Travesty, Tragedy and Treason: Abood v. Detroit Board of Education and the Supreme Court’s Betrayal of the Constitution in Public-Sector Labor Relations

The major problems besetting contemporary public education can be traced to four interrelated sources, nesting together in the manner of a Russian matrioshka.

Last Updated on April 1, 2021 by Constitutional Militia

III. Conclusion

In sum, the foregoing analysis of Abood provides further evidence that the Supreme Court has knowingly and intentionally twisted the Constitution, and even its own decisions, out of all recognizable shape in order to uphold and extend the primary abuses of compulsory public-sector unionism:

· assessment of agency fees–Abood;
· collection of agency fees without the normal protections of procedural due process applicable to all other forms of property–Hudson;
· exclusive representation in general–Knight I,;
· exclusive representation by a militant, nationwide political-action organization–Knight I;
· union monopoly privileges beyond the exclusive right to bargain collectively–Perry and Knight II;
· nationwide collection of agency fees–Lehnert;
· expansion of the definition of “collective bargaining” and of the powers of exclusive representatives under that rubric beyond what State statutes actually allow–Lehnert.

In each of these cases (and others preceding them in private-sector employment[67]), the Court could have (on perfectly sound constitutional grounds) and should have (on prudential grounds) severely limited, if not altogether eliminated, these abuses. In every instance, however, a majority chose the opposite course–and in Knight I, their course was transparent in its trickery.[68]

But duplicity was at work both before and after Knight I–and not simply in the Court’s floating of the childishly false myth in Hudson that Abood had upheld exclusive representation in public-sector employment.[69] True enough, on its (de)merits, Hudson itself was an exercise in studied duplicity, with the Court’s creation from whole cloth of the theory of “First-Amendment due process” that apparently applies only to labor unions collecting agency fees, and in practice denies nonunion employees the full panoply of due-process protections available to everyone else.[70] Abood, though, defined the agenda, set the stage, refined the technique, and provided the precedent for all subsequent judicial deceits in public-sector labor relations–and, as Knight I and Hudson show, should therefore be condemned as the fons errorum of, or at least the Court’s ever-ready excuse for, everything that followed it.

Thus, the problem of compulsory unionism so vexing public education today must be deemed the effect of essentially a single cause: the Supreme Court’s bad faith–primarily, its falsehoods in:

· Abood, that Hanson and Street “compelled” the Court to uphold the “agency shop”; and
· Knight II (interpreting Knight I) and then in Hudson, that Abood had upheld exclusive representation.

The proof of the charge of judicial deceit lies in the thick, intellectually indigestible pudding of undeniable (but otherwise inexplicable) facts that the Court itself served up. For example, why was there no oral argument, briefing and opinion in Knight I; but there was in Knight II? Obviously, the Justices wanted it this way, inasmuch as both appeals arose out of the selfsame litigation and touched on intimately interrelated, if not really inextricable, issues; the Court was required to hear both cases on appeal;[71] and the Justices chose to dispose of one (Knight I) summarily, but to grant the other (Knight II) a full hearing.

This dichotomy of treatment is totally inexplicable as a mere matter of judicial technique and legal argumentation because: Knight I raised fundamental and novel–indeed, unique–questions concerning the validity of compulsory public-sector collective bargaining through exclusive representation, both in principle and as applied specifically to the NEA; whereas, Knight II raised merely the subsidiary and derivative question of whether exclusive representation could be extended from actual binding negotiations to mere nonbinding conferences between teachers and school administrators (the so-called “meet and confer” process of the Minnesota public-sector labor-relations law). And Knight II explicitly relied on Knight I to uphold the limitation of “meet and confer” sessions to the exclusive representative, saying that,

[i]f it is rational for the State to give the exclusive representative a unique role in the [collective-bargaining] process, as the summary affirmance in [Knight I] presupposes, it is rational for the State to do the same in the ‘meet and confer’ process.[72]

Knight II, however, did not explain in what context, or by what chain of reasoning, Knight I “presuppose[d]” the rationality of exclusive representation, or whether that context was realistic and that reasoning defensible. Rather, the opinion left its readers to assume on faith that Knight I was correct, while knowing–and certainly being told–next to nothing about the many serious constitutional issues of first impression raised in that case.

