percentage of women who attended college during the past four years say they were sexually assaulted, and many more injured attempted attacks or other violence. it is this overwhelming story about how many individuals experienced sexual violence during college heavily cap pashtun cast and the limelight on our findings that so many schools report their incidents. lisa can add to this but with additional research aauw has conducted in the past and other things we're seeing across the country. ..

but it is still problem. one of the things we have seen in a national survey is 7% of men have suffered some kind of sexual assault while on campus. interesting in many respects about that statistic is not only does it underscore the need for kelly 09 to be gender neutral but that is why the law was written as it was. . evidence that says the man is more likely to be sexually assaulted and to be falsely accused of such assaults. that is a very important point to make. man is more likely to be assaulted himself than he is to be falsely accused of that crime. the next step, the congress, communities can take to assist schools and students in everett to end sexual harassment and violence. we know sexual-harassment and

violence works on a continuing. it starts early and if we are going to look at solid prevention strategy at the college level we need to talk about this in kindergarten. we need to talk about health relationships and violence prevention, we look at bullying and harassment. much of that bullying can have a gender component. we need to think about that continuing. if you can interrupt it further down in terms of sexual harassment bullying, you run much less of a risk of it escalating into sexual assault and rape and even murder. earlier, we know young men themselves are affected by a this and there's also a uniquev lgbtq quality to enhance these needs to be made to how policies are written and applied. to understand everybody lives in

this. we also note the time immediately following an incident is critical, as they need access to 6 space, medical or counseling care pending formation about their rights. they also need to have an idea which is the traditional support and i would like to stress schools don't have to do this alone. local experts are eager to work with colleges in universities to do this kind of prevention work and provide the services that are necessary to help survivors. schools need to assure there is a confidential adviser available to connect survivors with these resources. schools need to talk about what the students's rights are, when did they need to report to police or not and what that entails. what their rights are on campus

if they want to file a complaint, what services are available. these writings survivor in crisis particularly a young woman who may be just now removed from her family, first year at college, and other support groups which she normally has. this is what she needs when she comes to college. the survivor out reach and support campus act would ensure that schools take these critical steps. in addition as anne mentioned these surveys tell schools better understand the dynamics behind reported and unreported incidents of sexual violence. schools are hesitant to do these climate surveys because they are viewing campus sexual assault as a public relations issue more so than a safety issue and quite frankly as a civil rights issue. something we need to remember is

when we talk about sexual assault is a civil rights issue as much as it may potentially be a criminal matter. part of the reason schools have a responsibility through title 9 and the cleary act, this is not getting in the way of someone's rights to education. the public relations issue is key. they are good actors out there but the reality is many times schools have been concerned that if they have a safety report that reflects the kind of crimes that might be on campus, somehow that is going to be bad for business. and parents and students look at those reports and wonder if they should attend the school. with so many people talking about this issue, that it is so clearly present in the national conversation schools need to get past the pr concern. if i had a daughter going to

college i would much prefer a university that steps up to the microphone and says we have a problem. it happens everywhere which means it also happens here. this is what we are going to do about it. here is how we comply with the law and file title 9 and make sure we are doing everything we can administration to support our students. that to me would be comforting. you don't need to gloss it over. that could be revolutionary. these climate surveys help us understand dynamics between reported and unreported incidents but they also help us assess administrative and cultural factors on campus that can undermine reporting and also create barriers to accessing the services a climate surveys can't be stressed enough. are too many schools don't do them. one of the benefits of climate

survey is the longitudinal nature of them. you can see how things are improving overtime. you can see if prevention efforts are working, you can see if students are over time learning about the processing and rights that are available on campus. if they are not, you can address that and figure it out. you are not going to know unless you do a survey. schools need information in order to combat this epidemic. this information that is accurate, clear reporting is what is going to provide the data they need. these climate surveys provide transparency which a lot of survivors are asking for. the kind of transparency that is crucial to student safety as well as useful response. there is not necessarily a 1-size-fits-all solution. you have to follow title 9, you have to follow the cleary act

but the climate survey can help you find out what your specific problems are on your specific campus so that you can readily design specific solutions. they supported sexual violence act, would require surveys in these schools, surveys were actually recommended through the white house task force that this particular bill would require schools to do and were fully in support. and to support schools, title 9 toward nadirs and other stakeholders on relevant laws and best practices. one other glamour of positive motion moving forward is one thing the office of civil rights, department of education released is a first better tool kit for title 9 coordinators. obviously title 9 has been around for years but for the first time ever we have a tool kit that tells limb what their

job is that reinforces they can't be retaliated against doing their job, talks about the depth and breadth of title 9, not just simply athletics, it talks about pregnant parenting students and sexual violence on campus and access to stem classes and all the things title 9 can be useful for. this is a huge deal, revolutionary in some respects and members across the country are printing out these new materials and literally and delivering them to tidal 9 coordinators' at college and universities and k-12 schools. part of the reasons this is important is because we found through our own research that not only do a lot of schools not necessarily have tiger 9 cowher mayor appointed but many of the folks who are appointed don't know it. right? you call, ask for the title 9 coordinator and great story when i was at a conference i a woman

come to me afterwards because was excited about this information. and called her president at the university, called him right up, and i am so excited, who do i need to talk to to make sure we're doing what we need to do about title 9? i can share this information. the college president said you are. that can happen. we need to make sure they have this information and i am proud of members for getting this information out because it truly could be revolutionary in terms of how we address things. schools that are working diligently to respond to incidents of sexual violence and technical assistance helps make real change. with more attention to sexual violence they see it up taking. that is why we need additional funding for the office of civil rights in the department of education as well as the office that handles reporting and

complaints. there is an unprecedented number of schools under investigation regarding their compliance or lack thereof to title 9. the office of civil rights need additional funding to provide ongoing technical assistance to schools as well as to hold back is accountable. let me give you a little more detail on this because these numbers are a little bit quite frankly astounding. the u.s. the part of education office of civil rights which is responsible for enforcing title 9 and other civil rights, currently has staffing levels that are almost 15% below levels ten years ago and more than 50% below levels 30 years ago at a time we are actually seeing not only an uptick in complaints but an uptick in the complexity of the issues we are dealing with. they need the resources not just for the enforcement practices but also for the technical assistance to help schools comply to begin with said they

don't have to worry about investigation. single incident of sexual violence is one too many. when it interferes with a student at education, it adds insult to injury. we have tools to make a real difference and working to help stem the tide of campus sexual violence as congress works to reauthorize higher education act. i don't know if that is something that will get through. this is an election year and they did pass the elementary secondary education act reauthorization. those committees are tired right now. it going to the higher education reauthorization? maybe. if they do it needs to have information about campus sexual assault. another point to emphasize is these bills and capitol hill

have attracted bipartisan attention. end of higher education bill, and put an additional protection and programming. and put great headway. and we will stand for questions. >> i will be calling on people asking questions. please give your name and identify what organization you are with. if you are just a private citizen, say that. >> just getting started. >> speak loudly. we did not get an extra microphone. >> i haven't read all the research you are referring to but it seems on the surface this

is something to celebrate. and schools reporting these. by their other kinds of data that we don't have access to right now? >> let me address the first part of your question. and my numbers do rule address the second part of the mission. is this something we should celebrate. of statistics are accurate, they would be very much something to celebrate the reality is we know they are not. they don't have a process in place to this village reporting and support survivors. but the reality is we know from very clear research reenforced evers the years that campus sexual assault is happening. to the school did comes forward

and have 91% of schools disclose no reported incidents of sexual assault defies the imagination. that leads us to the next question about why and what we can do about it. that is a critical question and part of the reason we work so hard to get those amendments in to the reauthorization a couple years ago because we wanted additional data that we could use to not only address prevention issues but to see how we are doing and see how schools -- if the data was accurate i would be of here doing a happy dance for you. we have actual documentation that is not. we will see where they go from here. >> what is really important here is when we say it is not accurate we have looking at the difference between what we hear in terms of incident levels from studies over the past 20 years, several of them are often

