Labor Law and the First Amendment: Janus v. AFSCME

In one of the most-anticipated cases of the Term, the Supreme Court will reconsider a 40-year-old precedent regarding the intersection of labor law and the First Amendment. In 1977, in Abood v. Detroit Board of Education, the Court ruled that under the First Amendment, public school teachers could be required to pay union fees, known as agency fees, to contribute towards the costs of “collective bargaining, contract administration, and grievance adjustment” even if they did not choose to become union members. The teachers could not, however, be required to pay fees that would be used for political or ideological activities. In Janus v. American Federation of State, County, and Municipal Employees Council, to be argued on February 26, 2018, an Illinois state employee is claiming that keeping his job should not be conditioned on paying such fees to the union that represents his bargaining unit, especially because of the possibility that his contribution might be used to advocate for causes that he disagrees with.

Public sector unions represent employees at the federal, state, and local levels of government – these employees include teachers, firefighters, police officers, and postal workers. The rationale behind requiring non-members to pay union fees is that they still benefit from the results of the collective bargaining agreement, such as better working conditions. These agency fees can currently be collected in twenty-one states. An amicus brief was submitted by over 80 organizations, including the National Women’s Law Center, that support civil rights and economic opportunity was submitted to the Court, arguing that the Court should issue a ruling that would allow the Abood rule to stand. Key among the points made in the brief is that the benefits that unions confer upon employees, such as anti-discrimination protections, would be severely weakened or even eliminated.

On the other hand, some have argued that workers should have the right to not fund an organization that they disagree in order to keep their jobs, as Janus is arguing in the present case. Some have also argued that the cost of maintaining these unions are a burden to state and city budgets. Furthermore, Janus argues that any money paid to a public sector union constitutes political speech, and that requiring non-union members to pay union fees violates their First Amendment right to freedom of expression.

The Court has considered this issue before in Friedrichs v. California Teachers Association, but with only 8 Justices after the death of Justice Antonin Scalia there was nobody to break the 4-4 tie. This means that if opinions among the Justices about whether non-union members in public sector jobs should still have to pay union fees remain unchanged, Justice Neil Gorsuch will have the deciding vote.

An article published by The Economist predicted that Justice Gorsuch is likely to “join his four conservative brethren.” However, it is possible that Justice Gorsuch will be swayed by the arguments of two conservative legal scholars, Eugene Volokh and William Baude, who surprised many when they filed an amicus brief urging the Court to uphold their decision in Abood.

This post was written by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro. (Full disclosure: Professor Shapiro participated in a moot to help prepare one of the lawyers defending the Illinois law allowing agency fees for oral argument.)


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