In the Supreme Court of the United States

Home , Agency shop

No. 14-915

______

REBECCA FRIEDRICHS, ET AL.,

PETITIONER, v.

CALIFORNIA TEACHERS ASSOCIATION, ET AL.,

RESPONDENT. ______

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ______

BRIEF FOR PETITIONERS ______

DANIELLE J. MCCALL PETER J. MARDIAN UNIVERSITY OF PENNSYLVANIA LAW SCHOOL 3501 Sansom St. Philadelphia, PA 19104

Counsel for Petitioners October 16, 2015

QUESTIONS PRESENTED

Abood v. Detroit Board of Education, in authorizing public-sector agency shops, empowered States to condition public employment on union support. Under this regime, public employees must finance union collective bargaining practices, irrespective of their personal ideologies. As a provision of agency-shop arrangements, opt-out procedures require nonmembers to affirmatively object to subsidizing the unions’ purely political endeavors.

1. Should Abood v. Detroit Board of Education be overruled, and public-sector agency shops invalidated under the First Amendment?

2. With affirmative consent as a viable alternative, does it violate the First Amendment to require nonmembers to annually and affirmatively object to financially supporting unions’ political speech?

PARTIES TO THE PROCEEDING

Petitioners, Plaintiffs-Appellants below, are: Rebecca Friedrichs; Scott Wilford; Jelena Figueroa; George W. White, Jr.; Kevin Roughton; Peggy Searcy; Jose Manso; Harlan Elrich; Karen Cuen; Irene Zavala; and Christian Educators Association International Inc. Christian Educators Association International is a non-profit religious organization.

Respondents, Defendants-Appellees below, are: the California Teachers Association; National Education Association; Saddle-Back Valley Educators Association; Savanna District Teachers Association; Orange Unified Education Association Inc.; Kern High School Teachers Association; National Education Association, Jurupa; Santa Anna Educators Association Inc.; Teachers Association of Norwalk, La Mirada Area; Sanger Unified Teachers Association; Associated Chino Teachers; San Luis Obispo County Education Association; Sue Johnson; Clint Harwick; Michael L. Christensen; Donald E. Carter; Elliot Duchon; Thelma Melendez de Santa Ana; Ruth Perez; Marcus P. Johnson; Wayne Joseph; and Julian D. Crocker.

Kamala D. Harris was a Defendant-Intervenor in the action below.

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TABLE OF CONTENTS

OPINIONS BELOW ...... 1

JURISDICTION ...... 1

CONSTITUTIONAL AND STATUTORY PROVISIONS...... 1

STATEMENT OF THE CASE ...... 1

SUMMARY OF ARGUMENT ...... 6

ARGUMENT ...... 8

I. PUBLIC-SECTOR AGENCY FEES VIOLATE THE FIRST AMENDMENT. 8 A. Public-sector Agency Fees Burden Core Political Speech and Are, Therefore, Subject to Strict Scrutiny...... 9 1. When they are required to finance collective bargaining, nonmembers are forced to support union beliefs of necessary government expenditures. .... 11 2. Nonmembers’ political speech is further burdened when the State mandates their support of singular education policy perspectives...... 12 B. Agency-Shop Practices Are Neither Justified by Compelling Interests Nor Narrowly Tailored to Serve Any Purported State Ends...... 13 1. Preventing free ridership is generally not a compelling interest and is not implicated in this context...... 14

2. Agency-shop systems are not the least restrictive means of eliminating free riders...... 17 3. Agency shops are similarly unnecessary to effectuate the State’s interest in promoting labor peace...... 19 II. THE PRINCIPLES OF STARE DECISIS DO NOT PRECLUDE THE ABROGATION OF ABOOD...... 20 A. Abood Conflated Statutory and Constitutional Arguments and Downplayed the Material Incongruities of Public and Private Action...... 21 1. Abood erred in its adoption of arguments from Hanson and Street, which contained little to no constitutional analysis...... 22 2. Abood erred in its failure to appreciate the differences between private and public sector agency fees...... 24 B. Abood’s Bifurcation of Chargeable and Nonchargeable Expenses Is Unworkable...... 25 1. Both collective bargaining and partisan lobbying are too ensconced in political ideology to be bifurcated in the way the Abood Court sought...... 25 2. The Court’s efforts to remedy confusion in the wake of Abood have largely been unsuccessful...... 26 C. Reliance Interests Do Not Discourage the Decision to Overturn Abood, They Propel Its Necessity...... 28

III. THE OPT OUT PROCEDURES SANCTIONED IN ABOOD SIMILARLY VIOLATE THE FIRST AMENDMENT BECAUSE THEY CANNOT WITHSTAND EXACTING SCRUTINY AND ARE WITHOUT PRECEDENTIAL SUPPORT...... 30 A. Opt-out Systems Lack the Justification of Compelling Interests and Are Not Tailored to Minimize Constitutional Impairment...... 31 1. The compelling interests articulated in Abood are not implicated by opt-out practices and thus, cannot justify such systems...... 32 2. Opt-in procedures effectuate union interests without infringing on constitutional liberties...... 34 B. Opt-out Systems Fly in the Face of Over Seventy-five Years of Constitutional Precedent That Requires Voluntary, Explicit Relinquishment of Fundamental Rights...... 35 IV. CALIFORNIA’S SYSTEM DEMONSTRATES THE NEED TO INVALIDATE OPT-OUT PROCEDURES, ESPECIALLY IF ABOOD IS NOT OVERTURNED...... 37 CONCLUSION ...... 39

TABLE OF AUTHORITIES

SUPREME COURT CASES Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977) ...... passim Aetna Insurance Co. v. Kennedy ex rel. Bogash, 301 U.S. 389 (1937) ...... 36 Arizona v. Gant, 556 U.S. 332 (2009) ...... 22, 28, 29 Brown v. Hartlage, 456 U.S. 45 (1982) ...... 36 Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 (1932) ...... 21 Chicago Teachers Union v. Hudson, 475 U.S. 302 (1986) ...... 34 Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010) ...... 10, 20 Edelman v. Jordan, 415 U.S. 651 (1974) ...... 36 Elrod v. Burns, 427 U.S. 347 (1976) ...... 31 Fed. Election Comm'n v. Wis. Right To Life, Inc., 551 U.S. 449 (2007) ...... 20 First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) ...... 32 Glidden Co. v. Zdanok, 370 U.S. 530 (1962) ...... 20 Harris v. Quinn, 134 S. Ct. 2618 (2014) ...... passim International Ass’n of Machinists v. Street, 367 U.S. 740 (1961) ...... 32 Johnson v. Zerbst, 304 U.S. 458 (1938) ...... 36 Knox v. Serv. Emps. Int'l Union, Local 1000, 132 S. Ct. 2277 (2012) ...... passim

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Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507 (1991) ...... 15, 26, 27 McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995) ...... 10 Payne v. Tennessee, 501 U.S. 808 (1991) ...... 21, 25, 30 Railway Employes' Department v. Hanson, 351 U.S. 225 (1956) ...... 23 Riley v. Nat'l Fed'n of the Blind of N. Carolina, Inc., 487 U.S. 781 (1988) ...... 8 Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ...... 8 Snyder v. Phelps, 562 U.S. 443 (2011) ...... 9, 10 Swift & Co. v. Wickham, 382 U.S. 111 (1965) ...... 25 U.S. v. Playboy Entm’t Grp., Inc., 529 U.S. 803 (2000) ...... 34 Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015) ...... 14

CIRCUIT COURT CASES Cox v. Dardanelle Pub. Sch. Dist., 790 F.2d 668 (8th Cir. 1986) ...... 12 Sweeney v. Pence, 767 F.3d 654 (7th Cir. 2014) ...... 29

REGULATIONS Regs. of Cal. PERB § 32992 ...... 3, 4, 37 Regs. of Cal. PERB § 32994 ...... 4, 5, 38

SECONDARY SOURCES Bruce Biddle & David Berliner, What Research Says About Small Classes and Their Effects, Policy Perspectives...... 12

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Harry G. Hutchison, Reclaiming the Labor Movement Through Union Dues? A Postmodern Perspective in the Mirror of Public Choice Theory, 33 U. Mich. J.L. Reform 447 (2000) ...... 16 Sylvester Petro, Civil Liberty, Syndicalism, and the NLRA, 5 U. Tol. L. Rev. 447 (1974) ...... 16 Union Members: 2014, U.S. Bureau Lab. Stat...... 29

STATUTES Cal. Gov’t Code § 3544(a) ...... 1 Cal. Gov’t Code § 3546(a) ...... 4 Cal. Gov’t Code § 3546.3 ...... 2, 18 Cal. Gov't Code § 3546(b) ...... 3 Cal. Gov't Code § 3543.2(a) ...... 2 Cal. Gov't Code § 3546(a) ...... 2, 3

OPINIONS BELOW

The opinion of the United States District Court for the Central District of California is reported at 2013 WL 9825479 and reproduced at J.A. 19-24. The opinion of the United States Court of Appeals for the Ninth Circuit is reported at 2014 WL 10076847 and reproduced at J.A. 18.

JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1254. The United States Court of Appeals for the Ninth Circuit entered final judgment on November 18, 2014. Petition for writ of certiorari was filed January 26, 2015 and granted June 30, 2015.

CONSTITUTIONAL AND STATUTORY PROVISIONS

The constitutional, statutory, and regulatory provisions involved are set out in the appendix to this brief. They are: U.S. Const. amend. I; Cal. Gov’t Code §§ 3544(a), 3544.9, 3543.2(a), 3546(a), 3546.3, 3546(b); and Cal. Code Regs. tit. 8, §§ 32992, 32994.

STATEMENT OF THE CASE

In California, a union can become the exclusive bargaining representative for public school employees upon merely demonstrating that a majority of the employees in its unit consent to its representation. Cal. Gov’t Code § 3544(a). As an exclusive bargaining agent, a union is given wide latitude to bargain over a myriad of issues, including class size and dynamics,

wages, hours, benefits, leave, employee assessments, and grievance procedures. Id. § 3543.2(a). Often, employees who do not seek such representation choose to not join their designated union. Nonetheless, once a union is designated as the exclusive bargaining representative, it is permitted to establish an “agency-shop” relationship with the district, whereby public employees, “as a condition of continued employment” are required “either to join the recognized [union] or pay [a] fair share service fee” each year. Id. § 3546(a). This “agency fee,” levied against employees who elect not to join the union, is generally equivalent to the dues paid by union members, and allegedly accounts for 2% of new teachers’ salaries. J.A. 90. Pursuant to the union’s agency-shop arrangement, all employees within its designated unit must pay for its collective bargaining activities—whether they agree with the union’s positions or not. Cal. Gov’t Code § 3546(a); Abood v. Detroit Bd. of Ed., 431 U.S. 209, 220 (1977). The only individuals whom California exempts from these payments are religious objectors. Cal. Gov’t Code § 3546.3. But even they must pay an amount equal to the agency fee to a charitable organization of the union’s choosing. Id. Pursuant to this Court’s holdings, California agency fees are bifurcated into chargeable and nonchargeable components. See, e.g., Knox v. Serv. Emps. Int'l Union, Local 1000, 132 S. Ct. 2277, 2291 (2012). Except with respect to religious objectors, the chargeable component is mandatory and paid by members and nonmembers alike. Cal. Gov’t Code § 3546.3. Chargeable fees cover a host of union activities, including but not limited to, “lobbying activities designed to foster collective bargaining

negotiations and contract administration,” and efforts to “secure [employment] advantages . . . .” Id. § 3546(b). Nonchargeable fees are wholly unrelated to the union’s function as the exclusive bargaining agent, id. § 3546(a), and frequently involve activities and programming related to the union’s political or ideological endeavors. For this reason, the Court has held that the First Amendment protects nonmembers from being compelled to pay nonchargeable fees. Abood, 431 U.S. at 233-35.

Hudson Notices and Registering Objections

A union is ultimately responsible for estimating what portion of its annual agency fee is nonchargeable. J.A. 89. To that end, every year union leadership makes a determination of the union’s anticipated expenses, and calculates the nonchargeable portion based on the previous year’s nonchargeable expenditures. Id. Once the union calculates the chargeable and nonchargeable portions of the agency fee, it is required to provide an annual written notice to all nonmembers. Regs. of Cal. PERB § 32992(a). This Hudson notice provides: (1) the calculation of the union dues and agency fee, (2) the percentage of the agency fee that is nonchargeable, and (3) procedures both for objecting to the nonchargeable portions of the fee, and challenging the union’s calculation of nonchargeable expenses. Id. The Hudson notice is sent to all nonmembers in the fall, on or before October 15. Id. § 32992(c). If a nonmember chooses not to subsidize the union’s ideological and political agendas, she is

required to file an objection with the exclusive representative. This opt-out procedure must allow at least thirty days following dissemination of the Hudson notice for registrations of formal objections. Id. § 32992(c). If an employee successfully navigates the opt-out process, the union either refrains from seizing the nonchargeable portion of the agency fee or sends a rebate check to the employee equal to the nonchargeable portion. Cal. Gov’t Code § 3546(a). Agency-fee payers who contest the union’s account of chargeable expenditures are also required to file timely objections. Regs. of Cal. PERB § 32994. Unless the agency-fee challenger’s petition is insufficient on its face, she must further exhaust the exclusive representative’s “challenge procedures” before an independent complaint is issued. Id. Challenges to union practices that are brought in external forums are generally the financial responsibility of the challenger. Knox, 132 S. Ct. at 2294. .

Respondents’ Agency Shops

Respondent Unions are the exclusive bargaining agents for the districts in which Petitioners are employed as teachers. J.A. 88. Because Respondents have established agency-shop relationships with each of the Petitioners’ districts, Petitioners must annually pay the chargeable agency fees imposed by Respondents. Id. Pursuant to California law, Petitioners are required to pay all fees the Unions deem chargeable. Id. If Petitioners object to paying the nonchargeable fees, they must affirmatively opt out each year. Id. The local unions’ agency fees all include uniform “affiliate fees” which go to support their state and

national affiliates—the California Teachers Association and National Education Association, respectively. Id. at 89. The affiliate fees are considered partially chargeable, and are thus levied against nonmembers. Id. In making the decision not to join Respondent Unions, Petitioners forgo the opportunity to obtain union benefits. J.A. 234. For example, only members of the Respondent Unions are provided with income protection insurance as part of their benefit package, which is not otherwise available through California public schools. Id. at 234-35. This insurance is especially beneficial to employees who fall ill, as it ensures the recipients receive monies approximating their regular salary after they have exhausted their sick leave. Id. The school districts would otherwise only provide differential pay, such that the employee only receives the amount remaining of her salary after the district deducts the cost of paying a substitute to fill her position. Id. Respondent Unions use fringe benefits like the income protection insurance to incentivize union membership. Id. Respondents and their affiliates exercise significant autonomy in designating fees as chargeable or nonchargeable. For example, in the 2010-2011 academic year, CTA classified expenditures for a “Human Rights Program” with a “Gay/Lesbian” session as 100% chargeable, and classified its GLBT Conference as 71.3% chargeable. J.A. 94. Before a nonmember can file a legal challenge to the union’s calculation of chargeable and nonchargeable fees, she must exhaust the union’s internal challenge procedures. Regs. of Cal. PERB § 32994(a). Specifically, Respondents require fee challengers to adjudicate their claims before an

arbitrator. Id. § 32994(b)(4). The union is involved in the selection of this “impartial decisionmaker.” Id.

Proceedings Below

On April 30, 2013, Petitioners filed a complaint challenging the agency-shop and opt-out practices used by Respondents to compel nonmember subsidies of union activities. Recognizing both that this Court’s decision in Abood foreclosed the District Court’s ability to fully adjudicate the agency-shop challenge, and that the Ninth Circuit’s decision in Mitchell v. Los Angeles Unified School District, 963 F. 2d 258 (9th Cir. 1992) foreclosed adjudication on the challenge to opt- out measures, Petitioners quickly filed a motion for judgment on the pleadings. J. A. 22-24. On December 5, 2013, Judge Josephine Staton granted Petitioners’ Motion, and Petitioners promptly appealed to the Ninth Circuit Court of Appeals. Id. at 16. Petitioners again acknowledged Abood’s preclusion of their claims, and moved for summary affirmance of the district court opinion. Id. at 18. On November 18, 2014, the Ninth Circuit Court of Appeals summarily affirmed the district court’s decision. Id. Petitioners now appeal to this Court—the only forum in which adjudication is not foreclosed by Abood.

SUMMARY OF ARGUMENT

Though well intentioned, the Court’s holding in Abood v. Detroit Board of Education has sanctioned a practice hostile to the First Amendment. It must be overruled.

Abood recognized the inherent violation in allowing unions to compel nonmember support of undeniably political activities. The Court erred, however, in its belief that collective bargaining could exist in an apolitical context. Even bargaining over matters most germane to a union’s representation of public school employees, necessarily involves controversial issues of political significance. If unions were to lobby over wages, benefits, and classroom policies before the state legislature, none would question whether their actions were partisan in nature. This same behavior is no less political when done at the bargaining table. When the State is permitted to condition employment on the acceptance and support of the majority’s ideological agenda, it erodes the fundamental principles of First Amendment guarantees. Agency shops require nonmembers to support union action that is intrinsically political, and thus must be subjected to strict scrutiny. Under the Court’s most exacting scrutiny, agency shops fail. Agency-shop practices are unnecessary to serve the purported state interests in avoiding free ridership and preserving labor peace. In this context, free riding is an illusory concept that disregards a fundamental tenet of Petitioners’ claim: it is for nonmembers, and nonmembers alone, to decide what actions and policies benefit them. Further, as demonstrated by numerous right-to-work states, unions can thrive, and labor peace can persist, absent a requirement that unions take nonmember funds to advance policies nonmembers fundamentally oppose. Unions are not without options. Incentivizing union membership and providing a la carte services would

function to create a less restrictive alternative that eliminates the need to abridge individual rights. Far from an institutional shield, agency-shop opt- out provisions further the harm to nonmembers. The practices rely on confusion and inertia to circumvent constitutional proscriptions of forced political speech. Opt-out provisions are unconstitutional and should be invalidated. If Abood is not overturned, the abrogation of opt-out practices is especially necessary to safeguard the few individual liberties remaining. Unions have relied on Abood’s regrettable holding in their continued violation of fundamental rights. This does not discourage the case’s invalidation, but demands it. Abood’s benefit is presumed, its harm is known.

