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Home » Clarion » 2015 » October 2015 » Who’s Behind Anti-Union SCOTUS Case?

Who’s Behind Anti-Union SCOTUS Case?


Funding from the Koch Network

As the current term of the US Supreme Court opens this month, looming on the docket is Friedrichs v. California Teachers Association, a case designed to decimate public-sector unions such as the PSC. While it may not come to that — even the most knowledgeable Courtwatchers are unsure how the justices will rule — the stakes are high. A decision is expected in June 2016, just before the current term closes.

David H. Koch, major funder of anti-union efforts, shown here in New York City on September 9, 2014. The Center for Individual Rights, which represents the plaintiffs in Friedrichs v. California Teachers Association, receives funding from groups linked to Koch and his brother, Charles.

The case tore through the legal system at high speed, thanks to the novel approach taken by the Center for Individual Rights (CIR), the right-wing pro-bono law group that is representing teacher Rebecca Friedrichs and her fellow plaintiffs: At each stage in the legal process CIR attorneys asked the courts to rule against their own clients, in the apparent interest of moving the case up to the Supreme Court as quickly as possible.


“It just seems really nefarious,” says Frank Deale, a professor at the CUNY School of Law. “In fact, it’s collusive, in a way. You’re setting up this false scenario, this false conflict, in order to get a Supreme Court ruling. The Center for Individual Rights didn’t even make an argument [in the lower-court filings]. They asked for the court to rule for the defendant, and then they got rewarded for it.”

In addition to Rebecca Friedrichs, the plaintiffs include nine other California schoolteachers, all of whom have opted out of union membership. They’re bringing suit against the California Teachers Association in a bid to relieve themselves of having to pay their fair share, via agency fees, for the services the union is required by law to provide to them, including contract negotiation and adjudication of grievances. But the Court’s ultimate decision could reach further than the issue of agency fees, in ways that could threaten the very existence of unions. On the other hand, a narrow ruling could have a lesser effect.

Also included among the plaintiffs is the Christian Educators Association International (CEAI), which seeks to provide to right-wing Christian teachers working in public schools some of the services teachers now receive through their unions. CEAI is virulently opposed to LGBT rights, and its website includes a statement accusing public schools and the National Education Association (NEA) of promoting “the homosexual agenda.”


Among the books sold as guides for teachers on the CEAI website are several by Carl Sommer, a former New York City high school teacher known for his opposition to school desegregation and sex education. (The biography on his website states that Sommer, in pursuit of his teacher’s certification, studied at both City College of New York and New York University.)

Should the Friedrichs plaintiffs succeed in all their claims before the high court, public sector unions in every state could find themselves in the same situation as those in Wisconsin or Michigan, where state legislatures have effectively seized power away from labor, all in the name of so-called “right to work” policies. At its most draconian potential outcome, the Friedrichs case could cost public-sector unions significant drops in membership by demanding that all who would be part of the union opt in, making unions organize to retain the members they currently have.


When the Center for Individual Rights first came on the scene in 1989, Frank Deale was on the staff of the Center for Constitutional Rights, the organization that made its mark in the field of civil rights.

“When I first heard their name I said, ‘For goodness’ sake, they’re picking up our name,’” he told Clarion. “It sounded so similar.”

CIR’s nomenclature was likely no accident; it was founded by two lawyers from the Washington Legal Foundation, a right-wing public-interest law organization frequently in combat with the Center for Constitutional Rights during Deale’s tenure there.

Since its founding, the Center for Individual Rights has maintained a special focus on challenging civil rights measures, especially affirmative action. In 1995, it scored a significant, if fleeting, victory in Hopwood v. Texas, until the Supreme Court overturned the federal court decision in the case, which had struck down affirmative action admissions standards at the University of Texas Law School.

To step up its efforts, in 1999, CIR ran ads in campus newspapers seeking plaintiffs among white students looking to challenge their colleges’ affirmative action policies.

CIR also set its sights on the 1965 Voting Rights Act, representing plaintiffs in the recent case Nix v. Holder, which while unsuccessful, ran parallel to Shelby v. Holder, the 2013 case that gutted Section 5 of the VRA, effectively curtailing the enforcement provision of the law.

