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U.S. Supreme Court denies Marietta teacher’s case

The U.S. Supreme Court has declined to hear a case based in conflict between a Marietta City Schools employee and the district’s teacher’s union.

Thompson v. Marietta Education Association was funneled to the U.S. Supreme Court with a petition for a writ of certiorari (asking through petition for the court to review) filed on Jan. 22.

This filing in the highest court followed the initial 2018 case filed in federal district court and then appealed to the U.S. Court of Appeals for the Sixth District. Both federal courts found in favor of the association.

The initial petitioner was Marietta City Schools Spanish teacher Jade Thompson, widow of the late Andy Thompson, who both worked in think tanks and served as a Republican representative in the Ohio Statehouse following his time on Marietta City Council.

The issues before the courts: Whether it violates the First Amendment to designate a labor union to represent and speak for public-sector employees who object to its advocacy on their behalf; and whether a 1984 Supreme Court case should be overruled.

U.S. Circuit Judge Amul Thapar wrote in that 2020 affirmation of the district court’s decision that the nuance is between the use of the words “must” versus “may” in state law when considering how the public school system bargains with its government-funded employees.

“By signing on the dotted line, public employees accept the government as their employer,” wrote Thapar. “In Ohio, the law requires them to also accept a union as their exclusive bargaining representative. It’s a take-it-or-leave-it system — either agree to exclusive representation, which is codified in state law, or find a different job.”

Bargaining representation, as defined in federal law (Title 29, Section 159) identifies the selection of individuals “for the purposes of collective bargaining by the majority of employees.”

This bargaining is exclusive, Thapar wrote, to the confines of wages and benefits as required by state law, and allows for but does not require the school district to entertain additional bargaining in the “may” portion of law.

Tuesday, Marietta City Schools Board President Russ Garrison and Superintendent Will Hampton summarized the requirement as a standard of measurement to prevent the appearance of favoritism in negotiation with nearly 300 employees on government payroll for the district alone, not including substitutes.

With failure at the appeals level, Thompson’s attorney through the Buckeye Institute, asked the U.S. Supreme Court to hear the case this year. Following a series of briefs filed between Feb. 15 and March 1 by various policy institutes, foundations and think tanks, the district’s board of education, teacher’s union and the initial petitioner rounded out filings between April and May.

The city school district argued in written response to the filing that the questions presented “fail to distinguish between a private-sector union governed by federal law under the National Labor Relations Act and a public sector union governed under applicable state law.”

“Further, by stating that a union speaks ‘for public sector employees’ instead of ‘on behalf of the bargaining unit’ (Thompson’s) questions presented misconstrued the reach of Ohio’s collective bargaining law,” wrote the school board’s attorneys.

The teacher’s union argued in written response to the petition that their “democratically-selected employee representatives” and the association as a whole do not require Thompson’s financial support or membership following past case precedents, and thus do not impede her right to speak on her own against policies and positions or politicians advocated for by the association.

“Public perception plays a crucial role in delimiting the scope of the First Amendment,” wrote the association’s lawyers. “This court’s decisions establish that if outsiders would not reasonably perceive one’s group speech as reflecting the views or endorsement of another person, then that person has not been forced to associate with the group in a manner that implicates the First Amendment.”

Thompson’s attorneys argued that consent to representation places additional burden upon the individual.

“That Mrs. Thompson must speak out to distance herself from the union’s speech on her behalf intensifies, rather than relieves her constitutional injury,” they wrote. “There is a material difference between the government’s choosing to listen to only certain speakers … and its appointment of an unwanted representative to represent and speak on behalf of objecting public workers.”

Then, on Monday, Thompson’s petition was denied, in effect upholding the decisions of the federal district and appeals courts.

In conclusion of the final appeals decision, Thapar wrote that the First Amendment “imposes no affirmative obligation on the government to listen, to respond[,] or … [to] bargain.”

“And since the government has no obligation to bargain with Thompson, it is difficult to see how the government’s decision to bargain with someone else violates her rights,” he penned.

Also in reference to the 1984 Supreme Court case “Minnesota State Board for Community Colleges v. Knight” he pointed to a second nuance in review of the amplification of differing voices in a democracy.

“In Knight, the Supreme Court recognized that it was ‘doubtless true that the unique status of the exclusive representative … amplifies its voice in the policymaking process’ … But amplification ‘is inherent in government’s freedom to choose its advisers.’ And a ‘person’s right to speak is not infringed when government simply ignores that person while listening to others.'”

Janelle Patterson may be reached at jpatterson@mariettatimes.com.

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