Education Week - October 4, 2017 - 16

Supreme Court Takes
Case on Union Fees
which preserved a lower-court victory by the unions.
The court is now back at full
strength with the addition of Justice Neil M. Gorsuch, and formally
opened its term on Oct. 2. On Sept.
28, the justices jumped at the first
opportunity to add the Janus case to
their docket for the new term. Oral
arguments are likely in January or
February.
"There are really no new arguments on this, just a change in the
membership of the court," said Matthew W. Finkin, a law professor and
labor law expert at the University of
Illinois, Urbana-Champaign. "The
unions have just been waiting for
the other shoe to fall."

A Governor's Lawsuit
The appeal in the new case was
brought by the Springfield, Va.based National Right to Work
Legal Defense Foundation and
the Chicago-based Liberty Justice
Center on behalf of Mark Janus,
an employee of the Illinois Department of Healthcare and Family
Services, who has $44.58 deducted
from his paycheck every month to
cover the collective-bargaining
fees of AFSCME.
"Everyone tells me this case has
national implications," Janus says
in a video produced by Liberty
Justice Center. "But I don't look
at it that way. I just look at it as
an average guy who is standing up
for his own rights of free speech.
... I'm forced to pay money to a
union that then supports political
causes that I don't agree with."
Janus and two other state employees who object to the union
fees had intervened in a lawsuit
brought by Illinois Gov. Bruce
Rauner, a Republican who has
sought by legislative and legal
means to upend the status quo in
public employment in the state, as
has occurred in nearby states such
as Michigan and Wisconsin.
The Illinois suit seeks to have
the state's public-sector agency
law declared unconstitutional on
First Amendment grounds. The
governor was dismissed from the
suit for lack of standing, and the
other plaintiffs fell by the wayside
because of other issues.
Both a federal district court and
the U.S. Court of Appeals for the
7th Circuit, in Chicago, dismissed
Janus's case, ruling that it was
Abood that stands in the way of
his claims.
In their appeal to the Supreme
Court, the two groups backing
Janus argued that his case would
make a good vehicle for the Supreme Court to use to finally put
Abood to rest.
"Janus and millions of public
employees are subject to agency
fee requirements that compel
them to subsidize the speech of
a third party (an exclusive representative) that they may not wish

to support," the appeal says. "This
significantly impinges on the First
Amendment rights of each and
every employee who did not choose
to subsidize the union's advocacy."
Mark Mix, the president of the
National Right to Work Legal
Foundation, said in a statement
that "we are now one step closer
to freeing over 5 million public
sector teachers, police officers,
firefighters, and other employees
from the injustice of being forced
to subsidize a union as a condition
of working for their own government."

'We Won't Back Down'
Both AFSCME and Illinois Attorney General Lisa Madigan, a
Democrat who has clashed with
Rauner, filed briefs urging the justices not to take up the case.
"This case is an especially poor
vehicle to reconsider Abood's holding because it has no factual record," Madigan's brief said.
Lily Eskelsen García, the president of the nearly 3 million-member National Education Association, said in a statement, "We won't
back down from this fight and we
will always stand up to support
working people, our students and
the communities we serve."
The NEA has about 87,000 feepayers.
Randi Weingarten, the president
of the 1.6 million-member American Federation of Teachers, which
has about 89,000 fee-payers, issued
a statement critical of the court's
decision to take up the case.
Weingarten said that "corporations, wealthy interests and politicians have manufactured Janus as
part of their long and coordinated
war against unions. ... And under
the guise of the First Amendment,
they want to overturn a 40-yearold precedent that's been reaffirmed numerous times."
That last point was one stressed
by Justice Elena Kagan in a 2014 decision, Harris v. Quinn, a case about
home-health workers in Illinois.
In that 5-4 case, the majority
held that the workers were not
full-fledged state employees, and
thus the concept of the union's
being able to collect agency fees
from nonmembers did not apply.
The court stopped just short of
overruling Abood, but Justice
Samuel A. Alito Jr. wrote some 10
pages questioning Abood's constitutional underpinnings.
Writing for the dissenters,
Kagan said Alito was "taking potshots" at the 1977 precedent.
"The Abood rule is deeply entrenched and is the foundation for
not tens or hundreds, but thousands
of contracts between unions and
governments across the nation,"
Kagan wrote. "Our precedent about
precedent, fairly understood and applied, makes it impossible for this
court to reverse that decision."
That assertion will soon be
tested in the new case.