reference came out of the department of justice. it is as early as the late 1980s one of the research studies, about 6,000 students at 32 colleges and up through the most recent national survey the washington post did which is representative and found that around 20% and our findings, 91% of college campuses reported they have zero reported incidents of rate in 2014, that doesn't match up then with these surveys, detailed research and this long standing research that when we asked students about their experiences, and sexual assault. those studies, there are many of them iron to point to the more recent ones, and the recent national survey from the washington post have places to

start. we have been excited to see some schools release their information, there climate surveys and i mention that as well. several numbers in that ballpark in terms of asking about the incident level, not the reported number of incidents. when schools are transparent about their serve a finding and even goes so far as to release as much data as they can without personally identifying information provides a wealth of additional information to this conversation and we encourage schools to be transparent with that data. a great example is we did see m i t release their information and people were able to say did this question get at what you wanted it to and this may be an evolving field of study. one of the differences between all the research is looking at different questions but at the end of the day it all comes together and coalesces around a point we want to make. we see a lot of investments in their experiences, they are not being worn out and reported numbers and that has happened

yet again when you look at the cleary data collection about the reported number of greats in 2014. >> question. >> the aauw, does the aauw recommend going to local schools rather than using campus food. any evidence campus schools have a conflict of interest along with the college of incidents? >> excellent question. is specially if you are a victim of sexual assault on campus and campus has a police force do you go there? do you go to local police? and proprietary insurance campus police have in terms of how they campus sexual assault. one thing we need to remember when it comes to criminal reporting is that there are very

good reasons why this crime is so perpetually underreported to police. victims don't necessarily want to come forward, they're often victimized when they do. services are not adequate. oftentimes police and prosecutors are not receptive or helpful when survivors come forward. there are reasons they might not come forward. what is interesting now and we saw this with bernie sanders who stumbled little bit over an answer on campus sexual assault, one thing he said was we should be telling students to go to the police and not letting universities cover it up. i think he meant well in the sense that he was viewing that not encouraging students to go to the police somehow meant it allowed the college to handle it in its own way and sweden under the rug but the reality is the college can't sweep it under the rug. they had to keep track of those civil rights protections, they

have to have title 9 policies, they have to report clear data. when you are providing the survivor with information with access to resources so that he or she knows his rights and if they choose to they can make a report. the key here is not to make that report mandatory. if you want to in short not another survivor comes to the police make reporting mandatory. you can't take that power away. there are all kinds of ramifications to reporting. and campus police or local police, the reality is whatever one you want to, they have jurisdiction. you don't necessarily have a choice as far as that goes but the thing to keep in mind is with the clearing data collection this is where we are supposed to collect police with

local data and there's a lot of room for better collaboration's. can how they can work together to make sure they are doing the best they can for victims. >> to see the clear information before that. >> yes and anne has that information. >> the public or a prospective student or prospective parents or community member, one of the best things about the cleary act is transparency oriented law, all of the information schools collect, reports, put together under the cleary act have to be displayed in a few different ways. and everything will year, it should be easy to find on their

web site. and tight in annual security reports on a search to show what. when it comes to these actual numbers, reported incidents every year and the department of education collect all of those from school, put them in a database and make it possible for anyone to look at school by school, compare schools, collect all the data into a giant spreadsheet and do something with and that is on a website the department of education makes publicly available. we can make sure the url is afterwards and a few options for the way you can slice and dice the data so you can see all the different crosswalks. that is what we use, publicly available data to look at this information and in the community, the school they are interested in and a group of schools they are interested in. the query act covers sexual violence and we have been

focusing on rape, dating violence, domestic violence, and our particular interests there are additional statistics there, information about hate crimes on campus, motivated crimes and a number of other things schools do. this is a comprehensive look at the safety of students on campus, at least one take of it, schools can provide additional context of information about when these things occur, what occurred and what schools are doing to respond. we hope people will use it and think about what their schools are doing and maybe push them if they have any questions. [inaudible] >> we have lost of regulations in what institutions are supposed to do, and the spirit of what is being followed. how can we hold our institutions accountable? >> actually we just talked about one of the best ways which is to look at the query report, the

security report, as anne. do it is more than statistics and part of what we did in the cleary amendment to the statute, was put in several different requirements that now need to be added to the query annual security report and these are things students, staff, faculty can all look at, interested outsiders, to look at to see what they are doing. and to add hate crimes motivated by gender identity and national origin bias, a lot of research about violence against women potentially being a i hate crime depending on how the context is put forward. not only did they at update annual security report to include the institution programs that are available to all students and employees that aim to prevent domestic violence, sexual assault, within that

report, they should be detailed in what they're prevention programs they are doing to address those so that would give you a sense of the scope of whether you think they are adequate or not. they have to list the procedures, the steps, a time line that the institution is going to follow when one of these crimes is reported. so you can see they have thought it through, they have a policy, the process. all the sanctions the school imposes following these proceedings should be listed so you can have a sense of what direction they are going. is one of the things we have seen, unfortunately as we have gone into this national conversation about sexual assault that some schools are providing ridiculous sanctions, book reports for people that have been found in an administrative setting to be a violation of the student code of conduct and violation in terms of campus sexual assaults know we need to make schools really using that opportunity for the

change agent it can be. they also need to provide clear options and support to students who report these incidents. within that report you should be able to see who the referring people are. what services do they have on campus. is there something specific accounting center so students know for sure if that is not fleshed out you need to ask the me because they need to have those services available. schools also now required to give survivors the information about the options they have to report it, whether it is title 9 report, or a police report. again, that is part of what they're supposed to be talking about. and leslie schools also have to provide information on how toas provide information on how to protect the confidentiality of survivors. this is all about campus crime in general, not just sexual violence. we are saying in addition to these steps what are you doing?

what steps are you taking? what processes do you have in place? if done well that in the gold mine for someone who holds the school accountable. even if it is not done well you have questions to ask, knowing what needs to be elucidated in the report. >> when you wer the report. >> when you were talking about the report in title 9, two words jumped out at me, timely and fun. are both things described, give you the time that you are allowed to do these kind of things? this will determine what is prompt and timely? >> the question was the terms timely and prompt and how do we get a sense of how they work? the most important thing is something we mentioned earlier which is that our laws are not

necessarily one size fits all. they are meant to work with school policies but provide a framework but that having been said the department of education has given some guidelines to help schools do the things they are supposed to do under frameworks that the law established. the schools have some resources under title 9 through guidance and technical assistants we mentioned like information available fort title 9 coordinators to help them look through the processes they have to in a prompt manner. they have opportuhnties to be clear with students if there are going to be delays are things that are going on. those are out lines to make that happen and we often do encourage -- of schools on not being promptebed you can do something about that. this gets to something we talked about already which is the we have seen an increased number of complaints coming through the department of education of tools many people didn't know about for a long time.

