The Promise of Janus

On October 25, CIR President Terry Pell helped take the fight for teacher freedom to the Pennsylvania state Legislature.  He testified in support of proposed legislation designed to implement the Supreme Court’s decision last summer in Janus v. AFSCME along with former Secretary of Education William Bennett (now Chairman of “Conservative Leaders for Education”) and State Policy Network expert Vincent Vernuccio

Pennsylvania is one of several states that is considering a package of legislation designed to protect the right of public employees to decide for themselves whether to support their union without fear or coercion.

The proposed legislation prohibits a union from collecting dues from existing or new members until an employee has affirmatively consented to provide such support after being informed of the constitutional right to decline membership.  The legislation prohibits the use of pressure tactics, such as mandatory, closed-door meetings, contact at home, or public disclosure of an employee’s membership status.

William J. Bennett

The legislation also guarantees the right of any employee to leave a public union at any time by mailing a post marked letter.  It prohibits the use of “maintenance of membership” requirements, which typically require a departed member to continue paying dues until the next contract anniversary date.

The legislation deletes numerous provisions of current Pennsylvania law that Janus made unconstitutional.  If passed, the bill will save public employees (and the state) the cost of expensive of lawsuits otherwise needed to remove these outmoded provisions. As Pell commented, “this bill is designed to make Pennsylvania law litigation proof.”

Vincent Vernuccio

The Pennsylvania effort is designed to help unleash a new era of teacher professionalism by freeing teachers from the labor union model of adversarial relations that has hobbled educational practice for decades.  As Secretary Bennett testified, “at its core, Janus is all about individual control and individual responsibility.  Not coincidentally, those are also the core concepts of professionalism.”

Thanks to Janus, teachers are now free to take charge of their profession in order to achieve the best results for every student. Secretary Bennett contrasted the Janus model of individual control with the “far-too-often current focus on fighting over who gets the money for every student or how to “win” the next round of bargaining.”

Achieving the potential of Janus requires choices at every level, particularly by state legislators.  Legislation to clear away outmoded and now unconstitutional provisions of state law and replace them with provisions that enable individual teachers to step and take charge of their profession is a high and immediate priority.

You can read testimony here (Bennett, Pell, Vernuccio).

On February 6th, 2017, The Center for Individual Rights filed a lawsuit against the state of California and the California Teachers Association on behalf of eight California public school teachers and the Association of American Educators. The teachers are challenging California’s “agency shop” law, which violates the First Amendment by forcing them to pay annual fees to the union – even if they are not a member.

California is one of twenty-three states that forces teachers and other public employees – even those who have expressly opted out of union membership – to pay several hundred dollars in union fees every year. The unions in turn use these “agency fees” to finance their collective bargaining agenda. In the public sector, collective bargaining has profound implications on a host of controversial issue that are central to education policy. By bargaining with the government, unions can effectively advance their policy on issues such as school choice, class sizes, tenure, and allocation of tax dollars.

The eight teacher plaintiffs in Yohn v. CTA have political and moral objections to many of the policies on which unions spend their money. And they are not alone. A poll conducted by Education Next and the Harvard Kennedy School revealed that many teachers disagree with their union on some or all of the issues that unions typically negotiate on: 34% disagree with their union over tenure. 41% disagree with their union over charter schools. Finally, 50% of public school teachers believe that compelled union dues are wrong and unconstitutional.

These are issues on which people – including teachers – have diverse opinions and reasonably disagree. The teachers in this case are asking the courts to respect their First Amendment right to choose – without fear or coercion – whether or not to join or fund a union.

Why the Courts are the Answer

The Supreme Court has recognized the grave First Amendment problems that arise when a state coerces political speech. In 2014, Justice Alito observed in Harris v. Quinn, that, “Agency-fee provisions unquestionably impose a heavy burden on the First Amendment interests of objecting employees.” As he explained, it is a “bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”

In 2016, CIR represented Rebecca Friedrichs and other teachers in Friedrichs v. California Teachers Association – a case raising the same issue. The Supreme Court heard oral arguments in Friedrichs on January 11, 2016. However, after the untimely death of Justice Scalia the Court issued an equally divided, non-binding opinion.

By law, a tie vote by the Supreme Court does not settle a legal question; it simply leaves the lower court opinion in place and reserves the legal question for a future case.

With judicial nominations now moving forward, it is imperative to have the issue ready for the full Supreme Court to consider. Questions of fundamental rights – like the right to free speech and free association as laid out in this case – deserve a final and binding decision from the Court.

Teachers should not be compelled to support an agenda they disagree with. If the First Amendment protects anything, it protects the rights of all individuals to speak and act according to their conscience.

Case Status: Case dismissed in wake of decision in Janus v. AFSCME

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