In an earlier post I noted how union officials were unwilling to accept any limitations that the Legislature might want to put on them, and in particular how the Michigan Education Association was willing to resort to litigation to thwart a state law that said it would have to collect union dues and agency fees on their own. (Again, teachers can still be placed in a position where they must pay dues or fees to keep their jobs, but the school district will not collect dues for them.)
The MEA union lawsuit is based on precedent in Wisconsin, in which a federal judge decided that a key provision in that state's labor reform law was unenforceable because it provided an exemption for public safety workers. Wisconsin's "mini-right-to-work" provision, in which workers could not be forced to pay union dues or fees, applied to most government employees, but not to police officers or firefighters. That judge found the exemption objectionable, and ordered that dues collection resume.
The legal theory behind the judge's decision was novel and based on a strained application of the equal protection clause. Ordinarily what happens with equal protection cases is the court will ask what sort of group is being "singled out" for special treatment, and then ask what sort of rationale the government has for making said distinction. Occasionally, the classification is suspect. For example, if the government makes special arrangements based on race, it needs particularly compelling reasons. Most of the time, and this goes for unions, the category is ordinary and the rationale only needs to be rational, as in "not crazy."
Certainly the Wisconsin Legislature can make a distinction between public safety and other unions based on the danger of the work involved and a desire to promote unity among the police and firefighting forces. (Whether or not Mackinac Center scholars would agree that unions promote unity is beside the point; the explanation can be debatable as long as it's not completely loony.) Which is why the Wisconsin decision is likely to be overturned on appeal. And by the same token the Michigan Legislature can single out teachers unions based on the sense that teachers need greater discretion and respect for their status as professionals.
But the entire MEA lawsuit evaporates if the law were to provide that all unions must collect their own dues and agency fees. The Wisconsin precedent, such as it is, no longer matters. That's not to say that MEA's lawyers won't file another lawsuit, but they'll need to come back with a different theory.
The distinction between public school teachers and other government employees should hold up in court eventually, but in one sense the MEA's attorneys have a point: nearly the entire government employee union establishment has become hostile to the public interest, pursuing an aggressive political agenda and piling unaffordable burdens on taxpayers. As a matter of law the distinction between teachers unions and the rest might make sense; as a matter of public policy the public would be better off if government employees in general, not just teachers, were no longer forced to pay into the union machine, or if said machine had to collect its own money.
Permission to reprint this blog post in whole or in part is hereby granted, provided that the author (or authors) and the Mackinac Center for Public Policy are properly cited.
Permission to reprint any comments below is granted only for those comments written by Mackinac Center policy staff.