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’
“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