when or if you are involved in the response to sexual violence on campus a you feel your school has not acted propriately or in the vein of the law or guidance provided, you have access to complaints, this part of education may investigate what you reported. we encourencoe people to look a that. something is dragging on too long amy need to bring it to the attention of enforcement action but that is one of many tools available that help provide a s buamework to ensure that students, their civil rights, access to education protected. >> the president of kensington rockville branch of and the one. i am curious, can you talk a lit tite bit about the implications of that unfortunate jackie story, what that does to

efforts lnede ours. >> the question was to talk about what the impact of the uv a story may have, one in rolling stone. this is a really difficult question and a good question. one of the things we are always concerned about is when rape, sexual assault is reported, how are the survivors treated? if they are not treated well, despite whatever circumstances natensiie might have been in, i she treated well? do people believe her? that is something we have to be concerned about. people don't want to come forward if they feel they will be eviscerated in the media or tried in the media. at the same time we also know that folks who don't believe that there is campus sexual assaults epidemic, p weple who dooplet believe titleitle shou address those issues even though it is very clear statutory land

tk we like to say it is so. it is a way if you highlignce those instances it is a way of trying to downplay capping. in recent articles, the reality

is we aand aays want to make su people feel comfortable coming forward to report and make sure people understand the , therlse reports are not common. they are not the modus operandi. they are not is fuelling the survivor and advocacy, angora about this epidemic on campus. what is fueling it is how often it is happening and how it is being handled. >ion pat american uhnversity, w in five are sexually assaulted in surveys. what is the dnot oinition of sel assion palt? >> every survey is different in terms of methodology and what defihntion they use but i will let anne further into that question. >> very much to that point, we can follow-up odoeline about

deferring questions and how they're answered with different surveys we rnot oerred to. there are differences in many cases. and unwanted sexourl content wih the definition of that and in individual schools that may match their policy or procedure on campus maybe that will be in line with the criminal code or behavior on the speciffeel of violence that go beyond the crime but also what we know our behavior is the impact womeople access to education and so it does depend on the survey and that information is something we can dig in deeper to share with you but the big picture of what this is telling us is sexourl harassment and violence are prevalent on campus, across cam teses and overtime somethin we should be concerned about. >> the question, we have copies

of climate survey, great place to start is resource, the white house to permit education, taskforce we mention and sexour violence put together, notalone.gov, insif grtions on how to do a plaimate surveys an information how to do one. there are cooperatives that are woworing tourcether to figure o what the best question to ask and things like that are. and have standardized questions of price surveys a you can see the surveys that have been released to individual schools. one of the longest standing surveys we often talk about is teblicly available at the university of new hampshire has done one for a long time, a place to look but again there is a public resource from the white house can department of ed gratiod, >ion pnorth carolina state university. dimension there are a couple good players out there and along

way to go. how to encourage and recognize the good players. >ion pthe question was good act out there, we have mentioned that and what is aauw doing to encourage or higay iignce those folks that are doing a good job? the best way to respond to that is to say we alwat to try to mention that because there are a lot of hard working titleitle coordinatohow i' that doing wha they're supposed to do. number 2, i would hesitate to single out one particular school for doing everything right. instead i wou a

their prevention programming and preparation, she mentioned new hampshire having a climate suerrey. and there is good information for any school that wants a road maeryto use. that is -- there has been some pushback saying this is new, this is too m grh. this is not what schools should be doing and the reality is is not new, it has been around four yeahow i, now holding you accountable in a better way. some of that ogriously has to do with stryiet and survivohow i a advocates. the reality is we are not expecting anybody to do this alone. they don't have to reinvent the

wheel. it dut as not have to be rhow i science. >> okay. >> kitty richardson. a couple ge ars encoo i was at encouura meeting and the speake suggested that people go to their alma mater's web site and look at how their college or university has been doing and speak up when there's an opportunity to meet people from the university and mine was george mason so i went there and was very pleased to see the policy and how well it was publicized by the >> the data they reported in their cleary report. >> since then, touch base with thent eveion pn once in awhile pleased with the efforts they put in. is an ongconcng prost pam start with the presidend to d

>> for those who have not heard all of it, we have a wonderful encouura mentber who has heard way to hold folks accountable is to go to your alma mater, use the power of alumnre are status say how are you doing? what are you doing? is it woworinhol how can i help? when you talk about a potential pr problent if you have ao he n writing in and having concerns about how things are happening that is a big issue. it is important to go to the schools you have been to to look at that information and send a quick letter, clinsi tweet to pose something on facebook, one of the school> ao he noi pages talking about this as an issue you care about and also being clear yore are sdooplet want inn and ifansparency, but improvement over time. you want to be able to see that theyrd e doing work constantly refining and improving what they're doing in tert to b of prevention and response those

things will actually improve. you can see why i love aaura med iners that ho a accountable. >> any other questions? if not, let's give some plion pase. [applause] >> the level presentation. our next newsmaker is the head of the selective service systene lawrence romo will speak on registering women and immist pas with the selective seerrice. this is something new. is new territory. on february 8th, i will be hosting the preslearing bishop the episcopal church of the united stateo lo michael curry, the first aion pn ican american hold that position. the presiding bishoeryof the episcopal church is equivalent of the pope in a roman catholic church. with that i want to thank the ion padience, give the audience applauds. thank you all.

[ plion paseyou ca >ion ploredoina lynch money the connection and guns, testifying at a senate propriations subcommidoinee witation.the leg analysts and gun-control advocateo lo live coverage begi at 10:30e arastern time on c-sp. >> i have been watching the campaign this ge ar, it is more interesting to look at the republicans than the democratic side. that may have something to do with why there's more interest in these candidates and their books. oe> sundaty are yght on q&a, nonfiction book critic for the washington post discusses books t'itten by the 2016 preslearentl candidate. >> everyone i think is interesting stories in their lives and politicians are so single-minded in this pursuit of

power and ideolourcy cou a particularly interesting once. when we look at these memoirs they are sanitrom ed. they are vetted and are therefore minimum controversy. >> on sunday> q&a. a supreme court decision in friedrichs v. california teachers association cou a

and the ongoing deprivation of basi sispeech and asshow i,are rihave ts and restore consisten and predictability to the onsourt> first amendmend to d oe> it is awasissible to all-ou the union to be the exclusive representative so that nobody else is at the bargaining table. our objection is being forced to systsiditiv an exs fusive representative. affect the they are exclusive representative impinges on my s fient becion pase it disables

individually negotiating with the school board ande are to hs representative and that is why requiring agency fees and collective bargoprare yng contes lessaseustified and ropauiring agency fees to support union lobby. onsollective ' e arnoprare yng we are ropauired to free ride o the union because they are the ee to hsive representative and don't have our own view. the free rider justification is cher weaker in the collective ' e arnoprare yng context than union lobbying context. oeion pct f. carvin is it ok to omwrody to contribute to a cause he does believe in? >> you cannot force repystlican to give contrithintions -- >> that is what i am thinking. can youe arnact a law, the natiomprl political parties are in trouble so they enact a law that says all mentbehow i of th re teblican par or if you want be a member you have to contribute so mw,ation. aney? is that ok? oeion pit is nrovi because the k

principle made clear is not whether or nrovi youthinkivlear oppose what they are saying but because you don't wish to su. w learrom e. oeion pre are doentbt know why putting the fact that your clients oppose, it really wou a assuming a state statute allows

an agency shop, that is state participation in the very kind of membership and career speech you are objecting to. >> i don't in candor think that would create sat action on jurisprudence where it turns on who is making the decision that is being objected to. your hypothetical would be the private employer but that aside as the court made clinton inert harris even if it did reach the first amendment there is a serious difference between authorization where the government permitting private employers to engage in agency shops and the government itself affirmatively imposing them on its own public employees. >> the labor act. the railway labor act. you answer, justice kennedy, in the private sector this is all right.

