On March 29, 2016, the Supreme Court issued a decision rejecting attempts by anti-union forces to render agency fee unconstitutional in the public sector. The AAUP filed with the American Federation of Teachers an amicus brief arguing that the payment of agency fees by non-members in collective bargaining unions to support union representation is constitutional. Ultimately the Court upheld an appellate court decision that found agency fee constitutional without addressing the substantive arguments in the case. Rather the Supreme Court decision stated in full “The judgment is affirmed by an equally divided Court.” Thus, the law remains as it has for over forty years. However, since the Court was equally divided, it could revisit the issue, in this or another case, once a new justice is appointed to the Court.
Agency fee has been deemed constitutional since the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education. In 2014 in Harris v. Quinn, the Supreme Court declined to overrule Abood, although the Court raised questions regarding its vitality. Anti-union groups brought the Friedrichs case in California and pushed it through the courts. In the Supreme Court, the Friedrichs plaintiffs advanced the argument that all agency fee arrangements in the public sector violate the First Amendment as they compel non-members to pay for activities that they believe address matters of public concern. The plaintiffs also argued in the alternative that even if some agency fee system is unconstitutional, the current opt-out system of charging agency fee payers is unconstitutional.
Numerous organizations filed amicus briefs supporting both sides of the case. The AAUP/AFT amicus brief argued that collective bargaining, supported by the agency fee system, significantly benefits the educational system, and that removal of the ability to charge agency fees would upset the balance set by the states and burden the rights of union members. The AAUP/AFT brief supported the charging of agency fees and provided examples from AAUP higher education chapters of the benefits of the agency fee system. The brief advanced strong arguments in favor of the agency fee system including that agency fees are an essential component of the states’ management of some of their most important institutions; that petitioners’ facial, all-or-nothing challenge to all aspects of every agency fee ever charged anywhere, on the basis of no record at all, should be rejected on its face; and that to the extent the court entertains petitioners’ facial claim, it must account for petitioners’ failure to challenge the underlying regime of exclusive representation in collective bargaining. The brief explained that “fair share fees are . . . used to fund a wide range of other activities that promote the state’s compelling interest in providing students a high quality education and directly benefit nonmembers.” Thus, the brief concluded that based on the significant benefits provided by agency fees, compared to the minimal burdens, charging agency fees to non-members does not violate the First Amendment.