Knight II also said that Knight I “rejected the argument, based on A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), and Carter v. Carter Coal Co., 298 U.S. 238 (1936), that [exclusive representation] unconstitutionally delegated legislative authority to private parties.”[73] But, again, Knight II did not describe the argument on “delegat[ion of] legislative authority to private parties”; nor how Schechter Poultry Corp.and Carter were material to that argument; nor on what bases in fact and law the Court in Knight I “rejected” the argument; nor why that Court did not bother to respond to Justice Powell’s warnings in Abood that a “collective bargaining agreement to which a public agency is a party … has all the attributes of legislation,” and that “voters could complain with force and reason that their voting power and influence on the [governmental] decision making process has been constitutionally diluted” by a statute delegating exclusive power to a union to participate in making the economic laws that affect it.[74]

Obviously, the Justices wanted the results of Abood and Knight I without having to explain–one can only presume because they were unable or afraid to expose to the light of day–their true rationales for those decisions. Doubtlessly, this is why they falsely attributed Abood to Hanson (throughout Abood itself), and Knight I to Abood (in Hudson).[75]

And what were the results of all these machinations? Twofold: When the Court disingenuously relied on Abood and Knight I, it:

· upheld compulsory public-sector collective bargaining through exclusive representation, without airing the most serious constitutional questions exclusive representation raises; and
· licensed national public-sector unions to exercise enormous and uncontrollable power through compulsory collective bargaining, to what end the Court could not possibly predict (and apparently did not care)–uncontrollable power because by their disposition of Knight I the Justices demonstrated that they intended not even to inquire into, let alone to control, it.

Therefore, as a consequence of the Supreme Court’s decisions from Abood to Knight I and beyond, the direction of public education has in some–and many observers would say in large–measure been surrendered to public-sector unions and their allies among politicians, bureaucrats, and the intelligentsiia, with the adverse consequences that most everyone today recognizes, but without the chain of legal cause and effect being apparent to more than a vanishingly small minority of people who have had the time, expertise, and stomachs to uncover the Court’s dirty maneuvers.

Those who dig into this situation can only conclude that it is a travesty of the judicial process, a tragedy for students and teachers locked into government schools, and fundamentally a species of treason against the American people by the branch of government the Founding Fathers assumed was the least dangerous. But, at least in this area, the judiciary has proven itself the most dangerous of all. Perhaps, though, as more people come to realize what has happened, and why, public disgust and outrage will finally compel the judiciary to admit and make amends for its misdeeds. Otherwise, if the past is any harbinger, the future looms dark indeed.

1.) On the NEA in particular, see Vieira, “Are Public-Sector Unions Special Interest Political Parties?,” 27 DePaul Law Review 293 (1978). In the twenty-two years since this article was written, the situation has become decidedly worse.

2.) 431 U.S. 209 (1977)(AFT).

3.) 460 U.S. 37 (1983)(NEA).

4.) 460 U.S. 1048 (1983)(NEA).

5.) 465 U.S. 271 (1984)(NEA).

6.) 475 U.S. 292 (1986)(AFT).

7.) 500 U.S. 507 (1991)(NEA).

8.) E.g., in Abood, the issue of whether the “agency shop” was the “least-restrictive alternative” for accomplishing a valid governmental objective, as opposed to an overly broad infringement on nonunion teachers’ First-Amendment freedoms. See Petition for Rehearing in Abood v. Detroit Board of Education, No. 75-1153 (Sup. Ct., filed 15 June 1977), denied, 433 U.S. 915 (1977).

9.) E.g., in Knight I, the Court refused to deal with the question of whether public-sector exclusive representation is unconstitutional where the representative is a militant political-action organization, essentially indistinguishable from a political party for all relevant purposes of constitutional law. See Jurisdictional Statement in Knight v. Minnesota Community College Faculty Association, No. 82-901 (Sup. Ct., filed 1 December 1982), Question II.

10.) See Knight I, discussed in Vieira, “Poltroons on the Bench: The Fraud of the ‘Labor-Peace’ Argument for Compulsory Public-Sector Collective Bargaining,” Government Union Review, Vol. 18, No. 3 (1998).

