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After Janus, Another Key Lawsuit Targeting Unions: How California’s Yohn Case Targets Opt-Out Rules

By Carolyn Phenicie | February 20, 2018

Eric Thayer/Getty Images

It’s a week until the Supreme Court hears the potential blockbuster case Janus v. AFSCME, which could overrule decades of precedents requiring public employees, including teachers, to pay union dues even if they disagree with union policy and positions.

But there’s another lead plaintiff — Ryan Yohn — ready to take center stage in a second union dues case.

Yohn, a 13-year veteran middle school history teacher in Huntington Beach, California, and seven other teachers in the state are pressing two arguments in their lawsuit.

First, they say, as in the Janus case, that being forced to pay union dues is a violation of the First Amendment. Janus, Yohn, and other government employees who don’t want to be full union members can opt out of paying for the group’s political activity, instead paying what are known as “fair share” or “agency” fees. Those dues fund standard union activities from which they also benefit, like salary negotiations or job protections.

They argue, however, that even basic union duties, like collective bargaining, are inherently political when they affect taxpayer dollars and public policy, and that employees shouldn’t be made to support them if they disagree.


 

“The opt-in/opt-out issue is just as much a First Amendment issue as the compulsory dues issue. They both go to unconstitutional burdens that the state is putting on speech.”
—Terry Pell, president of the Center for Individual Rights


Yohn’s case raises a second issue, one that will likely still be on the table even if the Supreme Court sides with Janus and overturns mandatory dues, as it’s expected to do. The California teachers argue that the current opt-out process for those who don’t want to pay dues is overly burdensome and also violates the Constitution. Instead, they maintain, educators who want to join should have to affirmatively opt into the union.

Teachers who don’t know about, or can’t follow, the opt-out process are also being forced to subsidize speech they don’t support, said Terry Pell, president of the Center for Individual Rights, which brought Yohn’s case. The libertarian nonprofit law firm also represented California teacher Rebecca Friedrichs in her 2016 case challenging union dues.

“The opt-in/opt-out issue is just as much a First Amendment issue as the compulsory dues issue,” he said. “They both go to unconstitutional burdens that the state is putting on speech.”


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Unions, for their part, have argued that the agency fee dues are necessary to prevent “free riders” from reaping the advantages of union contracts without paying, and make it easier for governments to negotiate with one representative of employees.

As to the opt-out issue, unions in a similar case said an opt-out option is sufficient to protect First Amendment rights, and that dissenters can “readily fill out and mail in the simple, one-page opt-out form.”

Yohn, who followed his mother and grandmother into teaching, said he was quick to realize he didn’t support the California union’s positions on a lot of educational issues, like tenure, or its political advocacy on issues from abortion and same-sex marriage to raising taxes.

He became a site representative for the union and went so far as to attend the National Education Association’s annual conference to try to change minds, with little success, he said.

Ryan Yohn (Photo courtesy Ryan Yohn)

In 2009, he discovered he could opt out of union membership and pay only agency fees via an online search.

“At least in my district, it was never told to me that this was an option,” he told The 74 last week.

The process is confusing, requiring a specifically worded letter sent to the California Teachers Association every year in a limited time window, Yohn said. Teachers also must pay the full dues up front and wait to be reimbursed the portion considered to cover political costs.

“We simply want the ability to, if you opt out, you opt out once and that’s it,” he said.

The case, which Yohn and the other educators filed against the California Teachers Association, the National Education Association, local union affiliates, district superintendents, and the state attorney general, is currently on hold pending Janus’s outcome.

If the Supreme Court does rule in Janus’s favor, advocates will then ask the lower courts to move forward with Yohn’s case, in particular the opt-in question.

“After the court decides Janus, if that issue is still open, which we expect it will be, then we’ll file up Yohn and be ready to go to address that issue in the following term,” Pell said.

Lawyers hope to take Yohn’s case to the Supreme Court for the term that begins in October, but they can’t be sure of how quickly it will move through the lower courts before then, Pell added.

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