The United States Supreme Court has set the date for oral argument in Janus v. AFSCME, a case that could have far-reaching implications for the nation’s public employee unions, including the American Federation of Teachers and National Education Association.
On Wednesday, the court announced the case will be heard February 26th.
The petitioner, Mark Janus, works for the Illinois Department of Healthcare and Family Services and is part of a bargaining unit represented by the American Federation Of State, County, and Municipal Employees. Although he is not a member of the union, under Illinois law, Janus is required to pay monthly “agency fees” to AFSCME to cover a “proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wages, hours and other conditions of employment.”
Janus argues that these mandatory fees violate his First Amendment rights because he is compelled to support the union even though he disagrees with their political positions. On the other side, public employee unions argue that agency fees are needed to avoid the “free rider” problem – i.e., non-members receiving benefits provided by union contracts, but not paying for them.
Janus wants the Supreme Court to overturn its 1977 decision in Abood v. Detroit Board of Education, a case brought by a Detroit public school teacher who challenged a Michigan law that required him to pay agency fees to the Detroit Federation of Teachers (in an amount equivalent to the union’s dues), even though he refused to join the union. Like Janus, Abood argued that the mandatory fees were unconstitutional on First Amendment grounds.
Listen: Oral arguments in Abood v. Detroit Board of Education (1977)
But the Supreme Court, seeking middle ground between individual and collective rights, unanimously ruled that states could require public employees to pay agency fees, so long as they only covered the costs of collective bargaining. This meant Abood and other non-union teachers in Detroit couldn’t be charged the same amount as full union members, but they still had to pony up for the work the union did to negotiate and enforce the contract.
In the 21 states that currently have mandatory agency fee laws, unions determine how much they spend on political activities in their overall budget and then deduct that percentage from their standard dues rate, which generally means that agency-fee payers end up contributing around 20% less than full union members. Because agency fees don’t provide a significant discount, many individuals feel compelled to join the union so they at least have a voice in the union’s decisions and direction.
Obviously, the composition of the Court has changed in the past 40 years, but subsequent decisions since have also provided an opening for Janus to overturn Abood. In fact, a five-member majority of the Supreme Court was expected to reverse Abood last year in a similar case, Friedrichs v. California Teachers Association. But Justice Antonin Scalia died halfway through the term, resulting in a rare 4-4 split decision.
Nevertheless, with the appointment of Neil Gorsuch to replace Scalia on the Supreme Court, it’s improbable that public employee unions will be so lucky this time.
What will happen to AFT, NEA and their affiliates if the Supreme Court overturns Abood? They’re certainly not going to disappear, although it is likely that they will see a significant drop in membership (and revenue) in the absence of mandatory agency fees. Moreover, as Derrell Bradford recently wrote in The Seventy-Four, Janus could allow reform-minded Democratic politicians to support education policies that are in the best interests of children and families, without having to fear a well-funded backlash from the teachers unions.
“With the deep pockets of the teachers unions potentially compromised, maybe accepting underperforming schools and iron-clad work rules in return for campaign cash doesn’t have to be the default position anymore,” Bradford says. “Maybe the NEA and AFT having less of it will lead to a wealth of something else: good decisionmaking — particularly on education — by members of the party whose key constituency is supposed to be ‘the little guy.'”
Let’s hope so.
Read Mark Janus’ petition for writ of certiorari: