Nat Malkus at AEI:
Last week, the US Supreme Court announced that it would hear Janus v. American Federation of State, County, and Municipal Employees (AFSCME). While it is among the biggest cases on the court’s docket next year, it certainly holds the biggest stakes when it comes to public education. The case deals with mandatory union agency fees, which plaintiff Mark Janus, a child support specialist at the Illinois Department of Healthcare and Family Services, argues violate his First Amendment rights to free speech and free association.
Illinois state law “compels state employees to pay agency fees to an exclusive representative for speaking and contracting with the state over governmental policies.” In short, non-union employees must pay unions, as the exclusive employee representatives in collective bargaining, to negotiate contracts on their behalf. Janus has long been critical of both the union and forced association through agency fees. He wrote last year in the Chicago Tribune, “The First Amendment guarantees freedom of speech and freedom of association. I don’t want to be associated with a union that claims to represent my interests and me when it really doesn’t.”
Janus targets a 40-year-old precedent set by Abood v. Detroit Board of Education, which permits allowing agency fees as a means to avoid a “free rider” problem: non-union members benefiting from union representation in contract negotiations, but not paying for that service. Abood allows agency fees, so long as the fees are limited to the portion of membership dues used solely for collect bargaining, and are separated from funds used for political purposes. Critics argue that agency fees make financially supporting a union, and its politics by extension, a precondition of public employment.
Janus follows Friedrichs v. California Teachers Association, a 2016 US Supreme Court case that almost brought an end to agency fees. Friedrichs, a public school teacher forced to pay agency fees to the California Teachers Association (CTA), brought suit using a First Amendment argument similar to Janus’s, also targeting Abood. Friedrich’s case made it to the Supreme Court, where a majority of justices seemed ready to rule in her favor and against the constitutionality of agency fees. But things changed when Justice Antonin Scalia died unexpectedly a month after oral arguments. That March, an equally divided eight-member court deadlocked on Friedrich’s case, leaving Abood intact.
Now, of course,
Gorsuch has taken Scalia's place.
