Speech, Education and Compositions

Bruce Petrie, Jr.

On January 11, the US Supreme Court will hear arguments in the case of Friedrichs v. California Teachers Association, the issue being whether public teachers can be required (as a condition of employment) to join a union or pay it a fee for collective bargaining services. Plaintiffs say that violates the First Amendment because public sector collective bargaining agreements (CBAs) are a form of speech.

The Constitution does not of course say ‘CBAs are speech’. So the Justices have to do their job of interpreting the First Amendment.  The word ‘constitution’ is a synonym for ‘composition’. A composition, whether in law, art, music, literature is a creation that is understood as a unified whole whose sum is greater than the parts.  Compositions, and the Constitution, are best understood as a whole. The First Amendment is one of the parts of a constitutional whole made of a Preamble, 7 articles and 27 amendments.

Seeing the First Amendment within the Constitutional composition, and seeing CBAs themselves as compositions, we can see that public school CBAs are a form of political speech. Here are some typical CBA topics involved with national and state public education politics:

  • whether jobs of public school teachers should be protected by tenure and/or by just-cause-for-termination policies
  • whether the pay of public school teachers should link to teacher performance (aka merit pay)
  • whether length of service and seniority should drive pay and benefits
  • how public school teachers should be evaluated
  • the management rights of publicly elected school boards
  • the rights and responsibilities of public school teachers
  • how many hours the teacher needs to spend teaching students
  • the role of student test scores and achievement in evaluation and pay of teachers

All of these topics have for years been prominent in America’s ongoing education debate. In the 2016 Presidential election, public education is front and center. The views of candidates on these topics vary and matter, and voters will weigh these and other educational policy questions. Teacher unions in every state and nationally will weigh in with their views and money and support candidates that support them.

CBAs are compositions also–a whole thing with related parts about wages, benefits and terms and conditions of employment. A CBA’s composition is the outcome of the negotiation of educational interests, priorities and policies. Consider also the very public nature of advocacy that public education unions use during many CBA negotiations, sometimes including such public things as strikes and pickets.

If CBAs are a form of speech, then why should every public school teacher be forced, at risk of his or her job, to join or pay dues to the union that ‘speaks’ via a CBA and its public negotiation? The Constitution protects individual liberty, the rights of individuals to free speech even when that speech is the minority view, unpopular or controversial.

A public school teacher should not have to choose between his or her publicly-funded, public school job/career and political interests of a teachers union he or she may not agree with.  The point is individual freedom, not pro or anti-unionism.

A ruling like that from the US Supreme Court would fit with the Constitution’s composition, summarized in the Preamble, to ‘secure the Blessings of Liberty’. Make no mistake: those words, remarkably poetic as they are, are also seriously real with real implications for things like the crucial and honorable profession of being a public school teacher.