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U.S. Supreme Court Prepares to Hear Arguments on Forced Union Dues Case

February 2, 2018

Forty years ago, Detroit public school teachers fought for their right to opt out of union agency dues, and they lost.

Now, one public sector worker’s lawsuit may result in the overturning of the Supreme Court’s 1977 decision.

Years in the Making

“In Abood v. Detroit Board of Education, the Supreme Court ruled that government school teachers do not have the right to fully opt out of union membership where teachers are unionized in a state,” said Jesse Hathaway, managing editor of Budget & Tax News, a publication of The Heartland Institute, which also publishes School Reform News.

The current case, Janus v. American Federation of State, County, and Municipal Employees [AFSCME], was filed by Mark Janus, an employee of the Illinois Department of Healthcare and Family Services, and several fellow government employees in 2015 to end the state’s so-called “fair-share” law.

The U.S. Supreme Court heard a similar case, Friedrichs v. California Teachers Association, in March 2016. Rebecca Friedrichs, a California teacher, argued forcing nonunion employees to pay union dues, which funded causes Friedrichs did not support, violated teachers’ rights. In March 2016, after the death of Justice Antonin Scalia, the U.S. Supreme Court issued a 4–4 ruling leaving in place a lower court’s decision in favor of the unions.

The U.S. Supreme Court began hearing oral arguments for Janus v. AFSCME in late February 2017.

Politics vs. Collective Bargaining

Martin West, an associate professor of education at the Harvard University Graduate School of Education, faculty research fellow at the National Bureau of Economic Research, and executive editor of Education Next, says courts should consider the dual roles government employee unions have.

“Unions play a role in collective bargaining, and they play a role in politics, and I think it’s useful to think separately about those two roles,” said West. “In collective bargaining, they advocate effectively for better pay and benefits for current teachers.

“They also engage in politics on both education issues and beyond,” West said. “They tend to prioritize those issues that have implications for their strength as an organization. Above all, that’s the right to collective bargaining, but that extends to policies directly affecting their members: evaluations and tenure and policies that might threaten their membership, like school choice policies that provide access to schools with a largely nonunionized workforce. The lack of agency fees, I think especially in the political realm, would affect them.”

Opposing Union Bosses

Hathaway says the Janus case is about employees controlling their own money.

“[Janus’] argument is that the union is violating his rights by taking money from his paycheck without his permission,” Hathaway said. “He wants nothing to do with the union, but he still has to pay for ir. You can’t pull out completely unless you quit the job entirely. Janus is concerned and upset about this because in the current situation ... the union boss uses individual workers’ money to say what the union boss wants to say.

“People like Mark Janus, all across the nation, who don’t want to join the unions, are effectively being denied the right to determine for themselves what they want to do with their money,” Hathaway said.

‘It’s a Free-Speech Issue’

Hathaway says union fees inherently affect politics.

“All public-sector union activity is political because even the most routine contract negotiation directly affects government action and government policy, and in turn, taxpayers,” Hathaway said. “So those contract negotiations, because they are affecting policy, are politics; they affect political activity. It’s a free-speech issue.”

West says teachers don’t want their agency fees to be used to represent political opinions with which they disagree.

“I think unions do provide services to those who they are required to represent, and an argument can be made that it makes sense to allow them to charge agency fees to prevent free-riding, but in my mind, the argument that those fees do amount to political speech is equally or more compelling,” West said. “I’m informed, in part, by some of the survey work we’ve done on this topic. We find when we ask teachers themselves whether they support or oppose the practice of agency fees, teachers [are] more likely to be opposed than supportive. It’s a slim majority but a majority nonetheless.”

‘Big Consequences for Unions’

West says a ruling in favor of Janus could hurt unions but would not destroy them.

“Agency fees are a major source of revenue for teachers unions nationally,” West said. “A decision preventing them from collecting them going forward would have big consequences for unions as organizations and their ability to engage in political activity, but it certainly wouldn’t put them out of business.

“We know that because their agency fees are not allowed in 29 states already, and we know unions have an active presence even in those states,” West said. “We’ve seen in the wake of bans on agency fees that states adopted voluntarily, for example in Wisconsin, there have been sharp declines in union memberships. So it would have big consequences. The national unions are currently doing a lot of planning to see what they have learned from Wisconsin to try to prevent the losses if agency fees go away.”

Larry Sand, president of the California Teachers Empowerment Network, says a win for Janus would be a victory for school choice.

“[Unions] will still be very powerful,” Sand said. “They are not going away. But they will have less money. They can’t do the same without the same amount of people and power and 25 percent less money. That bodes well for conservatives and center-right people and reform efforts like school choice.”

Ashley Bateman (bateman.ae@gmail.comwrites from Alexandria, Virginia.

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Ashley Bateman writes from Alexandria, Virginia.
bateman.ae@googlemail.com