The U.S. Supreme Court ruled Wednesday that public employee unions like the California Teachers Association can no longer collect mandatory fees from the workers they represent — a decision that could sap the strength of unions in California and 21 other states where such fees have been state law.

In the 5-4 decision, the court’s conservative majority overturned a 40-year-old precedent and sided with Mark Janus, a social worker for the Illinois state government, who sued the American Federation of State County and Municipal Employees (AFSCME) over $45 in annual “agency fees” he was required to pay the union to cover its collective bargaining and representation costs.

Janus — who was represented by the National Right to Work Legal Defense Fund and the Liberty Justice Center, both conservative foundations — argued that the fees violated his free speech rights under the First Amendment because he was forced to pay them even though he disagreed with the union’s political views. AFSCME’s lawyers argued that the fees did not constitute political speech, rather they prevented employees from becoming “free riders” who benefit from the union’s work on their behalf but don’t pay for it.

Writing for the majority, Justice Samuel Alito was unequivocal in siding with Janus, saying “we conclude that [the mandatory fee requirement] violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”

Alito went on to write that these speech rights extend to “fundamental questions of education policy” in which teachers’ views may differ from union positions.

“Should teacher pay be based on seniority, the better to retain experienced teachers?” he wrote. “Or should schools adopt merit-pay systems to encourage teachers to get the best results out of their students?”

Writing for the four dissenting justices, Justice Elena Kagan said there was no good reason for the court to overturn the 1977 precedent, Abood v Detroit Board of Education, in which the Supreme Court justices ruled that unions could charge the agency fees as long as the proceeds weren’t spent on their lobbying and political campaigns.

“There is no sugarcoating today’s opinion,” Kagan wrote. “The majority overthrows a decision entrenched in this nation’s law — and in its economic life — for over 40 years.”

Kagan also pointed out that the majority in its ruling showed an unusual disregard for precedent. She wrote: “Rarely if ever has the Court overruled a decision — let alone one of this import — with so little regard for the usual principles of stare decisis,” which refers to the legal principle that gives authority to previous precedents.

Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor joined the dissent.

Janus’ victory means unions, long a political force in California, could experience steep revenue declines in the coming years.

In practical terms, this means as of Wednesday school districts and other public agencies must immediately stop deducting agency or so-called “fair share” fees from the employees’ paychecks who have already opted out of full union membership.  In the California Teachers Association’s, about  9 percent of teachers fall into this category. Going forward, new employees must affirmatively agree to make any payments to the union before any money can be deducted from their paychecks.

Although they acknowledged that the ruling was as bad as it could have been for them, union leaders said Wednesday it is an outcome that they’ve been ready for.

“This is a sad day for workers and American families that will skew economic power to corporate elites,” said California Teachers Association President Eric Heins. “But we have been preparing for this day for years and will continue to reach out to members. Our power is not in our money and never has been. It has been in collective values and in relationships we build with teachers.”

While it is unusual for the Supreme Court to overturn a precedent, Monday’s outcome was widely expected. In 2016, the court seemed likely to overturn Abood via a case brought by Rebecca Friedrichs, an Orange County teacher, against the CTA. But it ended in a 4-4 deadlock because Justice Antonin Scalia, the court’s most visible conservative, died unexpectedly in February of that year before a decision could be rendered.

Throughout 2016, the Republican-controlled Congress successfully stonewalled President Barack Obama’s choice to fill the vacant seat, and one of President Donald Trump’s first major actions after taking office was to nominate Neil Gorsuch — a reliable conservative in the mold of Scalia. Gorsuch, who was confirmed in April 2017, delivered with the deciding vote in Janus.

“Today’s decision is a landmark victory for rights of public-sector employees coast-to-coast that will free millions of teachers, police officers, firefighters and other public employees from mandatory union payments,” said Mark Mix, president of the National Right to Work Legal Defense Foundation in an emailed statement. “While this victory represents a massive step forward in the fight to protect American workers from forced unionism, that fight is far from over.”

