High Court Sets Feb. 26 Arguments on Future of Union Agency Fees

By Mark Walsh — December 20, 2017 2 min read

The U.S. Supreme Court has set the date for oral argument in a case critical to the future of the teachers’ unions and other public-employee labor organizations.

Argument will be Feb. 26 at 10 a.m. for Janus v. American Federation of State, County, and Municipal Employees Council 31 (Case No. 16-1466).

At issue is whether the court will overrule its 1977 decision in Abood v. Detroit Board of Education, which first authorized public-employee unions to collect so-called agency fees from those in the bargaining unit who refuse to join the union. In a number of cases in recent years, the nonunion members have challenged the fees as violating their First Amendment free speech and association rights by requiring them to support causes to which they object. (This is so even though the unions may not charge the fee-payers for political activities.)

The Janus case is scheduled for one hour of oral argument. Chief Justice John G. Roberts Jr. has extended the arguments by as much as an extra half hour in two of the biggest cases of the term, involving police searches of cellphone tower location data and a baker’s refusal to create a wedding cake for a same-sex couple. But those cases had no other case scheduled after them, while another case is set for argument immediately following the Janus case.

Besides, the chief justice probably wouldn’t see the need for extra time, given that the high court has addressed agency fees in a number of recent cases. Most recent was Friedrichs v. California Teachers Association, which ended up in a 4-4 deadlock in March 2016 following the death the previous month of Justice Antonin Scalia. The tie upheld, without setting a national precedent, lower court decisions that Abood was still the prevailing law and the unions could collect agency fees.

New Justice Neil M. Gorsuch will be the focus of the arguments in Janus. The challengers to agency fees, including Illinois child-support specialist Mark Janus, have filed their briefs, which include the support of President Donald Trump’s administration.

AFSCME, along with the teachers’ unions and their allies, are expected to mount a vigorous, last-ditch defense of the constitutionality of agency fees. AFSCME’s brief on the merits is due Jan. 12. Any friend-of-the-court briefs, including those expected from the National Education Association and the American Federation of Teachers, would be due one week after that.

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A version of this news article first appeared in The School Law Blog.

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