I’m reading the Janus ruling and its dissents, here’s a link. You should, too, this is a big moment for our sector and the most significant education case at the Supreme Court in years. Janus prevailed in his argument that even the agency-fee arrangement in a lot of states violates his First Amendment rights. The case was, not too surprisingly, 5-4. This Bellwether deck has background on the case and the issues at stake.
*This post will be updated as I read through it in real time.
- The legal arguments Alito makes are pretty straightforward and unsurprising. And the breadcrumbs the court laid out to get this case are pretty clear in the decision. On the objections. I’m unconvinced on the “labor peace” argument – there are states with multiple groups representing teachers now and the sky isn’t falling so it’s hard to see how agency fees are essential to labor peace. But, that doesn’t mean a workforce of atomized teachers is desirable either so this creates a big moment for teacher voice groups and other groups that want to organize and represent teachers in the political and educational process.
- There were options for compromise that preserved some agency-fee arrangement gave gave Janus some relief, but the court’s majority didn’t take them – this is a pretty sweeping ruling.
- Abood, the precedent the court overturned today was a compromise and the vulnerability that created was laid bare in today’s decision. That’s a compromise that has been attacked from all quarters for various reasons and is a weird First Amendment issue.
- In her dissent Kagan argues that Abood works fine today so there is no reason to overturn it. Overall that’s true, it does work in states around the country, but whether or not you agree with Janus, there is some segment of teachers it does not work for. Reasonable people can disagree on the appropriate remedy or if one is needed but there’s a legitimate and complicated issue here in terms of individual rights.
- This applies only to public sector unions but don’t declare them dead too fast. This is going to create a big fiscal problem for the teachers’ unions but not a completely insurmountable one and they have various avenues to resist the ruling – the most obvious one just becoming a better organization on behalf of their members than today’s status quo. That’s a huge opportunity they could seize. But there are things they can try – and are trying – in the legislature and elsewhere mute the effects. And it’s entirely possible this will lead them to become more strident rather than less and complicate education politics rather than clarify them in any way. The most strident members are the least likely to bail out now. Conservatives dancing on the unions’ grave today might want to think about that.
- This will though, in relatively short time, lay bare the illusion of a powerful 50-state teachers union presence unless they get their organizing act together fast. That will have consequences in a number of states.
- Wisconsin is not entirely analogous here because of the multiple changes that were part of that state’s labor reform but it’s not a bad state to look at for some idea on how this might play out.
- Pay attention to the language on opt-in versus opt-out, that’s going to be a big deal in practice and make some of the inoculation strategies the teachers unions are pursuing harder. PP 48 of the ruling: “Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed.” I am hearing from teachers who are getting emails from their unions that were obviously pre-drafted and seem calibrated to the idea that this would be opt-opt. And that was a compromise option the court could have taken (the Bellwether analysis looks at some possible scenarios). This is a more serious problem for the unions.
- If I were a Democratic politician (or moderate suburban Republican if there are any left) with a long view I’d be thinking about what this means down the road – majorities of voters want more choice and better schools and a big source of campaign funds and volunteers at odds with parental choice just had its fiscal model disrupted.