Janus v. AFSCME for Teachers, Eleven Questions About Union Fees

For most of the twentieth century, a teacher in a school district with a union contract could face a strange sentence on the first paycheck: part of your wages goes to an organization whether you asked for it or not. The reasoning was that you benefited from what the union bargained, so you should help pay for it. A great many teachers shrugged, signed and got on with the job of teaching.

Then, in 2018, the Supreme Court said that a government cannot make a person pay a union as a condition of public employment. A lot of teachers have heard the headline and not the details. What exactly changed? What did not? How does a person stay in, or leave, and what happens to the contract's pay scale if she does?

This is a Q&A, so the answers are plain, numbered by question and kept to what I am sure of. A caution up front: I am not giving legal or financial advice for your situation. Rules vary by state and by contract, and the person to ask is your state's labor relations agency, your district's human resources office or a lawyer. Whether to join, stay in or leave is entirely your decision, and teachers who do any of those things are making a legitimate choice.

The cases in one paragraph

Four Supreme Court cases form the backbone: Abood (1977), which allowed fees; Knox (2012), which began to tighten the rules; Friedrichs (2016), which split without a ruling; and Janus (2018), which ended mandatory fees for public employees. Below, each gets a question.

The questions

1. What did Janus v. AFSCME hold?

In Janus v. American Federation of State, County, and Municipal Employees, Council 31, decided on June 27, 2018, the Supreme Court held 5 to 4, in an opinion by Justice Samuel Alito, that public-sector agency fees, which require employees who do not belong to a union to pay a fee to it, violate the First Amendment. The reason: bargaining with a government employer is political in nature, because the issues, pay, pensions, class size and the like, are matters of public concern, so forcing a person to pay to support the union's side is compelled subsidy of speech. The Court also held that the government may not take any payment for a union from a nonmember's wages unless the employee affirmatively consents, with the waiver of First Amendment rights shown by clear and compelling evidence.

The plaintiff, Mark Janus, was an Illinois state child-support specialist, not a teacher. The ruling covers all public employees, teachers included.

2. What was Abood, and how did Janus overrule it?

Abood v. Detroit Board of Education (1977) was a case brought by Detroit public school teachers. The Court held that a public employer could require nonmembers to pay a fee covering the union's collective-bargaining costs, though not its political and ideological activities. The reasoning was that all employees benefit from the contract and should share its costs, and that this prevented "free riding."

In Janus, the Court concluded that Abood had been wrongly decided. It said the line between bargaining costs and political activity was unworkable in the public sector, because bargaining over public budgets is inherently political, and it said that the free-rider rationale was not enough to justify compelled payment. The majority overruled Abood by name. The dissent, by Justice Elena Kagan, argued that the decision overturned a long-settled precedent and would upset the arrangements of many states.

3. What did Knox and Harris do?

These were steps on the road. In Knox v. Service Employees International Union, Local 1000 (2012), the Court held that when a union imposes a special assessment, an extra charge, for political purposes, it must give nonmembers notice and may collect it only from those who affirmatively consent, not from those who fail to object. The majority said that Abood was already something of an anomaly in First Amendment law and signaled doubts about the whole structure.

In Harris v. Quinn (2014), the Court held that home-care aides in Illinois who were not full-fledged public employees could not be required to pay agency fees. It declined to overrule Abood directly but described it in sharply limiting terms. By the time Janus arrived, the logic of those two cases was visible.

4. What was Friedrichs, and why does it matter?

Friedrichs v. California Teachers Association was a challenge to agency fees brought by a group of California public school teachers, and it was set to ask the Court to overrule Abood. The case was argued in January 2016. Justice Antonin Scalia died in February 2016, and in March 2016 the Court issued a one-line decision affirming the lower court by an equally divided vote, which settled nothing for the country but left the question open. Janus returned the issue two years later with a full bench, and the answer was the one that Friedrichs might have been.

For teachers, the lesson is that the fee question was a teacher's case first. It is why the story is told on an education page.

5. Does Janus mean teachers cannot have a union?

No. This is the most common misunderstanding, and I want to be clear. Janus does not abolish public-sector unions, does not ban collective bargaining, and does not stop teachers from joining a union and paying dues. It concerns whether anyone can be forced to pay. Teachers remain free to organize, join, vote, serve as officers and bargain through an elected representative, in the states that allow it. The ruling protects both a teacher who wants to join and a teacher who does not.

6. Can a nonmember still be made to pay anything?

Under the First Amendment as interpreted in Janus, a public employer may not collect agency fees or any other payment to a union from an employee who has not affirmatively consented. A school district, as a government employer, may not deduct such a fee from a nonmember's pay. If you are a nonmember and find that deductions are still being taken, ask your payroll office what authorization it has on file, and consult your state labor agency or a lawyer. That is a question about your own situation, and I cannot answer it from here.

7. How does a teacher leave a union?

The mechanics depend on the membership agreement the teacher signed and on state law. Many membership forms specify how and when a member may resign, often by written notice to the union and sometimes within a set period each year. Some states have statutes that address resignation and the deduction of dues, and some leave it to the union's own rules and the contract.

The practical steps, without telling you what to do: find the card or form you signed and read the terms on resigning; find out whether notice goes to the union, the district or both; put any notice in writing and keep a copy; and ask the payroll office to confirm in writing when deductions stop. If anything is unclear, your state labor agency or a lawyer can explain the rules in your state.

8. What are opt-out windows, and are they legal?

An opt-out window, also called a revocation or escape period, is a limited time each year during which a member may revoke an authorization for dues deduction. A teacher who tries to leave outside the window may be told that deductions will continue until the next one.

Whether such windows are lawful has been litigated since Janus, and the outcome depends on the facts: whether the person signed an agreement to pay dues for a set period, and how a court reads that agreement. Courts have taken up the question case by case, and the law in this area continues to develop. I will not state a rule for your state. I recommend that you read your card, read the contract and ask the labor agency or counsel.

9. What is a dues deduction card, and what should I read on it?

A dues deduction card, or payroll authorization, is the form a member signs to authorize the employer to withhold dues from each paycheck and send them to the union. It is different from the form that makes you a member, though in practice some unions combine them.

Read three things on any such form. First, the amount and how it can change. Second, the term: does the authorization run for a year, renew automatically, or continue until revoked? Third, the revocation procedure: how, when and to whom you give notice. Keep a copy. Janus requires an affirmative, clear consent for the deduction to be valid, so what the card says matters.

10. If I leave, do I lose liability insurance?

This is a practical worry that keeps many teachers in. Unions commonly bundle professional liability coverage with membership, which can cover legal costs if a teacher is sued or accused of misconduct in the course of the job. The coverage is a genuine benefit.

It is not the only source. Independent professional associations that are not unions also offer members liability coverage; two examples are the Association of American Educators and the Christian Educators Association International. Many districts also carry their own coverage that may protect employees acting within their duties, and some states have statutes that protect or indemnify public employees. The terms differ, so compare what each covers, what it excludes and what it costs. This is a comparison for you to make with the documents in hand, and an insurance professional can help.

11. Do nonmembers still get the contract's salary schedule?

Yes. In the states that allow public-sector bargaining, a union that wins the right to represent a unit becomes the exclusive representative of all employees in the unit, members and nonmembers alike. The contract it negotiates applies to everyone in the unit, so the salary schedule, the leave policy and the grievance procedure cover a nonmember too. The union also owes every employee in the unit a duty of fair representation.

What nonmembers typically do not have is a vote on ratifying the contract or on the union's internal matters, since those belong to members. Defenders of the old fee system called nonmembers "free riders" for this reason. The Court's answer in Janus was that the free-rider argument did not justify forcing anyone to subsidize speech they disagreed with, and that exclusive representation, which the case did not challenge, was the arrangement that created the situation to begin with. Opponents see that as a point against exclusive representation. Supporters see it as a reason to join voluntarily. Either way, the choice is the teacher's.

The union's best argument, and the short answer

The strongest case for the old fee system deserves a fair statement. A union that must represent every employee in the unit, members and nonmembers alike, takes on real costs in grievances and bargaining, and if some of the people it serves pay nothing, the burden shifts to those who do. Over time, that could weaken the organization and, its defenders say, the voice teachers have in their working conditions. It is a serious argument, and in 1977 the Court found it persuasive enough to approve the fees.

Here is the short answer, in three points. One, the First Amendment protects the individual from being made to subsidize speech, and the burden on the union is a cost of the exclusive-representation arrangement the union itself sought, not a license to draft nonmembers. Two, a union can still persuade: it can show teachers what it has won and ask them to join, and many do. Three, if exclusive representation imposes duties that a union finds too costly, the remedy lies with the legislatures that wrote the arrangement, and the debate over changing it is a legitimate one, not something the Court's decision can settle. Reasonable people disagree on the third point, and the case did not decide it.

What the ruling did not change

It helps to keep the boundaries straight, so nobody expects more or less from the decision than it delivered.

• It did not touch private-sector unions, since the First Amendment limits government, not private employers.
• It did not end exclusive representation, which the Court noted it was not asked to decide.
• It did not strike down any state's bargaining statute, which remains the product of that state's legislature; see Vergara v. California, the Lawsuit That Put Teacher Tenure on Trial for another fight over teacher employment rules that was decided on different grounds.
• It did not prevent a union from asking for voluntary contributions or from running a membership drive.

Where to check the rules for your state

Three places will answer most of your questions. The first is your state legislature's website, where you can search the statutes on public employee bargaining and dues. The second is your state labor relations or public employment relations board, which administers the law and often publishes plain-language guidance. The third is your district's human resources or payroll office and the contract itself, which should be posted on the district website. See What a Teachers Union Contract Says and Why Every Parent Should Read One for what a contract contains, and How Teacher Unions Won the Right to Bargain, and What FDR Warned About for how bargaining reached the schools in the first place.

Why a conservative cares

The argument here is not against teachers' unions as such. It is about the principle that no American should be compelled, as a condition of earning a living, to pay for advocacy on public issues with which he may disagree. Jefferson, in his 1786 Virginia Statute for Religious Freedom, wrote that "to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical." The context there was religion, and nobody should stretch it into a decision about unions. But the principle, that compelled support for opinions is an affront to a free conscience, is the root from which the First Amendment's protections of speech grew, and it is the principle the Court applied in Janus. The case rests on that Founding idea, which is the reason it belongs among the cases on the courts page.

That is the idea, and a free teacher is a better teacher. A teacher who stays in a union because she believes in it is a stronger member than one who stays because she has no choice, and a union that must earn its members' support is a union that has to listen to them.

The case in brief

1. Janus v. AFSCME (2018), 5 to 4, held that public employers may not compel nonmembers to pay agency fees, and may take no union payment without the employee's affirmative consent.
2. It overruled Abood (1977), after Knox (2012) and Harris (2014) had narrowed it and Friedrichs (2016) had split 4 to 4 without a ruling.
3. Unions remain lawful and teachers remain free to join, serve and bargain; what changed is that payment must be voluntary.
4. Leaving, opt-out windows, deduction cards and insurance depend on state law and on what you signed, so read the documents and ask the state agency.
5. Nonmembers remain covered by the contract's terms, because the union is the exclusive representative of the unit.

What you can do: find the dues authorization or membership form you signed and the contract on your district's website, read the sections on resignation and revocation, and write down any questions for your state labor relations board.