Education Week - July 18, 2018 - 10
By Madeline Will
On the drive from the airport to
downtown Minneapolis, where the
National Education Association
held its annual convention this
month, cars passed a billboard that
proclaimed it "Teachers' Independence Day."
"No more forced union fees," said
the billboard, referring to the U.S.
Supreme Court's recent decision
in Janus v. American Federation of
State, County, and Municipal Employees Council 31 to prohibit the
"agency" or "fair share" fees that public-sector unions had been charging to
nonmembers in 22 states.
The sign-funded by the Minnesota-based Center of the American
Experiment, a conservative and
free-market think tank, and aimed
at getting teachers to drop out of the
union-was an ominous backdrop for
what would be a defiant meeting of
9,000 educators and union leaders in
"We don't give a damn about the
Supreme Court decision," said Becky
Pringle, the NEA vice president, to
applause, during an open hearing on
the association's budget. She promised that the nation's largest public-
sector union would continue organizing and growing.
Still, reminders of the decision's
aftermath were everywhere. The
NEA's budget included a $50 million reduction and projected an over
10 percent membership loss over the
next two years. Union leaders are simultaneously bracing for extensive
messaging campaigns to convince
teachers to drop their memberships
and for lawsuits by teachers who
want money back for the fees they've
paid in years past.
During the conference, NEA leaders spoke of strategies for both
keeping members in the union and
attracting new educators. They
brainstormed ways to gird the union
against the financial blow of the Supreme Court decision. Speakers and
delegates mentioned a "post-Janus
world" so often that attendees joked
on Twitter that it should be part of a
drinking game, or at least a slot on a
"We knew this was coming," said
NEA President Lily Eskelsen García in an interview. "Since Friedrichs
[the 2016 Supreme Court case on the
same issue that deadlocked 4-4 after
the death of Justice Antonin Scalia],
we've been doing membership drives
of a very different nature all over the
Scott Iskowitz/National Education Association
After Janus, Defiant
Union Looks Ahead
Educators and union leaders gather in Minneapolis for the second day of the National Education Association's
country, in all of our affiliates-person-to-person, human contact, 'Here's
why I belong to the union; here's why
I'm proud of what we're doing.' "
'A Challenge and an Opportunity'
Those personal relationships, she
said, will be key to curbing the anticipated loss of some 340,000 members
out of 3 million. Before the Supreme
Court decision, the NEA also had
about 88,000 agency-fee payers this
past year, about a third of whom were
The agency fees were used by
unions to cover the cost of collective
bargaining. Now, the union still must
represent all teachers in a bargaining unit, regardless of whether they
are members. Teachers now have the
choice between paying hundreds of
dollars for an annual membership or
paying nothing at all, and still reap-
ing many of the same benefits.
"A lot of those fee-payers, we're
not taking it for granted that they
won't be our future members," Eskelsen García said. "We're actually sitting down, one fee-payer
at a time, going, 'On this day, you
stopped paying fees. ... What would
it take to have you be a member?
Because other people are paying
for that [collective bargaining] service, and we need you to be a mem-
Shock Waves for Unions After Stinging Defeat in Janus Case
By Mark Walsh
& Madeline Will
The U.S. Supreme Court's ruling that teachers' unions and other
public-employee labor organizations
may not collect fees for collective bargaining from workers who decline to
join the union overrules a 41-year-old
precedent and has sent shock waves
throughout the labor community.
The justices ruled 5-4 to prohibit "agency" or "fair share" fees
in Janus v. American Federation
of State, County, and Municipal
Employees Council 31 that workers must affirmatively opt into the
union before fees can be taken out
of their paychecks.
"We conclude that this arrangement violates the free speech rights
of nonmembers by compelling them
to subsidize private speech on matters of substantial public concern,"
Justice Samuel A. Alito Jr. wrote in
the majority opinion.
In addition to Alito, the majority
was made up of Chief Justice John G.
Roberts Jr. and Justices Anthony M.
Kennedy, Clarence Thomas, and Neil
Gorsuch, who joined the court last
year, was effectively the deciding vote
after an eight-member court deadlocked in 2016, just after the death of
Justice Antonin Scalia, in Friedrichs
v. California Teachers Association,
which presented the same issue.
