Janus v. AFSCME: 5 Things to Know About the Latest Union Dues Case Headed to the High Court

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The Supreme Court on Thursday announced it will hear Janus v. AFSCME, a case that once again raises the question of whether public employees must pay dues even if they disagree with their union’s position.

The case, like two others that have reached the high court in recent years, pits unions, who say mandatory fees are necessary to prevent “free riders” from benefiting from union contracts, against dissenting members, who argue that being forced to pay dues violates their First Amendment rights.

The case is likely to be argued in January or February, according to SCOTUSblog; cases are decided by the end of the court’s term in June, and announcements on big, controversial cases usually come near the end of the term.

What’s the case background?

Mark Janus, the plaintiff, is a child support specialist for the Illinois Department of Healthcare and Family Services. The American Federation of State, County and Municipal Employees (AFSCME) represents Janus and the other 35,000 state employees in Illinois.

Janus doesn’t think AFSCME is working for the good of the Illinois government, he wrote in the Chicago Tribune last year. In particular, he thinks union bargaining positions and union-backed politicians have made the state’s budget and pension crisis worse, something that isn’t good for the state or for union workers who would face layoffs or pension shortfalls, he wrote.

“The union voice is not my voice. The union’s fight is not my fight,” Janus wrote.

About half of states require public employees to pay at least some union dues. Those who disagree can get a rebate on the “political” part of their union dues but must pay the part of dues that go toward collective bargaining and the like, sometimes called agency fees or fair-share fees.

Why is this being called “Friedrichs 2.0”?

The Supreme Court has three times in the past four years considered whether members of public employee unions must pay dues. In 2014, the court skirted the issue by deciding that the employees in question, home health aides paid by Illinois’s Medicaid system, weren’t “full-fledged” public employees who could be required to pay dues.

Last year, California teacher Rebecca Friedrichs seemed poised to win her case after her attorneys appeared to persuade Justice Antonin Scalia, the holdout among the court’s conservative bloc, during oral arguments. Scalia died before a decision was handed down, so the final outcome was a 4–4 tie that changed nothing, and justices denied a petition to rehear the case before a full bench.

In a filing asking the court to take their case, Janus’s attorneys wrote, “This case presents the same question presented in Friedrichs.”

What arguments do Janus and opponents of mandatory dues make?

In the 1970s, the Supreme Court in a case called Abood said opponents of unions don’t have to pay the purely political part of union dues, but do have to continue paying the “fair share” portion.

Janus and others, though, argue that the kind of issues public employee unions negotiate — things like state employee pay, pensions, or when teachers can be fired — are inherently political.

“In fact, agency fees inflict the same grievous First Amendment injury as the government forcing a citizen to support a mandatory advocacy group to lobby the government,” Janus’s attorneys wrote in their Supreme Court petition.

Friedrichs, libertarian groups, and a group of states led by Michigan also filed briefs urging the court to take Janus’s case.

Education Next, an education journal backed by groups that support education reform efforts, this summer surveyed the general public and teachers on mandatory dues, and found that teachers narrowly oppose them, 47 percent to 44 percent, while the general public opposes them 44 percent to 37 percent.

What arguments do unions and their supporters make?

AFSCME argues that the Abood precedent should be maintained, because it prevents “free riders” from getting the benefits of union contracts without paying for them. They also argue that having one representative of employees makes it easier to bargain and “ensure labor peace.”

Illinois Attorney General Lisa Madigan, a Democrat, and Michael Hoffman, head of the state’s Department of Central Management Services, are also named in the complaint, and Madigan’s office filed a brief in opposition to the court taking up the dues case.

Civil rights groups have also sided with the unions, charging that the case amounts to an attack by right-wing billionaires against working people, particularly people of color who earn more in unions.

“The Supreme Court, and all of our courts, must be guided by the law and the Constitution, not politics. The Court should reject this political attack on long-settled rights of working people,” Seema Nanda, executive vice president of The Leadership Conference on Civil and Human Rights, said in a release.

Research hasn’t shown any conclusive impact of unionized teachers on student achievement, but in districts where teachers are not unionized, compensation tends to be less and pay more tied to performance.

Unions are preparing for a loss in court.

Unions are already preparing for a loss: the National Education Association has budgeted for a decline in members, and state affiliates are also warning about a loss in revenue and membership.

There’s evidence to back those concerns.

States that have changed laws to weaken unions in recent years have seen drops in union membership. The Michigan affiliate of the National Education Association, for instance, has lost nearly 24,000 members since changes in its state law in 2012 (that’s about a 16 percent reduction), and its annual receipts have dropped by about $10 million, according to records filed with the federal Labor Department.

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