The U.S. Supreme Court has overruled a 41-year-old precedent and held that the teachers’ unions and other public-employee labor organizations may not collect fees for collective bargaining from workers who decline to join the union.
The justices ruled 5-4 to prohibit “agency” or “fair share” fees in Janus v. American Federation of State, County, and Municipal Employees Council 31. The justices also ruled that workers must affirmatively opt into the union before fees can be taken out of their paychecks.
“We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern,” Justice Samuel A. Alito Jr. wrote in the majority opinion.
In addition to Alito, the majority was made up of Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas, and Neil M. Gorsuch.
Gorsuch, who joined the court last year, was effectively the deciding vote after an eight-member court had deadlocked in 2016, just after the death of Justice Antonin Scalia, in Friedrichs v. California Teachers Association, which presented the same issue. Gorsuch asked no questions and thus did not tip his hand during the Feb. 26 arguments in Janus.
Besides Gorsuch, the rest of the court divided along the same lines in Janus they had in a 2014 decision, Harris v. Quinn, in which the court stopped just short of overruling Abood v. Detroit Board of Education. In that 1977 ruling, the court held that teachers who don’t wish to join the union may be required to pay agency fees as a condition of employment when those fees are used for collective-bargaining purposes.
The dissenters in Janus were Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan.
Kagan read at length from her dissent from the bench, in a tone that often rose to anger.
“There’s no sugarcoating today’s opinion,” she said. “The majority overthrows a decision entrenched in this nation’s law and its economic life. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance.”
And, she said, “Today the court succeeds in its six-year crusade to reverse Abood.”
In her written dissent, Kagan warned that this decision would lead to an increase in “free riders,” or workers who benefit from the union’s collective bargaining without paying.
“Employees (including those who love the union) realize that they can get the same benefits even if they let their memberships expire,” she wrote. “And as more and more stop paying dues, those left must take up the financial slack (and anyway, begin to feel like suckers)—so they too quit the union. … And when the vicious cycle finally ends, chances are that the union will lack the resources to effectively perform the responsibilities of an exclusive representative—or, in the worst case, to perform them at all.”
Alito answered Kagan both in his 49-page written opinion, and his statement from the bench (even as he spoke before she did.)
He said “the public importance of subsidized union speech is especially apparent” in the field of education, “since educators make up by far the largest category of state and local government employees, and education is typically the largest component of state and local government expenditures.”
He cited issues such as seniority-based teacher pay versus merit pay, tenure, teacher discipline, and how to measure teacher performance and student progress as important public matters.
“Can anyone say these are matters only for teachers and schools” in collective bargaining, Alito said from the bench. “We don’t think so.”
He wrote that plaintiff Mark Janus “is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage.”
Alito further argued that avoiding free riders is not a compelling reason to overcome First Amendment objections. “In simple terms, the First Amendment does not permit the government to compel a person to pay for another party’s speech just because the government thinks that the speech furthers the interests of the person who does not want to pay,” he wrote.
The decision will have broader consequences for unions than expected, given that the court tackled questions around whether public employees opt in or opt out of membership. The justices ruled that unions cannot deduct fees from employees’ paychecks without their express consent. In some states up until now, employees who do not want to be a part of the union have had to opt out of paying dues, often during a time-limited window.
“By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed,” Alito wrote.
A Blow to Teachers’ Unions
The decision is expected to significantly dent the treasuries of the teachers’ unions, which will not only lose revenues from current fee payers but also face an exodus of dues-paying members. But the result was one for which the unions have been girding, and they have vowed to aggressively seek to encourage union membership.
Combined, the National Education Association and the American Federation of Teachers have about 4 million members. That’s not including agency-fee payers. The AFT has some 94,000 fee payers and the NEA has about 88,000.
Onlookers have speculated that with fewer members and less revenue, teachers’ unions could lose some of their political sway. Still, observers cautioned against ringing the death knell for unions just yet.
“I do think unions have been around for a very long time, they are very well-organized machines, and they are very good at adapting,” said Katharine Strunk, a professor of education policy at Michigan State University. “I think unions will still find a way to have a strong role [in policymaking]. It may look a little different.”
