Academic journal article Education Next


Academic journal article Education Next


Article excerpt

IN JANUS V. AMERICAN FEDERATION OF STATE, County, and Municipal Employees, Council 31, the U.S. Supreme Court ended the practice of enabling public-sector unions to collect "fair-share" or "agency" fees from employees who decline to join. Although federal law prohibits requiring workers to join a union as a condition of employment, public-sector unions had been allowed to collect some portion of their dues from employees who do not wish to become members. These non-members were required to pay fair-share fees for the non-political activities that benefit all employees covered by the union contract.

The court enshrined the practice in 1977's Abood v. Detroit Board of Education, which the Janus suit sought to undo. In the case, brought by a public-sector employee in Illinois, attorneys argued that public-sector unions' actions and activities are inherently political, and thus the monthly $45 in fees deducted from plaintiff Mark Janus's paychecks violates his First Amendment rights, because it amounts to paying a group to which he does not belong to lobby the government.

It was the third time the justices had heard arguments about fair-share fees in recent years, following Harris v. Quinn in 2014 and Friedrichs v. California Teachers Association in 2016. The justices stopped just short of making fair-share fees illegal in Quinn; Friedrichs ended in a 4-4 ruling after the unexpected passing of Justice Antonin Scalia; and the Abood precedent was upheld by the lower court. The 2017 appointment of Justice Neil Gorsuch gave the issue new life in court, with justices favoring the rights of employees not to be compelled to subsidize political speech they do not support over the rights of unions to charge fees for collective bargaining services.

Speculation about what this Janus defeat will mean for teachers unions has been rampant. Many, if not most, of the analysts who follow education policy and organized labor believe that the ruling will result in decreased power for teachers unions. The logic behind this assumption is simple: teachers unions will lose dues revenue because membership will decrease and former agency-fee payers will cease paying fees for union services. With fewer resources, teachers unions will have less ability to exert their influence in local, state, and federal elections and at the bargaining table. Fewer members, less money, less power. Right?

Not necessarily. Agency fees have been challenged at the state level over the past decade, and several states recently stopped allowing unions to collect them. The passage of those right-to-work laws may have caught state affiliates by surprise, unlike the widely anticipated Janus ruling. Even so, a close look at two of those states, Wisconsin and Michigan, may provide important clues about the future of teachers unions in a post-Janus world.

A Shifting Landscape for "Agency Fees"

Over the last eight years, six states have passed right-to-work legislation that bars unions from assessing fair-share fees for employees who do not wish to belong, in both the public and private sectors: Wisconsin (2011 and 2015), Michigan (2012), Indiana (2012), West Virginia (2016), Kentucky (2017), and Missouri (2017). As of May 2018, there were 22 states that allowed agency fees (see Figure 1).

How did teachers unions fare in the wake of these laws? Were they rendered powerless? Could they adapt? Is a disruption like Janus a chance to reboot for the better?

To explore these questions, we examine state affiliates of the nations largest teachers union, the National Education Association (NEA), in Wisconsin and Michigan. We look at changes in membership rates, revenues, and campaign contributions from 2009-16, the six-year period before and after their new right-to-work laws were adopted. We also interviewed two dozen teachers, administrators, and union officials in Michigan to gather insights about how they have coped on the ground. …

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