you can have an agency shop. >> as you know you can have agency shops but agency fees can only go to things that are germane to collective bargaining. they impose the approval of the private sector as a matter of statutory interpretation and nothing the court says. >> you don't have any first amendment argument about that, private sector. >> strictly limiting ourselves to public employees because public employers obviously i subject to far greater constraints under the first amendment. >> one point of the public employee case generally, mr. carvin, is to ensure the government acts as an employer, the government is putting the same position as a private employer. various constraints that would

constrain the government, and supply, meant to ensure that the government doesn't use its position as leverage over things to control but the government can do it the same thing the a private employer can. why doesn't this fall within that category of things? they decide to do this, that is not a constitutional problem, so too with government employer. >> i must respectfully disagree with the premise. none of the first amendment jurisprudence says public employers have the same rights as private employers. private employers under the constitution can discriminate on the basis of political affiliation or even on the basis of sexual orientation but nobody thinks public employers can do that. you can under pickering the deferential review imposes greater constraints on public

employers than private employers. >> there is the lesser set of constraints and the lesser set draws a line to ensure the government doesn't use its position as employer to do things that are proper to do. the government when -- as an employer with respect to its employee work force really ought to be able to do the same things a private employer can. >> the government as employer speech and first amendment draw a clear distinction between restricting employees' speech under the pickering line of cases where there is deferential review in circumstances such as this weight they delivered the employment relationship to coerce the employee to subsidize or associate with an outside group. per ratan is subject to strict scrutiny because they leverage the association with a political

party. >> it sounds like you are drawing any distinction between restricting speech and subsidizing speech and i thought these were two sides of the same coin that compelled speech is no less and no greater an offense than compelled silence. >> in terms of petitioner's rights but the scrutiny given to the speech being subsidized doesn't dictate the level of speech scrutiny given to the compulsion speech. for example you can stop unions from making political contributions under the case law but that hardly suggests you can compel a nonmember to subsidize the union's contribution. you and stop public employees ended the hatch act from engaging in basic political participation but that hardly suggests you could require a nonmember to subsidize political activity. so there has always been a clear distinction in the case law between those things precisely

because subsidization is a different infringement than restricting employees' speech. restricting employees' speech is an inherent part of the employment relationship. the employer has to be able to restrict the employee's speech or you couldn't have worked places which we give deference to review because we don't want federal judiciary micromanaging the literally hundreds of thousands of personnel decisions public employers make every day. neither of those concerns is present when you have a rule that requires one set of employers to subsidize outside advocacy group like a political party or a union. that is because you are not involving the federal judiciary personnel decisions and is not an inherent part of the employment relationship is to use your phrase leveraging the employment relationship to require something the state could require. >> why are we treating

government differently than employer? you just said -- the point that as employer, the government can already restrict speech, which i think is a higher problem than subsidization. we have already permitted subsidization of our association, of government programs, we have permitted the assessments on a lot of different levels so why can't the government as employer create a stage entity? this union under california law is a state entity. >> no. >> oh i beg to differ. hold on, i will get the the section. it says when recognizing the exclusive bargaining representative, a union assumes an official position in the operational structure of a school. so it seems to me that

california at tells the union what topics it can negotiate on. that it requires them to do training and in this end accepts their recommendations with respect to the issues of employment at its own will. meaning the state is creating the union as part of the employment training and other responsibilities. >> justice sotomayor, 8 is import to distinguish between an official position, they are exclusive representative of the employee and to suggest there state actors if they were state actors, the state legislature could tell unions not to have pay raises or not to -- >> might be able to do that. it tells them -- they give the state legislature has given them the right to do that. what would take away from their

right to say know? you can't bargain on the spur to the topics? >> the first amendment. the scope of collective bargaining is something the state can dictate. it can never dictate the union's position, that is my point. if they were state officials, the state legislature can tell from don't advocate pay raises, don't advocate this for health and benefits. >> when you say don't advocate this with respect to the state legislature, they could say that is not going to be subject of discussion at the bargaining table. those are two things what -- >> we need to distinguish collective bargaining from lobbying. collective bargaining is unique because it requires public officials to negotiating good faith and mediate any in passes with the union. none of that exists in lobbying, state legislators could close

their doors. >> suppose the union has an article or public relations campaign to protest merit pay? i take it that is a chargeable expense, so collective bargaining in this instance subsumes, includes this wide-ranging effort on the part of the union to have a public relations campaign in favor of principles that some of its members, some teachers strongly object to. >> exactly. my point in response to justice and the sotomayor would be if t and it is the key point is you can ban collective bargaining but not lobbying. it is import to focus on why that is so.

the reason that is so is because we are imposing an obligation on public officials, collective bargaining that exists nowhere else, to negotiating good faith with the union but they couldn't tell union don't advocate to the school board, pay raises and things like that. they can revoke collective bargaining by saying just like the state legislature the school board doesn't have to listen. the distinction is between what public officials have to meet and negotiate on but that doesn't translate into any ability to tell the union what to say or do. >> the teachers can lobby. there's nothing wrong with the teachers speaking. >> that is the whole point. teachers can lobby. they can go to the state legislature just like the union can be and they can't be forced to subsidize the union. >> what is your -- >> with respect to collective bargaining they can't negotiate. not free rider rationale is

weaker in the collective bargaining context because the teachers right to negotiate with public officials that the union is talking to is extinguishing in no circumstances even though it lobbying they can engage in their own lobbying but we don't allow agency fees for lobbying. >> mr carvin communities with a heavy burden, that is always true in instances where somebody asks us to overrule a decision. it seems to be particularly true here. this is a case in which there are tens of thousands of contracts with these provisions. those contracts affect millions of employees, maybe as high as 10 million employees. what special justification are you offering here? >> two special justifications, the first that this erroneously denies a fundamental right, it does not expand a right. as the court made it clear the right of the citizen not to be subject to unconstitutional treatment outweighs any reliance

or predictability interests -- >> you say this allotting your briefs. i found it hard to understand, the idea that every time we deny a claim of rights whether it is the first amendment or the fourth amendment for the fourteenth amendment that that is denial of the claim that would not have any decisive success. we do that constantly. we do that tens of times every year. >> the court concludes it was erroneous what special justification -- >> your answer is essentially you don't need special justification if the initial decision improperly denied a claim of rights. what i am saying is i find it difficult concept to understand. it would take away numerous, hundreds of thousands of decisions. >> the proof is in the pudding,

the court never held a reni's denial of the rights and -- >> all the fourth amendment cases are correct. the police can search a car. good faith rule in respect to admission of evidence that we seized under the fourth amendment. i read a lot of criticism of those things in the paper. it seems to me you could get people who are judges, who are up here, who felt the fourth amendment should be expanded. and there should be no rule that gives police any special authority to search a car. there should be no rule that stops any incidents from coming in. there are dozens of cases where this court has denied individual rights and all those cases are now free of any inhibition. is that the point? or is it just labor unions? >> the fourth amendment is not

hypothetical. gant is the one i was quoting, the right to constitutional treatment out ways -- >> what about the 8 amendment? there is an individual right some think perhaps against capital punishment. the court has consistently ruled against it. so if that is ever considered again under your view the court would give no wait to this. >> if the court was convinced capital punishment was outlawed by the constitution it would be very strange to tell people being executed in the future that even though this is an unconstitutional execution we are bound by our erroneous prior decisions. >> let's assume it is an important consideration for the court. let's assume that. what about the answer to justice and elena kagan's questions

about the many contracts, would they be endangered? could you address that? >> there is no reliance on these but, operating the same way they would be for you. >> what would happen to the employee who says no, it is off the books? ..

>> number one, you are assuming these provisions are completely severable, which i imagine depends on the contract. at number two, even suppose they are severable, these provisions are bargained for benefits. that contracts would read differently. and unions would've gotten different things if the provision had not been there. you are essentially saying the exact same contract should go forward, notwithstanding that the union has given up things or has not gotten things, because the agency fee provision is in the contract. >> i must respectfully disagree with a factual matter. they union did not say we would've asked for 10% increase by now we will sell out by members rights to 9% increase we combined our own pockets with agency fees.

