by Alice O’Brien, General Counsel, National Education Association
For the fourth time in six years, the Supreme Court yesterday took up the question of whether a state may require public sector employees to pay for the collective representation a union provides as part of the state’s chosen system of labor management relations. And yet again, at argument, Justice Kennedy came in swinging against a strawman – teacher tenure.
As the Solicitor General of Illinois explained the interest that state has in a “stable, responsible, independent counterparty” in bargaining, the Justice sarcastically queried whether that interest extended to promoting “teacher tenure.” In raising the issue, Justice Kennedy was returning to a well-trod theme. In all three of the arguments since Knox involving fair share fees, Kennedy has viewed tenure –inexplicably – to be somehow relevant to the constitutionality of fair share fees.