Teaching Profession

Huge Stakes for Teachers’ Unions as Fees Case Reaches High Court

Huge financial stakes seen For AFT, NEA, and affiliates
By Mark Walsh — September 29, 2017 5 min read

In a case with enormous financial implications for teachers’ unions, the U.S. Supreme Court once again has agreed to take up a dispute that threatens a 40-year-old precedent giving unions the right to collect fees from nonmembers.

The justices last week granted review in Janus v. American Federation of State, County, and Municipal Employees Council 31, which could affect the treasuries and political might of all public-employee unions, including the American Federation of Teachers, the National Education Association, and their state and local affiliates.

At risk is the precedent in Abood v. Detroit Board of Education, the 1977 Supreme Court decision that authorized public-employee unions to charge so-called agency or fair-share fees to employees in the bargaining unit who refuse to join the union. (Twenty-two states allow such arrangements.) Last term, in Friedrichs v. California Teachers Association, the justices deadlocked 4-4 in a case in which a group of nonunion teachers had asked it to overrule Abood.

Various members of the court’s conservative bloc have been signaling in several decisions since 2012 that they would like to overrule Abood. In the oral arguments in Friedrichs in January 2016, Justice Antonin Scalia had appeared ready to join them. But he died the next month, leading that case to end in a tie, which preserved a lower-court victory by the unions.

The court is now back at full strength with the addition of Justice Neil M. Gorsuch, and formally opened its term on Oct. 2. On Sept. 28, the justices jumped at the first opportunity to add the Janus case to their docket for the new term. Oral arguments are likely in January or February.

“There are really no new arguments on this, just a change in the membership of the court,” said Matthew W. Finkin, a law professor and labor law expert at the University of Illinois, Urbana-Champaign. “The unions have just been waiting for the other shoe to fall.”

A Governor’s Lawsuit

The appeal in the new case was brought by the Springfield, Va.-based National Right to Work Legal Defense Foundation and the Chicago-based Liberty Justice Center on behalf of Mark Janus, an employee of the Illinois Department of Healthcare and Family Services, who has $44.58 deducted from his paycheck every month to cover the collective-bargaining fees of AFSCME.

“Everyone tells me this case has national implications,” Janus says in a video produced by Liberty Justice Center. “But I don’t look at it that way. I just look at it as an average guy who is standing up for his own rights of free speech. … I’m forced to pay money to a union that then supports political causes that I don’t agree with.”

Janus and two other state employees who object to the union fees had intervened in a lawsuit brought by Illinois Gov. Bruce Rauner, a Republican who has sought by legislative and legal means to upend the status quo in public employment in the state, as has occurred in nearby states such as Michigan and Wisconsin.

The Illinois suit seeks to have the state’s public-sector agency law declared unconstitutional on First Amendment grounds. The governor was dismissed from the suit for lack of standing, and the other plaintiffs fell by the wayside because of other issues.

Both a federal district court and the U.S. Court of Appeals for the 7th Circuit, in Chicago, dismissed Janus’s case, ruling that it was Abood that stands in the way of his claims.

In their appeal to the Supreme Court, the two groups backing Janus argued that his case would make a good vehicle for the Supreme Court to use to finally put Abood to rest.

“Janus and millions of public employees are subject to agency fee requirements that compel them to subsidize the speech of a third party (an exclusive representative) that they may not wish to support,” the appeal says. “This significantly impinges on the First Amendment rights of each and every employee who did not choose to subsidize the union’s advocacy.”

Mark Mix, the president of the National Right to Work Legal Foundation, said in a statement that “we are now one step closer to freeing over 5 million public sector teachers, police officers, firefighters, and other employees from the injustice of being forced to subsidize a union as a condition of working for their own government.”

‘We Won’t Back Down’

Both AFSCME and Illinois Attorney General Lisa Madigan, a Democrat who has clashed with Rauner, filed briefs urging the justices not to take up the case.

“This case is an especially poor vehicle to reconsider Abood‘s holding because it has no factual record,” Madigan’s brief said.

