Teaching Profession

Here Are the Teachers’ Unions’ Arguments in the Supreme Court Case on Union Fees

By Madeline Will — January 29, 2018 3 min read
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As the two major national teachers’ unions brace for a U.S. Supreme Court case that could cause a major blow to their membership numbers and revenue, they laid out their arguments in support of public-sector workers being mandated to pay monthly union fees.

In the case, Janus v. American Federation of State, County, and Municipal Employees Council 31, Illinois health-care worker Mark Janus argues that he shouldn’t have to pay monthly union fees to keep his job, especially because the fees may go toward advocacy that he disagrees with. He pays about $540 a year in compulsory fees to his union, which collectively bargains on his behalf. (Fees that people who aren’t union members must pay to the union are known as “agency” fees.) The ruling would apply to teachers’ unions.

If the justices rule in favor of Janus, unions, including teachers’ unions, will lose out on one of their major sources of revenue and will also likely see a drop in membership. With Justice Neil M. Gorsuch on the court, it’s likely that these compulsory fees will be deemed unconstitutional.

See also: A Primer on the Supreme Court Case That Teachers’ Unions Have Been Fearing

This month, the American Federation of Teachers and the National Education Association both submitted amicus briefs to the court to offer their arguments on why the fees should remain legal. Here’s a summary of their main arguments:

  1. States currently have the authority to decide the most effective policies for managing their public workforce, and the unions argue that it should stay that way. The NEA points out that there are a range of bargaining policies across the country—34 states and the District of Columbia require school boards to recognize and bargain with groups of teachers who demonstrate support from a majority of employees, while six states prohibit bargaining altogether and 28 states prohibit the collection of agency fees for K-12 teachers.
  2. The lawsuit argues that a public-sector agency law is unconstitutional on First Amendment grounds, because collective bargaining ignores employees’ free-speech rights—they are subsidizing unions’ advocacy and speech, which they might not wish to support. The unions reject this argument, arguing that it “warps” the First Amendment because public employees do not have the same free-speech rights in the workplace as they do as private citizens: There are many things public employees are required to do as part of their job, regardless of their personal feelings. (For example, a manager might have to share with workers a bargaining position that she personally disagrees with.) Participants in collective bargaining engage in speech as employees, not citizens, the AFT brief said.
  3. A ruling for Janus could devastate unions, the briefs argue. The NEA says that if employees are able to share in the benefits of collective bargaining without paying, many people will opt out of joining. And the unions said the groups backing Janus will “weaponize” a favorable ruling by launching campaigns targeted at union members, urging them to drop their membership. “The avowed purpose of these campaigns is to deliver a ‘mortal blow’ to public-sector unions and ‘finish them off for good,’” the NEA brief said. And the AFT brief argues that it’s not enough for the unions to just “try harder” to recruit dues-paying members—"The presence of free-riders in a school sows discord and interferes with the close working relationships necessary to provide high-quality education,” the brief said.

More than 30 percent of teachers say the union doesn’t represent their political views, or only represents them a little, according to an Education Week Research Center survey. “I’m throwing my money to the far left when I want it to go to the common sense middle,” one teacher said.

Upon filing the briefs, the presidents of both unions weighed in with statements:

“The current law has preserved labor peace for four decades by balancing the interests of workers and employers and fostering partnerships to improve school districts and other public sector workplaces,” said Randi Weingarten, the AFT president. “We argue that engaging in collective bargaining is constitutionally no different than the state paying a consultant to advise it on employment relations issues.”

“Strong unions help to create strong schools for students and even stronger communities that benefit all of us,” said Lily Eskelsen García, the NEA president. “Point blank, this case is an assault on the freedoms of working people to earn a better life for themselves and their families.”

It’s worth noting that the NEA is already projecting a significant membership dip for this year—without even factoring in the outcome of the Janus case.

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A version of this news article first appeared in the Teacher Beat blog.