All the available evidence suggests a Supreme Court majority is now poised to deliver a death blow to a 40-year-old precedent that has allowed public-sector unions for decades to pick the pocketbooks of non-members to pay the costs of union bargaining.
About the last hope of those wishing to preserve this stinky feature of compulsory unionism is the very fact that a judicial precedent would fall. The longstanding principle of stare decisis (Latin for “to stand by things decided”) serves as a check against hasty overturning of precedents.
Nevertheless, the Supreme Court throughout history has decided on numerous occasions that certain of its previous decisions do not square with the Constitution’s protection of individual liberties. Consider the implications of stare decisis perpetuating the shameful doctrine of “separate but equal,” which validated Southern states’ laws to keep black people segregated (and decidedly unequal). Plessy v. Ferguson stood as the ignoble law of the land for more than a half-century before Brown v. Board of Education rightly shredded it in 1954.
The rights-sapping precedent at issue today is Abood v. Detroit Board of Education, in which the Supreme Court ruled in 1977 public employees not wanting to join a union nevertheless can be assessed agency, or “fair-share,” fees to help cover bargaining costs.
Given that bargaining verges into issues of a political nature, such compelled speech infringes on an individual’s First Amendment free-speech rights. That is the central contention of the case now on the Supreme Court’s 2017–18 docket (Janus v. American Federation of State, County, and Municipal Employees). If the Court overturns Abood in its Janus decision, the outcome would secure the rights of teachers, police officers, firefighters and other public employees who would rather speak for themselves than let the unions steal their voice and their money.
The lead plaintiff, Mark Janus, is an Illinois health care worker who has $44.58 deducted from his monthly paycheck to pay the American Federation of State, County, and Municipal Employees, a union, its bargaining fee. In a video produced by the Liberty Justice Center, Janus said he considers himself “an average guy who is standing up for his own rights of free speech … forced to pay money to a union that then supports political causes that I don’t agree with.”
In a 2016 case, Friedrichs v. California Teachers Association, the Supreme Court appeared set to overthrow the Abood precedent by siding with a group of Golden State teachers opposing union-compelled speech. However, the death of Justice Antonin Scalia, a critic of Abood, left the court deadlocked. Janus could find success now that Justice Neil Gorsuch, who has a similar strict-constructionist philosophy as the one embraced by Scalia, is on the bench.
As important as free speech is, the significance of Janus for parental choice is the severe practical impact it would have on two key national teacher unions — the National Education Association (NEA) and the American Federation of Teachers (AFT) — and their state and local affiliates. NEA and AFT have staunchly opposed school choice and have used their campaign contributions to pressure Democratic Party politicians into blocking many of the educational options their constituents would like to have.
In an editorial, the Washington Examiner considered what unions’ prospects would be in a post-compulsory-unionism America: “Without a flood of plundered money, unions will be a diminished force, and their power over Democratic politicians will likewise decline. As polling increasingly shows bipartisan support for school choice, especially for the type of program [tax-credit scholarships] in Florida, politicians are likely to swing that way, too. They go where they can get votes.”
NEA has 87,000 agency fee-payers, and AFT has 89,000. It is unlikely a large percentage will pay fees voluntarily. But the unions’ problems go even deeper than that.
In his “Union Report” column for The74, Mike Antonucci observed “teachers who are reluctant about whether to pay partial or full dues in states like Illinois or Massachusetts may opt to leave a teachers’ union altogether following an unfavorable union ruling.” Antonucci cited official estimates of impending membership losses as high as 30–40 percent in the California Teachers Association and 20 percent in New York City’s United Federation of Teachers.
The Supreme Court likely will hear arguments in the Janus case in January or February and deliver a decision before the current term ends next June. Whatever the Court decides, it will have a long-lasting impact on education reform in America.
Robert Holland is a senior fellow for education policy with The Heartland Institute.