During the 2016 term, the Supreme Court heard Friedrichs v. California Teachers Association, which presented two questions to the court. First, should public sector “agency shop” arrangements be invalidated under the First Amendment? Second, does requiring public employees to affirmatively object, rather than affirmatively consent, to subsidizing nonchargeable speech by public-sector unions violate the First Amendment? In a non-precedential per curiam opinion that offered no explanation on the merits of the argument, the evenly-split Court affirmed the decision of the Ninth Circuit. The subsequent rehearing petition was denied, leaving the Ninth Circuit decision to stand.
In affirming the Ninth Circuit’s decision, the Supreme Court left in place its previous decision in Abood v. Detroit Board of Education. In Abood, the Court upheld the constitutionality of compelling employees to pay agency fees to their collective bargaining representative. As a result, “agency shop” arrangements remain valid under the First Amendment. The Court also upheld the constitutional validity of requiring public employees to affirmatively object to funding non-collective bargaining related activities. With the divided Court’s per curiam opinion, Friedrichs has for now reaffirmed the controlling power of Abood, leaving undisturbed the future abilities of public employee unions to raise funds to support their collective bargaining activities. ….