Court Monitor

Teachers' Union Loses Big

For decades, the Alabama Education Association benefited from automated payroll deductions by the government to collect millions of dollars in union membership dues from the paychecks of teachers. Once these dues were collected by government for the union, some of it was spent by the union on politically liberal goals.

The Republican landslide nationwide in the midterm elections of November 2010 changed this. The retiring Republican Governor Bob Riley called a special session of the newly elected Republican Alabama legislature, and that special session ended this payroll deduction system for collecting dues for political activity. Entitled "Act 761" and codified at Ala. Code § 17-17-5, this welcome new law stopped the practice of government collecting dues from public-sector employees which their union then spent supporting liberal policies and candidates.

This reform was a long-overdue clipping of the political wings of the teachers' union, and it sued in federal court to challenge it. The union won multiple times at the district court level, but on appeal the Eleventh Circuit ruled against the union again and again, most recently in October to quash (block) subpoenas the union had served on legislators and on current and past governors. Alabama Education Association v. Bentley (In re Hubbard), 2015 U.S. App. LEXIS 17863 (11th Cir. Oct. 14, 2015).

The teachers' union asserted virtually every constitutional argument imaginable, including due process, equal protection, freedom of speech, freedom of association, unconstitutional conditions, and alleged political retaliation against the union by lawmakers. The union even issued multiple subpoenas on legislators and both current and past governors, demanding six broad categories of documents relating to Act 761 and any similar legislative proposals, plus all communications regarding the union and other plaintiffs in their lawsuit.

Although the district court repeatedly held in favor of the union, even granting a preliminary injunction against enforcement of the Act, on appeal the Eleventh Circuit overturned most of those rulings and allowed the Act to take effect. The union did not let up in court, however, and demanded that its subpoenas against the state legislators be enforced. Again the district court held for the union and ordered the lawmakers to turn over numerous documents relating to their legislative activity. The lawmakers appealed, asserting their "legislative privilege" against being forced to disclose their personal communications related to their lawmaking activities.

The legislative privilege has "deep roots in federal common law," the Eleventh Circuit held on appeal. "The privilege protects the legislative process itself, and therefore covers both governors' and legislators' actions in the proposal, formulation, and passage of legislation."

"The legislative privilege protects against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts," the Court held. The Court added that the motives of legislators is irrelevant to the constitutionality of an otherwise valid law, and the union did not have a valid First Amendment argument against Act 761 anyway. The teachers' union of government employees lost, and as a result the public won.