10.) See Abood and Knight I (as interpreted by Knight II), discussed in Vieira, “Poltroons on the Bench,” ante note 10, at 20-28, 32-40; and Abood, discussed below on pages 40-50.

11.) See Abood and Knight I (as interpreted by Knight II), discussed in Vieira, “Poltroons on the Bench,” ante note 10, at 20-28, 32-40; and Abood, discussed below on pages 40-50.

12.) 351 U.S. 225 (1956).

13.) 367 U.S. 740 (1961).

14.) Contrast Vieira, “Compulsory Public-Sector Collective Bargaining in the United States Supreme Court: Perry Education Association v. Perry Local Educators’ Association, Government Union Review, Vol. 3, No. 2 (1982), at 43, with Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37 (1983).

15.) See Vieira, “Poltroons on the Bench: The Fraud of the ‘Labor-Peace’ Argument for Compulsory Public-Sector Collective Bargaining,” Government Union Review, Vol. 18, No. 3 (1998).

16.) Contrast Vieira, “From the Oracles of the Temple of Janus: Chicago Teachers Union v. Hudson,” Government Union Review, Vol. 7. No. 3 (1986), at 1, with idem, “Constitutional Limitations on the Assessment of Agency Fees in Public Sector Employment,” Government Union Review, Vol. 3, No. 4 (1982), at 31.

17.) See Vieira, “Lehnert v. Ferris Faculty Association: The U.S. Supreme Court Hands Out Another Stone Instead of a Fish,” Government Union Review, Vol. 14, No. 1 (1993), at 1.

18.) Vieira, “Poltroons on the Bench: The Fraud of the ‘Labor-Peace’ Argument for Compulsory Public-Sector Collective Bargaining,” Government Union Review, Vol. 18, No. 3 (1998).

19.) Abood v. Detroit Board of Education, 431 U.S. 209 (1977).

20.) Railway Employees’ Department v. Hanson, 351 U.S. 225 (1956).

21.) International Association of Machinists v. Street, 367 U.S. 740 (1961).

22.) 45 U.S.C. § 152, Eleventh.

23.) 351 U.S. at 234.

24.) Id. at 235.

25.) See United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938). Interestingly, even as to run-of-the-mill, non-“fundamental” rights Carolene Products conceded that “a statute would deny due process which precluded the disproof in judicial proceedings of all facts which would show or tend to show a statute depriving the suitor of … liberty or property had a rational basis.” Id. at 152. In Hanson, though, the employees apparently did not attempt to litigate the “rational basis” of the “union-benefit” theory of collective bargaining on which Justice Douglas so naively relied. And the Court did not choose to remand the case in order to afford them an opportunity to make such “disproof,” either.

26.) 351 U.S. at 236-38 (emphasis supplied).

27.) 367 U.S. 820 (1961).

28.) Id. at 879 (dissenting opinion)(emphasis supplied).

29.) Id. at 884 (footnote omitted).

30.) Adkins v. Children’s Hospital, 261 U.S. 525,561 (1923).

31.) Korematsu v. United States, 323 U.S. 214, 246 (1944) (Jackson, J., dissenting).

32.) 351 U.S. at 238 (emphasis supplied).

33.) Id. at 234-35.

34.) Id. at 238.

35.) Id. at 235.

36.) See, e.g., W.H. Hutt, The Strike-Threat System: The Economic Consequences of Collective Bargaining 1973), which was Hutt’s expansion of his seminal work, The Theory of Collective Bargaining (1930, republished 1954). The latter work was surely available to the Hanson Court–although it obviously was not consulted by Justice Douglas.

37.) Street, 367 U.S. at 791 (Black, J., dissenting) (footnote omitted; emphasis supplied).

38.) 351 U.S. at 235.

39.) 321 U.S. 332 (1944).

40.) 321 U.S. 342 (1944).

41.) 321 U.S. at 338 (emphasis supplied).

42.) 367 U.S. at 790-91 (separate opinion) (emphasis supplied).

43.) Id. at 791.

44.) 351 U.S. at 238 (emphasis supplied).

