The U.S. Supreme Court is poised to deliver a major blow to teachers’ unions in the coming months: Teachers in about half of states may no longer have to pay mandatory fees if they’re not union members, which could cause drops in both revenue and membership.
There’s national speculation about what this all could mean—while observers say this case won’t be unions’ demise, it could cause the political juggernauts to lose some power. And some teachers are wondering whether this will signal a shift in how teachers’ unions operate.
At stake in Janus v. American Federation of State, County, and Municipal Employees Council 31 are the so-called “agency” or “fair-share” fees that public-employee unions in 22 states charge to workers who choose not to join but are still represented in collective bargaining. The plaintiff in the case argues that these policies violate free speech—he is forced to pay money to a group that advocates for causes he does not support. The unions say all workers gain from the bargaining they do for salaries and other benefits, so paying a fee for that is only fair.
The case, for which oral arguments will be delivered later this month, would affect all public-employee unions, including the American Federation of Teachers, the National Education Association, and their state and local affiliates. With the confirmation of President Donald Trump’s nominee, Neil M. Gorsuch, to the Supreme Court, many analysts, onlookers, and some union representatives themselves predict that the justices will rule in Janus’ favor.
Parties Gird for Supreme Court Showdown Over Union Fees
If that happens, teachers’ unions could see a decrease in membership over the next few years, analysts say. That’s because many who pay agency fees decide to simply kick in the extra dollars to become full members. The unions would also lose the revenues generated by those agency fees, which could result in a reduction of union staff members. The NEA has about 88,000 agency fee payers, while the AFT has about 94,000—small percentages of the total number of teachers they represent.
“We should expect to see unions lose some of their sway in policymaking,” said Katharine Strunk, a professor of education policy at Michigan State University. “If we feel like the union power really is associated with resources and funds, ... you might expect to see that unions are less able to put up a fight, and we’d see more of these policies [that they have been advocating for, including around tenure and teacher evaluations] flip.”
For Randi Weingarten, the AFT president, the case is an ideological attempt to minimize—even eviscerate—the impact teachers’ unions have.
Union opposers “have no interest in helping school teachers,” she said. “They just want to deplete our membership.”
Still, any significant membership changes might take several years to materialize, said Mike Antonucci, a frequent union critic and the director of the Education Intelligence Agency, a private research firm that specializes in education labor issues.
He thinks some of the more immediate effects might be for the states that don’t have agency fees, because they rely heavily on subsidies from the national unions. “If those subsidies get reduced, and they’re on the edge already—how do they continue to operate?” he asked.
Yet onlookers caution that an unfavorable ruling would be a shock to the system for unions, not a death knell.
“Could this put teachers’ unions out of business? No. Not close,” said Charles Taylor Kerchner, a professor emeritus and senior research fellow of educational studies at Claremont Graduate University in California. “Unions can go to grass roots and get back to constant organizing fairly quickly. It might drive unions to get closer to their core, to get closer to their members, and to be sort of more in touch with what’s going on.”
Knocking on Doors
Indeed, teachers’ unions in agency-fee states have already started recruiting educators to become full members and retain their memberships regardless of the Supreme Court ruling.
“When people get that this is a ‘Whose side are you on?’ moment, and what the proponents of this case are trying to do, they get really, really mad,” Weingarten said, adding that local affiliate leaders have been having one-on-one conversations with members.
In Minnesota, more than 1,200 fair-share fee payers have become full members since September, when Education Minnesota launched a campaign to inform teachers about the effects of Janus, said Denise Specht, the union’s president. Most of those teachers, she said, didn’t realize they weren’t full members.
And in New York City, union representatives from the United Federation of Teachers have been knocking on the doors of thousands of teachers across the city for months to talk to them about what Janus means, and to urge them to recommit to the union.
“It’s really about educating our members—every benefit and right we have, we have fought for, we protect, we have earned,” said Michael Mulgrew, the UFT president. “If [the Supreme Court ruling] doesn’t go in our favor, then we know that we will be targeted by others giving misinformation to our union.”
Currently, 1 percent of teachers in the UFT’s bargaining unit are agency-fee payers rather than full members. Mulgrew hopes to get that number down to below 0.5 percent.
