliminating fair share fees also predictably

strains workplace relations and undermines effective

management of schools.

In Knox v. SEIU, 567 U.S. 298 (2012), the Court

noted that the Government generally has no weighty

interest in preventing the general public from free

riding on the benefits obtained from general advocacy.

Id. at 310-12. But States do have a compelling interest

in maintaining an effective workplace, particularly in

their schools. And few things are more corrosive to a

close-knit workplace than the perception that some

employees are being forced to pay for another’s free

lunch. Accordingly, it is no answer to say that unions

should just try harder to raise more money from their

members to replace the lost fair share fees. Charging

members more because of the need to support free

riders would only make matters worse.

The need to focus on generating additional

revenue, as opposed to improving teaching and

learning, can impair the collaborative relationship

with school administrators in other ways as well. A

strong emphasis on union recruitment can itself be

distracting and sometimes divisive. For example,

some unions in right-to-work States have found that

to attract members, they must focus more heavily on

individualized grievances that are more visible to

employees and generate more dues-paying members.

It can also be more difficult for a union in this

circumstance to decline to pursue marginal

grievances. The resulting change in _ grievance

practices detracts from other more collaborative

activities and diverts resources from grievances that

are more likely to improve overall education and

safety. The outcome is often a more confrontational,

less cooperative relzi'onship between the union and

the school districts.

III. Petitioner’s Facial, All-Or-Nothing

Challenge To All Aspects Of Every Fair

Share Fee Ever Charged Anywhere, On The

Basis Of No Record At All, Is Itself Facially

Defective.

Petitioner and his amici strenuously disagree

about the benefits unions and fair share fees confer on

nonmembers and on education more generally. But

they can point to nothing in the record to support their

claims because there is no record in this case. Instead,

petitioner has brought an _ all-or-nothing facial

challenge that contravenes not just Abood, but

multiple long-standing principles of constitutional

adjudication that serve to protect the quality of

judicial decisionmaking and _ enforce’ essential

principles of judicial restraint.

A. Petitioner’s Bare-Record Facial

Challenge Ignores The Substantial

Variation In The Uses Of Fair Share Fees

And The Resulting First Amendment

And Government Interests At Stake.

Petitioner comes to this Court on a bare record

with an argument that, of necessity, requires the

Court to decide the constitutionality of every fair share

fee to be charged by every government employer in the

country. That challenge disregards the substantial

variation in the uses of fair share fees and the diverse

First Amendment implications of those uses.

1. Under any standard of constitutional review,

the Court must consider the nature of the First

Amendment infringement and the Government’s

countervailing interests. See, e.g., Harris v. Quinn,

134 S. Ct. 2618, 2641-43 (2014). When the challenge

is to the extraction of money, the analysis turns

critically on what the money is spent on. Here, as

discussed, unions spend money on many different

things. Many of those expenses involve matters of

little conceivable public interest or First Amendment

value.

For example, petitioner cannot sensibly claim that

weighty First Amendment interests are at stake when

a union negotiates over the schedule for in-service

days or the paperwork required for obtaining sick

leave. Similarly, no lofty constitutional interests are

at stake when a union uses fair share fees to allow a

union official to sit on a school committee to select a

student uniform, allocate teacher parking spaces, or

prioritize school maintenance projects.

Nor are significant First Amendment interests

implicated when a union represents an individual

teacher in most. disciplinary and_ grievance

proceedings. The subject of discipline and grievances

can run the gamut, but vast numbers concern the

mundane stuff of ordinary personnel administration

that this Court has repeatedly held outside the

purview of the First Amendment. See, e.g., Connick,

461 U.S. 138. This includes disputes over whether:

a teacher’s particular absences should be excused;

a teacher had accrued a certain number of days of

sick leave:

a particular classroom has been too hot or too cold;

the staff bathroom is being adequately cleaned

and maintained;

e the school has been forcing an employee to

supervise the lunchroom during her planning or

lunch hour;

e administrators have failed to provide adequate

accommodations for a disability;

e the physical education teacher has been given

adequate equipment or a classroom teacher's

books are in need of replacement;

e the union has been given adequate space to hold

meetings;

e a particular teacher was being actionably

disrespectful to a supervisor, or simply firmly

expressing a view;

e the school is taking adequate steps to protect

employee property from theft or vandalism;

e a specific teacher qualifies for any of a number of

employment benefits (e.g., tuition assistance,

training, time off for professional development or

to attend a conference, etc.);

a particular classroom has adequate supplies;

a given teacher should have been granted a

request for a personal leave without pay;

e a particular teacher should be assigned to teach

American history instead of global studies.

At the very least, even if petitioner could credibly

claim that every activity supported by fair share fees

implicated matters of public concern protected by the

First Amendment, he cannot deny that the degree of

public interest, First Amendment value, and

countervailing government interests varies

considerably, depending on the nature of the activity.

Moreover, the mix of interests will necessarily

vary from State-to-State and even school-to-school,

depending on the particular uses of fair share fees in

that jurisdiction. Even looking just at collective

bargaining alone, the scope of permissible bargaining

varies considerably, often excluding some of the most

controversial topics (like tenure and pensions). See

supra n.5.

2. Because this variation is relevant under any

standard of review, the Court has never considered the

constitutionality of fair share fees as an all-or-nothing

proposition; instead, it has determined constitutional

challenges to classes of expenditures. See Abood, 431

U.S. at 235-36; Ellis v. Bhd. of Ry., Airline & S.S.

Clerks, 466 U.S. 435, 447-48 (1984); Lehnert v. Ferris

Faculty Ass’n, 500 U.S. 507, 519 (1991); 500 U.S. at

556-58 (Scalia, J., concurring in the judgment in part

and dissenting in part).*' And petitioner cannot show

why that aspect of Abood and its progeny is not

entitled to stare decisis effect.

In fact, the Court has proceeded on the same

understanding in other compelled subsidization cases,

never doubting that regardless oi the Court’s First

Amendment ruling, States could still impose any

portion of a fee used for purposes consistent with the

First Amendment. For example, in Board of Regents

of the University of Wisconsin System v. Southworth,

529 U.S. 217 (2000), the Court considered a challenge

to a student activity fee. It noted that a large portion

of the fee funded activities like health services and

sports that had little First Amendment implication.

Id. at 223. Rather than ask whether the fee as a whole

was nonetheless unconstitutional because it also

funded some political advocacy, the Court segregated

the potentially problematic portion of the fee for

separate consideration. J/d.; see also, e.g., Keller v.

State Bar of Cal., 496 U.S. 1, 15-16 (1990) (requiring

use-by-use analysis of compulsory bar dues). That is

the same approach this Court has taken with respect

to fair share fees.

That only makes sense. Nothing in the

Constitution would prevent a State from allowing

*! The Court did not depart from these precedents in Harris.

There, in addition to applying a level of scrutiny that is

inapplicable to the public employment context, the Court was

able to take into account all of the relevant uses of agencies fees

because the union’s representation was “largely limited to

petitioning the State for greater pay and benefits.” 134 S. Ct. at

2640; see also id. at 2637 (union had no _ grievance

responsibilities).

unions to charge a dozen separate fees for specific

purposes. And no one could reasonably claim that

collecting one fee is unconstitutional simply because

collection of another is forbidden.

B. Petitioner’s Facial Challenge Defies

Ordinary Principles Of Sound Judicial

Administration And Restraint.

In asking this Court nonetheless to declare that

all fair share fees are always unconstitutional,

petitioner brings a facial challenge of the most

disfavored kind.

Even in the First Amendment context, “|flacial

challenges are disfavored.” Wash. State Grange v.

Wash. State Republican Party, 552 U.S. 442, 450

(2008). For one thing, while some facial challenges

may arise on appropriately developed records,

“(cjlaims of facial invalidity often rest on speculation.”

Id. “Facial challenges also run contrary to the

fundamental principle of judicial restraint that courts

should neither ‘anticipate a question of constitutional

law in advance of the necessity of deciding it’ nor

‘formulate a rule of constitutional law broader than is

required by the precise facts to which it is to be

applied.” Jd. (citation omitted). “Finally, facial

challenges threaten to short circuit the democratic

process by preventing laws embodying the will of the

people from being implemented in a manner

consistent with the Constitution.” Jd. at 451.

Petitioner’s request for constitutional declaration

of breathtaking scope on the basis of no record at all

flies in the face of each of these basic principles of

constitutional adjudication. Although his argument

depends on multiple highly contested assertions of fact

regarding complex questions — e.g., predicting the

extent to which adopting their free-rider protection

will diminish union revenues and membership, how

the reduction in resources will affect the exclusive

bargaining system, and how a fundamental alteration

in States’ management of their schools will affect the

education of millions of schoolchildren — petitioner

established no record below. Compare, e.g., Citizens

United v. FEC, 558 U.S. 310, 332 (2010) (noting facial

challenge that “was facilitated by the extensive record,

which was over 100,000 pages long”) (internal

quotation marks omitted), with Keller, 496 U.S. at 17

(declining to rule on First Amendment challenge to

method for segregating chargeable and _ non-

chargeable portions of bar dues because of lack of a

“fully developed record”).

Second, abandoning any pretense of respect for

judicial restraint, petitioner urges the Court to

overrule a longstanding precedent in order to hold that

no union may ever charge an unwilling nonmember a

penny for any kind of activity benefiting her, no matter

how weak the First Amendment implications of the

charge or how strong the Government’s countervailing

interests.

Third, petitioner gives the democratic process in

the States that provide fair share fees — which have

been open and responsive to anti-union complaints

and initiatives** — no opportunity to fine-tune public

* See, e.g., Steven Elbow, Indiana and Michigan, a Tale of

Two New Right to Work States, Cap Times (Feb. 27, 2015),

http://host.madison.com/ct/news/local/writers/steven_elbow/indi

ana-and-michigan-a-tale-of-two-new-right-to/article_dae6b5d3-

e85b-5f14-ad5b-0602624e0c66. htm.

labor relations in a way that could respond to any

legitimate, specific concerns he and others like him

may have.

Petitioner thus makes an all-or-nothing claim

that can succeed only if he shows that every

conceivable expenditure funded by such fees is used to

support speech of such First Amendment significance

that no state interest could overcome it. That, he

cannot do. And that should be the end of the case. See,

e.g., Locke v. Karass, 555 U.S. 207, 221 (2009) (Alito,

J., concurring) (because Court had rejected petitioners’

“all-or-nothing position, contending that nonmembers

of a local may never be assessed for any portion of the

national’s extraunit litigation expenses,” petitioners

appropriately got nothing).

Whether public sector unions are good or bad for

public institutions is a matter of deep, partisan divide

in this country. Adherence to the usual rules of

constitutional adjudication and judicial restraint is

particularly important when the Court confronts a

question as politically charged as this one.

To the extent some members of this Court may

harbor doubts about whether Abood and its progeny

have drawn the right line between chargeable and

non-chargeable expenses, the Court can consider

redrawing that line in an appropriate case in the

future.

At the very least, even if this Court determines

that the First Amendment bars charging fair share

fees in the context presented by this case, it should

expressly hold open whether that result applies to

other States or other contexts — particularly to the

education context — where the balance of state and

individual interests may be different. Cf Harris,

1348S. Ct. 2618 (deciding only constitutionality of

charging fare share fees to class of workers

represented in the litigation).

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be affirmed.

Respectfully submitted,