Life after Janus? The view from Indiana

The U.S. Supreme Court is expected to hand down a decision this month in Janus v. AFSCME, a lawsuit that argues it’s a violation of the First Amendment for unions to collect “fair share fees” to offset the cost of representing employees who choose not to join up and pay dues.

If the court rules for Mark Janus, the Illinois government employee who brought the lawsuit, the result will be bad for public-sector unions in the 20-plus states that permit fair-share fees. But unions can still be effective if they work at it, according to officials with the Indiana State Teachers Association – which has been down this road before.

Keith Gambill

“We really focus on the greater work of the association: our ability, when we join together and speak collectively, to be in a better position to effect change,” said Keith Gambill, the association’s vice president. “It’s that collective action, that coming together, that really assists us in working to make learning conditions better for our students.”

Indiana used to have fair-share fees for teachers, but the state legislature outlawed them in 1995. The ISTA, which represents teachers in most of Indiana’s 291 school districts, lost members and revenue as a result, Gambill said. In the years that followed, it lost key battles over education funding and teacher bargaining rights. But it hasn’t been sidelined, and it’s still a player at the Statehouse – despite fighting uphill battles as a group aligned with Democrats in a state controlled by Republicans.

“ISTA remains extremely strong as an association,” said Gambill, a vocal music teacher in Evansville-Vanderburgh Schools. “We have nearly 40,000 members across the state in all employment categories.”

Under a 1977 Supreme Court decision, Abood v. Detroit Board of Education, public-sector unions can negotiate contracts that require non-members to pay fees, called fair-share or agency fees, to help pay the costs of bargaining contracts that cover members and non-members alike. Employees can’t be forced to join the union or to pay for political activity, public relations, lobbying, etc.

The idea is to prevent “free-riding,” in which employees benefit from higher wages and better benefits but don’t pay any costs. Janus argues that bargaining for public funding is a form of speech and it’s a violation of his First Amendment rights to compel him to help pay for it. Gambill disagrees.

“If you have an exclusive representative that is working on your contract,” he said, “there should be some effort on your part to assist with that specific work – not the entire work of the organization but that specific work.”

Most teachers, even those who don’t belong to unions, value the work that unions do, according to a recent survey by an anti-union group. Eighty-five percent of teachers, including 74 percent of non-union members, said unions are essential or important. Similar majorities said pay and working conditions would be much worse without unions. Yet over half of non-members in fair-share states said they would opt out of paying to support the union if the Supreme Court ruled they didn’t have to.

The National Education Association, ISTA’s national affiliate, has projected that it could lose about 10 percent of its 3 million members and about 13 percent of its funding if the decision goes against it.

Gambill said ISTA membership did fall off in the 1990s after the Republican-controlled legislature voted to outlaw fair-share fees, overriding a veto by Democratic Gov. Evan Bayh. But membership eventually rebounded and stabilized as the union and teachers adjusted to the new reality, he said.

Other setbacks in Indiana have been significant, however. When the state took on most funding of school operations in 2009, it reduced local school-board control of budgetary decisions and made for less flexibility in bargaining, Gambill said. In 2011, the legislature limited collective bargaining to salaries and benefits, barring teacher contracts from addressing working conditions.

State funding decisions, the growth of charter schools and vouchers and the institution of property-tax caps have reduced funding for education. Teacher salaries in Indiana have declined by 15 percent in 15 years, adjusting for inflation, according to an analysis by the media organization Vox.

But with teacher walkouts and protests for better paying gaining support in West Virginia, Oklahoma and elsewhere, there may be signs that teachers could win some battles – even if not in the courts.

“We have found – and research shows – that teaching as a profession is supported,” Gambill said. “Over 90 percent of Indiana families send their children to public schools, despite having had other options for over 20 years. The public schools and their employees are, we believe, supported by the public.”

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