Attack, retreat. Attack, retreat. Unfortunately, this is the tactical offensive that is increasingly being used by the country’s largest public sector unions to keep money flowing. They “attack” by imposing unconstitutional, restrictive policies on public employees, but “back off” when challenged in court. In the past, it has enabled union representatives to avoid major court rulings that would otherwise allow public employees to decide whether to join or stay in the union.
But the Supreme Court can end that term.
Don’t judge so that you don’t set a precedent
The court will hear a freedom of speech, Uzuegbunam v Preczewski, which could have a profound impact on public sector union members who wish to terminate their union membership but keep their jobs. At first glance, the case has nothing to do with public sector unions. But Uzuegbunam has turned into a case about an important justification problem called “mootness” – and the willingness of the courts to protect constitutional rights.
Uzuegbunam involves two college students who distributed religious literature outside of their college campus “free speech zones” – pre-defined areas on campus where students can protest or give speeches.
Unfortunately, freedom of speech zones are often the subject of controversy and litigation as they almost always limit – not protect – freedom of speech. In this particular case, Georgia Gwinnett College appears to have had two major problems with its free zone policy. First, they were dangerously small and unavailable to students who wanted to use them: the two free speech zones only made up 0.0015 percent of the campus and were open about 10 percent of the week.
Second, their free speech zones did not allow much free speech. The college had a policy that speech could not disturb the peace and / or comfort of the person (s), even in these supposedly “free speaking areas”.
In 2016, campus officials prevented Chike Uzuegbunam – one of the students in this case – from distributing religious literature outside of free speech on campus. He was told that he had to reserve time within a free speech zone to discuss religious matters, which he did.
But campus officials stopped Chike again, this time presumably because someone complained that Chike’s speech made her uncomfortable. The school threatened punishment – including eviction – if Chike continued speaking. Later that year, he filed a civil rights lawsuit to overturn the guidelines.
Campus officials – who likely knew their policies were unconstitutional from the start – withdrew. They quickly changed their guidelines and asked the court to dismiss Chike’s case so that no future precedent would be set. And it worked; The court eventually ruled that the college’s policy change “challenged” Chike’s case and declined to make a decision on the merits of Chike’s complaint.
It wouldn’t be overly cynical to suggest that these college officials intended to unconstitutionally restrict speech on campus. In formulating its unconstitutional policies, the college certainly took into account the possibility of litigation and ultimately relied on the unlikely likelihood of students being evicted, seeking legal advice, or filing a lawsuit. And if the students ended up gathering the resources to fight back, the college could always reverse course and change guidelines. Even this little college in Georgia knew how to use the “mootness” doctrine to dismiss a case.
In Chike’s case, it’s not just about free speech zones on campus. Instead, students, government employees and all citizens alike will be protected from the erosion of their First Amendment rights by “attacks, withdrawals”.
The problem is that such a change in policy is not a permanent reversal. It’s part of a tactical offensive: with no court ruling or injunction, campus officials in one form or another can revert to similarly egregious guidelines once the case is closed.
Fortunately, with Uzuegbunam, everything could change. The Supreme Court should take this opportunity to rule that “strategies of attack, withdrawal” – which this college has done to Chike – should not prevent the court from ruling, especially when it comes to first adjustment rights.
And public sector workers could also win big here.
Union mootness abuse
Since 2018 – when the Supreme Court ruled in Janus v AFSCME that the first amendment protects public employees from having to pay a union to keep their jobs – union officials have put their faith in strategies like “attack, retreat” like if there is a problem in Unzuegbunam to prevent members from leaving the union.
The largest public sector unions now have policies that, for example, require members to pay dues “regardless of membership status” and to collect those dues directly from their paychecks almost a year later even after they have resigned. Yes, even if members resign from their union, the union will collect contributions through garnishment.
When a union member tries to resign, union officials cite these unconstitutional policies and then dare to take legal action.
Of course, sometimes public employees do just that with the help of the National Right to Work Legal Defense Foundation or the Fairness Center. However, once the case is opened, the union invariably withdraws to prevent a priority decision. The union quickly reverses its policies – often only for the member who took it to court – then complains that the judge cannot rule on a “moot” case. Many judges have agreed that the union can continue to enforce its policy against the other members.
For example, the United Food and Commercial Workers (“UFCW”) union told John Kabler (full disclosure: I served as an attorney for John) that he had to join the union and pay dues in order to work for the state. That was completely wrong, but John didn’t know that.
Because he needed the job, John had to pay an initiation fee of $ 200 and monthly fees to a highly political organization with which he fundamentally disagreed. He signed a membership card – in triplicate but with no copies to take home – and authorized fees to be deducted from his paycheck. The permit contained this scrambled 89-word sentence that restricted his ability to leave the union:
I’ll pass this on [dues deduction] The authority is effective immediately and remains irrevocable and remains in full force and effect thereafter for a period of one (1) year thereafter or until the expiry of this Agreement, whichever occurs earlier unless I write to that [employer] and by registered mail to the union of my request to terminate this agency at least thirty (30) days and no more than forty-five (45) days prior to a regular renewal date for that agency.
A year later – when John realized he didn’t have to join the UFCW at all – he sent a letter to the union and the state terminating his union membership. The union and state officials told him he could not leave until the following year.
John filed a lawsuit with the help of the Fairness Center, and his complicated legal battle unfolded in the months that followed. Eventually, UFCW changed its policy and left him out of the union. And when a judge finally issued a recommendation that spelled some fate for UFCW, they gave John his money back too.
In the end – that is, after the UFCW successfully forced thousands of government employees to fund the union’s political operation – the court ruled the matter contentious.
The policy change was undoubtedly good in some ways for John and others, but the UFCW made the change to avoid a binding, permanent decision that would better protect the constitutional rights of state employees. And they could certainly go back to their politics in the future. In fact, the local union president even bragged to a reporter during a legal battle that he had other means to prevent employees from quitting their union membership.
The principle of “mootness” is clearly being abused.
As former Chief Justice William Rehnquist once pointed out, the court-imposed mootness restriction “can be overridden if there are strong reasons to override it”. If the Supreme Court in Uzuegbunam is right, mootness will no longer serve as a shield against such constitutional violations.
In Chike’s case, it’s not just about free speech zones on campus. Instead, students, government employees and all citizens alike will be protected from the erosion of their First Amendment rights by “attacks, withdrawals”. The Supreme Court’s acceptance of the case suggests that a majority has something new to say on the matter.