>> for many ways in dealing with their need for adequate funding in order to perform their collective responsibility, collective bargaining responsibilities. asked for this what a not for other possible ways of achieving adequate funding. you would be essentially stripping them of this white and not giving them anything to replace that with. >> they didn't negotiate with the employer for funding because they don't get funding from the employer. they did it from the members. no position they took in collective bargaining is that all affected by completely separate issue of -- >> would it be illegal for the government, as employer or government, to fund the union? >> i thought about that, justice sotomayor. it's a tricky question. the government can engage in a lot of speech that he can't compel citizens to engage in the government, for example, can subsidize planned parenthood but it couldn't provide assistance

to subsidize planned parenthood. so in that sense, yes the guy would've far greater leeway. >> so if the union had to wait or something negotiate which was right now, the union participates in the grievance procedure and it pay certain expenses for that. it could is said to the employer, we are no longer getting enough money to be exclusive representative of every employee, so now we want you to fund certain things. that could very well have been part of the negotiation. >> not in california, for two reasons. one is a state statute requires agency fees. the employer could not have been anything with respect to agency fees. that's all designed by statute. >> i'm not just in the state of the law as it exists now. i'm assuming that we work to undo and say they can charge an agency fee, all right? california is going to respond somehow.

it's now breaching the agreement it had with the union. they are going to have to come to some sort of accommodation. >> right. they would excise the agency fees part of the contract. >> even if they did could then decide to fund the union? >> but that's a separate question. if they wanted to fund the union, they've got some discretion to do. the one area the government doesn't have the power to subsidize speech is when it's subsidizing political speech in the viewpoint discriminatory way. >> i'm talking about the collective bargaining part of the union. >> and i am maybe not understand that you. could they subsidize the union's collective bargaining efforts? i think it may be able to but, of course, no state -- >> so why can't they assess all of their employees a tax for that contribution? >> right. and that was the point i was 22,

which is agency these don't go just to collective bargaining. they also go to a local activity. i don't think the government could fund political activity viewpoint discriminatory way. >> is there in history and american labor management relations, at least going back, i don't know what, 75, 80 years of employers paying for unions. i thought the union movement was against us long ago. >> direct election of history is correct. currently no government ever funds unions. indeed, under the nl are a bit -- >> that were company unions but regardless i'd like to minutes -- go ahead. finish. >> just one more since the under the nl are a competent felony for the employer to give the unions but because it would influence the unions, and contract within entire structure of collective bargaining. >> is a marketable subject lacks it's a political subject.

i suppose you can't enact a statute this is the government will fund you but is a marketable? is a one of those items the union and bargain for? >> it's never existed in american society and there's no way the public employer could all of a sudden say we are going to take our taxpayer dollars and start giving money to unions, a against they've always been funded through voluntary contributions. if they did become recipients of federal or state funds that would impose restrictions on the speech and other activities that the unions resembled we would never have asked for holding apart from any funding shortfall. >> i have a somewhat different subject, i don't know how to get you to focus on this exactly. i think there are good arguments on your side, and there are good arguments on the other side. when you go into this, it was and may be a kind of compromise 40 years ago. but it was 40 years ago. it was 40 years ago. i mean, maybe marbury v.

madison was wrong. they are our people to argue certain were. the concerns i have in terms of workability are not so much the details. i guess something would work out in the labor area. it would affect the bar. it would affect the integrated bar. it would affect at least student fees at universities. it would require overruling a host of other cases i think at least two or three that i can find, and that's quite a big deal. so what is it, in your mind, that you can say from the point of view of this court's role in this society and that is, of course, we can overrule a compromise that was worked out over 40 years and has lasted reasonably well, not perfectly. i guess people could overrule our decisions just as easily. i've had a few dissidents.

in those dissents i think i'm right and the others are wrong, and they think i'm wrong and they are right. there are a lot of people who think that. i want you talk for a minute because it is a a matter of considerable concern to become even when i'm on the other side of something. you start over when things, what happens to the country thinking of us as a kind of stability in a world that is tough because it changes a lot. >> i think you put your finger on precisely the same question. i think the principle reason to overrule a boot is that all of the rationales offered support of a boot result conflict with other presidents of the support grougroup so by overruling a bot utility which is think of you to just the opposite. if i could walk to the list. standard review, the new rationale for abood is the subject of deferential government as employer review. it's contrary to harris, contrary to knox, contrary to

abood itself which is a huge victory analysis. the notion that the unique beauty somewhat justifies agency fees because they've got a duty to represent non-members, that comes from the dissident opinion and leonard. you would have to overturn let which characterizes this argument has turned the courts rental on its head in the name of preserving another precedent. the notion that collective bargaining doesn't involve matters of public concern which has been offered up, that's contrary to harris, abood itself which said it was, pickering which involve basic issues of school finances, so you would have destroyed all of those down. respondents radical arguments but it's not entitled to any first and then protection under the employ speech doctrine and under the clinton and commercial speech doctrine is contrary not only to the boot, every a good case come and here's dissenting

opinion because everyone recognizes their some first amendment protection. >> it seems to me, i guess we are going to separate which is how well abood fits with all of our other employees speech cases. because i think abood fits pretty well. it didn't cite pickering. it essential that the exact same concern as pickering, which was the employer's interest, the government's interest as an employer, and how that related to an employee's speech right, and basically arguing for a balancing test. so really what your argument comes down to is to very recent cases, which is harris and knox. they are you might say that harris and knox gave indications that the court was not friendly to abood. but those were too extreme recent cases and they were both cases that were decide within the abood framework. in the harris case the parties

came here and explicitly asked us to overrule that case. almost all the briefing was about overruling that case, and the court decided not to overrule that case and instead to say that the employees there were simply not public employees at all. so taking to extremely recent cases, which admittedly expressed some frustration with abood but also specifically decided not to overrule abood, i mean, just seems like it's nothing of the kind that we usually say when we usually say that they precedent has to be overturned because it's come into conflict with an entire body of case law. >> again i must respectfully disagree. i think the classic justification for stare decisis overturned the case is that subsequent races have underlined the reasoning and principles of there. we agree harris and knox undermine the doctrinal underpinnings probably.

the fact that they really reason of the post a not so recent doesn't change the fact that abood has been overwritten. citizens united point to two different lines of case it in the first and an airy as its principal rationale for overturning awesome. actions versus a or b case. and logan valley it upheld something. employed corporation to distinguish it but not overruled it. spent i'll accept that. let me except what you can do. you can go through and you're good at it and so is the other side. you go to the cases and you draw the line here, they are, and the other place. i'm trying to abstract from that any basic way for this reason. i think plessy v. ferguson was a case that certainly should have been overruled. it certainly shouldn't overlook because it was basic, because it was right to treat people equally, and through millions of people who were not. you see the level of abstraction i'm working at? if i put that same level here, i

see the following, you will go out the door, and you'll by hundreds of things, if not thousands, where money will go from your pocket into the hands thof people, including many government people, who will spend it on things you disagree with. i don't see anything to basic in the lines you are drawing there. the second thing is, what you said was, and it's true, employers can say what they want. we are talking about six people in a room arguing about wages, hours, and working conditions. that's pretty far removed from the heart of the first amendment, and pretty close to ordinary physical activity carried on through words. regulation, if you like. i can't find a basic principle that'that there that's erroneous in these major cases that we

have overruled. if you have a response to that i'd like to hear it. >> asked requiring people to give money which they don't wish to give, thomas jefferson said that was sinful and tyrannical. james madison famously said, requiring threepence is the thing. it's not at all something we have invented. for example, you could require people to give money to a political organization. because money is not money with its supporting speech. it is association with an advocacy organization. the compelled association is something this court has consistently condemned as basic to abood itself said it's contrary to the most basic principles of the founding, which is -- >> mr. galvin, do i take it, and was something that justice breyer said, you didn't respond directly to it. he said in abood falls, minnesota our decisions in keller on mandatory bar association, on student activity

fee. you agree that would be a consequence of your very? >> no. in fact, that hypothetical was completely eliminated i hear is which made it clear that neither taylor nor southworth was in jeopardy because the rationale was different than the rationale of abood. >> those cases start with abood. those cases in abood is a framework that those cases decided questions that they decided specifically within the framework. >> a lot of cases cite cases but the question is -- >> this is the way we look at mandatory fee cases. >> again i must respectfully disagree. they do have that income at that level of generality of the key distinction as harris pointed out between giving money to a bar association and giving money to union. the key thing is that the bar association is a non-speech restriction. it's like what the court said andy glickman commercial speech context. the initial association has

nothing do with speech. it was regulating lawyers, not advocate on behalf of lawyers. >> bar associates do things all the time was disagree with. they take public policy positions on certain issues and other issues your i mean, i think would be impossible to make a distinction on that sco score. >> keller struck down those kinds of the candidates by bar associations, taking positions on federal jurisdiction under control. it said they could only spend the money -- >> do you think bar association's do nothing, that members of the barca disagree with and find hostile to their own views the? >> if they do it and it's not germane to our ethics or service, then by definition it's a violation of keller. so i drove the law is not violating the other pronouncements of this court. keller only about expenditures that are necessary accidents to the principal role of regulating lawyer ethics of adobe the. the other things that were mob

