Months after the U.S. Supreme Court dealt a hefty blow to teachers’ unions, a rash of new lawsuits has emerged that could further damage these labor groups.
Across the country, teachers’ unions are facing more than a dozen legal challenges from two major right-leaning sources in the wake of the Janus v. American Federation of State, County, and Municipal Employees Council 31 decision, which ended public-sector unions’ ability to collect agency, or fair share, fees. Those fees were charged to workers in some states who chose not to become full members of their unions. They were meant to cover the cost of collective bargaining.
The decision, issued in June, is expected to significantly dent teachers’ unions’ treasuries and membership numbers. (The extent of the fallout is still to be determined.) But as it turns out, that lawsuit was only the beginning of the unions’ struggles.
There are two main strands to this new wave of anti-union lawsuits: 1) challenges to time-limited windows during which teachers can opt out of membership payroll deductions, and 2) pushes for teachers to be reimbursed for the agency fees they paid before the Janus decision.
“Everybody knows where the end of this litigation road is, which is the Supreme Court,” said Sharon Block, the executive director of the Labor and Worklife Program at Harvard Law School. “Janus is sadly not the end of the road. This road just got a lot harder.”
There are even a few cases arguing that unions should not act as the sole representative for all workers in a bargaining unit if some workers do not want to be union members. Currently, unions bargain on behalf of all teachers in a district, regardless of whether teachers choose to be members.
This multipronged legal campaign is not unexpected, experts say.
“The Janus decision still left much up for individual states to interpret and decide,” said Bradley Marianno, an assistant professor of educational policy and leadership at the University of Nevada, Las Vegas. “We’re seeing states and courts try to navigate how to implement the different aspects of the Janus decision right now.”
One of the most prolific sources of litigation against teachers’ unions has been Jonathan F. Mitchell, a conservative attorney who was tapped by President Donald Trump to head the Administrative Conference of the United States, a nonpartisan agency charged with improving government processes and procedures. The Senate has yet to confirm Mitchell’s nomination.
This year, Mitchell has filed at least nine federal class-action lawsuits against teachers’ unions, including in California, Maryland, Minnesota, Ohio, and Pennsylvania. He’s also filed several similar lawsuits against other public-sector unions. Mitchell did not respond to a request for comment.
And in a separate legal campaign, the National Right to Work Legal Defense Foundation is supporting several additional lawsuits against teachers’ unions, with more expected soon.
“These suits are part of a larger, coordinated effort by the right wing do two things,” said Randi Weingarten, the president of the American Federation of Teachers, in a provided statement. “They want unions to spend the time and money to defend them so they can defund and distract us, and they want these cases to get to the Supreme Court, now that [Brett] Kavanaugh and [Neil] Gorsuch are seated, to further erode workers’ rights.”
Should Unions Refund Fees?
So far, the bulk of the cases center around the question of whether teachers who were obligated to pay fees to the unions in the past should have that money repaid to them.
Those teachers are “entitled to their money back,” said Patrick Semmens, a spokesman for the National Right to Work Foundation. The Supreme Court had ruled that the collection of agency fees violated teachers’ First Amendment rights, because they were essentially paying a union whose policies and actions they might not support.
Semmens added that Justice Samuel Alito wrote in his decision in the Janus case that unions have been “on notice for years” about the Supreme Court’s misgivings toward agency fees. In 2012, the Supreme Court described the practice as a First Amendment “anomaly.”
“They knew there was a risk when they continued taking dues after [the 2012 case],” Semmens said.
Under the statute of limitations in most states, teachers could potentially get up to two years of agency fees paid back, Semmens said—putting millions of dollars at stake for the unions. But for their part, the unions have consistently rebuked the validity of these claims.
“We believe we will be successful in defending a proposition that when someone acts in good faith based on existing law to collect fees as the unions did, ... there is not liability,” said Alice O’Brien, the general counsel for the National Education Association.
