Fanning the Flames: The Freedom Project Blog


Dues Decision

By Shawn Healy
The United States Supreme Court ruled unanimously today in favor of non-union member teachers in the State of Washington in the case Davenport et al. v. Washington Education Association. The case considered a state law (since modified) that essentially enabled teachers who were compelled to pay union dues even though they were not a member of the union to decide beforehand whether the portion of their dues devoted to political causes would reside in the union's pocket or their own. Voters in the State of Washington approved the scheme, different from that employed in other states where teachers must request refunds of dues used for political purposes from each funding entity after making the initial contribution.

Both sides made a 1st Amendment argument in the case. The non-union teachers saw compelled confiscation of their salary for purposes to which they did not approve an infringement on their free speech rights. The union itself argued that their associational rights were undermined by a law that restricted access to dues previously protected by Supreme Court precedent. The rationale here is that non-members benefit from the efforts of their union and thus cannot free ride on the contributions of their peers.

The majority opinion, authored by Justice Scalia, rejected the union's argument: "The notion that this modest limitation upon an extraordinary benefit violates the First Amendment is, to say the least, counterintuitive." The reasoning, according to Scalia, rests on the premise that "...unions have no constitutional entitlement to the fees of nonmember-employees."

Further dismissing the union's argument. Scalia held, "the contention that this amounts to unconstitutional content-based discrimination is off the mark." In sum, the Court does "...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." The voters instead "sought to protect the integrity of the election process."

Justice Breyer (joined by Chief Justice Roberts and Justice Alito) wrote a concurring opinion in agreement with the outcome and most of Scalia's opinion absent a few technicalities.

The impact of the decision may be blunted by the fact that Washington modified its law since the advent of the case. It could, however, invite other states to enact similar legislation. As a former teacher who often sought the return of my union dues used for political purposes, I can attest to the fact that it is a cumbersome and elongated process. A check-off provision like that previously adopted in Washington would address this inconvenience while at the same time retaining the collective-bargaining integrity of the teacher unions.


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Managing Director

McCormick Freedom Project

Shawn is responsible for overseeing and managing the operations associated with the McCormick Freedom Project. Additionally, he serves as the in house content expert and voice of museum through public speaking and original scholarship. Before joining the Freedom Project, he taught American Government, Economics, American History, and Chicago History at Community High School in West Chicago, IL and Sheboygan North High School in Wisconsin.

Shawn is a doctoral candidate within the Political Science Department at the University of Illinois at Chicago where he received his MA in Political Science. He is a 2001 James Madison Fellow from the State of Wisconsin and holds a bachelor's degree in Political Science, History, and Secondary Education from the University of Wisconsin at Madison.

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About Fanning the Flames and the McCormick Freedom Project

Fanning the Flames is a blog of the McCormick Freedom Project, which was started in 2006 by museum managing director Shawn Healy. The blog highlights the news of the day, in hopes of engaging readers in dialogue about freedom issues. Any views or opinions expressed on this blog represent those of the writers alone and do not represent an official opinion of the McCormick Freedom Project.

Founded in 2005, the McCormick Freedom Project is part of the McCormick Foundation. The Freedom Project’s mission is to enable informed and engaged participation in our democracy by demonstrating the relevance of the First Amendment and the role it plays in the ongoing struggle to define and defend freedom. The museum offers programs and resources for teachers, students, and the general public.

First Amendment journalism initiative

The Freedom Project recently launched a new reporting initiative with professional journalists Tim McNulty and Jamie Loo. The goal is to expand and promote the benefits of lifelong civic engagement among citizens of all ages, through original reporting, commentary and news aggregation on First Amendment and freedom issues. Please visit the McCormick Freedom Project's news Web site, The Post-Exchange at