related were struck down in keller. >> i think we are talking about two different kinds of bar association's. voluntary bar association's get into a lot of those other things. you are just saying that those bar association's you are compelled to join as a condition of your practice do not get into those. >> absolutely. if they required me to join the aba, i would have an absolute for a minute right not to do that because virtually of the word out about i disagree with. [laughter] >> mr. galvin, i see your time is running. could you address briefly they often opt out requirement, an issue which i take it is in the case records of the way we were on the issu issues we've been discussing? >> conservatives and that's because it only affects the amount you need to opt in or opt out under my short answer and i'm running out of time is if this regime is upheld that means tomorrow the state of california could see every public employee

contributes 1% to the governor's reelection campaign unless they affirmatively opt out of doing so. no one thinks realistically that's a voluntary decision to give money. there's only one purpose for that requirement which is to inflate the governors political war chest just like the only purpose behind this is to inadvertence and the collect inflate the unions war chest by people who have not made a voluntary decision to do so. and lessons are for the question of like to reserve the remainder of my time. >> thank you, mr. carpenter. general dumont. >> mr. chief justice and may please the court. california understands the first amendment interests that are involved in this case. the state also is critical anxious in being free to manage the public workplace, much like

a private employer, and leslie are improperly leveraging the employment role to coerce or suppress citizens speech. so let me try to briefly address why i think, if we are going to collective bargaining in the public sector, mandatory agency sees cancer of important state interest without unduly burdening citizens speech. >> before you get into that coaches ask you a preliminary question that came up earlier in the argument? you think that the california teachers association isn't agency of the state of california? >> no. i think the union and that becomes an exclusive representative under the perry case has unofficial place in the functioning of the school district but it is not, it does not become an organ of the state. that's a very important point. precise because of the company union concern, with delicate

about this from the states pointed it is that if we're going to collective bargaining, we need to have a system where there is one representative that we can deal with. that representative has to be both a good partner for us from our point of view but also proceed by the employees as representing their interests which is why we can take it over, which is why it's important we not funded directly and would not be perceived as controlling the speech of that representative. >> it's hard to visualize this in a pure employer-employee relationship when the collective bargaining agreement itself has to be submitted for public review and public comment. that suggested you doing more than simply regulating the employment relationship. >> that public employment context is certainly different from the private context, and that's one of the important ways. we don't contest that. before you get to the final

legislative approval or board approval stage, what kind of system can we have, legitimately, that would be a workable system both for our employees who overwhelmingly have shown the one collective bargaining, and for the local managers, the actual managers of local governments, of school districts, or a state agencies who need to have the practical problem of reaching an agreement that will govern their workplace for a period of time. >> if you employ such an overwhelming that they won't collective bargaining, it seems to me the free rider concern that's been raised usually insignificant. >> with respect, i disagree with that. many people can want something in the sense they good as the advantageous to themselves, but if they're given a choice they would prefer to have it for free rather than to pay for it. this is a classic collective action problem. so from the employers point of view when we're going to collective bargaining we what one union to do with the we want that you need to deal with all

employ. we require it to represent all employ fairly, whether they supported the union or not. they might have supported the rival unions. once the majority has said this is our representative, and that is going to represent all employees. it's important from employers point of view that that represented be adequately funded and stably flooded so they can work with us or work with employer to reach actual progress. >> it's almost axiomatic when you're dealing with a governmental agency, many critical points are matters of public concern. and is it not true that many teachers are strongly, strongly disagree with the union position on teacher tenure, on merit pay, on merit promotion, on classrooms eyes? the term is free rider.

they union basic as making these teachers compelled writers for issues on which they strongly disagree. many teachers think that they are devoted to the future of america, to the future of our young people, and that the union is equally devoted to that but that the union is absolutely wrong and some of its positions. and agency these require, as i understand it, correct me if i'm wrong, agency these require that employees and teachers who disagree with those positions must nevertheless subsidized the union on those very points. >> and what i'd like to do is to separate out the important public policy issues, which we do not deny crosscut between the public's fear and the realm of citizens speech and the isolated

collective bargaining realm. they do cross cut but that does not mean that two spheres are the same. so in the collective bargaining process was employed is to get one agreement with one represent employ which we do by having when you. it's a democratic process. because it's a democratic process it's almost guaranteed that not everyone will agree with all the positions that are taken by the union that represents the majority of employers. from the employers point of view, we need to get a contract, is someone representative that can speak with one voice for all those disparate people. i understand that you be speaking on delicate issues. outside the context of did a contract, we did not try to suppress at all the wide or enriched right at the point that employees they have as citizens. they can express them in the legislative realm. they can express them at the workplace, just not in the bargaining room. >> do unions have public

relations programs or newspaper articles, media programs to talk about things like merit pay, protecting underperforming teachers and so forth? to the unions actually make those arguments, and are not those chargeable expenses speak with the union is as engaged in a variety of speech. some of it is chargeable and some of it is not. >> some of the ones i've mentioned are chargeable? >> i believe under current law that are. the court feels that some of those things are more and a political or legislative see your than the collective bargaining sphere per se, that is more of a lehnert question than a good question. it would not require -- >> the problem is that everything that is collectively bargained with the government is within the political sphere. almost by definition. should the government pay higher wages or lesser wages? shoulda promote teachers on the

basis of seniority or on the basis of performance. all of those questions are necessarily legal questions. that's the major argument made by the other side. >> i don't disagree but it does not change the fact that we have two things that we are doing. what is try to run a workplace. another site to run a government in which the debate must be wide open, and we would not dream of being able to impose -- >> you said you agree with that. you agree with everything they are negotiating over is a public policy question? >> no. i don't agree that every issue as a public policy question, but i don't want to dispute the fact that the our deep public policy implications to many other topics into the general tenor of public employee bargaining. many of the public -- >> what is your best example of something that is negotiated over in a collective bargaining agreement with the public

employer that does not present a public policy question? >> mileage reimbursement rates or how you're going to public safety. >> that's money. that's how much one is going to have to be paid to the teachers. if you get more mileage expenses, that cost more money. the amount of money that's going to allocated to public education as a poster public housing, welfare benefits, that's always a public policy issues. >> which is why i was i would not try to draw the line by saying that some part of this speech is not a matter of public concern. what i would say is that when we're trying to run the public workplace, we need to have some flexibility because as employers we are trying to reach workable agreements to cover particular workplaces for particular periods of time. that involves compromise and it involves reaching decisions on some of these issues. many of them are controversial but we need a concrete decisions with one group of employees represented by one you need to do that.

>> where does the state of california think the line should be drawn? provision of california law, section 3546 of the california government code says that agency fees may be used for, quote, the cost of lobbying activities designed to secure advantages in wages, hours, and other conditions of employment, and in addition to the secured through media negotiate with the employer. is that constitutional? >> i don't answer to that question. i don't think it's the question presented here. it's not what the union, it's not the position they've taken in this litigation. if there is a need to adjust that line, which there might be, that would be a question about where to draw the fundamental line that abood draws. the question here is -- >> want to the question is whether abood is workable. so i do think it's relevant to know whether you think that is on one side of the line or the other.

