Teachers unions absorbed a deep but expected blow on Wednesday from the nation’s highest court.
The 5-4 ruling in the case, Janus v. AFSCME Council 31, means that states and school districts will no longer be able to require their employees to pay negotiating fees to the unions that bargain on their behalf. That could mean a steep decline in union membership and dues, which in turn will limit the unions’ political power — the hope of the conservative groups that helped bring the case.
“We conclude that public-sector agency-shop arrangements violate the First Amendment,” wrote Justice Samuel Alito in the majority opinion. He emphasized that employees must also affirmatively opt in to union membership, potentially making unions’ efforts to keep members even more challenging.
In a sharply worded dissent, Justice Elena Kagan warned: “Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways.”
“Judicial disruption does not get any greater than what the Court does today,” Kagan wrote.
Unions have been preparing for this outcome, which seemed like an inevitability after Donald Trump won the presidential election. That gave him the opportunity to replace Antonin Scalia, whose unexpected death led to the 4-4 tie in a similar case two years ago.
Publicly, teachers unions have put on a brave face while acknowledging the challenges this decision would bring. Twenty-two states currently allow unions to collect those agency fees.
“Don’t count us out,” American Federation of Teachers president Randi Weingarten tweeted after the decision’s release. “While today the thirst for power trumped the aspirations and needs of communities and the people who serve them, workers are sticking with the union because unions are still the best vehicle working people have to get ahead.”
The National Education Association, the nation’s largest union, has planned for staff cutbacks in anticipation of the ruling and projects that 300,000 members will leave. In California, unions have gotten laws passed designed to help keep teachers in the fold, including ensuring school districts provide unions with teacher contact information and opportunities to meet with new members. In New York City, the powerful United Federation of Teachers, which counts nearly 200,000 members, has knocked on thousands of classroom doors to tell teachers about the case and persuade them to stick with the union.
“Our union will remain strong, and we will not be silenced,” UFT President Michael Mulgrew said Wednesday.
To critics who say teachers unions have been a barrier to school reform efforts, the case presents another opportunity to push for their vision. Those critics include Secretary of Education Betsy DeVos, who has assailed unions as “defenders of the status quo.”
A number of states, including Wisconsin and Michigan, have worked to cripple unions in a manner consistent with Janus. In both states, union membership has dropped and union dues have fallen, though significantly more so in Wisconsin than Michigan. “We’re already in a post-Janus world,” a union spokesperson in Michigan recently told Chalkbeat.
Research subsequently found that in Wisconsin, where new laws severely limited the scope of collective bargaining and allowed members to opt out of unions, student achievement suffered and teacher compensation fell. In Michigan, weaker unions and tougher evaluations led to a spike in teachers turnover in disadvantaged schools, another study found.
The decision comes as teachers across the country are increasingly energized politically: running for office, pushing for higher salaries, and protesting DeVos.
“It’s like the best of times and the worst of times,” said Weingarten in Education Week.
That suggests that if Janus weakens unions in a way that means that they can’t bargain for higher pay, it could encourage the kind of teacher uprisings and strikes recently seen in states like Oklahoma, Arizona, and West Virginia to spread.
The legal case turned on the First Amendment: plaintiff Mark Janus, a child support specialist employed by the state of Illinois, argued that requiring him to pay union fees amounted to forcing him to support a political organization, violating his free speech rights. Janus is not required to join the union, and public employees like him can instead choose to pay “agency fees” to cover bargaining costs rather than full union membership costs. Unions argue that this avoids a free-rider problem, where workers can benefit from union contract negotiation without paying for it; Janus argued that such negotiations are inherently political.
In a unanimous 1977 case, the Supreme Court ruled that although government can’t make employees join a union, they can require payment of agency fees. Today’s decision overrules that case.