Davenport v. Washington Education Association

In a unanimous 9-to-0 decision, the U.S. Supreme Court, in Davenport v. Washington Education Association (2007), ruled that states do not violate the First Amendment in requiring public sector labor unions to obtain the formal permission of nonunion member employees before spending their fair-share or agency shop fees on politically related expenses, including campaigns and elections. Fair-share or agency shop fees refer to the mandatory collection of union dues or fees for employees who are not union members.

Facts of the Case

Davenport upheld a 1992 legislative provision, referred to as Section 760, from the state of Washington’s Fair Campaign Practices Act. Section 760 states the following:

A labor organization may not use agency shop fees paid by an individual who is not a member of the organization to make contributions or expenditures to influence an election or to operate a political committee, unless affirmatively authorized by the individual.

In 1992, a majority of Washington voters passed Section 760 and its mandated restrictions against public sector unions from spending the agency shop fees of its nonunion members on politically related activities unless the unions receive “affirmative authorization” from their nonunion members to do so. The primary legislative intent of Section 760 is to protect the overall integrity of political campaigns by closely monitoring electoral contributions and spending levels.

The primary legal issue in Davenport was whether the use of nonunion employee wages by public sector unions for funding partisan political campaigns without obtaining nonunion employees’ consent was a violation of the First Amendment. The Washington Education Association (WEA), the state’s leading teacher union, argued that the state of Washington’s restrictions involving the union’s use of nonunion member employee union dues for political purposes was an excessive intrusion on its First Amendment freedom of political speech. David Davenport and more than 4,000 public school teachers in the state of Washington unsuccessfully filed suit against the WEA, claiming that the union failed to obtain the “affirmative authorization” required in Section 760 of the state’s Fair Campaign Practices Act.

The Court’s Ruling

Writing for the Court’s 9–0 unanimous decision, Justice Antonin Scalia held that the Supreme Court of Washington erred in finding that Section 760’s Fair Campaign Practices Act was unconstitutional because it was an undue burden on the First Amendment rights of public sector unions. Scalia reasoned that the previous decision in Davenport was based on a misinterpretation of the Supreme Court rulings in two previous agency shop fee cases, Abood v. Detroit Board of Education (1977) and Chicago Teachers Union, Local No. 1 v. Hudson (1986). Insofar as the Court had not previously addressed whether a First Amendment issue arises when a governmental entity, such as the state, limits a union’s entitlement to agency shop fees beyond the legal scope of either Abood or Hudson, all nine Court justices agreed that the First Amendment was not applicable in Davenport.

The Supreme Court’s unanimous decision in Davenport reinforced the legal precedent that states do have the authority to prevent public sector unions, including teacher unions, from using the compulsory union dues of their nonunion members for politically related endeavors. Even so, Davenport’s impact on other states is limited, because 28 states currently allow unions to collect mandatory agency shop fees from their public sector employees, while the remaining 22 states, commonly referred to as “right-towork” states, disallow this practice.

Moreover, Davenport applies only to public sector unions and does not include employees working in the private sector. Rather than completely banning the use of agency shop fees for political purposes unless a particular public employee consents to the use of such fees, Davenport allows individual states to set their own provisions. While Davenport can undoubtedly be viewed as a legal victory for nonunion workers against public sector unions, it falls short of remedying the full spectrum of potential abuses often associated with compulsory union dues as a condition of employment.

Kevin P. Brady

See also Abood v. Detroit Board of Education; Agency Shop; Closed Shop; Open Shop; Teacher Rights

Further Readings

  • DeMitchell, T. A., & Cobb, C. D. (2006). Teachers: Their union and their profession: A tangled relationship. West’s Education Law Reporter, 212, 1–18. 

Legal Citations