Some of the lawsuits that Mitchell filed also create a new class of plaintiffs: teachers who say they joined the unions because they felt like they had little choice. Had they not been required to pay agency fees, which often cost nearly as much as a full membership, they would not have become members, they argue. Those teachers are seeking restitution in the amount of the agency fees they paid, whether they retained or resigned their union membership.
For example, in a lawsuit filed against Education Minnesota, plaintiff Deborah York, a now-retired teacher, chose to remain a member of the union even though she opposed its collective-bargaining activities and political and ideological advocacy, “because resigning her membership would have saved very little money and would not have been worth the cost of losing her vote and whatever little influence she might have in collective-bargaining matters,” the suit read.
But unions, including Education Minnesota, maintain that teachers always had a choice whether to belong to the union or just pay agency fees.
“I don’t think the law runs backwards in that way,” O’Brien said. “I think the law holds people to the choices they made at the time they made them.”
‘Hotel California’ Agreements
Another thread of litigation is a challenge to unions’ opt-out, or drop, windows. In many places, teachers’ union dues are deducted from employees’ paychecks. Some unions only allow teachers to stop the payroll deduction during a certain date range in the year. That means teachers could decide they want to leave the union, but have to keep paying membership dues for months until the drop window rolls around. The drop window varies in duration, but can be as short as a few days.
There are at least two separate lawsuits—in New Jersey and Washington state—challenging these opt-out windows. (Those suits are against public-sector unions, but not specifically teachers’ unions.) Some of Mitchell’s lawsuits also incorporate this complaint. And Semmens said there will likely be more litigation to come.
“You have a right not to be a union member, and the second you’re no longer a formal union member, then any money taken from you violates your constitutional rights,” he said.
In the case against Education Minnesota, the plaintiffs are asking the court to order the union to “immediately honor and enforce” a teacher’s decision to withdraw payment, regardless of the time of year that decision is made. Douglas Seaton, an attorney who is Mitchell’s co-counsel in the Minnesota case, called the seven-day window akin to “Hotel California-style agreements.”
In a provided statement, Education Minnesota President Denise Specht said the opt-out windows are “valid and reasonable,” likening them to enrollment windows for health-care plans.
“Drop windows prevent someone from joining the union only long enough to vote on a contract or to obtain a member-only benefit, including our popular relicensure classes, before canceling their membership,” she said. “Drop windows also give our union predictability in our finances so we can provide services to members based on an annual budget, just like any other organization.”
A Long, Hard Road for Unions
Even if the unions ultimately triumph in these legal challenges, it will be a long, expensive battle to fight them in court. And the loss of agency fees—and an expected loss of members, now that it’s easier to cut ties with the union—has already hit teachers’ unions’ coffers. The National Education Association’s 2018-20 budget includes a $50 million reduction.
However, the NEA’s budget, which passed this summer, also invested more money into the union’s legal fund to defend against these kinds of legal attacks. Union leaders themselves expect the post-Janus litigation to eventually reach the nation’s highest court.
If so, the case will be heard by a mostly conservative bench, which includes the newest justice, Brett Kavanaugh. Union leaders had fought bitterly against Kavanaugh’s nomination, in part because of his record on labor cases. Harvard’s Block said he has been “hostile to the interests of workers” in the past.
In the meantime, the University of Nevada’s Marianno said unions will have to double down on attracting and retaining dues-paying members. That will likely be through an increased emphasis on teacher voice, he said, which could include more labor unrest. There were six widescale teacher walkouts and protests in the spring, and already this school year, there was a series of teacher strikes in Washington state. Teachers in the nation’s second-largest district, Los Angeles Unified, could soon strike, too.
Indeed, AFT’s Weingarten warned that the parties filing the cases should “be careful what [they wish] for.”
“Where once labor questions were resolved at the bargaining table, cases like these, if successful, make it far more likely they’ll be fought in statehouses and the streets,” she said. “They will make unions more political, not less.”
A version of this article appeared in the October 24, 2018 edition of Education Week as Teachers’ Unions Facing New Round Of Legal Battles