ARGUMENT

I. PUBLIC-SECTOR AGENCY FEES VIOLATE THE FIRST AMENDMENT.

By forcing teachers to finance political and ideological agendas they find objectionable, California’s agency shops advance arrangements intolerable to the First Amendment. “The government may not prohibit the dissemination of ideas that it disfavors, nor compel the endorsement of ideas that it approves.” Knox, 132 S. Ct. at 2288 (citations omitted). This prohibition on coerced endorsement extends to both speech, Riley v. Nat'l Fed'n of the Blind of N. Carolina, Inc., 487 U.S. 781 (1988), and association. Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984). And whether the endorsement takes the form of compelled speech or compelled funding of speech is constitutionally

irrelevant—both present the same danger. Harris v. Quinn, 134 S. Ct. 2618, 2639 (2014) (citations omitted). In Abood, the Court correctly recognized that agency-shop arrangements impact the First Amendment rights of nonmember employees. 431 U.S. at 222. Because “the freedom of an individual to associate for the purpose of advancing beliefs and ideas is protected by the First and Fourteenth Amendments,” the Court held that a union cannot coerce employees into funding “ideological cause[s]” they find objectionable. Id. at 233-35. Underestimating the true extent to which politics and collective bargaining are intertwined in the public sector, the Court also held that the Constitution permits a union’s use of objectors’ funds for the advancement of initiatives “germane to its duties as collective-bargaining representative.” Id. As suggested by the Court’s subsequent decisions, the Abood holding was in error. Agency shops should be subjected to exacting scrutiny and invalidated in their entirety.

A. Public-sector Agency Fees Burden Core Political Speech and Are, Therefore, Subject to Strict Scrutiny.

“Speech on matters of public concern is at the heart of the First Amendment's protection.” Snyder v. Phelps, 562 U.S. 443, 451-52 (2011) (citations and internal quotation marks omitted). This entrenched tenet of First Amendment jurisprudence cannot be overstated—the freedom to speak freely on matters of political significance is “an essential mechanism of

democracy.” Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 339 (2010). Indeed, “speech concerning public affairs is more than self-expression; it is the essence of self-government.” Snyder, 562 U.S. at 452. (citations omitted). Consequently, “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Id. (citations omitted). Agency-fee arrangements compel teachers to engage in speech that is undeniably political, and of public concern. Teachers must, for example, support the union’s beliefs regarding the size of state budgets and conditions of classrooms, even if they feel otherwise. Consequently, the Court has already acknowledged that a union’s agency-fee imposes “a significant impingement on First Amendment rights” that “cannot be tolerated unless it passes exacting First Amendment scrutiny.” Harris, 134 S. Ct. at 2639. (internal citations and quotation marks omitted). Subjecting agency shops to exacting review comports with the Court’s traditional First Amendment jurisprudence. When the government burdens “core political speech” the Court reviews the restriction under strict scrutiny and may only uphold the action “if it is narrowly tailored to serve an overriding state interest.” McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 347 (1995) (citations omitted). Because California’s agency-fee arrangement burdens teachers’ political speech, it is subject to this Court’s most exacting scrutiny.

1. When they are required to finance collective bargaining, nonmembers are forced to support union beliefs of necessary government expenditures.

Forcing nonmembers to support a single view of how state budgets should be allocated abridges their freedoms of speech and association. Unsurprisingly, different teachers hold different views about how the government should spend their tax dollars. For some, higher wages and benefits may always be paramount. Others may be willing to forgo such benefits when faced with widening state budget deficits. Some teachers may endorse tax increases to make up the difference, while still others may not. Every time it negotiates, a union forces teachers to accept—and fund—but one of these views. This necessarily burdens nonmembers’ political speech. If a union seeks higher wages, any nonmember opposed to increased government expenditure is forced to finance a campaign with which she disagrees. Because “[i]n the public sector, core issues such as wages, pensions, and benefits are important political issues,” Harris, 134 S. Ct. at 2632, this forced subsidy constitutes compelled political speech. The same is true for collective bargaining over benefits. As the Court has already recognized, “it is impossible to argue that the level of . . . state spending for employee benefits in general[] is not a matter of great public concern.” Id. at 2642-43. Nonetheless, one who disagrees with her union’s view on benefits must continue to pay the union representatives to sit at the negotiating table—on her behalf—and lobby for goals with which she disagrees.

2. Nonmembers’ political speech is further burdened when the State mandates their support of singular education policy perspectives.

Much like concerns over public expenditures, reasonable individuals can disagree over the policies that provide the optimal learning environment for students. When unions force nonmembers to adopt singular viewpoints of education policy—such as class size, school year length, or disciplinary procedures— the First Amendment rights of nonmembers who disagree are compromised. “The educational theories and practices employed by school administrators is clearly a question of public concern” given that the questions, “how we teach the young, what we teach them, and the environment in which we teach them are of the most central concern to every community in the nation.” Cox v. Dardanelle Pub. Sch. Dist., 790 F.2d 668, 673 (8th Cir. 1986). Consequently, when teachers are forced to support certain educational policies over others, they are necessarily engaged in political speech. Class size policies are a striking example. While some individuals believe that smaller class sizes produce more effective learning environments, others maintain reservations. Bruce Biddle & David Berliner, What Research Says About Small Classes and Their Effects, Policy Perspectives, http://www.wested.org/online_pubs/small_classes.pdf Indeed, “more studies may have surfaced for this topic than for any other question in education[.]” Id. It is not difficult to understand why; the environment in which children are instructed is of deep concern to the community. Thus, when teachers are forced to support

a certain class size, they are coerced into speaking on an issue of public significance. Negotiating over wages, benefits, and classroom policies is the activity most germane to a union’s duties as collective bargaining representative. Because even these negotiations are inherently, and overwhelmingly, political, all other union activities must be as well. Lest there be any doubt that agency fees coerce teachers into political speech, one need look no further than Respondents’ own admissions. See Def.’s Answer ¶ 72 (“[T]he Unions admit that California’s teachers’ unions sometimes take positions in the collective- bargaining process that have political and budgeting consequences.”); see also id. at ¶ 7 (“The Unions admit that, in the course of collective bargaining, they sometimes take positions that may be viewed as politically controversial or may be inconsistent with the beliefs of some teachers.”). As this Court has already recognized, the argument that union speech germane to collective bargaining does not involve matters of public concern “flies in the face of reality.” Harris, 134 S. Ct. at 2642- 43. Mandatory payments of chargeable fees constitute compelled political speech and are subject to exacting First Amendment scrutiny.

B. Agency-Shop Practices Are Neither Justified by Compelling Interests Nor Narrowly Tailored to Serve Any Purported State Ends.

Agency-shop arrangements abridge political speech and only survive exacting First Amendment scrutiny if they are narrowly tailored to achieve a

compelling governmental interest. As this Court reemphasized only last term, “it is the rare case in which a State demonstrates that a speech restriction is narrowly tailored to serve a compelling interest.” Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1665- 66 (2015) (internal quotation marks and citations omitted). This is not one of those rare cases. Neither interest that allegedly justifies agency- shop provisions—namely, preserving labor peace and avoiding free ridership—is compelling. Even if they were, agency-shop arrangements remain constitutionally invalid, because such practices are not narrowly tailored to achieve the purported interests. When Abood was decided, three members of the Court expressed reservations about whether avoiding free ridership and preserving labor peace justify abridging the First Amendment. Abood, 431 U.S. at 260-61 (Powell, J., concurring). Justice Powell’s concurrence, joined by Chief Justice Burger and Justice Blackmun, cast significant doubt on the strength of these alleged interests, stating that while they “may well justify encouraging agency-shop arrangements in the private sector, there is far less reason to believe they justify the intrusion upon First Amendment rights that results from compelled support for a union as a condition of government employment.” Id.

