The facts were never seriously in dispute. The state's public schools employ roughly 70,000 persons. All but 5% of them belong voluntarily to the union. Under well-established law, the WEA must serve as collective bargaining agent for the whole unit — and the nonunion workers, having "opted out" of full membership, must justifiably pay their per capita cost of union bargaining on wages, hours and other working conditions.
There's a sticky point. The union must rebate to the opt-outers any portion of their union dues that is spent on nonbargaining purposes, e.g., for union politicking and picnicking. Individually, the rebates are piddling: $20 to $40 per dissenting teacher per year. Multiplied by 4,000 dissident members, and multiplied again by five years, the WEA's accumulated obligation to the dissenters now approaches half a million dollars.
The union understandably hungers to cling to its commandeered gains. The objecting teachers, for their part, naturally want some of their money back. Last year the union won 6-3 in the state supreme court. There a majority held that on a scale of First Amendment rights, the union's weight was justifiably heavier.
During oral argument before the U.S. Supreme Court last January, even the court's most liberal members gave the union's counsel a hard time. Notably, Justice John Paul Stevens was especially critical of the union's position. He appeared to favor a rule that would prohibit the union from using "any nonmember agency fee collections for any nongermane purpose at all without affirmative consent." Hypothetically, he wondered about a statute to protect a dissenter who said, "I don't want to spend any more money, give any more money to the union than I absolutely have to."
The union's counsel responded, in effect, blub.
Last week, Justice Scalia was in Jeffersonian accord. "It is undeniably unusual," he wrote, "for a government agency to give a private entity the power, in essence, to tax government employees." Scalia was not impressed by the union's argument that its right of free expression would be gravely impaired by the loss of the dissenters' money: "Quite obviously, no suppression of ideas is afoot, since the union remains as free as any other entity to participate in the electoral process with all available funds other than the state-coerced agency fees lacking affirmative permission."
Last week's high court opinion rests upon a solid foundation of precedent dating from the court's landmark opinion 30 years ago in Louis Abood v. Detroit Board of Education. Speaking through Justice Potter Stewart, a unanimous court held that public-sector unions must respect the political rights of their dissenting members: No portion of their union dues may be used for promoting ideological purposes they oppose.
In 1986 another unanimous court, speaking this time through Justice Stevens in what is known as the Hudson case, upheld the right of nonunion teachers in Chicago to a prompt and impartial handling of their grievances. The underdogs are doing well.
It will now be up to the Washington State Supreme Court, on remand, to supervise Justice Scalia's implicit mandate. All parties would be well-advised not to hold their breaths. It likely will be many months before any money actually passes from the union to Gary Davenport and his victorious cohort. Meanwhile, a modest hallelujah may be cried.
(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)
