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Teachers' Unions Have Much to Lose in Follow-Up to Friedrichs Case

Teachers' unions escaped a potentially devastating blow when the U.S. Supreme Court deadlocked in the Friedrichs v. California Teachers Association case last spring, which meant the lower court ruling stood and they could continue to charge fees to nonmembers.

But a new challenge to the teacher groups—and public sector unions in general—appears to be on the horizon.

On Tuesday, attorneys requested that the Supreme Court hear a case in which Illinois health care worker Mark Janus argues that he should not be forced to pay monthly union fees to keep his job. The plaintiff in Janus v. AFSCME pays about $45 a month in compulsory fees to the American Federation of State, County and Municipal Employees, which collectively bargains on his behalf.  

Like Friedrichs, this case could potentially overturn the 1977 ruling from Abood v. Detroit Board of Education that said states could allow unions to exact mandatory fees as a condition of government employment. Often called agency or "shop" fees, they represent the cost of negotiating things like salaries and benefits that apply to all workers, whether or not they belong to the union. 

Overturning Abood would have implications for teachers (and other government workers) in more than 20 states that allow unions to charge agency fees. 

Mark Mix, president of the National Right to Work Legal Defense Foundation, one of the two groups filing the case for Janus, said in a statement, "Requiring public servants to subsidize union officials' speech is incompatible with the First Amendment. This petition asks the Supreme Court to take up this case and revisit a nearly half-century-old mistake that led to an anomaly in First Amendment jurisprudence."  

Only four justices need to agree to hear the case, so there's a good chance it will be accepted for the next session. 

Many people assumed that the high court would overrule Abood in the Friedrichs case, which centered around a California teacher who didn't want to pay union dues, as my colleague Mark Walsh wrote this week. "But Justice Antonin Scalia died soon after those arguments, leading to the 4-4 deadlock which allowed court rulings upholding California's agency fee law to remain in place," he explained. "The anti-union groups are essentially betting that new Justice Neil M. Gorsuch would be likely to side with them."

Earlier this year, a group of California teachers filed a U.S. district court case challenging agency fees as well. The teachers in Yohn v. California Teachers Association were represented by the Center for Individual Rights—the same group that brought the Friedrichs case. But the Illinois case has beaten the recent California one to the high court. 

The teachers' unions are already bracing for membership losses, according to Mike Antonucci at The 74. That's because teachers in states with mandatory fees have an incentive to join the union—they're already paying about 70 percent of the union dues, so what's a few more dollars a month for full membership? 

The National Education Association has modified its budget for 2017-18 in anticipation of losing about 20,000 full-time equivalent members, reports Antonucci. "This seems accurate because even larger losses won't be felt until the 2018-19 school year," he writes. (A ruling on Janus would be likely to come down in June 2018.)

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