In statements, the presidents of the two major teachers’ unions condemned the decision and pledged to keep fighting for their members.
Lily Eskelsen García, the president of the NEA, called the decision a “blatant slap in the face” for educators and other public workers.
“Those behind this case know that unions amplify workers’ voices and transform their words into powerful and collective action,” she said. “Even though the Supreme Court sided with corporate CEOS and billionaires over working Americans, unions will continue to be the best vehicle on the path to the middle class.”
And Randi Weingarten, the AFT president, warned not to count the unions out.
“We will continue fighting, caring, showing up, and voting, to make possible what is impossible for individuals acting alone,” she said. “The teacher walkouts this spring, with educators fighting for the funding children need, were an example of how will we continue to make that case … through organizing, activism, and members recommitting to their union.”
Others cheered the decision. In a statement, Jeanne Allen, the founder and CEO of the Center for Education Reform, a school-choice advocacy organization, said this decision “ends the decades-long assault on worker freedom.”
She said she hopes the ruling will present an opportunity for teachers’ unions to “secure support for their work based not on coercion, but on voluntary support from those who truly believe in the … ideas, actions, and pronouncements of any association to which they now may truly choose to belong.”
A ‘Historic Day’
The case before the Supreme Court was brought by Mark Janus, a soft-spoken child support specialist with the Illinois health-care and family-services department. Backed by the National Right to Work Legal Defense Foundation, Janus objected to a deduction of $46 from his paycheck each month for the service fee that goes to AFSCME and its state and local affiliates for collective-bargaining-related services.
Janus has been in the courtroom each day this week as the justices released opinions, along with Gov. Bruce Rauner of Illinois, who had himself originally filed the lawsuit against agency fees but was found to lack standing.
Today, they reacted calmly as they listened to Alito deliver the opinion they had long sought. They then proceeded to the sidewalk outside the Supreme Court, where they addressed reporters.
“It is a very historic day,” said Janus. “We now have 5 million public-sector, non-union members who can make their own choice whether they support the union.”
Rauner, a Republican who is who running for re-election this year, said, “This ruling is not anti-union, it is pro-worker and pro-taxpayer.”
“In its very essence, everything that a government union does is political. Therefore, forcing [workers] to support that union financially” is impermissible, Rauner said.
William Messenger of the National Right to Work Legal Defense Foundation, who argued the case for Janus, said, “It’s a great decision for worker rights. It was everything we asked for. Compulsory fees are unconstitutional. And the opt-out issue was decided. They can only take fees from employees with their affirmative consent.”
The opt-out issue was set to be challenged in court after the Janus ruling came down. The Center for Individual Rights, a libertarian law firm, had filed a lawsuit called Yohn v. California Teachers Association, which argues that teachers should have to affirmatively opt into the union, not opt out. In California, teachers who don’t want to be part of the union must send an annual letter to the CTA during a time-limited window.
The case has been pending in the lower courts. The Janus opinion addresses all the concerns of the case, so there’s no need for it to go any further, said CIR President Terence Pell.
There are at least 22 states authorizing agency fees, and public-employee unions in those states must represent all workers in the bargaining unit, including for collective bargaining and grievances, regardless of whether the workers join the union.
Under the Supreme Court’s line of cases in this area, agency fees may not go toward the union’s political expenditures. But the groups attacking the system refined their arguments in recent years to suggest that the collective-bargaining process itself is inherently political, because it involves policy decisions about spending on wages, benefits, pensions, and so on. Those arguments gained traction with the court’s conservatives in several cases in recent years.
The unions argued that the court’s concept of stare decisis, or respect for precedent, should dictate against overruling a precedent on which so many labor contracts in the public sector rely. They also argued that compelled agency fees do not unduly burden the First Amendment speech and association rights of nonunion members.
The 3 million-member NEA has projected a loss of some 307,000 members over two years if the Janus decision went against public-employee unions, with an expected $50 million two-year budget cut, or 13 percent.
A version of this article appeared in the July 18, 2018 edition of Education Week as Shock Waves for Unions After Stinging Defeat In Janus Case