45.) 367 U.S. at 750-69.

46.) As the Court’s jurisprudence developed after Hanson, in cases involving fundamental First-Amendment rights the burden of proof has come to rest on those defending the alleged abridgment, who are required to establish with facts in the record that the abridgment serves a so-called “compelling” governmental interest by the means “least-restrictive” of the victims’ rights. See, e.g., Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986); United States v. O’Brien, 391 U.S. 367, 377 (1968); United States v. Robel, 389 U.S. 258, 267-68 (1967); Aptheker v. Secretary of State, 378 U.S. 500, 514 (1964); DeGregory v. Attorney General, 383 U.S. 825, 829-30 (1966); NAACP v. Button, 371 U.S. 415, 444 (1963). In such litigation, the party defending the abridgment must supply facts, not simply assumptions. See, e.g., New Jersey Citizen Action v. Edison Township, 797 F.2d 1250, 1259 (3d Cir. 1986). See also, e.g., City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 496 (1986); Pickering v. Board of Education, 391 U.S. 563, 578-79 & n.2 (1968). And cf. Crowell v. Benson, 285 U.S. 22, 56-64 (1932); St. Joseph Stockyards Co. v. United States, 298 U.S. 38, 50-54 (1936).

47.) 431 U.S. at 217.

48.) Id. at 219 (ellipses in the original).

49.) Id. at 226.

50.) Id. (footnotes omitted).

51.) See 351 U.S. at 233-35.

52.) Id. at 231-32.

53.) 431 U.S. at 227-29.

54.) Id. at 228-29.

55.) See generally E. Vieira, Jr., “To Break and Control the Violence of Faction”: The Challenge to Representative Government from Compulsory Public-Sector Collective Bargaining(1980).

56.) Id. at 229-30.

57.) One may, of course, object that compulsory collective bargaining in the private sector imposes at least ideological conformity to the philosophy of trade unionism. A plausible rejoinder is that trade unionism in its purest form is merely an economic doctrine (“taking wages out of competition” by monopolizing the supply of labor). But if this reductionism contains some element of truth in the private sector, surely it is completely false in the public sector, where bargaining is inherently and inescapably political, simply because the employer is a political entity and its employment policies political policies, by definition.

58.) 431 U.S. at 231.

59.) Id. at 230.

60.) Id. at 232 (bold-face emphasis supplied).

61.) Id. at 245 (opinion concurring in the judgment) (emphasis supplied).

62.) Id. at 254 (footnote omitted).

63.) Id. at 255.

64.) See Petition for Rehearing in Abood v. Detroit Board of Education, No. 75-1153 (Sup. Ct., filed 15 June 1977), denied, 433 U.S. 915 (1977).

65.) See Vieira, “Poltroons on the Bench: The Fraud of the ‘Labor-Peace’ Argument for Compulsory Public-Sector Collective Bargaining,” Government Union Review, Vol. 18, No. 3 (1998).

66.) Interestingly, that is what District Judge Donald Alsop originally said in dismissing Knight in the trial court, for which he was overruled for abuse of discretion on a petition for mandamus to the Court of Appeals. See Knight v. Alsop, 535 F.2d 466 (8th Cir. 1976). Apparently, rather than an ignoramus, Alsop was a misunderstood prophet.

67.) See the tricks the Court performed in defining, then artfully redefining, exclusive representation in the 1930s and 1940s. Vieira, “Poltroons on the Bench: The Fraud of the ‘Labor Peace’ Argument for Compulsory Public-Sector Collective Bargaining,” Government Union Review, Vol. 18, No. 3 (1998), at 9-16.

68.) See Id. at 32-40.

69.) See Id. at 40-42.

70.) See Vieira, “From the Oracles of the Temple of Janus: Chicago Teachers Union v. Hudson,” Government Union Review, Vol. 7, No. 3 (1986), at 1, specifically at 16-36.

71.) See 28 U.S.C. § 1257 as it existed at that time.

72.) 465 U.S. at 291.

73.) Id. at 279.

74.) 431 U.S. at 252-53, 262 n.15 (opinion concurring in the judgment).

75.) 475 U.S. at 301.