Besides Gorsuch, the rest of the
court divided along the same lines
in Janus they had in a 2014 decision, Harris v. Quinn, in which the
court stopped just short of overruling
Abood v. Detroit Board of Education.
In that 1977 ruling, 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 purposes.
The dissenters in Janus were Justices Ruth Bader Ginsburg, Stephen
G. Breyer, Sonia Sotomayor, and
Kagan read at length from her dissent from the bench, in a tone that
often rose to anger.
"The majority overthrows a decision entrenched in this nation's law
and its economic life," she said. "As
a result, it prevents the American
people, acting through their state and
local officials, from making important
choices about workplace governance."
In her written dissent, Kagan
warned that this decision would
lead to an increase in "free riders," or
workers who benefit from the union's
collective bargaining without paying.
"Employees (including those who
love the union) realize that they
can get the same benefits even if
they let their memberships expire,"
she wrote. "And as more and more
stop paying dues, those left must
take up the financial slack (and
anyway, begin to feel like suckers)-so they too quit the union. ...
10 | EDUCATION WEEK | July 18, 2018 | www.edweek.org
And when the vicious cycle finally
ends, chances are that the union
will lack the resources to effectively perform the responsibilities
of an exclusive representative-or,
in the worst case, to perform them
Alito answered Kagan both in his
49-page written opinion, and his
statement from the bench, even as he
spoke before she did.
He said "the public importance of
subsidized union speech is especially
apparent" in the field of education,
"since educators make up by far the
largest category of state and local
government employees, and education is typically the largest component of state and local government
He cited issues such as senioritybased teacher pay versus merit pay,
tenure, teacher discipline, and how
to measure teacher performance and
student progress as important public
"Can anyone say these are matters
only for teachers and schools" in collective bargaining, Alito said from the
bench. "We don't think so."
Alito further argued that avoiding
free riders is not a compelling reason
to overcome First Amendment objections. "In simple terms, the First
Amendment does not permit the
government to compel a person to
pay for another party's speech just
because the government thinks that
the speech furthers the interests of
the person who does not want to pay,"
The decision will have broader
consequences for unions than expected, given that the court tackled
questions around whether public
employees opt in or opt out of membership. The justices ruled that
unions cannot deduct fees from
employees' paychecks without their
express consent. In some states up
until now, employees who do not
want to be a part of the union have
had to opt out of paying dues, often
during a time-limited window.
"By agreeing to pay, nonmembers
are waiving their First Amendment
rights, and such a waiver cannot be
presumed," Alito wrote.
A Blow to Teachers' Unions
The decision is expected to significantly dent the treasuries of the
teachers' unions, which will not only
lose revenues from current fee payers but also face an exodus of duespaying members. But the result was
one for which the unions have been
girding, and they have vowed to aggressively seek to encourage union
Combined, the National Education Association and the American
Federation of Teachers have about
4 million members. That's not including agency-fee payers. The AFT has
some 94,000 fee payers and the NEA
has about 88,000.
Onlookers have speculated that
with fewer members and less revenue, teachers' unions could lose some
of their political sway. Still, observers
cautioned against ringing the death
knell for unions just yet.
"I do think unions have been
around for a very long time, they are
very well-organized machines, and
they are very good at adapting," said
Katharine Strunk, a professor of
education policy at Michigan State
University. "I think unions will still
find a way to have a strong role [in
policymaking]. It may look a little
In statements, the presidents of
the two major teachers' unions condemned the decision and pledged
to keep fighting for their members.
Lily Eskelsen García, the president
of the NEA, called the decision a "blatant slap in the face" for educators
and other public workers.
"Those behind this case know that
unions amplify workers' voices and
transform their words into powerful
and collective action," she said. "Even
though the Supreme Court sided
with corporate CEOs and billionaires
over working Americans, unions will
continue to be the best vehicle on the
path to the middle class."
And Randi Weingarten, the AFT
president, warned not to count the
"We will continue fighting, caring,
showing up, and voting, to make possible what is impossible for individuals acting alone," she said.
Others cheered the decision, among
them Jeanne Allen, the founder and
CEO of the Center for Education Reform, a school-choice advocacy organization.