>> i think the argument about why that kind of thing could be considered germane to bargaining. but what is most important to the state. would not be a servant outlined. that is not the fundamental point. what is fundamental is that we need to be able to run our workplaces, and that involves presenting somewhat from the broad debates about public policy which will continue to go on, but getting particular contracts. the particular speech restrictions come if i might, excuse me, i'm sorry. >> is there any legal argument or factual basis on which the state disagrees with position of the union speak with i'm sorry. any aspect of -- >> well, i'm trying to sort out. we have three respond is unconscious rabbit of a position. is there anything in any way in which your presentation disagrees with the union's presentation in its brief? >> i don't think that's

necessarily any fundamental disagreement. i think we would emphasize that our interests here are primarily interests of employees in coming to practical accommodations here. that was a long history in california in the 1950s and 1960s of labor unrest. and lead to a commission that issued a report that was her comprehensive. this issue of agency fees was part of the debate that went to the legislative decision in the early '70s to adopt the system, and we think that was a legitimate legislative decision. >> general dumont, you are arguing, i sympathize with any of the state to have an efficient system for dealing with its employees, and i can agree that dealing with just one union makes everybody's life easier. ..

how many members? >> i'm afraid i don't know that you >> in the federal sector they are involving pay. >> there is no bargaining about that. >> there was no fact-finding on this assumption, factual assumption. no factual development.

there is a presumption post, which is that it can survive. we don't know that. >> he would prefer not to take that risk. >> you are the one making the argument. isn't the job of the opponents to make sure that it will survive. you are the one to say we need to do this because otherwise it won't survive. the burden is on you to suggest why that is so. >> with respect, they would not survive without this. the question is are we using a technique that is reasonable from the point of view that doesn't impose an undue burden. just a moment about the burden involved here. let's remember there is no personal astra creation of this speech to any individual employees speech as a citizen in the work place or out of the

workplace. all the speeches workplace related. >> it is odd to say if it is required to save $500 for someone to espouse a believe he doesn't share, that he is now free to go out and argue against it. you have to spend another $500 so it balances out? >> to make him a runner, what we have here it is important to the state to have a system in which we are not the speaker because that would defeat the purpose in the same way they should wear -- >> the whole idea was a public forum. are you saying the whole purpose of agency fees is to have an open public forum? >> to have a bargaining form legitimate when we have compelled association to have the bargaining for him. >> thank you, general.

>> thank you, mr. chief justice. math please the court. states may reasonably test nonmembers pay their share of cost for this service is provided by union to the government in tomball employees as their exclusive representative. overruling now with stan surely disrupt established first amendment.turn and systems that nearly half the country. when you talk about what collective bargaining as in how the agreement struck in how it evolves over time. it is not simply one contract where there might be a favorability privation are really a system of agreements established over time and the body of relationships to build a shared if you look at the joint appendix, several examples of collective bargaining agreements. long, detailed agreements include a wide range of services negotiated between the union and

the government. some of these are monetary come in many hot button issues to be sure many of them are mundane issues about health and welfare benefits, and what time teachers and to show up, how long their lunch break can be without having to perform a duty and the policies for transferring between and among school districts. these are basic services that require research, legal representation, can earn and can ultimate members trying to ascertain what the positions of all members of the workforce are before the union present a policy. >> if that is convincing the union can convince teachers to join a union. >> in california the overwhelming majority of teachers are in the union and that the latest mall percentage that have opted not to. i would go further in saying what we are talking about our range of services in a service fee for the state law that

provides for the exclusive representative to be the union when that is voted for by a majority of workers. this court's cases have distinguished between citizen speech where it is free to speak publicly about the position and employment speech where the court's cases have been extraordinarily deferential to the government in upholding restrictions on what each employees may make. >> philosophically a few years pickering in this case, you are committing the error of compensation. you are comparing a whole group of persons who have their views call were store compelled against one person. it is just inapplicable. >> justice canady, it is fair to suppose that the established relationship with this workers and where to get input is

necessarily going to be dealt with unless it comes up with a reasonable system of management to get those whose collected and how they represented by an exclusive representative. that is the basic trade-off recognized. because different states have chosen based on their culture come experiences in the private sector to come up with different results and here i would say wisconsin and michigan recently adopted alterations to their public management sector establish this point. on one hand the legislature in wisconsin decided we will do away with agency fees for schoolteachers and government workers but we are going to keep it for public safety officers. police officers, firefighters because we determine the legislative interest in having agency fees. the firefighters and the case explains they don't have safety regulations for firefighters.

a lot of regulations and upcoming through the collective bargaining process for firefighters worked out negotiated rules to establish what is a safe way to fight a fire. >> all of that would still survive if the petitioners are male unless your basic argument that if you do away with agency fees come at the unions are going to collapse and not be in a position to negotiate safety requirements. >> the necessity standard has never been the standard as employer or proprietor. it's always the case you would judge the agent the government decision on the basis of what is appropriate or reasonable. if you look at it from that standard, with the firefighters are saying here is that it's is actually essential to have agency fees because they use these to benefit workers in the unit through additional equipment the county may not afford, additional training than they are called upon to fight a

fire -- >> i'm sorry, they get additional equipment the county -- >> that is right. union members and nonmembers of the union in the unit are putting their money together through the agency process so that the union misapplying -- >> that is the question that raised an issue we heard before. your last colleague mentioned this. california needs this rule that it has because it wants on the other side of the bargaining table a coherent group of people to negotiate for the workers on wages, hours, working conditions, is better. the chief justice said i can understand the argument is the alternative is the union is destroyed because then there is nobody. you say the argument is a good argument because they will buy trucks and some other things.

is there anything else that backs up the argument? i would like you to ask lane. >> estate briefs in brief sin city briefs in this court know what happened when the agency fee process didn't occur. in new york city, for example, strikes were occurring all the time until an agency fee system was put into place and not enable the city to better deliver services and the like. you have the positive story -- >> i don't understand it. why would agency fees enable the city to do things they couldn't do before? >> it enables the workers to know they make a shared sacrifice for the purpose of working together to us that such a coherent position with their employer. >> that doesn't mean anything. you have the union bargaining in the city says no and you are saying if there are enforced fees to the union, the city will

say yes? i see no connection. what they given a bargaining and whether you have the seeds. >> all he can report on in the absence of the factual record because this is basically about the the challenges wedding is in the amicus briefs in cities, states, school districts, hospitals that are management side has supported agent defeat because they find it to be a more workable system by having employees buy into the policies been established for the collective bargaining process. >> it sounds to me or argument cut the exact opposite way. the problem before us is whether individuals can be compelled to support political views that they disagree with. you say the reason they should be able to us because if they do those political views will prevail. they are proposed to particular finding. that's why they don't want to join the union.

you should force them because the union will prevail contrary to the employee's fears. >> no, what i say mr. chief justice of the state can make rational regional judge than that for their workability, they can have an agency key process and recognize the federal interest at stake here for different states have different variances and misses an is an opportunity for the state to draw upon those distinctive experiences and coming up with a system that is fair. >> you did not for this. you did say you wanted to make a record. if you have the opportunity to develop a record, what would you put in it? >> the first thing would in a response to justice kennedy's question that publicly she's happy with the position the

union is taking unpaid. it would be anomalous to decide a case of this with the lead plaintiff who says she agrees with possessions. >> you think you can find one employee who doesn't? >> no, i think that is the point. there are undoubtedly issues than 100 page collective bargaining agreement in which reasonable people can say we don't like what the bargain got struck. the point here is government workability and assessing -- >> obviously one thing that is, as i know you are right on this. the taylor law with the mass. it was strike after strike. what you would like to show is that approach compared to the assessment of wage hour and working conditions related fees that the latter makes an improvement in the coherence of

the union's position and therefore will be fewer strikes or something like that is what you are arguing and i would guess people would've written articles about that now and if that is so. >> i guess the question is are you going to decide a case of this constitutional significance on the basis of the hypothesis. >> do you want to put information in the record on that point? >> that is one of many points. >> i suppose mr. friedrichs, we could assume that estate is always benefited and is more efficient if it can suppress speech. >> your decision, justice kennedy allowed first impression a speech by the prosecutor. >> i was in the work place. they didn't apply to the protection of underperforming

teachers. it didn't apply to classroom size. >> those are all classic workplace situations. >> can we go back to the issue of burden? there are a lot of assumptions underlying your adversaries position, a whole set of questions. can the union survive? i have about 10 of them. is it necessary? your adversary said you bear the burden. this is an overturning of the decision. >> that is correct. >> what burden do you have bars to your adversary who has to show no reliance interest that the foundation is wrong, et cetera? >> we submit given the four decade history they have the burden to demonstrate the way it

has worked would be unworkable if that were to be sustained. back to your point, i appreciate the prosecutor's memo might be viewed in your eyes is for a speech where he teachers position about what size the cluster might eat may not seem the same way but from the government respect dave, you have to assess the basis of the reasonableness of the system -- >> there you are again talking about a whole class of persons whose speech has been violence. not just one person. big difference. >> there is speeches in silence. they pay a service fee zone exclusive representatives can represent their health and worker benefits, mileage reimbursed that, teacher transfer policy. questions about how long their duty rates are during the course of the day. these are all relatively mundane point. i think you would agree with me.

there is nothing in the agency process that suppress the ability of teachers to speak out publicly and even within the process. the lot fell to last for merit pay to be a subject of bargaining is the minority of the teachers can turn the majority this is a position -- >> i think we are dealing with insensitive and important part additional issues. what is the burden weighs against those of requiring opt-in is supposed to opt-out. at least then you ensure people are making a conscious decision about supporting the union before they're able to do that. >> the second question presented the decision not to be affirmed because they correctly recognized here where there is basically no burden on the person who wanted to opt-out bout was a core question.

>> would you say it's easy to check a box? it's also easy to check a box saint opt-in. >> it is in a system where the overwhelming majority, what do 90% of people are paying fees, even non-chargeable fees under the letter to support political activities. it is administratively easier to count his dollar number. the question is whether the suppression is to rise to the level of compulsion. where there is a one-page check box they can send it in. they are able in every position on the other side has successfully opted out of hating those. the burden is on them to show they have made an unreasonable choice as to the kind of -- >> opt-out is not always says he's yes you say. one of our prior cases that anybody you want to opt-out has to send a certified letter in a certain period of time.

somebody says i don't want to pay this year. i never want to pay. what is the justification to opt-out every single year? >> let me just say the professional opt-out is not an issue in this case and they might very well be an acceptable way to say i want to opt-out until further notice. if it were to be argued, there's reasons that might be appropriate. having it in your process follows a decision and chargeable are not chargeable. it allows more flexibility. >> thank you, counsel.

>> general verrilli. >> mr. chief justice, may it please the court. let me discuss why should be referred. in the first decades it has been a lot committed jurisprudence in the area of employment relations, first manager is prudence has converged in a way that fortifies its foundations and is foundations and does not erode them. but those cases are recognized in the government is acting as employer managing the work force, he should receive reasonableness review to give it the latitude comparable to the private employer to manage its workforce and not scrutiny that applies in government is a sovereign regulated to defend. second, in the four decades, more than 20 states have enacted and enforced laws that allowed the republican employers to have

the same latitude that congress gave added employers to decide based on work please needs in local conditions weather agency fee requirements will help them achieve purposes for which they adopt collective bargaining and reliance goes far deeper than the 20 state laws and thousands of contract better based on those laws. in those states, the agency fee requirement has worked his way, woven its way into the fabric of relationship between workers and management in the public sphere. in those states, unions have taken on such obligation as training and the like funded by agency fees to make the work is more effective for management as well as more effective for employees. if you were to take those away, you will disrupt those relationships over time and you will replace them with a different situation in which the union will have a different set of incentives trying to ensure

that the maximum number of people are willing to pay union fees and the way they are likely to do that mr. trying to convince employees that they need the union because otherwise management is going to do them harm. i think that is a significant problem for public employer person active now in the time of budgetary constraints are difficult decisions have to be made and cuts have to be made. it is of great benefit to the government as an employer to have the union participate in those judgments that they are perceived as fair by the workforce in the union in effect pouches for management with the work force and prevents disruption. i think they go very deep here. the third point i would make is we are talking about over rolling a 40 years standing. there needs to be a showing of changed circumstances it means to me. with respect to the question of

the role of the agency fee, the way they play in the process i think it's quite important. this ghost will point you raised, just as scalia, no case of the boot has ever said agency fees are necessary to union survival. when abboud ruled as it did, it had hardly been on the books for decades and so with respect to the dirt, what congress had that with respect to the tourist employees -- employers get to decide whether the agency fee will help them achieve their work-based goals and what the court said was public employers ought to have the same choice to respond to workplace needs. >> the fact of boot has been around for 40 years, does it affect your point at all but made just vacation that is being advanced today is one they did not adopt?

the justification of what i hear most prominently in the presentations and get abboud did not even think the decree. >> i respectfully disagree as a technical matter. they were our green pickering. >> in terms of the substantive analysis. it can't seriously be called a pickering case. >> now, but what i said at the out that mr. chief justice is the key point that the courts first amendment law in the public employment context has overtime converged in that the cases generally have recognized the entries that if government were acting as sovereign citizenry with the size. >> pickering is the heart of your argument. i want to ask you a couple questions about it. is it different from the situation here in several

respects? one was brought out. the pickering cases involve determination that the discipline of public employee after a single employee after the employee has made a statement to which the employer objects. this is a good rule that applies to a huge category of employees. the second is whether restrictions on what employees can say are the same as telling an employee to make a statement for subsidizing. >> as to the latter, there are circumstances in which the department of justice could terminate or taken an adverse employment action against the doj employee for something that employees says on a question of public concern. that could be done, could it

not? are there any circumstances in which the department of justice could compel an employee to make a statement as a private citizen russian marks! that goes right to the difference between government acting as employer, managing the work place in government act in the latter situation. the court case was say that is not government in the workplace. that is leveraging its control of the employee acting as sovereign and that is scrutiny. that is the key. we are not asking it applies to its own terms. it's an insight that under this abboud and frankly the affiliation cases as well. if elected those, what they say contrary to what my friends say is when government can show the political affiliation is a reasonable requirement for the effective performance of the job

in question that the requirement can be upheld. that is not exacting scrutiny. in every case winds up a gun on the access here that is the key point about pickering. i want to address a couple other points. >> when a union is bargaining about a matter of public concern, you are saying that is not the same as commenting on a matter of public concern? what i am saying is that occurs in the context of the collective bargaining relationship which is -- has to be subject to a different set of constitutional standards. with respect to collective bargaining, there is a specialized channel of communication the government sets up. the government controls who can speak, when it will occur and what topics can be discussed. >> nobody denies that. the problem is it is not the same as a private employer, that

what is bargained for is in all cases a matter of public interest and that changes -- that changes the situation in a way that may require a change of the rule. it is one thing to provide private employers. it's another thing to provide for the government were every matter bargained for as a matter of public interest. >> i guess what i was saying is when i've read this course is saying in the employee speech context and the petitioning context and the political affiliation context is that it's not wholly free of first amendment hurt me, the recognizing the interest employer and prerogative as employer it is not the exacting scrutiny that applies with governments regulating. >> you may know the case in which any government as employer

is most likely to want to control what the employees says and where he has the right to do that is likely to be a case that involves the diffusion's job i.e. the public interest. >> certainly. that is why i think there was no doubt the speech was on a matter of public concern. i could've said the same thing and any number of cases. that is not the distinction drawn. between government acting as employer managing workforce, government acting as sovereign regulating citizenry. that distinction applies with people here and especially given the consideration. >> we will leave this as the senate is about to coming today. general speeches and 12 nursing eastern when they will break for party lunches. they will be back for 2:15 to

wrap up debate and then onto a procedural vote on a bill that bars syria and iraqi refugees until background checks have determined they are not a threat to national security. the house did pass the bill in december. the white house says it opposes the measure. now for live coverage on the senate here on c-span2. the chaplain dr. barry black will lead the senate in prayer. the chaplain: let us pray. eternal spirit, who has set our fragile years in the heart of your eternity, we find gladness and peace under the shadow of your wings. today, provide our lawmakers with wisdom to embrace the right priorities. may they strive to sacrifice