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A primer for this year’s Keedy Cup case

January 28, 2016

At the center of Friedrichs v. CTA is the question of whether agency fees required by unions in the public sector are unconstitutional un...
At the center of Friedrichs v. CTA is the question of whether “agency fees” required by unions in the public sector are unconstitutional under the First Amendment.
Jason Walta of the National Education Association explained Friedrichs v. California Teachers Association, the case for this year’s Edwin R. Keedy Cup.

By Kathy Zhang C’17

This year the case to be argued at the Edwin R. Keedy Cup, the annual internal moot court competition at the University of Pennsylvania Law School, is Friedrichs v. California Teachers Association. In preparation for event, the American Constitution Society Student Chapter at Penn Law, along with the Keedy Cup Board, invited Jason Walta to speak to students about Friedrichs and its journey to the Supreme Court in a discussion moderated by Professor Sophia Lee.

Walta is Senior Counsel at the National Education Association, where he brings and defends constitutional litigation on behalf of the union and its members, authors amicus briefs in the Supreme Court and U.S. Courts of Appeals, and advises the union on campaign-finance issues. He is also one of the lawyers arguing on behalf of CTA in the actual Friedrichs case.

At the center of Friedrichs v. CTA is the question of whether “agency fees” required by unions in the public sector are unconstitutional under the First Amendment.

“The duty of fair representation requires that if you [the union] are the exclusive representative, you have to represent everyone in the workplace fairly regardless of whether they are a member of your union or not,” explained Walta. “So that’s great, but it creates a classic free-rider problem. All of the members are paying for representation, and while nonmembers aren’t paying for representation, they are still reaping the benefits [of collective bargaining].”

According to Walta, a way to address this free rider problem is through agency fees — a fee charged to nonmembers to cover the costs of their collective bargaining representation. He posited that this is “a frequent arrangement in the private sector” and under the precedent of Abood v. Detroit Board of Education, agency shop arrangements are permissible in the public sector as well.

Abood, however, was decided in 1977, and central to the Friedrichs case this year is whether Abood should be overruled. Walta briefly discussed the merits of the arguments for such a decision. The basic contention behind agency fees is that everything unions do is political, whether it’s collective bargaining or lobbying, and for public sector employees to still be required to pay agency fees is a “cardinal sin of the First Amendment.”

Even so, Walta commented on his belief in the importance of agency fees and the maintenance of a distinction between “workplace speech” and “public speech.” In his opinion collective bargaining representation belongs to the former.

When asked what he believed the stakes of losing Friedrichs v. CTA were and the potential impact on unions, Walta said, “It’s definitely not going to kill unions. But it will make [collective bargaining] harder at a time where unions are really the only institutional force in the country that counteracts inequality. And by weakening unions, that work gets harder to do.”

Tweets from this event: