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Newswire – February 21, 2018



President Roosevelt famously declared December 7, 1941 as a “day which will live in infamy.” We don’t think that word is on the SATs anymore — or even taught — likely because we’ve made education such a dull, uniformly focused system. For decades, teachers have been relegated to work in factory-like conditions with little chance for true control over their professions.

That may finally all change this Monday (February 26), when the Supreme Court hears arguments in Janus v. AFSCME. Janus could lead to a landmark decision on the power of unions in the United States and potentially reverse their ability to extract taxpayer funds, via paychecks, to cover their political activities against a teacher’s First Amendments rights.

That decision, if made, will surely live in infamy for the unions, which are able to spend the hard-earned money of public employees — like plaintiff Mark Janus — and thus wage battle after battle against innovation, opportunity and change in US schools.


The case has been winding its way through federal courts since early 2015. Essentially, it’s a re-do of Friedrichs v. California Teachers Association, which the Court deadlocked on 4-4. CER said then that this split decision on whether teachers should have the freedom to make decisions regarding their employment — unfettered by union control — “does not mean that the issue of teachers’ rights is going away.” Well, it hasn’t, and with Janus now on the docket, it’ll finally get addressed.


Per the high court’s 1977 decision in Abood v. Detroit Board of Education (which Friedrichs sought to overturn), the unions will argue that while union membership cannot be mandated, nonunion members can be required to pay the portion of a union’s dues that support efforts from which they derive benefit (e.g., collective bargaining on wages, benefits, workplace safety, etc.)


Those who disagree — including teachers — argue that regardless of benefit, forcing a nonunion member to pay for union activities amounts to unconstitutionally compelled speech.

As our CEO Jeanne Allen observed last year, “A favorable outcome could pave the way for a loosening on the stranglehold of other public-sector employees compelled to pay mandatory union fees. Public school teachers, in particular, stand to benefit from the freedom that would allow them to make their own decisions as to whether they pay union dues and fees.”

In fact, a ruling in favor of Mark Janus would improve the learning experience for students across the nation. By dramatically empowering teachers, Janus could change the course of American education.

Colin Sharkey, of the Association of American Educators, adds another important point: “For too long America’s workers — teachers especially — have been forced into joining or funding labor unions because they do not know they have the right to opt out. This coerced membership and forced dues run contrary to freedom of association all Americans should enjoy.”


For Monday’s installment of her podcast, Reality Check, Jeanne Allen talked to Mark Mix, President of the National Right to Work Legal Defense Foundation and of the National Right to Work Committee. According to Mix,

Janus brings up a core issue of the First Amendment and asks the question, Can a private organization force someone to pay them to ‘speak on their behalf’ without their consent? You know better than most people of these types of battles waged against the monopoly power of the teachers’ unions. This is something we have been intimately involved in, and this will be another case the National Right to Work Legal Defense Foundation brings to the court and asks them to adjudicate the First Amendment question.”

To hear the podcast in its entirety, click here.

The list of Janus supporters is a starry constellation of public-interest law groups, state executives, lawyers and state-based think tanks from across the country. These notables include the Atlantic Legal Foundation, Becket Fund for Religious Liberty, Competitive Enterprise Institute, James Madison Institute, Landmark Legal Foundation and Southeastern Legal Foundation.

The list of Janus opponents is equally noteworthy, although their stars shine in a completely different galaxy. These folks include the teachers unions (of course), American Civil Liberties Union, National Organization for Women, Southern Poverty Law Center, National Urban League, Sierra Club (go figure), YWCA USA, National Center for Lesbian Rights, National LGBTQ Task Force and United Students Against Sweatshops. Interestingly, among the mayors who organized an amicus brief is Chicago’s Rahm Emmanuel, who the unions have given no shortage of grief in his tenure.


We can’t say for certain, but given the 4-4 tie in Friedrichs and the expectation that Justice Gorsuch (Scalia’s replacement) will side with his colleagues who voted to overturn Abood (Justices Roberts, Kennedy and Thomas), the wind seems to be blowing strongly in favor of Mr. Janus.

And that ain’t just us talkin’. Here’s the assessment of Erwin Chemerinsky, the Dean of Law at UC Berkeley: “No one — liberal or conservative — has any doubt about the outcome or that the ideologically motivated decision will hurt public workers in this state and elsewhere.”


1. Millions of workers, including public school teachers, will be unshackled from compelled association, which in and of itself is a clear violation of the First Amendment.

2. No one will be forced anymore to pay union fees when opting out of union representation.

3. More take-home pay for teachers and more freedom to operate as they see fit when opting out of mandated associations with teachers’ unions.

4. More innovation in public schools, as the money that unions spend to lobby against education change will be dramatically reduced, as will their power.

5. A pro-Janus ruling will have no impact on a union’s right to organize and function, just on an employee’s right to not pay up.


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