*This article originally appeared in Education Week*

**High Court Upholds Wash. State Law on Union Fees**

By Mark Walsh

*Washington*

The U.S. Supreme Court dealt a defeat to teachers’ unions last week by upholding a Washington state law that required them to get the consent of nonmembers to spend their representation fees on political activities.

But the court’s unanimous ruling on June 14 will likely do little harm in the long run to the Washington Education Association or other public-employee unions, legal experts said.

The court declined suggestions from so-called right-to-work groups to reconsider some of its basic precedents in the area of “agency fees,” which unions collect from nonmembers because they benefit from collective bargaining even though they haven’t joined.

The National Right to Work Legal Defense Foundation, a Springfield, Va.-based organization that represented a group of nonunion teachers in the Washington state case, said workers opposed to having their agency fees go for unions’ political agendas “are little better off after today’s ruling.”

The Supreme Court “avoided the more critical and far-sweeping question—whether union officials should be able to automatically collect forced dues for politics from nonunion members in the first place,” the foundation said in a statement.

**Unions Not ‘Hurt’**

Robert H. Chanin, the general counsel of the National Education Association, the parent of the WEA, said, “The court could have hurt us, and chose not to, and reaffirmed what we have been doing for 25 years.” He was referring to the complex rules for collecting and accounting for the proper use of agency fees that the high court has addressed in several cases.

Justice Antonin Scalia, writing for the court in Davenport v. Washington Education Association Requires Adobe Acrobat Reader (Case No. 05-1589), said it does not violate the First Amendment speech or association rights of public-sector unions if states require them to seek an “affirmative authorization” before spending nonmembers’ money on election-related activities.

“We do not think that the voters of Washington impermissibly distorted the marketplace of ideas when they placed a reasonable, viewpoint-neutral limitation on the state’s general authorization allowing public-sector unions to acquire and spend the money of government employees,” Justice Scalia wrote.

Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer and Samuel A. Alito Jr. declined to sign on to some portions of Justice Scalia’s opinion, but the underlying judgment was unanimous.

Washington state amended the statute last month. The revised law clarifies that unions don’t need authorization for using nonmembers’ agency fees for political and other non-bargaining-related purposes as long as a union has enough money in its general treasury to pay for such activities.

Some legal experts had expected that the change, enacted by a Democratic governor and legislature some 15 years after state voters had approved the “opt-in” requirement in a ballot initiative, would lead the Supreme Court to send the case back to the Washington state courts without a full opinion.

But both sides had told the court the change in law did not make the case moot. Justice Scalia agreed, saying in a footnote that money damages were still at stake.

State officials noted that more than $500,000 in fines levied by the state against the WEA for violations of the earlier statute were also still dependent on the outcome of the case.

“The union is still subject to hundreds of thousands of dollars worth of fines,” Rob McKenna, the attorney general of Washington state, said in an interview. He said that unions were within their rights to seek a change to the law through the political process, as they did, but that his office was intent on defending the 1992 ballot initiative.

“The union clearly lost on the question of whether the law it violated was constitutional,” added Mr. McKenna, a Republican. “There’s no way to put a spin on losing a case 9-0 in the U.S. Supreme Court.”

But Mr. Chanin of the NEA said “the outcome is just fine from our point of view.” He added that he thought there was a good chance that the WEA’s fines would be reduced after further lower-court proceedings.

The case originated with a state probe of the WEA in 1994 after the union instituted a dues increase, partly to offset an anticipated drop-off in political contributions because of the 1992 initiative.

In 1998, the state reached a $430,000 settlement in a case against the union. In a subsequent legal action by the state, the union faced a judgment of $590,000 for failing to abide by the opt-in measure. The WEA was also sued by a group of four teachers who were not members of the union and objected to the use of their agency fees for political purposes.

In March 2006, the Washington Supreme Court struck down the 1992 law. The court said the law imposed a burden on the teachers’ union of confirming that a nonmember does not object to having his agency fees spent on electoral purposes. That burden may have infringed on the union’s First Amendment right of “expressive association,” the court said.

The U.S. Supreme Court’s decision threw out the state high court’s ruling and sent the case back for further proceedings in the state courts.

**Modest Returns**

In its arguments on behalf of the nonunion teachers, the National Right to Work Legal Defense Foundation had urged the justices to rule that a phrase from a 1961 high court labor precedent applies only to voluntary union members, not to nonmembers.

In *Machinists v. Street*, which upheld the idea that nonunion members should not get a free ride when they benefit from a union’s bargaining activities, the Supreme Court at that time further said that “dissent is not to be presumed—it must affirmatively be made known to the union by the dissenting employee.”

The right-to-work group said that phrase was not meant to apply to nonunion members, whose refusal to join the union has already served to register dissent to the union’s acting on their behalf.

Justice Scalia said the Washington high court mistakenly relied on the “dissent is not to be presumed” principle to conclude that a nonmember bears the burden of objecting before a union may be barred from spending his or her fees for impermissible purposes.

The high court’s precedents set a “constitutional floor” for procedures to evaluate unions’ collecting and spending of agency fees, Justice Scalia said, not a “ceiling” for measures that states may enact.

Justin Hakes, the legal-information director of the National Right to Work foundation, suggested that his group has soured on the effectiveness of “paycheck protection” measures for nonunion workers.

“We don’t feel the underlying [1992] law was effective,” he said. The group contends that unions were able to evade the Washington state provision by changing their accounting methods and taking other steps to fall outside the scope of the regulation, which focused on election-related matters.

Timothy M. Sandefur, a lawyer with the Pacific Legal Foundation, which filed a friend-of-the-court brief on the side of the nonunion workers, said the Supreme Court’s ruling makes it clear that the states may enact stronger measures to attempt to guarantee that nonunion workers’ fees are not mis-used.

But even measures such as Washington state’s 1992 law returned relatively little money to such workers, adding to the ineffectiveness of the requirement.

“It doesn’t pay much for you to refuse to join the union—maybe five bucks back” after a year-end accounting of whether expenses were related to bargaining or not, Mr. Sandefur said.

The National Right to Work Legal Defense Foundation is a nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by compulsory unionism abuses. The Foundation, which can be contacted toll-free at 1-800-336-3600, assists thousands of employees in about 200 cases nationwide per year.