1. Preventing free ridership is generally not a compelling interest and is not implicated in this context.

The concern that dissenting nonmembers will free ride on a union’s collective bargaining efforts does not

justify violating First Amendment rights. Dissenting nonmembers cannot be free riders to benefits they do not want. As explained in Abood, union-shop arrangements are designed “to distribute fairly the cost of [collective- bargaining] activities among those who benefit,” and, by so doing, remove the incentive to gain from union efforts while contributing nothing to the efforts. 431 U.S. at 221-22. On occasion, this Court has advanced the argument that where state law requires unions to fairly represent both members and nonmembers, the government has an especially powerful interest in mitigating employees’ temptation to free ride. See also Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507, 556 (1991) (Scalia, J., concurring in part and dissenting in part). This argument incorrectly assumes that dissenting nonmembers benefit from union representation. And circumstances aside, free-rider arguments “are generally insufficient to overcome First Amendment objections.” Knox, 132 S. Ct. at 2289. “Acceptance of the free-rider argument as a justification for compelling nonmembers to pay a portion of union dues,” is “something of an anomaly. . . .” Id. at 2290. Organizations that attain benefits for their members are often unable to charge others in the community for their efforts, even when the community members equally benefit from the organization’s actions. Id. at 2289-90 (citations omitted). For example, “[i]f a parent-teacher association raises money for the school library, assessments are not levied on all parents.” Id. at 2289. Free rider arguments are intuitively unpersuasive. That states require fair representation of all employees does not mean that unions do—or even

can—treat nonmembers and members equally. Unions often negotiate over policies that advantage some while simultaneously disadvantaging others. Indeed, the very premise of the free-rider argument— that there is a “congruence between the economic interests of the worker and the union”—has rightfully been labeled “dubious.” Harry G. Hutchison, Reclaiming the Labor Movement Through Union Dues? A Postmodern Perspective in the Mirror of Public Choice Theory, 33 U. Mich. J.L. Reform 447, 480 (2000). Collective bargaining compels “compromise of, and discrimination between, competing and often conflicting employee interests.” Sylvester Petro, Civil Liberty, Syndicalism, and the NLRA, 5 U. Tol. L. Rev. 447, 471 (1974). Seniority clauses, which “tend to favor some employees and to prejudice others,” are but one example. Id. Therefore, “it is plainly untrue that all workers share equally in such [union] gains.” Id. at 511. (internal quotation marks omitted). Even the label “free rider” is misleading. Someone who objects to paying an agency fee because she disagrees with the union’s goals is hardly riding on the efforts of others who seek ends to which she is fundamentally opposed. “[W]here the dues payer does not receive the benefits of the particular public or collective good because she disapproves of the goal selected on her behalf by the union majority, she is not a free rider.” Hutchison, supra, at 481. Those forced to pay for ideological objectives they find detestable are better labeled forced riders. Id. Nonmembers and members do not benefit equally from union activities. The government’s interest in charging them equally is, therefore, not compelling.

2. Agency-shop systems are not the least restrictive means of eliminating free riders.

Even if the Court finds the elimination of free ridership to be a compelling governmental interest, it must nonetheless strike down agency-shop arrangements. Agency shops are not narrowly tailored to eliminate free ridership. When faced with the possibility of declining membership, Respondents’ solution is to coerce the unwilling to fund their causes. Identifiable—and constitutional—intermediary steps exist. In lieu of forcing nonmembers to finance union activities, unions can incentivize membership and only charge nonmembers for expenses associated with variable cost services. Indeed, unions already provide incentives for membership in a limited capacity. For example, the CTA provides income protection insurance for union members. J.A. 234. In California, if teachers fall ill and exhaust their sick leave, they are placed on differential pay, wherein the school district deducts the cost of a substitute teacher from their paycheck. Id. CTA’s income protection insurance can ameliorate such hardships, but is only available to members. Id. at 234-35. Fringe benefits work to incentivize union association. If there were a solution to the supposed problem of free ridership, it would be to encourage—not compel—union membership. Unions could also shift to a system wherein nonmembers are only charged for services that they ask unions to perform on their behalf. This could be modeled off the union’s current practice of charging religious objectors for their use of grievance procedures. Under California law, religious objectors

are not required to join or financially support unions as a condition of employment. Cal. Gov’t Code § 3546.3. But if a religious objector “requests the [union] to use the grievance procedure or arbitration procedure on the employee’s behalf, the [union] is authorized to charge the employee for the reasonable cost of using such procedure.” Id. As this demonstrates, unions are capable of allocating fees to those who actually incur the costs. If unions implemented this for other variable cost procedures, they could eliminate the purported risk of free riding. This system does not fail to account for the fixed costs that unions incur for sitting at the negotiating table. Those costs are incurred regardless of whether the union represents solely members or all employees. In Harris, the Court found that an agency-shop provision can only be sustained if the benefits it bestows could not have been achieved with solely members’ funds. 134 S. Ct. at 2641 (“The agency-fee provision cannot be sustained unless the cited benefits for personal assistants could not have been achieved if the union had been required to depend for funding on the dues paid by those personal assistants who chose to join.”). Here, as in Harris, “[n]o such showing has been made.” Id. The net benefit to increasing incentives and shifting to a variable cost system is personal choice. Unions could continue to attract members while not infringing the First Amendment rights of objectors. Because free ridership can be curtailed without violating the First Amendment, agency-shop arrangements must be struck down.

3. Agency shops are similarly unnecessary to effectuate the State’s interest in promoting labor peace.

The promotion of labor peace does not justify a substantial restriction of citizens’ First Amendment freedoms. Like reducing free ridership, such peace may be attained without imposing an agency-shop arrangement. The Abood Court determined that “[t]he designation of a single representative avoids the confusion that would result from attempting to enforce two or more agreements specifying different terms and conditions of employment.” 431 U.S. at 220. Exclusive representation also “prevents inter-union rivalries from creating dissension within the work force and eliminating the advantages to the employee of collectivization.” Id. at 221. While pursuit of such peace may be a noble endeavor, it does not require the imposition of agency fees. As explained in Harris, the argument that agency fees promote labor peace “largely misses the point.” 134 S. Ct. at 2640. Dissenting nonmembers do not seek to dislodge unions from their positions as schools’ exclusive bargaining representatives—they merely wish to stop contributing money to causes with which they disagree. In other words, the “union's status as exclusive bargaining agent and the right to collect an agency fee from non-members are not inextricably linked.” Id. That exclusive representation can exist without coerced union fees is not mere theoretical conjecture; it is empirically proven by current federal employment practices. As this Court has already noted, “employees in some federal agencies may

choose a union to serve as the exclusive bargaining agent for the unit,” even where “no employee is required to join the union or to pay any union fee.” Harris, 134 S. Ct. at 2640 (referencing 5 U.S.C. § 7102). It is possible to attain labor peace in a world wherein teachers are not coerced into funding organizations with which they disagree. The government cannot sacrifice the First Amendment in its pursuit of workplace serenity.

II. THE PRINCIPLES OF STARE DECISIS DO NOT PRECLUDE THE ABROGATION OF ABOOD.

When history elucidates that a constitutional decision is poorly reasoned and unworkable, its abrogation is not only appropriate, but necessary. “[S]tare decisis is neither an inexorable command . . . nor a mechanical formula of adherence to the latest decision . . . especially in constitutional cases.” Citizens United, 558 U.S. at 377 (Roberts, C.J., concurring) (internal quotation marks and citations omitted). Consequently, the “Court has not hesitated to overrule decisions offensive to the First Amendment.” Fed. Election Comm'n v. Wisconsin Right To Life, Inc., 551 U.S. 449, 500 (2007). The Court has a “considered practice not to apply stare decisis as rigidly in constitutional as in nonconstitutional cases.” Glidden Co. v. Zdanok, 370 U.S. 530, 543 (1962) (citations omitted). The precept that “it is more important that the applicable rule of law be settled than that it be settled right,” is persuasive when the Court considers statutory decisions which can be cured through legislation. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406

(1932) (Brandeis, J., dissenting). But where, like here, the Court considers “cases involving the Federal Constitution, where correction through legislative action is practically impossible, this [C]ourt has often overruled its earlier decisions.” Id. at 406-07. In such instances, the Court “bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.” Id. at 407-09 (citations omitted). Here, bowing to the lessons of experience and force of better reasoning leads to but one conclusion: overturning Abood. The decision was not well reasoned, and created an unworkable framework. And “when governing decisions are unworkable or are badly reasoned, this Court has never felt constrained to follow precedent.” Payne v. Tennessee, 501 U.S. 808, 827-30 (1991) (internal quotation marks and citations omitted). Any reliance interest it has instilled in unions is, therefore, insufficient to prevent its abrogation.

A. Abood Conflated Statutory and Constitutional Arguments and Downplayed the Material Incongruities of Public and Private Action.

Stare decisis “is not an imprisonment of reason.” Payne, 501 U.S. at 833-34 (Scalia, J., concurring) (internal quotation marks and citations omitted). Twice in the past four terms, this Court has criticized the reasoning of Abood. As the Court has acknowledged, some of the many questionable grounds upon which Abood rests “were noted or

apparent at or before the time of the decision . . . .” Harris, 134 S. Ct. at 2632. Even still, “several have become more evident and troubling in the years since then.” Id. The Court need not adhere to stare decisis when a previous decision’s rationale “no longer withstands careful analysis.” Arizona v. Gant, 556 U.S. 332, 348 (2009) (internal quotation marks and citations omitted). Abood’s holding is largely the product of deference to two prior decisions, Railway Employes’ Department v. Hanson and International Association of Machinists v. Street. Neither sufficiently considered the constitutional implications of coercing objectors to fund union initiatives with which they disagree. Neither addressed public-sector agency shops. Yet the Court nonetheless “treated the First Amendment issue as largely settled by Hanson and Street.” Harris, 134 S. Ct. at 2631. In this regard, the Abood Court “seriously erred. . . .” Id. at 2632.

