If unions lose the Janus case, how will they survive? Best bet is to reinvent themselves as professional associations
Will Randi Weingarten (head of the national American Federation of Teachers), Michael Mulgrew (head of the local United Federation of Teachers) and others innovate or die?
(RICHARD HARBUS/FOR NEW YORK DAILY NEWS)
Can public employees be forced to give money to a union they don’t support? That’s the question at the heart of a case the Supreme Court will hear later this month — one that’s poised to send an especially big shockwave through the public education system.
A little context: Back in 1977, the court ruled that states can require all public employees represented by a union-including teachers — to chip in part of every paycheck to cover the costs of collective bargaining. They don’t have to join the union, and they don’t have to contribute to political activities, but they have to pay “agency fees” help fund the union’s most basic functions. That’s because unions negotiate salaries and benefits for all the employees they represent-even the ones who don’t want to join.
Now, in Janus vs. AFSCME, a child support specialist in Illinois is suing his union because he believes that even agency fees violate his First Amendment right to free speech. He disagrees so strongly with the union that he doesn’t want to contribute a single penny to support it.
There’s much more than free speech at stake here, though. If the court sides with Janus, unions across the country stand to lose millions of dollars a year in guaranteed revenue — potentially enough to cripple their operations. Nobody would be hit harder than the nation’s two largest teachers’ unions — including the National Education Association, the largest public sector union in the country.
I personally think the court got it right a half century ago. It’s a matter of basic fairness that workers who reap the benefits of collective bargaining should also share in the costs. And there are many situations where the will of the majority trumps the “speech” you can express with your wallet. For example, you’d be laughed out of court if you demanded a right to withhold tax money from your local fire department just because you disagree with the mayor, or from your federal government because you disagree strongly with President Trump’s immigration priorities.
The same principle holds here: a union that’s supported by a majority of employees shouldn’t be saddled with a minority of freeloaders who don’t pay their fair share. Plus, disgruntled union members have plenty of other ways to exercise their First Amendment rights and voice their opinions, just as we all have other ways to register dissatisfaction with our elected representatives.
Unfortunately for the unions, at least five Supreme Court justices seem more sympathetic to Janus’ arguments than I am. The court was poised to strike down agency fees two years ago in a case that ended in a tie because of Justice Antonin Scalia’s sudden death. Scalia’s replacement, Justice Neil Gorsuch, seems every bit as willing as his predecessor to rule against the unions in this new case.
In the world of education, this means teachers’ unions need to start preparing for the identity crisis that will come if a large spigot of revenue suddenly gets switched off.
Right now, unions wear two hats. They’re collective bargaining agents, representing virtually all public school teachers in contract negotiations, grievances and disciplinary cases. And they’re political advocates, speaking on behalf of their members in Washington, D.C. and state capitals, and helping to elect handpicked candidates at all levels of government.
With fewer resources, unions probably couldn’t afford to play both roles. Something would have to give.
In that world, unions could opt to greatly reduce their political activity and focus exclusively on collective bargaining, district by district.
But this probably wouldn’t end well. Though they are often one of the most powerful political forces in state capitals, they are already losing ground legislatively on a host of issues, from defined-benefit pensions to tenure. How effectively could they really negotiate on issues locally when many legislatures, freed from the unions’ political clout, would likely roll back or eliminate collective bargaining rights?
The more radical move would be to get out of the collective bargaining business and become professional associations — think the American Medical Association or the National Trial Lawyers. It’s a role the National Education Association once played many decades ago. In that capacity, the NEA didn’t negotiate salaries and benefits, but still made life better for millions of teachers by advocating for basic school funding during the Great Depression, the GI Bill after World War II, and civil rights legislation.
As professional associations, unions could put all their resources and political clout behind a long-term plan for elevating the teaching profession through higher pay, more rigorous performance standards, and better working conditions. And they could fight for this agenda without any obligation to defend individual members who engage in misconduct or who simply aren’t up to the job — a change that would probably win them new allies.
On a practical level, this may be unions’ best chance to survive in a hostile political and legal climate that shows no signs of improving. It’s not a surrender — far from it. It’s a path that would let unions reclaim control of their own fate and become a force for positive change in education. If union leaders have the courage to take it, teachers and students across the country will be the real winners, no matter who prevails at the Supreme Court this spring.
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