The Supreme Court ruled 5-4 last week that it is unconstitutional for public-employee unions to collect fair-share fees — fees charged to non-members to cover the cost of representing them in collective bargaining and other matters. The decision in Janus v. AFSCME was expected but bizarre.
The court’s majority, after all, are supposed to be originalists who insist the Constitution means what the framers wrote over 200 years ago. Conservative legal critics are likely to mock the idea, expressed by the late liberal justice William O. Douglas, that “emanations” from the text of the Constitution form a “penumbra” in which other rights – such as a right to privacy – can be found.
Yet the five conservative justices looked at the First Amendment, with its five freedoms – of speech, religion, the press, assembly and to petition of the government — and found a sixth in its penumbra:
The freedom to free-ride on union members who willingly pay dues for what they get. Continue reading
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.
“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.
The U.S. Supreme Court gave the green light to school vouchers in the 2002 case Zelman v. Simmons-Harris, clearing the way for states to create programs that provide public funding for religious schools.
But the Zelman decision addressed a specific program that served children from poor families in Cleveland. And the voucher programs that have proliferated in the past 15 years look very different and serve different purposes from the local Cleveland program.
United States Supreme Court Building
The court ruled 5-4 that the Cleveland voucher program didn’t constitute a state endorsement of religion – and thus a violation of the establishment clause of the First Amendment – because the tuition vouchers went to the students’ parents, who then directed the funding to the schools they chose.
Indiana Chief Justice Brent Dickson relied on similar reasoning in Meredith v. Pence, the March 2013 state Supreme Court ruling that found Indiana’s voucher program did not violate the state constitution’s ban on state funding for religious organizations.
But some of the justifications the Supreme Court cited for supporting vouchers in Zelman don’t apply to many of the two dozen or so voucher programs that now operate in 15 states, with more likely to come.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
“Or the right of public employees to free-ride on other public employees.”
Who knew that second paragraph is what the Founding Fathers were thinking when they drafted the First Amendment to the Constitution? Apparently a majority of the Supreme Court knows.
According to news coverage of Monday’s oral arguments, the five conservative members of the court are likely to rule in favor of the plaintiffs in Friedrichs v. California Teachers Association, a lawsuit that claims charging “fair-share” fees for union representation violates the First Amendment.
California teacher Rebecca Friedrichs and her fellow plaintiffs argue that the fees amount to forced support for a political organization – the California Teachers Association – whose policies and positions they don’t support. But public-sector unions can’t use fair-share fees for lobbying and politics. The fees can pay only the costs that unions incur for bargaining contracts and representing employees.