Bailey v. Callaghan et al, No. 12-1803 (6th Cir. May 9, 2013)
Abstract: A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit (MI, OH, KY, TN), in a 2-1 split, has ruled that Michigan’s Public Act 53, which prohibits public schools from collecting union dues from its employees, does not violate the rights of teachers or their unions under the First Amendment and the Equal Protection Clause.
The panel concluded that Act 53 did not violate the union’s First Amendment free speech rights because “Public Act 53 does not restrict speech; it does not discriminate against or even mention viewpoint; and it has nothing to do with a forum of any kind.” The panel also rejected the union’s equal protection claim. Applying the rational basis test, the panel concluded that the Legislature “could have concluded that it is more important for the public schools to conserve their limited resources for their core mission than it is for other state and local employers.”
Facts/Issues: In 2012, Michigan passed Act 53, which regulates a public school’s ability to collect union fees:
“A public school employer’s use of public school resources to assist a labor organization in collecting dues or service fees from wages of public school employees is a prohibited contribution to the administration of the labor organization.”
As a result, unions must collect their own membership dues from public school employees. The Act does not preclude any other public employer from collecting union dues from their employees through payroll deductions, only public school boards. A number of unions and union members sued, claiming the Act violated their rights under the First Amendment and the Equal Protection Clause, and seeking an injunction barring enforcement of Public Act 53. The district court granted a preliminary injunction against Public Act 53 and the State appealed.
The unions offered four arguments describing how Act 53 violates their First Amendment rights. First, the unions alleged that the law is unconstitutional on its face, because it hampers the union’s ability to collect dues and, by extension, diminishes their ability to engage in speech on behalf of their members. Second, the unions described the payroll-deduction process as a “nonpublic forum”, and thus their exclusion was impermissible. Next, they claimed that Act 53 engages in viewpoint discrimination since it only applies to unions who represent public school employees. Finally, the unions suggested that the real purpose of the law is to inhibit the speech of the teachers unions. The unions also claimed that the statute violated the Equal Protection Clause, because it creates a separate classification of unions that represent school employees.
The district court found that Act 53 violated the First Amendment and the Equal Protection Clause, and entered a preliminary injunction to bar enforcement of the act. The State of Michigan then appealed to the Sixth Circuit.
Ruling/Rationale: The Sixth Circuit panel reversed the order granting the plaintiffs’ motion for a preliminary injunction, and remanded the case for further proceedings. The panel first referenced the requirements for granting a preliminary injunction, focusing on “whether the movant has a strong likelihood of success on the merits.” The panel determined that the outcome of the case depended on the “likelihood-of-success factor,” and not on the other elements required to grant the injunction.
The panel rejected the facial challenge to Act 53, relying on the U.S. Supreme Court’s holding in Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 355 (2009):
“The First Amendment prohibits government from ‘abridging the freedom of speech’; it does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression.”
The Sixth Circuit panel explained that “Public Act 53 does not restrict the unions’ speech at all, and they remain free to speak about whatever they wish.” The panel punctuated its rejection of the plaintiffs’ argument with the conclusion that “Seldom is precedent more binding than Ysursa is in this case.”
The panel quickly dismissed the unions’ argument that the payroll deduction process is a “nonpublic forum”. It noted that deducting a sum from an employee’s paycheck is a ministerial act. “The administrative process, in which that [payroll] deduction occurs, therefore, is not a forum of any kind.” The panel also cited Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U.S. 788, 797 (1985) as holding that payroll deductions are not considered a form of speech.
The unions also challenged Act 53 on the grounds that it was viewpoint-discriminatory in a way that distinguished it from the Ysursa case. In Ysursa, the statute banning payroll contributions applied to all unions in the state, while the unions stated that Act 53 only applies to unions that represent school employees. The panel, however, did not agree and stated that Act 53 did not “grant certain unions access to the payroll deduction process, and deny others, based on whether a union supports or opposes a particular policy question. To the contrary, the Act says nothing about speech of any kind. The Act is therefore facially neutral as to viewpoint, which goes a long ways towards defeating the plaintiffs’ facial challenge.”
The unions responded that the Act denies access to the payroll-deduction process based upon who the speaker is—i.e., it denies access to certain unions—creating a proxy for viewpoint discrimination. The panel saw it differently:
“Public Act 53 bars public-school employers from using their resources to collect membership dues on behalf of any union. The particular union to which an employee belongs to, is irrelevant to whether a public employer can collect the employee’s membership dues. What matters, instead, is who the employer is. And thus—even if one accepts the plaintiffs’ speaker-as-proxy-for-viewpoint theory—the Act is as neutral to speaker identity as it is to viewpoint.
The unions suggested that the real purpose of Act 53 was to suppress speech by teachers unions, but the panel rejected the argument as a valid legal claim based on United States v. O’Brien, 391 U.S. 367, 383 (1968) (“It is a familiar principle of Constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.”).
Finally, the panel addressed and rejected the plaintiffs’ Fourteenth Amendment equal protection claim. The panel determined that the Legislature had a rational basis for creating a separate classification, as “the Legislature could have concluded that it is more important for the public schools to conserve their limited resources for their core mission than it is for other state and local employers.”
The dissent found that Michigan had engaged in viewpoint discrimination in passing Act 53. It stated that the court’s job is to decide if a law is “impermissibly motivated by a desire to suppress a particular point of view.” In applying that standard to this case, the dissent was convinced that “Act 53 is motivated by a desire to suppress the school unions’ viewpoint”, and that “Michigan cannot ‘prove the links in its chain of reasoning’ to dispel this claim.”
Bailey v. Callaghan et al, No. 12-1803 (6th Cir. May 9, 2013)
[Editor’s Note: In February, 2013 Legal Clips summarized a report in the Courier-Journal that described a new law in Indiana that prohibits payroll deductions of union fees in public schools. The legislature believed that a government entity should not be used to collect dues, while the teachers unions saw the bill as an attack on teachers.
The Michigan teachers unions are also facing a lawsuit from their member teachers. Legal Clips summarized an article published by the News-Herald describing the lawsuit. The teachers claim that the security clause requiring teachers to join the union violates Michigan’s right to work law.]