Months after the U.S. Supreme Court dealt a hefty blow to teachers鈥� unions, a rash of new lawsuits has emerged that could further damage these labor groups.
Across the country, teachers鈥� unions are facing more than a dozen legal challenges from two major right-leaning sources in the wake of the , which ended public-sector unions鈥� ability to collect agency, or fair share, fees. Those fees were charged to workers in some states who chose not to become full members of their unions. They were meant to cover the cost of collective bargaining.
The decision, issued in June, is expected to significantly dent teachers鈥� unions鈥� treasuries and membership numbers. (The extent of the fallout is still to be determined.) But as it turns out, that lawsuit was only the beginning of the unions鈥� struggles.
There are two main strands to this new wave of anti-union lawsuits: 1) challenges to time-limited windows during which teachers can opt out of membership payroll deductions, and 2) pushes for teachers to be reimbursed for the agency fees they paid before the Janus decision.
鈥淓verybody knows where the end of this litigation road is, which is the Supreme Court,鈥� said Sharon Block, the executive director of the Labor and Worklife Program at Harvard Law School. 鈥�Janus is sadly not the end of the road. This road just got a lot harder.鈥�
There are even a few cases arguing that unions should not act as the sole representative for all workers in a bargaining unit if some workers do not want to be union members. Currently, unions bargain on behalf of all teachers in a district, regardless of whether teachers choose to be members.
This multipronged legal campaign is not unexpected, experts say.
鈥淭丑别 Janus decision still left much up for individual states to interpret and decide,鈥� said Bradley Marianno, an assistant professor of educational policy and leadership at the University of Nevada, Las Vegas. 鈥淲e鈥檙e seeing states and courts try to navigate how to implement the different aspects of the Janus decision right now.鈥�
One of the most prolific sources of litigation against teachers鈥� unions has been Jonathan F. Mitchell, a conservative attorney who was tapped by President Donald Trump to head the Administrative Conference of the United States, a nonpartisan agency charged with improving government processes and procedures. The Senate has yet to confirm Mitchell鈥檚 nomination.
This year, Mitchell has filed at least nine federal class-action lawsuits against teachers鈥� unions, including in California, Maryland, Minnesota, Ohio, and Pennsylvania. He鈥檚 also filed several similar lawsuits against other public-sector unions. Mitchell did not respond to a request for comment.
And in a separate legal campaign, the National Right to Work Legal Defense Foundation is supporting several additional lawsuits against teachers鈥� unions, with more expected soon.
鈥淭丑别se suits are part of a larger, coordinated effort by the right wing do two things,鈥� said Randi Weingarten, the president of the American Federation of Teachers, in a provided statement. 鈥淭丑别y want unions to spend the time and money to defend them so they can defund and distract us, and they want these cases to get to the Supreme Court, now that [Brett] Kavanaugh and [Neil] Gorsuch are seated, to further erode workers鈥� rights.鈥�
Should Unions Refund Fees?
So far, the bulk of the cases center around the question of whether teachers who were obligated to pay fees to the unions in the past .
Those teachers are 鈥渆ntitled to their money back,鈥� said Patrick Semmens, a spokesman for the National Right to Work Foundation. The Supreme Court had ruled that the collection of agency fees violated teachers鈥� First Amendment rights, because they were essentially paying a union whose policies and actions they might not support.
Semmens added that Justice Samuel Alito wrote in his decision in the Janus case that unions have been 鈥渙n notice for years鈥� about the Supreme Court鈥檚 misgivings toward agency fees. In 2012, the Supreme Court described the practice as a First Amendment 鈥渁nomaly.鈥�
鈥淭丑别y knew there was a risk when they continued taking dues after [],鈥� Semmens said.
Under the statute of limitations in most states, teachers could potentially get up to two years of agency fees paid back, Semmens said鈥攑utting millions of dollars at stake for the unions. But for their part, the unions have consistently rebuked the validity of these claims.
鈥淲e believe we will be successful in defending a proposition that when someone acts in good faith based on existing law to collect fees as the unions did, ... there is not liability,鈥� said Alice O鈥橞rien, the general counsel for the National Education Association.
