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Sixth Circuit addresses the constitutionality of Legislature taking away school deduction of union dues

In 2012, the Republican majority in Michigan's Legislature adopted a law prohibiting schools from deducting union dues from teachers' and other union members' pay.  The law did not apply to other government employees or unions and also did not apply to other payroll deductions.  Police, municipal workers and firefighters, for example, are not included in the prohibition, although their employment is also governed by the Public Employee Relations Act.  Charitable and other business deductions are still allowed in schools:  only union dues may not be deducted.

It was widely believed at the time that this Act was retribution against the Michigan Education Association for that Union's backing of a recall effort against cretain Republican legislators who advocated anti-union legislation.  The Republican Speaker of the House confirmed this suspicion when he indicated that the MEA had "declared war" on anti-union Republicans and the Republican leader of the Senate stated that the Union had "lost its way."

After the Act was passed, several Unions filed a federal court action arguing that the Act was an impermissible state punishment directed at the Union members' right of free speech and association.  The District Court judge agreed that the Act was a direct infringement of school employees' rights of free speech and enjoined its enforcement.  The Republican Attorney General appealed.  This week two judges of the Federal Court of Appeals overturned the lower court by means of a superficial opinion that refused to apply existing precedent governing free speech.  One Judge filed an extensive, well-reasoned dissent, pointing out the political nature of the Legislature's action and its violation of firmly established rules.

It was pointed out that the Act selectively punishes only one Union and that the expressed motive of the Legislative majority was to deny resources to that particular group. The opinion also pointed out that such automatic payroll deductions were found to cost the schools nothing (in fact, unions agreed to bear any related expense), and that they are voluntary in any event:  teachers cannot be compelled to make payroll deductions for dues or fees.

Given the facts that legislation was deliberately "underinclusive," (applying only to a select group among many similarly-situated groups); that it was ineffective in saving taxpayer resources (since it negated a non-existent cost and did not apply to all similar negligible expenses); and since it was clearly and expressly aimed at punishing political free speech, the dissenting judge reasoned that prior federal precedent rendered the Act unconstitutional.   Apparently money and "free speech" are only an equivalent under the Citizens' United decision if it is weathy Republican donors' money that is being protected.

Thompson O’Neil, P.C.
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