1. Abood erred in its adoption of arguments from Hanson and Street, which contained little to no constitutional analysis.

Hanson’s and Street’s limited consideration of the First Amendment implications of agency-shop arrangements was insufficient to justify the sweeping adoption of Abood’s new constitutional standard. “Street was not a constitutional decision at all, and Hanson disposed of the critical question in a single, unsupported sentence that its author essentially abandoned a few years later.” Harris, 134 S. Ct. at 2632.

In Hanson, employees sued their employer and labor organizations, alleging that conditioning employment on whether one joins a union violated a right-to-work provision of Nebraska’s Constitution. 351 U.S. 225, 227-28 (1956). Finding the union shop’s impingement on the First Amendment akin to the requirement that lawyers be members of an integrated bar, the Court found the provision acceptable. Id. at 236-38. This comparison was ill- fitting given that the Court “had never previously held that compulsory membership in and the payment of dues to an integrated bar was constitutional.” Harris, 134 S. Ct. at 2629. In fact, it was “remarkable” because when the Court did consider the question, “Justice Douglas, the author of Hanson, came to the conclusion that the First Amendment did not permit compulsory membership in an integrated bar.” Id. (citations omitted) (emphasis in original). This demonstrates the weak constitutional foundation upon which Abood rests. Justice Douglas provided the only precedential rationale for upholding agency-shop practices, and even he later abandoned it. More problematic, Abood “fundamentally misunderstood” Hanson’s holding. Harris, 134 S. Ct. 2632. Hanson merely held that Congress’s Railway Labor Act could constitutionally authorize union shops, but Abood considered whether a state instrumentality could actually impose agency fees. Id. As the Court has since noted, these were two very different questions. Id. Because Hanson’s First Amendment analysis was “thin” and its holding was “narrow,” id. at 2629, it should not have been adopted in lieu of a more nuanced constitutional analysis in Abood. Indeed, as it “did not suggest that industrial peace could justify a law that forces men into

ideological and political associations which violate their right to freedom of conscience, freedom of association, and freedom of thought,” id. at 2629 (internal quotation marks and brackets omitted), it should not have been relied on by Abood to justify such action. Thus, Abood erred in treating Hanson as having resolved the constitutional question.

2. Abood erred in its failure to appreciate the differences between private and public sector agency fees.

Because Hanson and Street addressed only private-sector union-shop arrangements, Abood committed further error when it imported their analysis to the public sector. As much was noted at the time of the decision. Abood, 431 U.S. at 245 (Powell, J., concurring). In his concurrence, Justice Powell identified the folly of extending Hanson and Street without greater recognition of the differences between the public and private sectors, writing that “the Court's reliance on these cases, which concerned only congressional authorization of union-shop agreements in the private sector, is misplaced.” Id. This oversight is critical because political speech— speech that is afforded the highest level of First Amendment protection—is embedded in, and inseparable from, public-sector collective bargaining. When unions negotiate on behalf of private-sector employees, however, the prevalence of political speech is diminished. Consequently, many justifications for private-sector agency shops are unpersuasive when applied to the public sector. The First Amendment does not protect speech equally in both contexts.

B. Abood’s Bifurcation of Chargeable and Nonchargeable Expenses Is Unworkable.

Abood’s framework is not workable; it is difficult— if not impossible—to separate activities germane to collective bargaining from those that are purely ideological. The Court’s efforts to provide clarity have not succeeded. Thus, even if it were true that some expenses are entirely apolitical, and wholly germane to collective bargaining, no rule is able to so distinguish. Stare decisis does not prevent the Court from overturning unworkable precedent. Payne, 501 U.S. at 827 (citations omitted); accord Swift & Co. v. Wickham, 382 U.S. 111, 124-25 (1965).

1. Both collective bargaining and partisan lobbying are too ensconced in political ideology to be bifurcated in the way the Abood Court sought.

As the Court has already acknowledged, Abood “failed to appreciate the conceptual difficulty of distinguishing in public-sector cases between union expenditures that are made for collective-bargaining purposes and those that are made to achieve political ends.” Harris, 134 S. Ct. at 2632. It is not difficult for a union representing private employees to distinguish between collective bargaining and lobbying. Id. In the private sector, collective bargaining is directed at the employer while “political advocacy and lobbying are directed at the government.” Id. But when a union represents public employees, it must direct both bargaining and lobbying efforts at the government. Id. at 2632-33. In this context, differentiating between the two becomes vastly more difficult.

History has only proven this true. Since Abood, the Court has “struggled repeatedly” with classifying union expenditures as chargeable or nonchargeable. Harris, 134 S. Ct. at 2633. The record in this case demonstrates the difficulty of parsing between a union’s political and economic activities. California unions have charged nonmembers for expenses that are questionably germane to collective bargaining activities. For example, in 2011, the CTA classified its “Gay/Lesbian Program” as fully chargeable because “expenditures under that line item are designed to strengthen the governance of CTA and its affiliated chapters by recruiting and training underrepresented groups to participate in Union leadership.” Def.’s Answer ¶74. Does this mean that any program that affects a union’s governance structure is fully chargeable? It is, admittedly, difficult to say. And that is precisely the problem. Lest there be ongoing litigation over every action that exists on the margin, it is best to eliminate this line that even Abood labeled hazy. 431 U.S. at 236. It is no longer worth the cost.

2. The Court’s efforts to remedy confusion in the wake of Abood have largely been unsuccessful.

Even when the Court has acknowledged, and worked to eliminate, the confusion inherent in Abood’s bifurcation of chargeable and nonchargeable expenses, it has generated rules that were subsequently criticized. In Lehnert, for example, the Court crafted a three-prong test to determine whether an activity is chargeable. 500 U.S. at 519 (“[C]hargeable activities must (1) be ‘germane’ to

collective-bargaining activity; (2) be justified by the government's vital policy interest in labor peace and avoiding ‘free riders’; and (3) not significantly add to the burdening of free speech that is inherent in the allowance of an agency or union shop.”). As four justices identified, however, each prong requires a “substantial judgment call,” and, therefore, “seems calculated to perpetuate give-it-a-try litigation of monetary claims that are individually insignificant but cumulatively worth suing about.” Id. at 551 (Scalia, J., concurring in part and dissenting in part). This “unhelpful test” therefore “provides little if any guidance to parties contemplating litigation or to lower courts” and “does not eliminate past confusion, but merely establishes new terminology to which, in the future, the confusion can be assigned.” Id. Indeed, it may simply be impossible to correctly classify any cost in this context. As acknowledged in Knox, “a union's money is fungible, so even if the new fee were spent entirely for nonpolitical activities, it would free up other funds to be spent for political purposes.” 132 S. Ct. at 2293 n.6 (citations omitted). It, therefore, seems impossible to know with any level of certainty where any given fee is used for political or nonpolitical activities. And it is hard to imagine how any new rule could evade this problem. As the Court has rightfully acknowledged, Abood failed to foresee the “the magnitude of the practical administrative problems” that it would spawn. Harris, 134 S. Ct. at 2633. Its abrogation is the only solution.

C. Reliance Interests Do Not Discourage the Decision to Overturn Abood, They Propel Its Necessity.

Petitioners do not deny that unions have operated in reliance on Abood. Indeed, it is because of this reliance that they have been able to collect countless dollars from dissenting nonmembers who would otherwise not have given. If objectors’ First Amendment rights are restored and agency-shop provisions struck down, some union contracts will have to be adjusted. See Harris, 134 S. Ct. at 2652 (Kagan, J., dissenting). The cost of altering union practices is far outweighed by the benefit of validating First Amendment rights. The Court has overturned prior decisions even when faced with reliance interests. It should do so here. After all, “[t]he doctrine of stare decisis does not require [the Court] to approve routine constitutional violations.” Gant, 556 U.S. at 351. In Gant, the Court “effectively overrule[d]” Thornton v. United States and New York v. Belton despite the existence of “substantial reliance.” 556 U.S. at 355 (Alito, J., dissenting). Specifically, it replaced the rule that a police officer “may as a contemporaneous incident of [an] arrest,” search the passenger compartment of a vehicle. Id. at 355-56. The majority did so even after conceding that Belton “ha[d] been widely taught in police academies,” and relied on by officers for 28 years. Id. at 349. As one Justice wrote, “[m]any searches . . . were conducted in scrupulous reliance on that precedent.” Id. at 359 (Alito, J., dissenting). But this was nonetheless unconvincing because the Court had found that “blind

adherence to Belton's faulty assumption would authorize myriad unconstitutional searches.” Id. at 351. The same result should follow here. The core assumptions of Abood have been disproven; “blind adherence” to them is, therefore, imprudent. Agency- shop provisions are not necessary for the existence of unions, and those who object to paying union fees are not free riders. It consequently matters little that unions have operated in reliance on the collection of nonmembers’ dues. Here, as in Gant, the fact that unions may view a previous decision “as an entitlement does not establish the sort of reliance interest that could outweigh the countervailing interest that all individuals share in having their constitutional rights fully protected.” 556 U.S. at 349. And, to be clear, “unions have no constitutional entitlement to the fees of nonmember-employees.” Knox, 132 S. Ct. at 2291 (citations and internal quotation marks omitted). The Court should consequently discontinue the abridgement of First Amendment rights that agency shops impose on dissenting nonmembers. Finally, it cannot be overstated that this case is not a referendum on the existence of unions. If Abood is overturned, unions may still act as teachers’ exclusive bargaining representatives and may continue to accept dues from willing members. They will survive—a fact made overwhelmingly apparent by unions’ continued operation in numerous right-to- work states that forbid agency-shop provisions. Today, there are at least eighteen such states. See Sweeney v. Pence, 767 F.3d 654, 663 (7th Cir. 2014); Wis. Stat. § 111.04(3)(a). And unions operate in every one. See Union Members: 2014, U.S. Bureau Lab. Stat.

(Jan. 23, 2015, 10:00 AM), http://www.bls.gov/news.release/pdf/union2.pdf. Agency-shop provisions violate objecting teachers’ First Amendment rights. Like at least thirty-three of the Court’s other constitutional decisions revisited since the 1970s, see Payne, 501 U.S. at 828, Abood v. Detroit Board of Education should be overruled.

III. THE OPT OUT PROCEDURES SANCTIONED IN ABOOD SIMILARLY VIOLATE THE FIRST AMENDMENT BECAUSE THEY CANNOT WITHSTAND EXACTING SCRUTINY AND ARE WITHOUT PRECEDENTIAL SUPPORT.

The requirement that dissenting nonmembers affirmatively protest to subsidizing nonchargeable speech impermissibly encroaches on First Amendment rights. To avoid forfeiting constitutionally protected liberties and financing disagreeable political speech, nonmembers are required to annually “opt out.” Nonmembers opt out by affirmatively expressing their objections to paying the nonchargeable fees every year upon receipt of the Hudson notice. This problematically presumes that nonmembers—who by definition object to union association—consent to the use of their funds to finance the union’s political agenda. Opt-out procedures serve as a means of circumventing First Amendment protections and maximizing the collection of coerced support. The unconstitutionality of opt-out procedures is demonstrated by both the practice’s inability to withstand strict scrutiny, and years of conflicting

constitutional precedent. The interests advanced by this Court in Abood, namely labor peace and the prevention of “free-riding,” are not implicated in the collection of nonchargeable funds. Opt-in practices are far less restrictive of protected rights, demonstrating a lack of narrow tailoring. And constitutional precedent does not support state action that needlessly rescinds fundamental protections absent express consent. If this Court does not invalidate agency-shop provisions generally, the abrogation of agency-shop opt-out practices is necessary to protect the few individual rights left intact.

A. Opt-out Systems Lack the Justification of Compelling Interests and Are Not Tailored to Minimize Constitutional Impairment.

Opt-out measures necessarily expose fundamental rights to unjustifiable risks of abridgment and thus warrant the exacting scrutiny afforded to First Amendment violations. State action that infringes on First Amendment rights must survive strict scrutiny. Elrod v. Burns, 427 U.S. 347, 362 (1976) (“It is firmly established that a significant impairment of First Amendment rights must survive exacting scrutiny.”). As this Court has noted, agency-shop practices infringe on the protected rights of dissenting nonmembers. Harris, 134 S. Ct. at 2642 (“Agency-fee provisions unquestionably impose a heavy burden on the First Amendment interests of objecting employees.”). But the requirement that nonmembers

opt out of impermissible subsidies is uniquely abusive of individual rights. The use of a nonmember’s funds to subsidize ideological and political speech with which she does not agree, is an immeasurable violation of First Amendment principles. Abood, 431 U.S. at 234 n. 31 (“Thomas Jefferson agreed that, ‘to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.’”). Under opt-out systems, the misuse of nonmember funds to finance offensive political speech is both inevitable and largely irreparable. As opt-out procedures require objecting employees to vindicate rights of “the utmost gravity,” International Ass’n of Machinists v. Street, 367 U.S. 740, 749 (1961), the procedures should be subjected to the most exacting level of scrutiny.

1. The compelling interests articulated in Abood are not implicated by opt-out practices and thus, cannot justify such systems.

Where strict scrutiny is necessitated, “the burden is on the government to show the existence of [a compelling] interest.” First National Bank of Boston v. Bellotti, 435 U.S. 765, 786 (1978) (internal quotations omitted). The Court has only advanced two purportedly compelling interests in the agency-shop context that Respondents could ostensibly link to opt- out requirements, the preservation of labor peace and the avoidance of free riding. Abood, 431 U.S. at 224 (“The desirability of labor peace is no less important in the public sector, nor the risk of ‘free riders’ any smaller.”). The Court’s subsequent decisions cast

doubt on the ability of these two interests to justify abridgment of First Amendment rights. Harris, 134 S. Ct. at 2627 (noting that free rider arguments are “generally insufficient to overcome First Amendment objections.”) (internal citations omitted); Harris, 134 S. Ct. at 2629 (“The Court did not suggest that ‘industrial peace’ could justify a law that ‘forces men into ideological and political associations which violate their right to freedom of conscience, freedom of association, and freedom of thought’ or a law that forces a person to ‘conform to [a union’s] ideology.’”) (internal citations omitted). But the relative strength of these alleged interests is immaterial to this analysis. Compelling, important, or legitimate, neither state interest is implicated by opt-out procedures for nonchargeable fees. A union’s ability to maintain a political presence at the expense of objecting and coerced parties does not further the goal of labor peace, and the purported concern of free riding is similarly unpersuasive. This Court explicitly held that a union is not entitled to nonmember subsidies for purely political and ideological endeavors, Abood, 431 U.S. at 233-35, and union involvement in political affairs hardly benefits the collective unit. The equitable distribution of responsibility cannot necessitate the existence of opt-out measures when neither statutory provisions nor misguided notions of fairness compel use of nonmember funds to subsidize political speech. Without related compelling interests to justify infringements of First Amendment rights, the opt-out systems employed by Respondents cannot survive strict scrutiny.

2. Opt-in procedures effectuate union interests without infringing on constitutional liberties.

The constitutionality of opt-out procedures is further undermined by the existence of an alternative that presents less of an encroachment on individual rights. Infringements on political speech are impermissible if less restrictive alternatives would be at least as effective in achieving the State’s purported interest. U.S. v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000). As earlier demonstrated, the two interests delineated in Abood are inapplicable to the analysis of agency-shop opt-out practices. But if, as the Petitioners suspect, one union interest is affording nonmembers the opportunity to support its political agenda, opt-in procedures effectively serve that end while simultaneously safeguarding the rights of disinterested parties. As it stands now, the “opt-out system creates a risk that the fees paid by nonmembers will be used to further political and ideological ends with which [objecting nonmembers] do not agree.” Knox, 132 S. Ct. at 2290. The requirement that agency-shop provisions be “carefully tailored to minimize the infringement,” Chicago Teachers Union v. Hudson, 475 U.S. 292, 302 (1986), on fundamental rights is not satisfied in the present system. To the contrary, opt- out systems are organized such that the default is impingement, and only after the violated assume the responsibility of vindicating their rights does the impingement cease. A union cannot be afforded this benefit of inertia. “Given the existence of acceptable alternatives, a union cannot be allowed to commit dissenters’ funds to improper uses even temporarily.”

Knox 132 S. Ct. at 2295 (quoting Ellis v. Railway Clerks, 466 U.S. 435, 444 (1984)). Opt-in systems are an acceptable, less restrictive alternative. Opt-in systems neither impede the ability of consenting parties to support the union’s political platform, nor expose the rights of dissenting parties to potential violation. The assertion that opt-out procedures comport with First Amendment principles is fatally undercut by the fact that opt-out systems are without the justification of compelling interests and are not tailored to minimize the infringement on individual rights. The systems are, thus, a violation of the First Amendment.

B. Opt-out Systems Fly in the Face of Over Seventy-five Years of Constitutional Precedent That Requires Voluntary, Explicit Relinquishment of Fundamental Rights. “Courts ‘do not presume acquiescence in the loss of fundamental rights.’” Knox, 132 S. Ct. at 2290 (internal citations omitted). The Court’s implicit support of opt-out procedures in Abood defies years of well established precedent. In subsequent holdings, the Court explained that the conception of opt-out procedures in the agency-shop context was the result of an “offhand remark” that did not reasonably “consider the broader constitutional implications….” Knox, 132 S. Ct. at 2290. The majority’s suggestion that Abood’s acceptance of opt-out systems constitutes a precedential anomaly is well supported by constitutional jurisprudence. This Court has routinely held that fundamental rights are the individual’s to relinquish, not the State’s to seize. See Johnson v.