Some of the lawsuits that Mitchell filed also create a new class of plaintiffs: teachers who say they joined the unions because they felt like they had little choice. Had they not been required to pay agency fees, which often cost nearly as much as a full membership, they would not have become members, they argue. Those teachers are seeking restitution in the amount of the agency fees they paid, whether they retained or resigned their union membership.
For example, in a lawsuit filed against Education Minnesota, plaintiff Deborah York, a now-retired teacher, chose to remain a member of the union even though she opposed its collective-bargaining activities and political and ideological advocacy, 鈥渂ecause resigning her membership would have saved very little money and would not have been worth the cost of losing her vote and whatever little influence she might have in collective-bargaining matters,鈥� the suit read.
But unions, including Education Minnesota, maintain that teachers always had a choice whether to belong to the union or just pay agency fees.
鈥淚 don鈥檛 think the law runs backwards in that way,鈥� O鈥橞rien said. 鈥淚 think the law holds people to the choices they made at the time they made them.鈥�
鈥楬otel California鈥� Agreements
Another thread of litigation is a challenge to unions鈥� opt-out, or drop, windows. In many places, teachers鈥� union dues are deducted from employees鈥� paychecks. Some unions only allow teachers to stop the payroll deduction during a certain date range in the year. That means teachers could decide they want to leave the union, but have to keep paying membership dues for months until the drop window rolls around. The drop window varies in duration, but can be as short as a few days.
There are at least two separate lawsuits鈥攊n New Jersey and Washington state鈥攃hallenging these opt-out windows. (Those suits are against public-sector unions, but not specifically teachers鈥� unions.) Some of Mitchell鈥檚 lawsuits also incorporate this complaint. And Semmens said there will likely be more litigation to come.
鈥淵ou have a right not to be a union member, and the second you鈥檙e no longer a formal union member, then any money taken from you violates your constitutional rights,鈥� he said.
In the case against Education Minnesota, the plaintiffs are asking the court to order the union to 鈥渋mmediately honor and enforce鈥� a teacher鈥檚 decision to withdraw payment, regardless of the time of year that decision is made. Douglas Seaton, an attorney who is Mitchell鈥檚 co-counsel in the Minnesota case, called the seven-day window akin to 鈥淗otel California-style agreements.鈥�
In a provided statement, Education Minnesota President Denise Specht said the opt-out windows are 鈥渧alid and reasonable,鈥� likening them to enrollment windows for health-care plans.
鈥淒rop windows prevent someone from joining the union only long enough to vote on a contract or to obtain a member-only benefit, including our popular relicensure classes, before canceling their membership,鈥� she said. 鈥淒rop windows also give our union predictability in our finances so we can provide services to members based on an annual budget, just like any other organization.鈥�
A Long, Hard Road for Unions
Even if the unions ultimately triumph in these legal challenges, it will be a long, expensive battle to fight them in court. And the loss of agency fees鈥攁nd an expected loss of members, now that it鈥檚 easier to cut ties with the union鈥攈as already hit teachers鈥� unions鈥� coffers. The National Education Association鈥檚 includes a $50 million reduction.
However, the NEA鈥檚 budget, which passed this summer, also invested more money into the union鈥檚 legal fund to defend against these kinds of legal attacks. Union leaders themselves expect the post-Janus litigation to eventually reach the nation鈥檚 highest court.
If so, the case will be heard by a mostly conservative bench, which includes the newest justice, Brett Kavanaugh. Union leaders had fought bitterly against Kavanaugh鈥檚 nomination, in part because of his record on labor cases. Harvard鈥檚 Block said he has been 鈥渉ostile to the interests of workers鈥� in the past.
In the meantime, the University of Nevada鈥檚 Marianno said unions will have to double down on attracting and retaining dues-paying members. That will likely be through an , he said, which could include more labor unrest. There were six widescale teacher walkouts and protests in the spring, and already this school year, there was a series of teacher strikes in Washington state. Teachers in the nation鈥檚 second-largest district, Los Angeles Unified, .
Indeed, AFT鈥檚 Weingarten warned that the parties filing the cases should 鈥渂e careful what [they wish] for.鈥�
鈥淲here once labor questions were resolved at the bargaining table, cases like these, if successful, make it far more likely they鈥檒l be fought in statehouses and the streets,鈥� she said. 鈥淭丑别y will make unions more political, not less.鈥�
