First Amendment topicsAbout the First Amendment
News Story
Quick look at Davenport v. Washington Education Association

First Amendment Center Online

Case name: Davenport v. Washington Education Association and the companion case Washington v. Washington Education Association

Background: The Supreme Court has said public-sector labor unions may collect so-called "agency fees" from non-member employees to pay for the collective bargaining that unions conduct, which benefits the non-members. But in Abood v. Detroit Board of Education in 1977, it said these employees must be given the chance to “opt out” of letting their fees be used to fund the union’s political activities. Washington state voters in 1992 approved a measure requiring instead that non-members “opt in” to allow their fees to be used for union political activities. In other words, the fees paid by non-members could not be used for political activities unless the employees affirmatively chose to allow it. The Washington attorney general accused the teachers union of violating the new rule and won a judgment in court, but the Washington Supreme Court said the opt-in requirement “upset the balance between nonmembers’ rights and the rights of the union.”

Ruling: By a unanimous vote, the Supreme Court ruled on June 14 that nothing in its First Amendment precedents would prevent states from requiring employees to "opt in" rather than "opt out." The Court noted that it would be constitutional for Washington to prohibit agency fees altogether, so the opt-in requirement is "of no greater constitutional concern." The Court also said the state law does not amount to a restriction on the union's First Amendment rights to participate in political campaigns, because the money at issue belongs to the non-members, not to the union. The Court's decision does not apply to private-sector unions. In a footnote, the Court also said that recent changes to the law enacted by the Washington Legislature did not make the case moot.

Verbatim: "We do not believe that the voters of Washington impermissibly distorted the marketplace of ideas when they placed a reasonable, viewpoint-neutral limitation on the State's general authorization allowing public-sector unions to acquire and spend the money of government employees... . We hold that it does not violate the First Amendment for a State to require that its public-sector unions receive affirmative authorization from a nonmember before spending that nonmember's agency fees for election-related purposes."

Lineup: Justice Antonin Scalia wrote the opinion, and was joined by Justices John Paul Stevens, Anthony Kennedy, David Souter, Clarence Thomas and Ruth Bader Ginsburg. Justice Stephen Breyer wrote a concurrence joined by Chief Justice John Roberts Jr. and Justice Samuel Alito Jr.

First Amendment impact: The ruling appears to be a significant victory for conservative and right-to-work groups that oppose the ability of labor unions to collect fees from non-members. It may lead to other states adopting similar "opt-in" rules, which may decrease public-employee union revenue. Timothy Sanderfur of the Pacific Legal Foundation said the decision is "a great moment for America's workers. The Supreme Court has upheld the right of the people of Washington to put a stop to the unions' exploitative tactics... . It's refreshing to see that the Court has vindicated the rights of Washingtonians — and given hope to the workers of other states.” But the National Right to Work Legal Defense Foundation expressed disappointment that the high court did not go further in keeping unions from collecting fees from non-members.


States may limit how unions use public employees' money

Court says Washington state law doesn't violate union's First Amendment rights. 06.14.07

Public unions suffer setback over fees
By Tony Mauro Davenport shows shift away from labor unions in balancing First Amendment rights of unions, nonmembers.
  • Quick look
  • 06.15.07

    News summary page
    View the latest news stories throughout the First Amendment Center Online.

    print this   Print

    Last system update: Monday, September 22, 2008 | 21:29:04
    About this site
    About the First Amendment
    About the First Amendment Center
    First Amendment programs
    State of the First Amendment

    First Reports
    Supreme Court
    First Amendment publications
    First Amendment Center history
    Freedom Sings™
    First Amendment

    Congressional Research Service reports
    Guest editorials
    FOI material
    The First Amendment

    Lesson plans
    Contact us
    Privacy statement
    Related links