Supreme Court Will Hear Case Threatening Fair-Share Fees

On September 28, the US Supreme Court announced that it will hear a case, called Janus v. AFSCME Council 31, which anti-union forces have pushed in an attempt to have fair-share fees ruled unconstitutional for public-sector employees. We explain below the status of this case and give a summary of what chapters can do, with the help of the AAUP, to prepare for any decision.

Currently, unions can charge fair share fees (also called “agency fees”) to non-union members for the cost of the union negotiating and enforcing a collective bargaining agreement covering those individuals. Fair share fees have been deemed constitutional since the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education. Over the last forty years, the courts have repeatedly found that the fair share fee system adequately balances the interests of the employees and the state in an efficient labor relations system and the First Amendment interests of union members and nonmembers. However, in a 2014 decision, Harris v. Quinn, Justice Samuel Alito questioned whether Abood was good law and virtually invited challenges to the constitutionality of fair share fees. In this opinion, Alito claimed that all fair share fee arrangements in the public sector could violate the First Amendment as they compel nonmembers to pay for activities that may address matters of public concern and are therefore “political.” Anti-union groups took up Justice Alito’s invitation and have pushed a number of cases through the courts.

Last year, the Supreme Court took up such a challenge in Friedrichs v. Cal. Teachers Ass'n. Many organizations filed briefs on both sides, and the AAUP filed an amicus brief in support of the constitutionality of fair share fees. While initially a majority of the Court seemed poised to find fair share fee unconstitutional, the death of Justice Scalia left the Court equally divided, with four justices likely in favor of finding fair share fee constitutional and four opposed. The Court issued a summary decision that did not address the substantive question. Unfortunately, recently appointed justice Neil Gorsuch may side with the four conservative justices, and thus the Supreme Court could find fair share fee unconstitutional, at least in the public sector.

The vehicle for finding fair share fees unconstitutional may be Janus v. AFSCME Council 31, a challenge to fair share fee for Illinois public sector employees. On March 21, 2017, the Seventh Circuit Court of Appeals ruled in favor of the union based on Abood, noting that, “neither the district court nor this court can overrule Abood, and it is Abood that stands in the way of [Appellants] claim.” Janus v. AFSCME Council 31, 851 F.3d 746 (7th Cir. 2017). The National Right to Work Committee appealed to the United States Supreme Court, which on September 28, 2017, announced that it will hear the case.

The Supreme Court will next schedule briefing and oral argument. The AAUP anticipates submitting an amicus brief arguing that fair share fees are constitutional. Any decision will probably be issued by the time the Supreme Court term ends in late June 2018. If a decision is issued holding fair share fees unconstitutional, it would likely be effective the day it is issued. There would probably be no waiting period or grandfathering of existing contracts, as there often is when there are legislative changes. Thus, fair share fees could not be collected or retained as of the day the decision is issued, even if a collective bargaining agreement or state law is in effect.

This legal threat to union rights is part of a broader effort to weaken unions as effective representatives for working people. For an AAUP chapter, these efforts amount to a direct attack on the democratically elected voice of the faculty. You can defend your organization and the higher education labor movement by committing to organizing. For more resources on organizing, visit www.aaupcbc.org/organize or contact organizing@aaup.org.