Unless you have been living under a rock, you have no doubt heard that the United States Supreme Court rendered a 4-4 split decision in Friedrichs v. California Teachers Association, which, for now, effectively leaves the charging of “agency fees” intact for public employees.
In Friedrichs, non-union teachers in California challenged the practice of charging agency fees on the ground that the First Amendment prohibits unions from requiring teachers to pay their fair share of the cost of representation services. Friedrichs also challenged whether the First Amendment requires public employees who wish to join a union to opt-in for membership rather than the current opt-out system. The case was heard by the US Supreme Court on January 11th, and it appeared, from oral arguments, that we were certain to see a 5-4 decision finding it unconstitutional to charge agency fees. However, Justice Antonin Scalia died, leaving the Court split.
The Court issued its decision on Tuesday, a split decision, which affirms the lower courts’ decision upholding the long standing practice previously affirmed by the US Supreme Court in 1977. Since it was a split decision, the case will not set precedent so we can’t rely on the decision for upholding the practice of charging agency fees.
It is anticipated that the attorneys involved in the case for the plaintiffs will file a rehearing petition. This petition needs to be filed within 25 days and requires 5 Justices to order the rehearing, 1 of which who must have joined in the decision. This seems unlikely in light of the split decision, and no new Justice added to the Court.
Another option is for a new case to work its way through the lower courts and again be brought before the Supreme Court for it to decide when there is a full bench.