Lily Eskelsen García, the president of the nearly 3 million-member National Education Association, said in a statement, “We won’t back down from this fight and we will always stand up to support working people, our students and the communities we serve.”

The NEA has about 87,000 fee-payers.

Randi Weingarten, the president of the 1.6 million-member American Federation of Teachers, which has about 89,000 fee-payers, issued a statement critical of the court’s decision to take up the case.

Weingarten said that “corporations, wealthy interests and politicians have manufactured Janus as part of their long and coordinated war against unions. ... And under the guise of the First Amendment, they want to overturn a 40-year-old precedent that’s been reaffirmed numerous times.”

That last point was one stressed by Justice Elena Kagan in a 2014 decision, Harris v. Quinn, a case about home-health workers in Illinois.

In that 5-4 case, the majority held that the workers were not full-fledged state employees, and thus the concept of the union’s being able to collect agency fees from nonmembers did not apply. The court stopped just short of overruling Abood, but Justice Samuel A. Alito Jr. wrote some 10 pages questioning Abood‘s constitutional underpinnings.

Writing for the dissenters, Kagan said Alito was “taking potshots” at the 1977 precedent.

“The Abood rule is deeply entrenched and is the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the nation,” Kagan wrote. “Our precedent about precedent, fairly understood and applied, makes it impossible for this court to reverse that decision.”

That assertion will soon be tested in the new case.

A version of this article appeared in the October 04, 2017 edition of Education Week as Union Fees Again Reach High Court

Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Student Well-Being Webinar
A Safe Return to Schools is Possible with Testing
We are edging closer to a nationwide return to in-person learning in the fall. However, vaccinations alone will not get us through this. Young children not being able to vaccinate, the spread of new and
Content provided by BD
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Teaching Webinar
Meeting the Moment: Accelerating Equitable Recovery and Transformative Change
Educators are deciding how best to re-establish routines such as everyday attendance, rebuild the relationships for resilient school communities, and center teaching and learning to consciously prioritize protecting the health and overall well-being of students
Content provided by Campaign for Grade-Level Reading
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Reading & Literacy Webinar
Addressing Learning Loss: What Schools Need to Accelerate Reading Instruction in K-3
When K-3 students return to classrooms this fall, there will be huge gaps in foundational reading skills. Does your school or district need a plan to address learning loss and accelerate student growth? In this
Content provided by PDX Reading

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Teaching Profession Opinion I've Studied Teachers for 20 Years. The Pandemic Was Their Ultimate Challenge
Researcher Lora Bartlett wondered what was happening behind the scenes as teachers' cheerful voices radiated from her daughters' computers.
Lora Bartlett
4 min read
Opinion Bartlett1 KNOW THYSELF LINCOLN
Lincoln Agnew for Education Week
Teaching Profession Q&A Teachers' Union President: Say 'No to Censorship, and Yes to Teaching the Truth'
National Education Association President Becky Pringle discusses some of the challenges and priorities for the nation's largest teachers' union.
8 min read
National Education Association President Becky Pringle delivers a keynote address.
National Education Association President Becky Pringle delivers a keynote address at the union's representative assembly in early July.
Moses Mitchell/National Education Association
Teaching Profession Opinion How to Improve Teaching After the Pandemic
Figuring out how to let individual teachers do more of what they’re already good at is a powerful place to start the improvement process.
4 min read
Conceptual image of finding finding a different approach or path.
Eoneren/E+
Teaching Profession Teachers' Unions Vow to Defend Members in Critical Race Theory Fight
The National Education Association and the American Federation of Teachers are preparing for litigation as states restrict teaching about racism.
7 min read
In this photo illustration, Randi Weingarten, the president of the American Federation of Teachers, left, and Becky Pringle, the president of the National Education Association, right.
In this photo illustration, Randi Weingarten, the president of the American Federation of Teachers, left, and Becky Pringle, the president of the National Education Association, right.
Courtesy photos