A federal appeals court on Thursday reinstated a Michigan law that bars school districts from deducting teachers' union dues for their employees.
A panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled 2-1 that the state's Act 53, a 2012 measure that by its own terms was meant as "a check on union power," likely does not violate the free speech or equal protection rights of teachers' unions. The court threw out a lower court's injunction that had kept the law from taking effect.
The case accepts as a given that public-employee unions benefit from having agencies such as cities or school districts collect union dues and fees from their workers and pass them along to the unions. When the unions have to collect such dues on their own, there are added transaction costs as well as less of a yield than when the dues are withheld from government paychecks.
The National Education Association and its Michigan affiliate argued in their challenge to Act 53 that by barring only school employers (as opposed to cities, counties, or other agencies) from withholding dues for union-affiliated employees, the state was practicing a form of viewpoint discrimination that infringed the free speech rights of the teachers' unions.
The 6th Circuit majority rejected the arguments.
"Public Act 53 does not restrict speech; it does not discriminate against or even mention viewpoint; and it has nothing to do with a forum of any kind," Judge Raymond M. Kethledge wrote for the majority in the May 9 decision in Bailey v. Callaghan. "Instead, the act merely directs one kind of public employer to use its resources for its core mission rather than for the collection of union dues. That is not a First Amendment concern."
The majority said a 2009 decision by the U.S. Supreme Court in Ysursa v. Pocatello Education Association foreclosed one of the NEA's key arguments because that ruling said the First Amendment "does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression."
But in a lengthy dissent, Judge Jane Branstetter Stranch said the Supreme Court's Ysursa decision involved an Idaho restriction on public-payroll checkoffs for union political activities, not for general dues. And the Idaho restriction at issue covered all public-employee unions, "not just a disfavored few," Stranch said.
She said Act 53 "impermissibly discriminates against school unions because Michigan disagrees with the positions they advocate."
"School unions have a particular viewpoint that Act 53 seeks to muzzle," Stranch said. "They are large and well-funded advocacy organizations that actively push for spending allocations and legislative enactments that other [public-employee] unions do not share—and, in fact, often oppose when it comes to deciding how to split the pie of finite public resources."
The unions representing government firefighters, transit workers, or hospital employees do not necessarily share spending priorities such as increasing school funding or safeguarding teacher-tenure protections favored by the teachers' unions, she noted. So the school unions have a "colorable theory" that the state's distaste for the pro-teacher viewpoint they espouse in funding and legislative debates led Michigan to enact Act 53 "to mute their voice."
There appeared to be no immediate reaction on the Web from the teachers' unions or the state.