16 | EDUCATION WEEK | October 4, 2017 | www.edweek.org

AP Photo/J. David Ake

CONTINUED FROM PAGE 1

The U.S. Supreme Court has already agreed to hear one dispute with big implications for public education in its
term that opened Oct. 2, and others that hold high interest for educators are knocking at the door.

Watch List: High Court, 2017-18 Term
Education-related cases to follow
By Mark Walsh
After a 2016-17 term with major decisions affecting special education, private schools, and
government aid to religion, the new U.S. Supreme Court term that opened Oct. 2 was looking
like it would start off pretty slow for education issues.
But that changed dramatically late last week when the justices agreed to again take up the
issue of public-employee union fees to their docket. The court could finally be ready to overrule
a 40-year-old precedent that allows teachers' unions to charge fees for collective bargaining
from those who don't wish to join the union. (See related article, Page 1.)
And more big education issues could yet join the court's docket this term, including cases on
prayer at school board meetings, and transgender student rights.
Meanwhile, the court's docket of accepted cases includes major ones about religious
objections to same-sex marriage, voting rights, and-potentially still-presidential power over
immigration, all of which could be of interest to educators.
"There is only one prediction that is safe about the upcoming term, and that is it will be
momentous," Justice Ruth Bader Ginsburg said on Sept. 20 in an appearance at Georgetown
University Law Center.
(That was before the court pulled a pair of cases from the docket until further notice after
President Donald Trump issued a revised version of that so-called travel ban Sept. 24. The
dispute may yet re-emerge as an issue before the high court.)
ACCEPTED CASES
Public-Employee Union Fees
The justices have agreed to plunge back into
the issue that divided an eight-member court in
2016: whether public-employee unions, including
the National Education Association and the
American Federation of Teachers, may continue
to charge fees to non-members for collective
bargaining.
In that 2016 case, Friedrichs v. California
Teachers Association, the justices deadlocked 4-4
in a case in which nonunion teachers asked it
to overrule Abood v. Detroit Board of Education,
the 1977 Supreme Court case that authorized
public employee unions to charge service fees to
employees in the bargaining unit who refuse to
join.

Cake, Same-Sex Marriage, Religion, and Speech
One of the court's most-anticipated cases
is Masterpiece Cakeshop v. Colorado Civil
Rights Commission (No. 16-111). The case has
implications for education in the sense that it
deals with the clash between religious objections

to gay rights and the reach of state civil rights
protections.
This case involves a Colorado baker, Jack
Phillips, who declined to create a wedding cake for
a same-sex couple. Phillips, who describes himself
as a cake artist, asserts a First Amendment free
speech right to not be compelled to create a cake
when he has deeply held religious convictions
against same-sex marriage.
He cites West Virginia State Board of Education
v. Barnette, the 1943 Supreme Court decision
holding that students could not be compelled to
recite the Pledge of Allegiance in school.
The state of Colorado, and the American Civil
Liberties Union lawyers representing the samesex couple, Charlie Craig and David Mullins, will
argue that the state's civil rights laws, which
protect against discrimination based on sexual
orientation, bar Phillips's conduct in refusing to
serve customers based on their status.
They cite a different education-related Supreme
Court precedent, Rumsfeld v. Forum for Academic
and Institutional Rights, a 2006 decision in which
the high court held that a federal statute requiring
colleges to treat military recruiters the same as
non-military ones was not compelling a group of
law schools to speak in a way that conflicted with

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Education Week - October 4, 2017

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