John Troutman McCrann, a high school math teacher in New York City, who is also the leader of the union chapter for his school, has been working to engage teachers to make sure they feel represented by their union. His fear is that if educators don’t have to pay agency fees, many teachers would become free riders.
“We’re not going to have some classes with 40 students and some classes with 33,” McCrann said. “Folks who don’t pay union dues are going to get the benefits of what we’ve been working for.”
In California, 10 percent of teachers are agency-fee payers, said Eric Heins, the president of the California Teachers Association.
In conversations, representatives of local affiliates have learned that some of those teachers hadn’t joined because they didn’t know what the union did, Heins said.
“It’s a good wake-up call, when you have threats like this, to refocus,” Heins said.
When Lily Eskelsen-García, the NEA president, was a teacher in Utah, her school’s union meetings were open to members and non-members alike, she said.
“It was a chance for us to say, ‘Do you see who we are? Do you see what we’re trying to do? Do you see why you’re important?” Eskelsen-García said.
That kind of outreach, which sometimes leads people to join, needs to happen more often, she said.
Some say Janus could be an opportunity for educators to rethink what unions should look like.
“I think a lot of people don’t feel very engaged or don’t feel very integral [to] their own union,” said Kathleen Melville, a 9th grade teacher in Philadelphia who is active in her local affiliate.
She has been talking to her colleagues about the value of being a union member. “I’ve never met a teacher who said, ‘I want less in benefits or to get paid less,’” she said. “Every member we lose is power we lose at the bargaining table.”
‘Do They Represent Me? No’
A nationally representative survey of 537 teachers by the Education Week Research Center found that 14 percent of teachers said the union represents their political views “not at all.” About 20 percent said “only a little.”
Bruce Aster, a high school history teacher in Carlsbad, Calif., doesn’t feel represented at all by his union—a frustration that spurred him to sign on to an amicus brief with a half-dozen other California educators arguing on behalf of Janus.
“Golly, do [unions] represent me? No,” Aster said. “I would be content and probably welcome them representing me on pure workplace stuff.”
Instead, Aster pays around $1,100 a year in fair-share fees and receives a refund of about $400—the amount of his fees that the union would have used for non-collective bargaining activities. Even though he’s not contributing toward overtly political activities, Aster said he disagrees with much of what the union deems important, even for bargaining purposes.
Tim Erickson, a special education teacher in Detroit Lakes, Minn., doesn’t always support the unions’ politics and positions, but plans to remain a member no matter what the Supreme Court decides.
“The devil I know is better than the devil I don’t know,” he said, adding that his union has helped negotiate smaller class sizes and better working conditions. “If that union goes away, holy smokes, are we going to see drastic changes in education.”
While some teachers say they wish the unions would stay out of politics, union leaders argue education is inherently political, making it critical that they take stances on candidates and issues that affect their members.
“Politics makes a difference ... in our classrooms and our professional lives,” said Heins, the CTA president. “And to not be engaged in that would be irresponsible.”
What Comes Next?
As union leaders brace for a ruling likely to be delivered this spring, educators and analysts alike are imagining what the groups will look like, post-Janus.
“Maybe it will [inspire] union reform—or maybe people will create from within unions that truly just represent on workforce issues,” said Aster.
And Melville, the Philadelphia teacher who supports the union, said she hopes that teachers’ unions will shift to be more democratic and engage in more grass-roots activities.
Not everyone foresees unions becoming more responsive to members. “It’s very difficult for me to imagine a group of partisan Democrats saying we need to pay more attention to what Republicans are saying,” said Antonucci, the analyst, referring to the fact that union leaders tend to be liberal while members are more mixed.
Ultimately, though, teachers’ unions aren’t going anywhere, analysts say.
“Unions have always had severe ups and downs,” said Kerchner, the Claremont research fellow. “They have been counted out many, many times, and they tend to come back. People have a legitimate interest in a desire to organize around things that they care about—like their job, like some sort of sense of social justice—and unions are a pretty good vehicle for that.”
A version of this article appeared in the February 14, 2018 edition of Education Week as Will Teachers’ Unions Survive the Janus Case?