by Tyler O’Neil · July 8, 2018
Justice is coming for unions that forced non-members to pay “non-political” agency fees that went to prop up Democratic candidates. Last month, the Supreme Court ruled that forcing workers who disagree with a union to make these payments anyway violates the workers’ First Amendment rights.
Less than a week after that ruling, Janus v. Association of Federal, State, City, and Municipal Employees (FSCME), seven California teachers have filed a class-action lawsuit to recoup unjustly forced fees.
“This lawsuit will enable teachers like me to recover the agency fees that we were wrongly forced to pay against our will,” Scott Wilford, the plaintiff in the new lawsuit, told Education Week. Wilford filed the lawsuit in the Central District of California’s federal court on Tuesday.
Wilford and six others filed the class-action lawsuit against the National Education Association (NEA), the American Federation of Teachers (AFT) and others. The suit seeks “redress for the defendants’ past and ongoing violations of their constitutionally protected rights. The defendants have violated the representative plaintiffs’ constitutional rights by, among other things, forcing them to pay fair share service fees as a condition of their employment.”
The AFT, like other unions, used “non-political” agency fees for its annual convention in 2016, at which Hillary Clinton spoke.
Wilford and another plaintiff, Rebecca Friedrichs, were also plaintiffs in Friedrichs v. California Teachers Association (2016), a case involving agency fees on which the Supreme Court deadlocked. Janus decided the issue, striking down the 1977 ruling Abood v. Detroit Board of Education, which had allowed unions to collect “non-political” agency fees from non-members in order to prevent workers from becoming “free riders.”
In Janus, the Court ruled that workers who refused to join a union because they do not support that union could not be forced to financially support that union anyway. Mark Janus, an Illinois child support staffer, was forced to pay the local union, AFSCME Council 31, even though he refused to join it. AFSCME used the “agency fees” he paid them to support an event hosting Hillary Clinton during the 2016 election.
When Janus struck down mandatory agency fees as unconstitutional, about half of the country — 22 states — had allowed unions to demand agency fees. The AFT recently had 94,000 non-union workers who had to pay agency fees, while the NEA had about 100,000.
Supreme Court Deals Severe Blow to Public Unions
The amount that teachers have been charged in agency fees varies, so it is not clear just how much money the plaintiffs are demanding. In any case, it would be a tremendous sum.
AFT President Randi Weingarten told Education Week that this lawsuit is a direct attack on the unions. She argued that it “should be understood for what it is — a bid to ensure workers must fend for themselves and not have the opportunity to live a better life.” She also insisted that Janus does not mandate the repayment of fees that these new plaintiffs have demanded.
Matt Frendewey, an education policy consultant and former spokesman for Education Secretary Betsy DeVos, said teachers who refused to join the union are owed this repayment.
Since the Court ruled that agency fees were a violation of public employees’ First Amendment rights, this money was “improperly collected” from teachers from the beginning, Frendewey told Education Week. “This is about righting that wrong” and “making those teachers whole by recouping those fees.”
Frendewey also predicted that lawsuits would soon be filed in other states affected by the Janus decision.
Nat Malkus, deputy director of education policy studies at the American Enterprise Institute (AEI), told the Daily Caller that this class-action suit is not a First Amendment issue, but a matter of contractual law.
“At the time, everyone was applying with the law,” Malkus said. “To make this ruling retroactive, it would be extremely disruptive.”
Disruptive or not, unions forcing public employees to pay them, even when those employees disagreed with the union, was fundamentally unjust, and a strong case could be made for restitution.
As Thomas Jefferson wrote in the Virginia Statute for Religious Freedom, “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.”
The Supreme Court put an end to these ill-gotten gains last month, and Wilford, Friedrichs, and their fellow plaintiffs deserve an apology if nothing more. Wilford and Friedrichs especially deserve something, since their case was blocked for two years by a deadlocked Supreme Court.
Unfortunately, it seems unions are unlikely to give even that, as they staunchly attacked Janus as an unjust decision. Some contrition, and a direct settlement for Wilford and Friedrichs, might save the unions a huge headache — and a multi-million dollar lawsuit. Instead, it seems they’re in for the long haul.