Today, the Supreme Court heard oral arguments in Friedrichs v. California Teachers Association which threatens to undermine the union movement in America by banning “fair share” or agency fees paid by workers for the services of a union in representing them. The AAUP, which is partly a union, has an obvious self-interest in fighting this idea, and the AAUP has submitted an amicus brief in the case.
But I would argue that the AAUP’s stand is correct, not just out of self-interest, but due to principle. The principle here is that the right to unionize is a fundamental human right, a First Amendment right of association, and therefore also a right protected by academic freedom. And I would argue that a ban on “fair share” fees is an attack on the right to unionize.
Democratic, collective institutions do not threaten the academic freedom rights of individual members so long as those individuals are always free to speak their minds and to seek a change in representation.
If you don’t like a union, you can convince your fellow workers to end or change it.
Higher education provides the perfect analogy for why “fair share” fees are a buttress to academic freedom, and not an attack on it. Consider the example of student government. Student governments are elected by the students, and students pay fees to help support student government as well as the funds allocated to many student activities. Students are free to seek a better student government. But they do not have the right to declare themselves exempt from student fees. They get the benefits of student government and student activities, even if they don’t appreciate them. Allowing students to withdraw from student fees would create a financial incentive to freeloading, and would threaten the rights of students to collectively work for their goals. And so, at virtually every college in the country, there are student fees all students must pay, and a student government to represent student interests, and almost no one imagines that the rights of individual students are being attacked by this system, An employee union is no different.
Indeed, student governments are a kind of union movement (hence the reason why some student centers are still called the “student union”). The existence of student government is not a violation of the individual rights of students, even if they are forced to spend money on things they personally oppose. Instead, a ban on student fees would be a violation of the individual rights of students to associate and band together for collective improvement.
What’s at stake in this case is making freeloading a fundamental constitutional right that trumps the rights of others. Many years ago, I posed a question to Amazon’s Jeff Bezos at a Book Expo America press conference, wondering how he could justify Amazon’s evasion of sales taxes. Bezos explained that since Amazon didn’t have brick-and-mortar stores that use city services provided by sales taxes, they shouldn’t have to pay sales taxes. But sales taxes are paid by the shoppers, not by the businesses (who merely collect them), and those Amazon shoppers definitely use city services. Amazon’s gradually disappearing sales tax evasion (which is responsible for every penny of profit they’ve ever made so far) was a simple case of freeloading enabled by archaic federalist traditions (but not a constitutional right) in the US. The same is true of “fair share” fees: without them, workers get to benefit from everything unions do on their behalf, and can pay nothing. The right to freeload is not guaranteed under the Constitution.
If the Supreme Court embraces the right to freeload, it will do nothing to advance the individual rights of those who oppose unions, because no one has taken away their right to advocate against unions. But the right to freeload does threaten the First Amendment right for freedom of association by others. Freeloading makes it almost impossible to create an effective union, and thereby creates an unconstitutional burden on the right of association. So my argument is that not only are agency fees clearly constitutional in the states that allow them, but so-called “right to work” laws that impose freeloading on a state are unconstitutional because they impose this severe burden on the First Amendment right to unionize.
Of course, even the right to unionize is something often nonexistent at American universities, both in “right-to-work” states that seek to stop unions and at private colleges that typically impose sharp restrictions on the right to unionize. Private universities think nothing of violating the academic freedom of their faculty and students by denying them any right to unionize. They claim that the NLRB or the Supreme Court gives them the right to ban graduate student unions (because students don’t have rights) or faculty unions (because managers don’t have rights), without ever thinking about whether they have the moral right to ban unions.
Unfortunately, we can’t stop the right-wing judicial activists on the Supreme Court from inventing an imaginary right to freeload so that they can destroy the Constitutional right to unionize that they hate so much. But we can move to demand that universities support this basic right to unionize that the principles of academic freedom protect. Every single college should adopt a formal policy declaring that they will uphold the right to unionize (just as they uphold the right of academic freedom) even if the courts or the government don’t compel them to do so. In states that ban unions, public colleges can declare that they will do everything possible to recognize union-like organizations (such as faculty senates) to represent the interests of employees and bargain fairly with them.
The right to unionize is a fundamental part of academic freedom and a free society, and it’s time for the AAUP to more explicitly declare this fact, and push colleges to recognize the right to unionize as well.