This week, the U.S. Supreme Court (SCOTUS) ruled that it is unconstitutional for a state or public-sector union to force non-consenting employees to pay union agency fees. Why is this important to those of us who support school choice?
A Little History
Mark Janus is a state employee in Illinois who refused to join AFSCME, the union chosen by the state to represent state employees in collective bargaining negotiations. Although he did not choose to join the union, Mark was nonetheless compelled by the state to pay “agency fees” for the union’s bargaining activities on Mark’s behalf.
Mark does not believe that he should be forced to pay fees to a union unless he agrees to become a member. The union believes he should pay fees for the bargaining services he received, but Mark disagrees with the collective bargaining positions the union advocated.
Mark is not the first person to object to paying agency fees to a union where he is not a member. In a landmark case decided by SCOTUS in 1977, Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977), public school teachers in Detroit, Michigan, sued their board of education. Their complaints were like Mark’s; they objected to paying money to a union that pursued ideological and political matters that were far outside of collective bargaining.
SCOTUS held in Abood that public employees could be compelled to pay fees for legitimate collective bargaining activities, but could not be compelled to pay fees for political or ideological activities.
Which Brings Us to This Week
Mark Janus asked SCOTUS to overturn Abood and declare that it is unconstitutional to force public employees to pay a union for any reason. Whereas the state has authority to appoint a union as the exclusive representative of public employees for collective bargaining purposes, public employee membership, and the payment of fees to the union, should be strictly voluntary. This week, SCOTUS agreed.
Mark makes these key points in support of his position:
- Collective bargaining is inherently political; it is impossible to identify non-political, non-ideological aspects of collective bargaining because even bargaining for only wages and benefits involves negotiations about the state’s budget and spending.
- Unions do not restrict their activities to collectively bargaining salaries and wages; dues and fees are used to support a vast array of ideological issues. Public employees should not be forced by government to subsidize someone else’s ideological positions.
- Dues and fees are used for campaign and political purposes unless a public employee opts-out of paying for the unions’ political PAC expenditures. The government should not force a public employee to opt-out; this should be, at the least, an opt-in activity.
- It is a violation of a public employee’s freedom of speech and freedom of association rights under the First Amendment of the U.S. Constitution to be forced to subsidize political and ideological views with which the public employee disagrees.
Not everyone agrees with Mark. First, AFSCME and other unions argue that public employees should be compelled to pay fees to the union, even if they are not members of the union, because they are nonetheless receiving benefits of the union’s work on their behalf.
Mark’s opponents make these key points:
- The original meaning of the First Amendment permitted curtailment of public employees’ First Amendment rights as condition of employment. This view of the constitution held until the mid-to-late 1900’s when SCOTUS drew a line of distinction between the government’s right to limit speech when acting as an employer, and public employee speech when acting as a private citizen.
- Respect for the original meaning of the constitution requires that SCOTUS reaffirm the holding in Abood.
- The Court must balance the interests of the government as employer against public employee payment of fees for collective bargaining. Agency fees are part of the union process, and employees’ official duties, that government employs to operate efficiently.
- The free speech rights of concern to Janus involve speech as public employees not as private citizens.
- Collective bargaining is not lobbying when it is state-mandated activity necessary for the operation of government.
The SCOTUS decision, in favor of Mark Janus’s position, refutes all points above.
The Janus Ruling From a School Choice Perspective
Educational freedom empowers parents and students to make their own choices, and to make decisions that will direct the course of their future success in life. We support this freedom and empowerment.
Mark Janus and public employees, including teachers, who support him, also seek the freedom to make their own decisions about whether to support a union that is negotiating actions that will affect their work and future success.
Parents, students, teachers and public employees empowered with more freedom to make their own choices about their education, work, and the direction of their own lives, can only be good. The teachers’ unions have cornered a tremendous amount of power and influence in our public schools over the past few decades, to the point where they control almost every aspect of public education. Although they are known as “teachers” unions, implying that they represent teachers, the truth is that that the unions are often more important than teachers themselves in the eyes of bureaucrats and legislators eager to court favor both from their political PACs and their so-called dark money groups (over $159 million since 1990).
As noted in the Court’s opinion, teachers’ unions have played both sides in education bargaining, at times as state employees speaking in an official duty capacity and at other times as private representatives of employee-teachers. The Supreme Court noted this and said, “This argument distorts collective bargaining and grievance adjustment beyond recognition.” The teachers’ unions cannot speak for the government employer when publicly advocating positions, and at the same time, for example, speak as employee representative in discipline proceedings. The teachers’ unions’ speech is private speech on behalf of teacher-employees; although their power in elective government has greatly expanded over the years, the teachers’ unions are not the government and do not speak on behalf of the government or the government’s institution of public education.
The Court spoke directly about education, noting that compelling teachers to subsidize union speech is of public importance since educators are the largest category of state and local government employees, and education is, “typically the largest component of state and local government expenditures.”
Collective bargaining for teachers involves broad areas of education policy, such as merit pay, tenure, grounds for dismissal, standardized testing and seniority. And the Court noted that teachers’ unions also speak forcefully during collective bargaining about “controversial subjects such as climate change, the Confederacy, sexual orientation and gender identity, evolution, and minority religions.” Teachers may be unaware that their money paid to the unions in dues and fees subsidizes organizations supporting the union’s view on these issues, even when they disagree with the union’s positions on any of those topics. Teachers’ free speech rights under the First Amendment are violated when teachers are forced, without their consent, to subsidize this private speech of the teachers’ unions.
Teachers in a Post-Janus World
In the past, educators who wanted to teach without those burdens either suffered silently or were often forced out of the public system or the profession altogether. In a post-Janus world, those educators have the freedom to stay in a public-school classroom without a daily challenge to their First Amendment rights. They are free to associate with a union if they desire, but they are equally free to focus on educating young minds without the stress of someone else’s agenda weighing on their personal belief system.
Whether teachers are in public or private schools, we should respect them enough to accord them the opportunity to teach to their best potential. Their freedom to excel should never be limited by a union that sees them as ATMs funding an expansion into politics and policy debates that is wholly unrelated to the teaching profession.
There is a common thread woven through each person who teaches a lesson or skill to another person. Simply stated, teachers want students to learn. The joy in teaching goes far beyond receiving a paycheck.
The joy in teaching is seeing another person learn as a result of your efforts. That’s uniquely satisfying—and beautiful.
This is why we often see public school teachers who support school choice. They know when a child in their classroom is not thriving, yet may be able to succeed in a different environment—perhaps a smaller or larger school, a school with a focus like math or art, or a religious school where faith is openly part of daily life. A great teacher does not want to force children to be in her classroom so he or she can get money; a great teacher wants to see each student learn, and the location or method of providing that education is of little consequence.
There will surely be an outcry from public sector unions criticizing the Janus ruling, with claims that the sky will fall, along with union membership. Yet, the truth is that public sector union membership could just as easily grow, most especially if they stifle their focus on the everyday cruelty of modern politics and unforgiving ideologies. Ask any young teacher whether she or he chose teaching as way to engage politically or to experience the joy of teaching.
Thanks to the ruling in the Janus case, public sector unions have a perfect moment in time to reform their work and re-focus on offering workers quality professional representation for a career that is as rewarding as it is difficult. Teachers have a perfect moment in time to demand this from their unions, if the unions want their support—and their money—or to choose one of many quality professional organization alternatives to union membership.
The best news this week: The Janus ruling shifts power from the teachers’ unions back to teachers, who are the heart of education. This is good news for our children, our families, our future.