Supreme Court to Hear Antiunion Case

By Aaron Nisenson

On September 28, the US Supreme Court announced that it will hear Janus v. AFSCME Council 31, a case that antiunion forces have pushed in an attempt to have fair-share fees ruled unconstitutional for public-sector employees.

Currently, unions can charge nonmembers fair-share fees (also called “agency fees”) for the cost of 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 opened the door to consti­tutional challenges. Alito claimed that all fair-share fee arrangements in the public sector could violate the First Amendment, because they compel nonmembers to pay for activities that may address matters of public concern and are there­fore “political.” Antiunion groups accepted Justice Alito’s invitation to challenge fair-share fees and have pushed a number of cases through the courts.

Last year, the Supreme Court took up such a challenge in Friedrichs v. California Teachers Association. Many organizations submitted amicus briefs in the Friedrichs case, including the AAUP, which filed a brief in support of the constitutionality of fair-share fees. While initially a majority of the Court seemed poised to find fair-share fees unconstitutional, the death of Justice Antonin Scalia left the Court divided, with four justices in favor of finding fair-share fees 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 in revisiting the issue the Supreme Court could find fair-share fees unconstitutional, at least in the public sector.

This latest legal threat to union rights is part of a broader effort to weaken the role of unions as effective representatives for work­ing people, to undermine public services, and to erode the common good. For AAUP chapters, the Janus case is a direct attack on the democratically elected voice of the faculty. AAUP chapters across the country defend academic freedom, shared governance, and due-process protections; negotiate for affordable health care, a fair return on faculty work, and the ability to retire with dignity; and defend access to high-quality, affordable higher education for all.

But wealthy special interests often view higher education as a commodity and see the faculty as a challenge to their economic advan­tage and political power. Faculty members are facing unprecedented attacks, through the courts and through legislation, on the free­dom to join together in a union and work together to set standards that create better universities and colleges. The AAUP will fight these attacks, and AAUP chapters will continue to organize to defend higher education as a public good. Resources for AAUP members on the current threats facing unions are available at https://www.aaupcbc.org/together and will be updated regularly in the coming months.

The Supreme Court will next schedule briefing and oral argument. The AAUP anticipates submitting an amicus brief in the Janus case arguing that fair-share fees are constitutional. The Court is likely to issue a decision before its term ends in late June 2018. If the Court holds fair-share fees unconstitutional, the decision would likely be effective the day it is issued.

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