Zerbst, 304 U.S. 458, 464 (1938) (“The classic description of an effective waiver of a constitutional right is the ‘intentional relinquishment or abandonment of a known right or privilege.’”); Aetna Insurance Co. v. Kennedy ex rel. Bogash, 301 U.S. 389, 393 (1937) (“[C]ourts indulge every reasonable presumption against waiver of constitutional rights.”); Edelman v. Jordan, 415 U.S. 651, 673 (1974) (holding that the Court will only find a State’s waiver of constitutional protection where stated “by the most express language or such overwhelming implications from the text as [will] leave no room for any other reasonable construction.”). It is contrary to constitutional precedent to find that individuals have forgone constitutional protections absent explicit expression of the intent to do so. Rather than require unions to respect the freedom to withhold funds from political associations, opt-out procedures require dissenting nonmembers to assert the rights guaranteed to them by the First Amendment. This practice is in direct contravention of the “basic conceptions about the manner in which political discussion in a representative democracy should proceed.” Brown v. Hartlage, 456 U.S. 45, 52 (1982). It is not the individual’s responsibility to defend against state action that the Constitution and this Court prohibit.

IV. CALIFORNIA’S SYSTEM DEMONSTRATES THE NEED TO INVALIDATE OPT-OUT PROCEDURES, ESPECIALLY IF ABOOD IS NOT OVERTURNED.

If the Court is unwilling to overturn Abood in its entirety, invalidating opt-out procedures is necessary to protect the few rights remaining to dissenting nonmembers. The California system exemplifies the danger in permitting opt-out practices’ continued existence. The organization of California’s opt-out system strongly intimates the unions’ interest in exploiting employee vulnerability. The Hudson notice arrives in the beginning of the school year, Regs. Of Cal. PERB. §32992 (c)(3), and objections are required within six weeks. Def.’s Answer ¶62. The objection notice is misleading, and suggests that objections are only appropriate if the nonmember disagrees with the financial audit and breakdown of fees. J.A. vol. 2. Union rules require dissenting nonmembers to register a formal objection to nonchargeable fees every year upon receipt of the Hudson notice. Regs. of Cal. PERB §32992. And the objection form lacks guidance on the correct way to complete the necessary paperwork. J.A. vol. 2. The process of opting out in California is intentionally ambiguous and works to circumvent this Court’s proscription of coerced political subsidies. It is the exact kind of abusive system Abood allows by permitting the continued existence of opt-out procedures in the agency-shop context. Even nonmembers who understand the opt-out process are faced with a difficult decision upon receipt of the Hudson notice. If dissenting nonmembers wish

to challenge the unions’ calculations of chargeable and nonchargeable fees, they are required to exhaust the union’s challenge procedures before filing a claim in an external forum. Regs. of Cal. PERB § 32994(a). Employee challenges are heard by an “impartial decisionmaker,” the selection of whom requires union involvement. Regs. of Cal. PERB § 32994(b)(4). If employees ultimately choose to bring suit against the union for its fee calculation, the employees generally must assume the costs of litigating the issue. Knox, 132 S. Ct. at 2294 (“[T]he onus is on the employees to come up with the resources to mount the legal challenge in a timely fashion.”). These provisions likely function to discourage employees—who have already committed 2% of their salaries to the unions—from challenging the status quo. Unions are theoretically free to misrepresent their use of nonmember funds with the understanding that few nonmembers can afford to litigate the issue and contest its calculations. This Court cannot endorse the Unions’ coercive behavior. The “strength in numbers” benefit of unions is meant to advocate on behalf of the majority, not bully the minority. Whether the unions’ opt-out procedures are burdensome is irrelevant to an assessment of the systems’ constitutionality. Opt-out practices, at present, unnecessarily expose fundamental, constitutionally protected rights to the threat of violation. The systems are, thus, inherently invalid. There is a viable alternative that protects individual interests against abuse and serves the unions’ interest in permitting nonmembers to support the unions’ political agendas if they so desire. The California system exemplifies the dangers of Abood. The Abood

Court’s indulgence of unions comes at the very costly expense of individual liberty.

CONCLUSION

For the foregoing reasons, Petitioners respectfully request that Abood v. Detroit Board of Education be overruled, and public-sector agency shops invalidated in their entirety. If this Court finds just cause not to abrogate its Abood holding, Petitioners respectfully request the Court find that opt-in procedures are constitutionally required for agency-shop arrangements.

Respectfully submitted,

/s/ Danielle J. McCall /s/ Peter J. Mardian University of Pennsylvania Law School 3501 Sansom Street Philadelphia, PA 19104

October 16, 2015 Counsel for Petitioners

CERTIFICATE OF COMPLIANCE

As required under Supreme Court Rule 33.1(g), as modified by the Keedy Cup Rules, we certify that this document contains 9,031 words, excluding the parts exempted by Supreme Court Rule 33.1(d).

We declare under penalty of perjury that the foregoing is true and correct.

/s/ Danielle J. McCall /s/ Peter J. Mardian University of Pennsylvania Law School 3501 Sansom Street Philadelphia, PA 19104

October 16, 2015 Counsel for Petitioners

APPENDIX

U.S. Const. amend. I:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Cal. Gov't Code § 3544 (West 2015):

(a) An employee organization may become the exclusive representative for the employees of an appropriate unit for purposes of meeting and negotiating by filing a request with a public school employer alleging that a majority of the employees in an appropriate unit wish to be represented by such organization and asking the public school employer to recognize it as the exclusive representative. The request shall describe the grouping of jobs or positions which constitute the unit claimed to be appropriate and shall be based upon majority support on the basis of current dues deduction authorizations or other evidence such as notarized membership lists, or membership cards, or petitions designating the organization as the exclusive representative of the employees. Notice of any such request shall immediately be posted conspicuously on all employee bulletin boards in each facility of the public school employer in which members of the unit claimed to be appropriate are employed.

Cal. Gov't Code § 3544.9 (West 2015):

The employee organization recognized or certified as the exclusive representative for the purpose of meeting and negotiating shall fairly represent each and every employee in the appropriate unit.

Cal. Gov't Code § 3543.2 (West 2015)

(a)(1) The scope of representation shall be limited to matters relating to wages, hours of employment, and other terms and conditions of employment. “Terms and conditions of employment” mean health and welfare benefits as defined by Section 53200, leave, transfer and reassignment policies, safety conditions of employment, class size, procedures to be used for the evaluation of employees, organizational security pursuant to Section 3546, procedures for processing grievances pursuant to Sections 3548.5, 3548.6, 3548.7, and 3548.8, the layoff of probationary certificated school district employees, pursuant to Section 44959.5 of the Education Code, and alternative compensation or benefits for employees adversely affected by pension limitations pursuant to former Section 22316 of the Education Code, as that section read on December 31, 1999, to the extent deemed reasonable and without violating the intent and purposes of Section 415 of the Internal Revenue Code.1 (2) A public school employer shall give reasonable written notice to the exclusive representative of the public school employer's intent to make any change to matters within the scope of representation of the employees represented by the exclusive representative for purposes of providing the exclusive representative a reasonable amount of time

to negotiate with the public school employer regarding the proposed changes.(3) The exclusive representative of certificated personnel has the right to consult on the definition of educational objectives, the determination of the content of courses and curriculum, and the selection of textbooks to the extent those matters are within the discretion of the public school employer under the law.(4) All matters not specifically enumerated are reserved to the public school employer and may not be a subject of meeting and negotiating, except that this section does not limit the right of the public school employer to consult with any employees or employee organization on any matter outside the scope of representation.(b) Notwithstanding Section 44944 of the Education Code, the public school employer and the exclusive representative shall, upon request of either party, meet and negotiate regarding causes and procedures for disciplinary action, other than dismissal, including a suspension of pay for up to 15 days, affecting certificated employees. If the public school employer and the exclusive representative do not reach mutual agreement, Section 44944 of the Education Code shall apply.(c) Notwithstanding Section 44955 of the Education Code, the public school employer and the exclusive representative shall, upon request of either party, meet and negotiate regarding procedures and criteria for the layoff of certificated employees for lack of funds. If the public school employer and the exclusive representative do not reach mutual agreement, Section 44955 of the Education Code shall apply.(d) Notwithstanding Section 45028 of the Education Code, the public school employer and the exclusive representative shall, upon request of either party, meet and negotiate regarding the payment of

additional compensation based upon criteria other than years of training and years of experience. If the public school employer and the exclusive representative do not reach mutual agreement, Section 45028 of the Education Code shall apply.(e) Pursuant to Section 45028 of the Education Code, the public school employer and the exclusive representative shall, upon the request of either party, meet and negotiate a salary schedule based on criteria other than a uniform allowance for years of training and years of experience. If the public school employer and the exclusive representative do not reach mutual agreement, the provisions of Section 45028 of the Education Code requiring a salary schedule based upon a uniform allowance for years of training and years of experience shall apply. A salary schedule established pursuant to this subdivision shall not result in the reduction of the salary of a teacher.

