Second Class Citizens No More

The U.S. Supreme Court says public employees must affirmatively consent to the deduction of union fees.

The voices of millions of Americans who believe government employees should decide for themselves whether to financially support a union have been heard. In a case with far-reaching implications for the teaching profession and education reform, the United States Supreme Court overturned a 1977 decision by the Court called Abood v. Detroit Board of Education that forced government employees to pay “fair share” fees to a union to cover the cost of collective bargaining.

Mark Janus, a social worker employed by the State of Illinois, convinced the Court that the Abood decision violates the First Amendment (Janus v. AFSCME).

The High Court’s decision was a fully anticipated restoration of the First Amendment rights of public employees who chose not to join a union but who have nevertheless been forced to finance union activity as a condition of employment. But the opinion went further than expected, underlining the fundamental nature of speech rights, by requiring unions and employers to get the affirmative consent of employees before deducting any fees from paychecks.

The High Court said, “States and public-sector unions may no longer extract agency fees from nonconsenting employees. The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to support the union before anything is taken from them. Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.”

Center of the American Experiment and others had argued in amicus briefs that overturning Abood was not enough, and asked the Court to change the default for employees from an “opt-out” to an “opt-in.” The Center pointed out, for example, that Education Minnesota raised dues for teachers to finance a membership “renewal” campaign aimed at trapping teachers, even those who did not belong to the union, in perpetual membership, thus taking fees without consent.

The Court’s ruling makes it clear that employers should immediately stop deducting so-called “fair share” fees from non-members; as for members who have signed union cards, it remains to be seen whether cards will be treated as a form of consent. Now that the Court has restored the First Amendment rights of employees, these kinds of union agreements are not expected to survive, but sorting that out will take time.

In the interim, the Center cautions employees not to sign renewal cards. (Aside from new terms, the teachers’ card asks for the last four digits of social security numbers and other personal contact data that the union does not need. If the data is hacked teachers could be vulnerable to identity theft.) Employees who sign cards still have the right to resign from membership.

Mr. Louis Abood, a teacher from Detroit, would certainly be pleased,
had he lived to see Janus win. He and a group of Detroit school teachers made the same argument following the unionization of teachers in Michigan in the late 1960s. They said forcing teachers to pay agency fees to cover the cost of collective bargaining violated their speech rights because collective bargaining with a public body is inherently political.

The Court in 1977 agreed that the state could not force public employees to become dues-paying members of a union, but ruled that forcing employees to pay the costs of collective bargaining was an acceptable “impingement” of the First Amendment. This solved the “free rider” problem and appeased threatened labor unrest.

The problem? Collective bargaining affects all things political: taxes, spending and the size and policies of government, such as teacher licensure, salaries and pensions, K-12 curriculum and student discipline. The Court admitted its error; America will no longer sacrifice the speech rights of public employees to the false god of “free riders” on the altar of labor peace.

Mark Janus’s victory came with the help of previous legal cases, most notably veteran California teacher Rebecca Friedrichs’s case against the California teachers’ union. She came before the Court to make the same argument just two years ago. All observers, including government unions, said she won her case, but Justice Scalia died before the opinion was published. (That is why the unions have been preparing to lose, for the second time.) So, Mark Janus picked up the baton to continue the race.

“The Janus decision is great for education—for children, for families, for the teaching profession. For over forty years educators have been forced to financially subsidize the social, sexual, and political agenda of the teachers’ unions—against our wills, behind our backs, and as a condition of employment. And children are the victims,” said Friedrichs, founder of For Kids & Country.

It is hard to overstate the importance of teachers, and the impact of the educational system, on our country. The Janus decision will help restore professionalism to teaching and empower educators to more freely communicate what they need to educate tomorrow’s leaders.

“We’re finally free; free to stand together, empower our profession and uplift our schools. Educators have been given a gift—the freedom to reject state and national unions. I hope teachers will opt out in large numbers, and stand together to reject state and national union bullies and reorganize into local-only associations. That would lead to real education reform,” Friedrichs continued.

Imagine what will happen now that powerful state unions like Education Minnesota, and its national affiliates, the National Education Association (NEA) and the American Federation of Teachers (AFT), will have to earn the support of teachers.

Unions have had guaranteed revenue for decades, no matter what quality of service they deliver. As a result, unions have grown disinterested in teachers, arrogant and highly political. This has not been good for the women and men they represent or for the students and parents who must live with the results.

With this taken-for-granted approach, teachers’ professional needs have drowned in a political maelstrom. Nonetheless, teachers have tried valiantly to solve educational challenges like the achievement gap, or propose innovative ideas for K-12 curriculum, only to be met with opposition from teachers’ unions and their administrative and political allies. Real freedom is having a voice and choice on the job—not being silenced for pushing back against policies that are not working.

The Center has interviewed dozens of teachers who love teaching, but admit the job is getting harder, and less safe, every year.

One St. Paul teacher, Aaron Benner, lost his job after he and other teachers were assaulted by students; he went to the school board after the school failed to discipline the students. His union, after twenty years of taking his dues, failed to defend him. Instead, it sided with the “restorative justice” policies of the district and against Benner.

But a win at the Supreme Court does not mean the road ahead is clear. While the NEA and other unions announced major budget and staff cuts before Janus was decided, unions are also trying to expand membership to include non-teachers, and re-define who qualifies as a member to shore up revenue and political clout. At the NEA convention in Minneapolis this summer, delegates will consider the following amendment:

To open NEA membership to public education allies while preserving NEA governance positions for education professionals and active equivalents.

In other words, the unions are not sitting still. And Governor Dayton, who has pushed the limits of constitutional law to expand the revenues of government unions, has not yet said how he intends to comply with Janus.

In an interview with The Wall Street Journal, Denise Specht, president of Education Minnesota, said about the renewal union cards, “We’re having a kind of ‘This is who we are, this is who you are, how can we better serve you?’ conversation.” Notice how Specht said, “this is who you are” not “tell us who you are.”

Union executives like Specht have no experience being customer focused; they have not made the institutional shift to thinking of teachers as customers and professionals, instead of captives to take for granted. Education Minnesota and its national affiliates, the NEA and AFT, are still having a one-way “conversation.”

But, as Rebecca Friedrichs pointed out, if teachers use this gift from the Supreme Court, and exercise their restored rights, the union will not have a choice. It will have to learn to respect teachers.

About the Authors: Kim Crockett is Vice President and Senior Policy Fellow at Center of the American Experiment; Catrin Thorman is a Policy Fellow at Center of the American Experiment and a former classroom teacher. They are co-directors of EducatedTeachersMN. com, an online resource for teachers in Minnesota.