As expected, the U.S. Supreme Court on Wednesday ruled in favor of an Illinois child support specialist who says he should not have to pay fees to a union he didn’t join. But the teachers' and other public employee unions responded that they will continue to "remain a strong and vibrant force for working people."
In a 5-4 decision, Justice Samuel Alito wrote for the majority in Janus v. American Federation of State, County and Municipal Employees (AFSCME) that "States and public-sector unions may no longer extract agency fees from nonconsenting employees. The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to support the union before anything is taken from them."
He was joined in the opinion by Justices John G. Roberts, Jr., Clarence Thomas, Anthony M. Kennedy and Neil M. Gorsuch. Justice Sonia Sotomayor filed a dissenting opinion, saying that the court is using the First Amendment "in an aggressive way." And Justice Elena Kagan also dissented, saying that the decision "will have large-scale consequences" and that the First Amendment was "meant not to undermine but to protect democratic governance — including over the role of public-sector unions." She was joined by Justices Ruth Bader Ginsberg, Stephen G. Breyer and Sotomayor.
In the case, argued Feb. 26, Mark Janus claimed that being required to pay the fees is a violation of his First Amendment rights because the fees support the union's position on various policies. “The union voice is not my voice. The union's fight is not my fight,” he wrote in this 2016 op-ed.
Teachers unions react
Teachers unions have been bracing for defeat for months and arguing that Janus is just the public face of an effort financed by conservative foundations to weaken the unions. The decision directly affects the 22 states where the fees were collected, but union leaders have said it would likely have a broader impact.
“The dissenting justices saw this case for what it really was — a warping and weaponizing of the First Amendment, absent any evidence or reason, to hurt working people,” Randi Weingarten, president of the American Federation of Teachers, said as part of a joint statement along with the NEA, AFSME and the Service Employees International Union.
In the joint statement, the unions called the decision "a rallying point" and asked lawmakers to respond with legislation that would make it easier for employees to unionize.
Last month in Los Angeles, Lily Eskelsen García, president of the National Education Association (NEA), said that a decision in favor of Janus would mean unions would be left with less money to do the same work, including negotiating contracts for all teachers — whether or not they are union members — and defending teachers involved in conflicts with management.
The three million-member NEA — the largest union in the nation — has been working hard to communicate to members what the union does for them, she told journalists at the annual meeting of the Education Writers Association (EWA).
“We’re not going anywhere, but it is going to be difficult,” she said. She described the case as much more than an effort to stop agency fees, calling it an effort "to get our members to drop their membership" and "keep the megaphone as small as possible."
While the recent spate of teacher walkouts has not occurred in states with collective bargaining laws, Ed Allen, president of the Oklahoma City American Federation of Teachers, said at the EWA meeting that the walkout in his state lead to an increase in membership and that the Janus decision could bolster organizing efforts in the states.
Union leaders say they are also seeing an increase in members running for office — and winning. A Kentucky math teacher, for example, defeated a top Republican legislator in a May primary, and 11 other current or former educators in that state advanced to the general election, according to NPR.
Advocates for unions were also ready this week with advice on how policymakers can strengthen the position of public employee unions in their states. The Center for American Progress (CAP) was preparing a report suggesting actions such as requiring newly hired public employees to learn about union membership. A CAP statement on the decision said, "Replicating existing policies that support public sector organizing rights and thinking boldly about new models to support union workers will help ensure greater equality, higher wages, and stronger communities."
But those types of policies are exactly what will keep William Messenger, a staff attorney for the National Right to Work Legal Defense Foundation, busy now that the Janus case is decided, he told attendees at the EWA meeting. Some states, he added, also have “revocation windows” — limited time periods during which members can request to have the fees removed.
In a statement on the organization's website, Janus said, "Across the country, so many of us have been forced to pay for political speech and policy positions with which we disagree, just so we can keep our jobs. This is a victory for all of us. The right to say ‘no’ to a union is just as important as the right to say ‘yes.’ Finally our rights have been restored.”
The fees that were the subject of the argument have been upheld since the Supreme Court ruled in 1997, in Abood v. Detroit Board of Education, that public sector unions could receive financial support for their collective bargaining efforts by collecting fees from nonunion members.
The unions have maintained that all employees benefit from the contracts that teachers unions negotiate with school districts. And in an op-ed in the The Washington Post, AFT Weingarten and Evan Stone of Educators for Excellence, which doesn't always agree with the unions, expressed common ground, saying that "students perform better where teachers are more fairly compensated, because higher salaries attract more-qualified people to the profession and help keep them in the classroom.”
In 2010, a home healthcare worker sued then-Illinois Gov. Pat Quinn over agency fees, but the Supreme Court decided that such workers are not actually public employees and that the precedent set by the Abood case, therefore, did not apply.
Then in 2014, Rebecca Friedrichs (Friedrichs v. California Teachers Association), along with nine other California teachers, sued the California Teachers Association over agency fees. The case made it to the Supreme Court, which heard oral arguments in early 2016. Observers predicted the justices would overturn the Abood decision. But then-Justice Antonin Scalia, who was expected to rule for Friedrichs, died in February of that year, and the court ultimately issued a 4-4 decision. That even split meant the door was still open for another challenge against agency fees. In the Janus decision, Gorsuch voted the way Scalia was expected to in the Friedrichs case.
Meanwhile, a federal appeals court in California on June 11 threw out Bain v. California Teachers Association, a similar case in which the plaintiffs argued that while they wanted to remain union members, they didn’t want their fees to support the union’s political activities. The case was determined to be irrelevant because the plaintiffs are no longer teachers or union members.
Some union leaders in recent months have emphasized their role in pushing for school improvements in collaboration with district leaders. Last fall, the Teacher Union Reform Network, a coalition of teachers and union leaders, issued a report about its priorities and past work, such as supporting struggling teachers and implementing standards-based curriculum.
What happens next?
The 22 states where the fees were collected will now have to "figure out what to do with their collective bargaining laws," which will take some time because the laws are written differently, Julia Koppich, a consultant and researcher who studies teachers’ unions, said in an interview. She added, however, that removing the fees won't affect the rest of a current contract between a district and a union.
At the district level, unions could lose members, especially if teachers weren't happy with their representation to begin with, and that the decision might "require those unions that have been less relevant, to make themselves more relevant." Districts with good labor-management relationships, however, "will want as little to change as possible," she said.
Koppich predicted that the decision will have little impact on the states where the fees were not collected, and in fact that the unions in the 22 states might learn how to engage new members. At the EWA meeting, she said teachers unions should take “a fresh look at what their current members want."
Finally, she agreed that down the road, if unions are less able to negotiate strong contracts, the decision could affect districts' ability to recruit and retain teachers. "Why would you go to a district that has terrible wages and terrible working conditions?" she asked. "Or why would you stay?"