Currently, about 10 percent of the CTA’s approximately 325,000 members have chosen not to join the CTA and instead pay only agency fees — about $650 compared with about $1,000 that full members pay. The remaining $350 pays for lobbying and campaigning at the local, state and federal levels.

In the June primary, for example, the CTA contributed about $1 million in independent expenditures for Democratic gubernatorial candidate Gavin Newsom and $2 million for state superintendent candidate Tony Thurmond.

The worry for CTA and other public employee unions isn’t just over losing the agency fees from non-union members but also the defection of full-paying members. That has happened in several states where legislatures repealed laws requiring agency fees.

In Wisconsin, union membership fell by more than half and about 20 percent in Michigan within several years after those states eliminated agency fees, according to an analysis in the fall 2018 issue of Education Next by Bradley Marianno, an assistant professor of educational policy and leadership at the University of Nevada, Las Vegas, and Katharine Strunk, a professor of Education Policy at Michigan State University.

“If trends from Wisconsin and Michigan are any guide, teachers’ unions may be permanently crippled in the wake of Janus. They will lose membership, which will result in steep declines in revenues, which in turn may curtail their ability to affect the policy process,” they wrote.

Leaders of public employee unions acknowledge that in the post-Janus world they will have to spend a lot more time and money on grassroots organizing efforts to retain members. Publicly they are optimistic that the worst fears won’t materialize and say they’ve been laying the groundwork for ambitious organizing campaigns.

“We are making investments with early career educators, letting them know the professional supports we provide for them and about our social justice work,” said Lily Eskelsen García, president of the National Education Association, the nation’s largest teachers’ union. “That is where we have to put our emphasis.”

In explaining its decision in Abood 40 years ago, the Supreme Court said that public employers benefit from “labor peace” by negotiating with an exclusive union that collects fees to represent all workers.

In overturning Abood, Alito wrote that the court’s “fears of conflict and disruption” from multiple unions serving employees “have proved to be unfounded.” In 28 states without agency fees, unions continue to serve millions of workers without chaos, even when less than a majority are members, he wrote.

But union leaders have pointed to the chaos from teacher walkouts this year in a half-dozen states to make the opposite argument. All took place in right-to-work states with weak unions and low teacher pay — evidence they cite to make their pitch for union solidarity.

Unions have also been lobbying hard in Sacramento. State budget trailer bills in 2017 and this year have included laws aimed at helping unions recruit and retain members.

2017 trailer bill included a provision requiring government agencies to negotiate the details of when, where and how unions will have access to recruit new employees and to provide them with job titles and contact information for all employees at least every 120 days.

One of this year’s trailer bills takes things a step further — prohibiting government agencies from publicly disclosing information about the site and time of new employee orientations. The purpose behind these bills is to keep conservative activist organizations like the Freedom Foundation from distributing anti-union leaflets at work sites and contacting new employees before unions can to try to convince them not to join.

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  1. Floyd Thursby 3 weeks ago3 weeks ago

    Kagan should have said that the unions had 41 years of good faith and blew it by being extreme and making no progress on the achievement gap or U.S. international scores, in fact fighting most reforms that would lead to progress on those fronts. No money for tutoring poor kids, across the board raises. If you get a gift like Abood, show some good faith, pressure teachers to stay late and tutor poor … Read More

    Kagan should have said that the unions had 41 years of good faith and blew it by being extreme and making no progress on the achievement gap or U.S. international scores, in fact fighting most reforms that would lead to progress on those fronts. No money for tutoring poor kids, across the board raises. If you get a gift like Abood, show some good faith, pressure teachers to stay late and tutor poor kids, not call in sick, decline to defend a Berndt, encourage charters that help kids learn the work habits of the upper 20% of this country, the only people with a really good life, etc.
    Fight to fire bad teachers. If the union had fought for 95% of teachers and pressured the rest to work harder, focused on test score improvements, and shown good faith, they’d have won today. I’m glad Kagan is in the minority. I’m not personally willing to wait another 41 years till I’m maybe dead in the desperate hope one day the union gets a clue. They’ve been a force for bad lately, and got what they deserved. They haven’t prioritized poor children. They’ve prioritized an adult jobs program. Yey for this decision!

