Education Week - February 14, 2018 - 13
KEY LEGAL PRECEDENTS
U.S. Supreme Court rulings regarding public-sector unions and the "agency
fees" they charge for collective bargaining from workers who choose not to join
the unions stem back some 40 years.
Abood v. Detroit Board
Of Education | 1977
The court held that teachers who don't
wish to join the union may be required
to pay "agency fees" as a condition of
employment when those fees are used
for collective bargaining and other
Chicago Teachers Union,
Local No. 1 v. Hudson | 1986
This decision helped spell out some
of the nuts and bolts of the collection
of agency fees. The court said that
agency-fee payers are entitled to have
their objections to the amount of the fee
bargaining from the politics," Janus
said. "In our current situation here
in Illinois, AFSCME has been trying
to get $3 billion in wage and benefit
increases. If anybody knows anything about Illinois, the state is just
In response to a key argument of
the unions-that removing agency
fees will allow nonmembers to be
"free riders" in a system in which the
union must represent all workers in
said "only a little."
Bruce Aster, a high school history teacher in Carlsbad, Calif.,
doesn't feel represented at all
by his union-a frustration that
spurred him to sign on to an amicus brief with a half-dozen other
California educators arguing on
behalf of Janus.
"Golly, do [unions] represent
me? No," Aster said. "I would be
content and probably welcome
them representing me on pure
Instead, Aster pays around
$1,100 a year in fair-share fees
and receives a refund of about
$400-the amount of his fees
that the union would have used
for non-collective bargaining activities. Even though he's not contributing toward overtly political
activities, Aster said he disagrees
with much of what the union
deems important, even for bargaining purposes.
Tim Erickson, a special education teacher in Detroit Lakes,
Minn., doesn't always support
the unions' politics and positions,
but plans to remain a member no
matter what the Supreme Court
"The devil I know is better than
the devil I don't know," he said,
adding that his union has helped
negotiate smaller class sizes and
better working conditions. "If that
union goes away, holy smokes, are
we going to see drastic changes in
While some teachers say they
wish the unions would stay out
of politics, union leaders argue
education is inherently political,
making it critical that they take
stances on candidates and issues
that affect their members.
"Politics makes a difference ...
addressed expeditiously. And the union
is required to supply nonunion members
with adequate information about how the
agency fee was calculated.
Lehnert v. Ferris Faculty
Association | 1991
In an even more technical and fractured
decision, the court clarified that nonunion
members paying agency fees are not
required to support most political lobbying
and public relations efforts. But a local
teachers' union may use such fees to
cover the cost of affiliation with state
and national unions, as well as to send
delegates to national union meetings, the
the bargaining unit-Messinger contends that the duty of fair representation is something the unions seek.
"The idea that the duty to represent all employees is something the
government imposes on them has it
backward," he said. "It gives them a
huge amount of power."
Messinger points to a favorite line
of the Janus brief, written by him
"Union complaints about the
Knox v. Service Employees
International Union | 2012
In a case dealing with some of the finer
points of agency fees, Justice Samuel
A. Alito Jr., in the majority opinion,
questioned a key underpinning of
Abood-that compelling non-members
to pay agency fees helps avoid the
problem of "free riders." That "represents
something of an anomaly" in First
Amendment law, Alito wrote.
Harris v. Quinn | 2014
Just two years later, the gloves came
off as Alito again wrote the majority
opinion in a case on agency fees,
devoting 12 pages to questioning the
underpinnings of Abood. Because
the Harris case involved unionized,
Medicaid-funded home health aides
who were unlike typical state and local
government employees, Alito said it was
heaviness of the crown they seized,
and now jealousy guard, cannot be
taken seriously," the brief says. As
for the unions, just because their
leaders are looking beyond a possible negative ruling doesn't mean
their lawyers aren't making lastgasp legal arguments for keeping
Abood in place.
In a brief for AFSCME, David C.
Frederick, a Supreme Court litigation specialist who argued for the
unnecessary for the court to overrule
the 1977 decision to rule that the union
could not collect agency fees from those
who refused to join the union.
Friedrichs v. California Teachers
Association | 2016
This case involving several California
teachers who objected to paying agency
fees directly raised the question of
whether Abood should be overruled. At
oral arguments in January 2016, Justice
Antonin Scalia, a one-time defender of
the free-rider justification for agency
fees, appeared to side with the objecting
teachers based on their argument that
even collective-bargaining activity is
essentially intertwined with politics
and thus implicates the teachers' First
Amendment rights. But just about a
month later, Scalia died and the court
soon announced a deadlock in the case.
NEA and its affiliates in the Friedrichs case, stresses the role of the
government as an employer.
"Overruling Abood and applying
exacting scrutiny to the government's decisions as employer is
inconsistent with the First Amendment's original meaning, which
imposed no barrier to conditions
on public employees' free-speech
rights," the brief states.
The AFT's Weingarten helped
write her union's friend-of-the-court
brief, which argues that agency fees
"burden First Amendment rights
no more, and no differently, than
the reductions in pay workers regularly endure to defray the cost of the
speech of other participants in the
contracting process," such as administrators and consultants.
The NEA's friend-of-the-court
brief says Janus and his supporters are "blind to the reality" that "at
bottom, public employment is an extended exercise in compelled speech
There are dozens of friend-of-thecourt briefs in the case. One that has
drawn public discussion was filed on
the unions' side by two libertarian
legal scholars, Eugene Volokh of the
University of California, Los Angeles,
law school, and William Baude of the
University of Chicago Law School.
They offer a nuanced argument
that Abood was wrong in one respect,
by recognizing any First Amendment
objection (such as to union political
spending) in the first place.
"If anything in Abood should be revisited, it is the existence of the First
Amendment interest itself," the pair
While the brief has given union interests some hope for an unexpected
result in Janus, the unions themselves
don't seem to be counting on it.
in our classrooms and our professional lives," said Heins, the CTA
president. "And to not be engaged
in that would be irresponsible."
What Comes Next?
As union leaders brace for a
ruling likely to be delivered this
spring, educators and analysts
alike are imagining what the
groups will look like, post-Janus.
"Maybe it will [inspire] union reform-or maybe people will create
from within unions that truly just
represent on workforce issues,"
And Melville, the Philadelphia
teacher who supports the union,
said she hopes that teachers'
unions will shift to be more democratic and engage in more grassroots activities.
Not everyone foresees unions
becoming more responsive to
members. "It's very difficult for
me to imagine a group of partisan
Democrats saying we need to pay
more attention to what Republicans are saying," said Antonucci,
the analyst, referring to the fact
that union leaders tend to be
liberal while members are more
Ultimately, though, teachers'
unions aren't going anywhere,
"Unions have always had severe
ups and downs," said Kerchner,
the Claremont research fellow.
"They have been counted out
many, many times, and they tend
to come back. People have a legitimate interest in a desire to organize around things that they care
about-like their job, like some
sort of sense of social justice-and
unions are a pretty good vehicle
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regularly turns to
students to inform
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SUPERINTENDENT, Cherry Hill Public Schools
Cherry Hill, N.J.
APRIL 11-12, 2018
EDUCATION WEEK | February 14, 2018 | www.edweek.org | 13