The list of foundations and donor-advised funds supporting the Center for Individual Rights reads like a who’s who of the right’s organized opposition to labor; a number of those funders, unsurprisingly, enjoy the support of Charles and David Koch, the billionaire brothers who are principals in Koch Industries, the second-largest privately held corporation in the United States. (Forbes estimates the brothers’ personal wealth at $42.3 billion for each of them.)

Longtime supporters of anti-labor efforts, the Koch brothers even founded their own organization, Americans for Prosperity, to create for the Republican right the sort of electoral get-out-the-vote ground teams that members of unions often form on behalf of pro-labor, usually Democratic, candidates.


In January 2011, Americans for Prosperity President Tim Phillips explained to a room full of right-wing activists in Arlington, Virginia, why Republicans failed to gain a more permanent foothold in Congress in the 1990s: “They had the public employee unions,” Phillips said of the Democrats, “which have only gotten stronger, have only gotten better funded, have only gotten better organized in the period of time between the 1990s and today.”

Six weeks later, Scott Walker, the Koch-supported Wisconsin governor, introduced the anti-labor legislation that killed the unions’ ability to collect agency fees.

Unions also serve as an organized front in the fight against the growing gap between rich and poor that’s been fueled by unfettered capitalism.

To that end, Koch-funded groups routinely oppose even a modest raise in the minimum wage.

Koch-linked groups known to have made grants to CIR, according to the Center for Media and Democracy, include DonorsTrust, the Donors Capital Fund, and the Claude R. Lambe Charitable Foundation. Other CIR funders belong to the Koch donor network. Among them are the Dick and Betsy DeVos Family Foundation, as well as the Lynde and Harry Bradley Foundation, which was instrumental in the legislative attack on labor in Wisconsin.

Think tanks and groups that receive either direct funding from Koch entities or are linked to the Koch brothers’ funding network also filed amicus briefs in favor of the plaintiffs, including the Cato Institute, the National Right to Work Legal Defense Fund, and the Mackinac Center, a major force behind the 2012 anti-union legislation enacted in Michigan (which was upheld by the Michigan Supreme Court in a ruling earlier this year).

According to journalist Laura Flanders, earlier in its history CIR also enjoyed the support of the Pioneer Fund, a white supremacist organization devoted to the promotion of eugenics. Flanders, writing in The Nation in 1999, found through an examination of the group’s tax records that the Pioneer Fund made three separate grants to CIR.

While the involvement of the Pioneer Fund in CIR may seem unrelated to the law group’s anti-union work, it is not uncommon for organizations opposed to the interests of labor to also have histories of antipathy to other forms of civil rights. For instance, Reed Larson, who led the National Right to Work Committee and its legal arm for three decades, was an early member of the John Birch Society (JBS), as was Fred Koch, father to Charles and David. (Charles Koch resigned from JBS in 1968; David Koch does not appear to have ever been a member.) The Birch Society opposed the civil rights movement, alleging it — and desegregation efforts in general — to be a communist plot.


The strategy of the right-wing one-percenters behind the siege being waged on labor appears to be one of leaving nothing to chance.

The last major case targeting union representation that came before the Supreme Court was last year’s Harris v. Quinn, which challenged the unionization of home-care aides employed jointly by the state of Illinois and the individuals who received their services. It would seem that the urgency felt by the Center for Individual Rights in moving Friedrichs through the legal system at record speed allowed for the possibility of a narrow ruling in Harris — one that would not achieve the result desired by right-wing leaders for a decision against public-sector unions that would apply nationwide. And that’s exactly what happened: The high court disenfranchised the union in Illinois in representing those particular home-care aides, but the decision applied only to such workers in that particular state. Friedrichs could yield a similarly limited outcome, so other anti-union cases are in the works.

Late last month, a federal district judge ruled against the plaintiff in the case Bain v. California Teachers Association, a suit challenging unions’ political activity brought by the ironically named anti-union group StudentsFirst, which is helmed by charter schools proponent Michelle Rhee.

One thing is virtually certain, however: If the Supreme Court doesn’t overturn its 1977 decision in Abood v. Detroit Board of Education — the settled law that guarantees public-sector unions their full rights — the Koch brothers and their allies will run yet another suit through the courts in their decades-long effort to destroy unions.

The next US president may get to appoint as many as three Supreme Court justices. The fate of labor may well rest with those choices.

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