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Straight Up Conversation: Nat Malkus on What’s Next for Teachers’ Unions After Janus

By Rick Hess — July 12, 2018 7 min read
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My friend and colleague Nat Malkus has been tracking the implications of the Janus v. AFSCME Supreme Court decision for quite a while. Given that, I was curious to hear his take on the case, what’s gotten missed amid the frenzied aftermath, and what comes next. Here’s what he had to say.

Rick Hess: Nat, the Janus case obviously has garnered a lot of attention, but, for those who may not have followed it closely, why was the case important?

Nat Malkus: Sure thing, Rick. Janus was important because it brought to the Supreme Court a constitutional question—whether unions can charge agency fees, or partial dues, to non-members. It had all the ingredients for an interesting legal argument—a longstanding precedent, a constitutional claim, and a divided court—but the real buzz came because without agency fees, unions stand to lose a lot of members in the states where they are strongest.

RH: Can you explain the basics to someone who isn’t entirely clear on just what the constitutional issue is?

NM: State and local governments want to negotiate one contract for a group of employees—such as teachers—because one contract is simple and it saves time. So they bargain with a single “exclusive representative,” typically a union, through collective bargaining. Of course, employees aren’t forced to join the union, but in some states those who chose not to join were still required to pay agency fees. The Janus case focused on these agency fees, which are basically partial dues some states compel non-members to pay public-sector unions for contract representation. The Supreme Court’s 1977 Abood precedent allowed these fees—though they are not allowed to include political activities—to prevent employees from “free-riding,” or getting representation for nothing. Mark Janus argued that Abood was unconstitutional, and that mandatory agency fees forced him to subsidize a union that he disagrees with. More to the point, he argued that union bargaining itself was political speech, meaning agency fees violated non-members’ First Amendment rights of free speech and association.

RH: Given all that, is there anything that a lot folks may have missed in the fevered early coverage of the decision?

NM: In all the hype about the crippling blow to unions, it’s worth highlighting that this ruling will hit unions hard, but primarily in the 22 states that, until recently, allowed agency fees. These agency fees have kept union membership high in these states. For instance, about 45 percent of teachers work in agency-fee states, and the nation’s largest teachers’ union, the National Education Association, has almost 70 percent of its active members in these states. Janus will have a direct impact on these union stronghold states.

RH: You mentioned that 22 states had agency fees. What happens in the other 28?

NM: Janus won’t directly impact them, but its indirect effects could be significant. All state affiliates get grants from NEA headquarters, but grants to states without agency fees have been much larger—as much as 30 percent of some state affiliates’ budgets. Essentially, NEA grants take funds from strong, agency-fee states to prop up weaker ones. If Janus brings major cuts to stronger union states, grant support for weaker states will dry up quickly.

RH: What about individuals? What does Janus mean for them?

NM: For individuals, agency fees matter because they change the costs of union membership. Take a teacher in California, where California Teachers Association dues run about $1,000 a year, while agency fees were around $650. The real cost of membership was $350—the difference between full union dues and the agency fees they had to pay. With Janus doing away with the fees, the real cost of membership jumps to the full price of dues, $1,000 a year, instead of $350. New teachers face a much higher price to join, and existing teachers could save real money by leaving the union.

RH: Do you think the Supreme Court got this one right?

NM: You don’t have to be a constitutional scholar to see that agency fees were compelled. The question is whether you can separate unions’ bargaining from their political activity. Bargaining certainly involves political decision making, so I am sympathetic with the ruling that fees are compelled speech. I can see disagreement around the decision, but I think it was right. That doesn’t mean the result is balanced—it’s a major loss for unions.

RH: Are there any important wrinkles to the decision that a lot of people don’t necessarily yet appreciate or understand?

NM: Everyone was expecting this verdict, but there is an unexpected part of Justice Alito’s opinion that takes it further. The opinion requires that unions get affirmative consent before any fees are deducted from an employee’s paycheck. Now that unions have to get active assent, they are limited in what they can do to stem the bleeding moving forward. This opt-in provision supercharges the effects of Janus.

RH: What did you think of Justice Kagan’s dissent in Janus? Were there points that you found especially compelling, surprising, or less convincing?

NM: It was, like the majority opinion, mostly what I had expected, a vigorous dissent in favor of stare decisis—retaining precedent—and a focus on how disruptive the ruling would be. I was struck by how Kagan focused less on the First Amendment issues and more on the “large-scale consequences” of the ruling. The scale cannot be denied, but it seems like a weak rebuttal to a First Amendment argument. She also painted the majority as activist judges, saying that they are unilaterally overriding citizens’ choices. I found that ironic, given that individual choices to support unions or not remain fundamental to the majority opinion.

RH: Looking ahead, what’s your take on what the verdict is likely to mean for elections, debates over school choice, and other areas where unions have been influential?

NM: It weakens a key ally for Democrats, which is a liability in terms of reduced revenue and boots on the ground, but it also opens some flexibility for them to stray from union positions. In the long run, if unions face significant losses, it could be reflected in blue-state elections, but more so in the primary rather than general election phases. Teachers’ unions are particularly active and organized in blue states, and that means controlling who gets on the Democratic ticket. Where union influence recedes, Democrats who diverge from union priorities, education-related or not, may get more traction in the primaries, after which they face favorable odds in the general election. School choice may be too much of a hot-button identity issue to move quickly. In the short-run, I think today’s identity politics are linked firmly enough to school choice that the politics won’t shift dramatically.

RH: And what’s this mean for the unions themselves? How should we expect them to change, if at all?

NM: That’s the big question. They will shrink, substantially, which means they will have to do more to keep membership high, and do it with less revenue. Still, the reactions will vary with contexts. Some affiliates will double down on their traditional identities, appealing to their base and seeking protection from allied state legislatures. That track may resign them to losing their least-committed members—those who stayed only because of the fees. One alternative for unions may be to create a bigger tent by deemphasizing more remote political concerns and refocusing their message on local teachers’ priority issues. With the heightened price of membership, unions that can make a clear value proposition to teachers by being locked-in to local concerns—to be truly bottom-up organizations—may hold up better, particularly in purple states. In either case, affiliates that shrink could see a resurgence in membership if states and districts seek to pare down pay and benefits over time, giving unions salient issues to recruit around.

Any of those cases could be good for teachers because they need representatives that represent them well, and Janus could push unions to do that. Of course, some local unions will shrink to the point that they are unable to adequately represent teachers; where that happens, teachers and unions could be on the losing end of this decision.

RH: Last question: What do you think NEA and AFT membership will look like five years from now?

NM: It’s hard to say, but over the next two years, the NEA projected ten-percent losses and the United Federation of Teachers predicted 20- to 30-percent declines. Both predictions came before they knew the opt-out aspect of Janus. Five years out, I think nationwide declines will approach 40 percent, mainly from agency-fee states, but with a secondary effect on non-agency fee states that will lose headquarters’ support. But it’s anyone’s guess, and I am collecting them with a widget we set up at AEI.org, which can give us a wisdom-of-crowds estimate. We will not only record predictions, but email folks years down the line to tell them how close they were. I hope your readers will pitch in with their predictions and give us a group guess at the answer to that question.

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