    Replies

    • Tom 3 weeks ago3 weeks ago

      Amen brother Floyd. You speak a lot of truth and have your facts right. Hispanic and African-American kids are REALLY getting the academic shaft so glad you pointed that out. I have Hispanic relatives in the Central Valley where less than 30% are grade-level proficient so what does their future look like when they become adults? Not good. They will have high speed rail but no need to ride it … Read More

      Amen brother Floyd. You speak a lot of truth and have your facts right. Hispanic and African-American kids are REALLY getting the academic shaft so glad you pointed that out. I have Hispanic relatives in the Central Valley where less than 30% are grade-level proficient so what does their future look like when they become adults? Not good. They will have high speed rail but no need to ride it to a good paying job because not qualified!

      It’s pretty obvious that unions have let to an inability to properly impose accountability on the portion of the work force who need it. Across the board wage increases without regard to performance is socialism and it has been shown over and over again to pull down performance simply because no matter how good or bad someone is in their job, get paid the same. A union rep once told my wife (formerly in the CA Eng. Union) “we are protecting you from performance-based paid” which they are of course. This is ridiculous and pulls down performance.

      Charters don’t have unionized workers, the academic results are the same or better, and are at least 30% less expensive! When the STRS pension fund contributions get outrageously high and erode education for our kids (are they already?) time to move aside traditional public schools, your days are numbered!

  2. Floyd Thursby 3 weeks ago3 weeks ago

    This will take time but it's a great day. The union lost me when they defended bad teachers my kids had, fought charters that raise black/Latino test scores, bought Gavin Newsom's opposition to charters, corrupted the NAACP which had done amazing things, fought to get Mark Berndt $40,000 before he went to prison for molesting his students, fought for him like a liberal cause which he wasn't, put rules in for everything. They … Read More

    This will take time but it’s a great day. The union lost me when they defended bad teachers my kids had, fought charters that raise black/Latino test scores, bought Gavin Newsom’s opposition to charters, corrupted the NAACP which had done amazing things, fought to get Mark Berndt $40,000 before he went to prison for molesting his students, fought for him like a liberal cause which he wasn’t, put rules in for everything. They don’t care about fighting the rich. They care about their members. The interests of teachers aren’t the same as the interests of kids. Great day for America. We can be more dynamic.

  3. Paul Muench 3 weeks ago3 weeks ago

    Seems likely to turn out well for California teachers. They’ll be able to take home more pay without sacrificing any political outcomes. The Republican Party is all but dead at the state level where budget dollars are determined. California already has already transitioned to local control so no change on how the money is spent.

  4. Sharlett 3 weeks ago3 weeks ago

    I hope the people who brought these lawsuits and who think this is a good idea have the ethical and moral courage of their convictions to never work as social workers and teachers in a work setting that has a union. As someone who has worked in the field of education for 40 years in union and non- union institutions, it is my experience that the power of collective voices makes a difference … Read More

    I hope the people who brought these lawsuits and who think this is a good idea have the ethical and moral courage of their convictions to never work as social workers and teachers in a work setting that has a union. As someone who has worked in the field of education for 40 years in union and non- union institutions, it is my experience that the power of collective voices makes a difference in the over-all well being of all employees. Teachers unions were formed because teachers – mostly women- were paid such horrible wages.

  5. Tom 3 weeks ago3 weeks ago

    Wow, what a big day for parents/kids/taxpayers/freedom and choice, and a bad day for public sector unions and their ability to buy influence both locally and in Sacramento. Maybe now can make progress on better fiscal management of traditional public education. It’s a start anyway, stay tuned for more improvements!