Cal. Gov't Code § 3543 (West 2015):

(a) Public school employees shall have the right to form, join, and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations. Public school employees shall have the right to represent themselves individually in their employment relations with the public school employer, except that once the employees in an appropriate unit have selected an exclusive representative and it has been recognized pursuant to Section 3544.1 or certified pursuant to Section 3544.7, an employee in that unit shall not meet and negotiate with the public school employer. If the exclusive representative of a unit provides notification, as

specified by subdivision (a) of Section 3546, public school employees who are in a unit for which an exclusive representative has been selected, shall be required, as a condition of continued employment, to join the recognized employee organization or to pay the organization a fair share services fee, as required by Section 3546. If a majority of the members of a bargaining unit rescind that arrangement, either of the following options shall be applicable: (1) The recognized employee organization may petition for the reinstatement of the arrangement described in subdivision (a) of Section 3546 pursuant to the procedures in paragraph (2) of subdivision (d) of Section 3546. (2) The employees may negotiate either of the two forms of organizational security described in subdivision (i) of Section 3540.1. (b) An employee may at any time present grievances to his or her employer, and have those grievances adjusted, without the intervention of the exclusive representative, as long as the adjustment is reached prior to arbitration pursuant to Sections 3548.5, 3548.6, 3548.7, and 3548.8 and the adjustment is not inconsistent with the terms of a written agreement then in effect, provided that the public school employer shall not agree to a resolution of the grievance until the exclusive representative has received a copy of the grievance and the proposed resolution and has been given the opportunity to file a response.

Cal. Gov't Code § 3546 (West 2015):

(a) Notwithstanding any other provision of law, upon receiving notice from the exclusive representative of a

public school employee who is in a unit for which an exclusive representative has been selected pursuant to this chapter, the employer shall deduct the amount of the fair share service fee authorized by this section from the wages and salary of the employee and pay that amount to the employee organization. Thereafter, the employee shall, as a condition of continued employment, be required either to join the recognized employee organization or pay the fair share service fee. The amount of the fee shall not exceed the dues that are payable by members of the employee organization, and shall cover the cost of negotiation, contract administration, and other activities of the employee organization that are germane to its functions as the exclusive bargaining representative. Agency fee payers shall have the right, pursuant to regulations adopted by the Public Employment Relations Board, to receive a rebate or fee reduction upon request, of that portion of their fee that is not devoted to the cost of negotiations, contract administration, and other activities of the employee organization that are germane to its function as the exclusive bargaining representative. (b) The costs covered by the fee under this section may include, but shall not necessarily be limited to, the cost of lobbying activities designed to foster collective bargaining negotiations and contract administration, or to secure for the represented employees advantages in wages, hours, and other conditions of employment in addition to those secured through meeting and negotiating with the employer. (c) The arrangement described in subdivision (a) shall remain in effect unless it is rescinded pursuant to subdivision (d). The employer shall remain neutral, and shall not participate in any election conducted

under this section unless required to do so by the board. (d)(1) The arrangement described in subdivision (a) may be rescinded by a majority vote of all the employees in the negotiating unit subject to that arrangement, if a request for a vote is supported by a petition containing 30 percent of the employees in the negotiating unit, the signatures are obtained in one academic year. There shall not be more than one vote taken during the term of any collective bargaining agreement in effect on or after January 1, 2001. (2) If the arrangement described in subdivision (a) is rescinded pursuant to paragraph (1), a majority of all employees in the negotiating unit may request that the arrangement be reinstated. That request shall be submitted to the board along with a petition containing the signatures of at least 30 percent of the employees in the negotiating unit. The vote shall be conducted at the worksite by secret ballot, and shall be conducted no sooner than one year after the rescission of the arrangement under this subdivision. (3) If the board determines that the appropriate number of signatures have been collected, it shall conduct the vote to rescind or reinstate in a manner that it shall prescribe in accordance with this subdivision. (4) The cost of conducting an election under this subdivision to reinstate the organizational security arrangement shall be borne by the petitioning party and the cost of conducting an election to rescind the arrangement shall be borne by the board.

Cal. Gov't Code § 3546.3 (West 2015):

Notwithstanding subdivision (i) of Section 3540.1, Section 3546, or any other provision of this chapter, any employee who is a member of a religious body whose traditional tenets or teachings include objections to joining or financially supporting employee organizations shall not be required to join, maintain membership in, or financially support any employee organization as a condition of employment; except that such employee may be required, in lieu of a service fee, to pay sums equal to such service fee either to a nonreligious, nonlabor organization, charitable fund exempt from taxation under Section 501(c) (3) of Title 26 of the Internal Revenue Code, chosen by such employee from a list of at least three such funds, designated in the organizational security arrangement, or if the arrangement fails to designate such funds, then to any such fund chosen by the employee. Either the employee organization or the public school employer may require that proof of such payments be made on an annual basis to the public school employer as a condition of continued exemption from the requirement of financial support to the recognized employee organization. If such employee who holds conscientious objections pursuant to this section requests the employee organization to use the grievance procedure or arbitration procedure on the employee's behalf, the employee organization is authorized to charge the employee for the reasonable cost of using such procedure.

Cal. Code Regs. tit. 8, § 32992 (2015):

(a) The exclusive representative shall provide annual written notice to each nonmember who will be required to pay an agency fee. The notice shall include: (1) The amount of the exclusive representative's dues and the agency fee; (2) The percentage of the agency fee amount that is attributable to chargeable expenditures and the basis for this calculation; (3) The amount of the agency fee to be paid by a nonmember who objects to the payment of an agency fee amount that includes nonchargeable expenditures (hereinafter referred to as an “agency fee objector”); and (4) Procedures for (A) objecting to the payment of an agency fee amount that includes nonchargeable expenditures and (B) challenging the calculation of the nonchargeable expenditures. (b)(1) The calculation of the chargeable and nonchargeable expenditures will be based on an audited financial report, and the notice will include either a copy of the audited financial report used to calculate the chargeable and nonchargeable expenditures or a certification from the independent auditor that the summarized chargeable and nonchargeable expenditures contained in the notice have been audited and correctly reproduced from the audited report, or (2) the calculation of the chargeable and nonchargeable expenditures may be based on an unaudited financial report if the exclusive representative's annual revenues are less than $50,000 and a nonmember is afforded a procedure

sufficiently reliable to ensure that a nonmember can independently verify that the employee organization spent its money as stated in the notice. (c) Such written notice shall be sent/distributed to the nonmember either: (1) At least 30 days prior to collection of the agency fee; or (2) Concurrent with the initial agency fee collection provided escrow requirements in Section 32995 are met; or (3) In the case of public school employees, where the agency fee year covers the traditional school year, on or before October 15 of the school year, provided escrow requirements in Section 32995 are met.

Cal. Code Regs. tit. 8, § 32994 (2015):

(a) An agency fee payer who disagrees with the exclusive representative's determination of the chargeable expenditures contained in the agency fee amount and who files a timely agency fee challenge with the exclusive representative shall be hereafter known as an “agency fee challenger.” An agency fee challenger may file an unfair practice charge that challenges the determination of the chargeable expenditures contained in the agency fee amount; however, no complaint shall issue until the agency fee challenger has first exhausted the Exclusive Representative's Challenge Procedure. No agency fee challenger shall be required to exhaust the Exclusive Representative's Challenge Procedure where it is insufficient on its face. (b) Each exclusive representative that has an agency fee provision shall administer a Challenge Procedure in accordance with the following:

(1) An agency fee challenge shall be filed in writing with the official designated by the exclusive representative in the annual notice. (2) The procedure shall allow at least 30 days following distribution of the notice required under Section 32992 of these regulations for the filing of an agency fee challenge. (3) Upon receipt of an agency fee challenge, the exclusive representative shall within 45 days of the last day for filing a challenge request a prompt hearing regarding the agency fee before an impartial decisionmaker. (4) The impartial decisionmaker shall be selected by the American Arbitration Association or the California State Mediation Service. The selection between these entities shall be made by the exclusive representative. (5) Any party may make a request for a consolidated hearing of multiple agency fee challenges based on case similarities, including but not limited to, hearing location. At any time prior to the start of the hearing, any party may make a motion to the impartial decisionmaker challenging any consolidation of the hearing. (6) The exclusive representative bears the burden of establishing the reasonableness of the amount of the chargeable expenditures. (7) Agency fee challenge hearings shall be fair, informal proceedings conducted in conformance with basic precepts of due process. (8) All decisions of the impartial decisionmaker shall be in writing, and shall be rendered no later than 30 days after the close of the hearing.

(9) All hearing costs shall be borne by the exclusive representative, unless the exclusive representative and the agency fee challenger agree otherwise.