A recent U.S. Supreme Court case addressed the constitutionality of public sector unions to collect agency or fair share fees. Within the K–12 school context, fees are deducted from teachers’ paychecks to pay for the cost of the union negotiating on their behalf and enforcing their contractual rights. Specifically, these are fees that people who are not union members must pay for the benefits they gain. For example, collective bargaining might allow educators to advocate for smaller class sizes, recess, health benefits, and other important issues in addition to higher salaries. These fees ensure that every employee represented by the union pays his fair share of the cost of the bargaining over salary and other benefits. In other words, agency fees eliminate “free riders.”
In Janus v. American Federation of State, County and Municipal Employees, Council 31, the plaintiff, Mark Janus, was a government employee in Illinois who believed that these fees violated his constitutional right to free speech. The First Amendment of the U.S. Constitution guarantees freedom of speech and freedom of association. Janus argued that he is mandated to associate in union activities that do not represent his interests. Although he chose not to join his union, he is required under state law to pay the agency fees of about $540 per year to the union that represents state workers. He sued the state’s union. This lawsuit has implications for K–12 schools, especially those where agency fees are now, because of Janus, unconstitutional.
Janus sought to overturn an earlier U.S. Supreme Court decision involving the same issue. In 1977 in a unanimous decision, the Supreme Court affirmed that agency fees that were assessed to cover the costs of union negotiations and contract enforcement were constitutional. The court reasoned, though, that anyone who objected to having their dues used for ideological or political purposes would not be required to pay for those specific activities. In other words, their money would be used only for the collective bargaining that the union does on a worker’s behalf, not political activities of unions. There are already six states that prohibit bargaining altogether and 28 states that prohibit the collection of agency fees for K–12 teachers.
Those who support the unions believe they give teachers a voice in negotiations with the administration and that teachers benefit when they negotiate together. They contend that employees like Janus are “free riders” who get union representation in collective bargaining without funding the cost of that representation.
In June 2018, the Supreme Court ruled in a 5-4 decision that the extraction of agency fees from nonconsenting public-sector employees violates the First Amendment. The court explicitly overruled its prior decision on the matter, outlining the concept that stare decisis (a legal doctrine that generally requires a court to follow its past rulings) was inappropriate in this instance. The court suggested that the original case of Abood v. Detroit Board of Education was poorly reasoned in the first instance. Moreover, decisions since Abood had eroded its reasoning, making the case “an outlier.” As a result, employees must now affirmatively opt into union membership.
The dissent, written by Justice Elena Kagan, found that Abood still deserved the court’s deference. The dissent opined that Abood was entirely consistent with other opinions regarding First Amendment rights of public employees, including a case involving the termination of a teacher for protected speech. Because Abood was in line with prior cases, there was no justification for it to be overruled. It should have remained “good law” in her view, and agency fees should have remained constitutional.
The outcome of the Janus decision was not completely surprising. In 2016, the Supreme Court addressed the same issue, and it ended in a 4-4 deadlock. In this case, 10 teachers in California alleged that agency fees violated their First Amendment rights. After the death of Supreme Court Justice Antonin Scalia, there were only eight justices deciding the case. As a result of the 4-4 decision, the lower court’s decision went into effect, and agency fees were upheld. After Justice Neil Gorsuch was confirmed, many speculated that he would vote to overrule Abood.
Impact on K–12 Schools
Government workers across the nation (such as public school teachers) will no longer be required to pay agency fees in 22 states. Thus, one implication of the Janus decision is that unions will likely lose membership and substantial funding, which will affect their ability to bargain collectively. This decision will also impact all public-employee unions, such as the National Education Association and the American Federation of Teachers, as well as their local affiliates. Of course, losing the ability to collect agency fees means less money for unions. To be sure, unions will attempt—as some have—to lobby state legislatures to pass laws that may, to some extent, stem the losses caused by Janus. For instance, because of efforts by unions in California, that state now requires that new government workers must undergo an orientation session with union members. That requirement—and others being considered—reflect the new shift in power to the ways unions have operated in several states.
Another implication could be an increase in teacher strikes or protests. States with agency fees and public-sector collective bargaining usually have higher teacher salaries. Just last year there were teacher walkouts in six states. Interestingly, the walkouts happened in states with weaker unions, where teachers were presumably fed up with low wages and a decrease in benefits. Some have speculated that teachers might resort to such tactics when they feel they no longer have a voice about these important matters.
Unions may also shift some of their resources to providing member services, such as professional development or support for beginning teachers, to succeed. Unions, in preparation of Janus, had already been pivoting to recruiting members through such efforts with the hope that teachers will appreciate the value of union membership and voluntarily join.
Mark Paige, JD, PhD, is an assistant professor at the University of Massachusetts—Dartmouth. Suzanne E. Eckes, JD, PhD, is a professor at Indiana University in Bloomington and president of the Education Law Association.
Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1976).
Friedrichs v. Cal. Teachers Ass’n, 136 S. Ct. 1083 (2016).
Janus v. AFSCME, No. 16-1466, slip. op. (U.S. June 27, 2018).
Pickering v. Bd. of Educ., 391 U.S. 563 (1968).