Other views: Washington teachers likely to come up short in court

• Published January 30, 2007

Justice Clarence Thomas stayed mum, as usual, but all eight of his colleagues got into the act three weeks ago when the Supreme Court heard argument in the case of a teachers union. When oral argument ended at noon, most observers probably thought the union's luck had run out with the clock, but those things are tough to call.

The facts are not seriously in dispute. In the state of Washington, 70,000 public school employees work under an agency shop contract. All but 3,500 of them belong to the Washington Education Association (WEA). The 3,500 nonmembers, by law, must pay the union a fee equal to their share of the demonstrable costs of collective bargaining. They are entitled to a rebate equal to the union's per capita outlays for other, non-chargeable, expenditures.

The system sounds simple, and in theory it is. In practice, the WEA is understandably unwilling to disgorge a single penny it has collected from the "fee payers." These are the scabs whom willy-nilly the union must represent. Thus, for a non-union teacher to "opt out" of a non-germane outlay - say, for the cost of soft drinks at a union picnic - the union lawyers have made a rebate procedure as difficult as they can devise. The rebates, per capita, are penny-ante. Between 1996 and 2000 they ranged only from $44 to $76 a year. In principle, they're large.

Seven years ago the free-spirited Evergreen Freedom Foundation, the National Right to Work Legal Foundation and the Washington State Public Disclosure Commission combined in suits against the union. The plaintiffs won in a trial court, where (Thurston County Superior Court) Judge Gary Tabor hit the WEA with a $600,000 judgment. In March of last year, the free spirits lost in the state Supreme Court. Their appeal followed to the U.S. Supreme Court.

The case was argued Jan. 10 before Chief Justice John Roberts and his colleagues. It was not a great argument, but it was a good argument. Robert McKenna, the Washington state attorney general, was joined by U.S. Solicitor General Paul Clement on behalf of the non-union plaintiffs. John M. West of Washington, D.C., representing the union, argued vigorously that the "opt out" procedure unconstitutionally burdens the union's First Amendment right to engage in political advocacy.