The Age of Janus and the Challenge to Teachers’ Unions

Summary: In the immediate aftermath of the Supreme Court’s Janus decision, teachers unions are weakened, but there are elements in the road ahead that could presage revival.

The ground has shifted under us, my friends of the public school landscape. The age of Janus is upon us.

Per the very recent Supreme Court decision in Janus v. AFSCME, with swing justice and lame duck Anthony Kennedy siding with the conservative wing of the court, the justices found that the “agency fees” that the Court once allowed unions to require from non-union members in exchange for negotiating the bargaining unit contract are an abridgement of the non-members’ First Amendment right to free speech. In essence, the ruling found that the simple act of making an agency fee payment represents an unconstitutional coercion for an individual not in sympathy with union activity.twig-18078_1280

In Janus the Court upset its own prior precedence, in Abood v. Detroit Board of Education, which specifically allowed agency fees, as long as the monies didn’t go directly to political action, which seems to be viewed by the current court as a fiction of the technical kind.

On the edge of the shock at this long expected setback may be portent for Roe v. Wade and the reproductive rights of women. If one precedent has been overturned by the court, could another reversal be too far behind?  For a court that has had a long historical record of respect for precedence, Janus may signal such deference to earlier decisions may be on the chopping block.

As for the free speech case and Janus, I am a bit agnostic. Certainly I grant the concerns about coercion, though there is a balance in the argument that the teacher has accepted a job and she is benefiting from a bargaining service provided by the union. Of such clashes of legitimate principle are legal cases made.

Apparently not entering the justices’ thinking, at least the majority, is that unions have been one bulwark in the working persons’ power at the table where the economic pie is served; where unions have diminished, so too have wages. Perhaps Abood, in a kinder era when such concerns were more ascendant, took a broader view than the current court could muster. Perhaps “income inequality” will have to become more severe before redress is found, and by other avenues.

How does the terrain stretch out from this juncture – that is, what will be the fate of unions, including teachers’ unions? I propose they will reel but maintain, perhaps even strengthen.

We do well to note the recent report in the Seattle Times that depicts the heel of management on the backs of Amazon warehouse workers, as well as a parallel report regarding Amazon work place practices in the British expose Hired: Six Months Undercover in Low-Wage Britain. Such contemporary evidence suggests not only that Amazon may be ripe for some degree of union organization but also that the preponderance of management types will never be enlightened enough to make unions obsolete. The historical evidence in fact indicates the opposite — the pressures of finances, whether in public institution or corporate entity, are such that it will always be more expeditious to expect more of employees for less; in response, employees will organize in self-defense. Unions historically have provided balance, release, and remedy.

After Janus, at least in the short run, unions will lose membership and dues income and will find their political heft compromised. Best candidates to take a walk from union participation are those who previously considered themselves coerced, as well as those on the low end of the income scale for whom the dues take a nasty bite out of a skimpy personal budget.

In Wisconsin, which in recent years passed a state “right to work” law that prohibited agency fees, experienced teachers have left the state or the profession, leaving a less experienced cadre, and the turnover rate has gone up. In general, in Wisconsin as is true around the country, there is a shortage of qualified, experienced teachers. I wonder, in the face of the implied disrespect by their legislature and their governor, if some teachers simply tired of the slaps in the face and took their tools elsewhere, a dynamic I suspect feeds the astounding national reality that 47% of teachers leave the profession within five years.

How to revive unionism, how to fight back, how to lure back the separated members and staunch the bleeding? Perhaps Janus will prove the kick in the rear that goads unions to become less formulaic in their thinking and work to earn the allegiance of wayward or uninvolved teachers.

From my perspective, teachers’ unions have run the risk of becoming stodgy and stagnant, have lacked creativity and vision. The obdurate resistance to charters is one black and white example. Charters as laboratories, with limited authorization and control by states and localities, can serve the interest of teachers by experimenting with practices that may benefit main line schools.

As a tactic to draw teachers back into the collective fold, some sympathetic to teachers want unions to advocate more militantly for lower class size, more support staff, targeted technology and up to date curricular materials, all of which speak to teachers’ deeply felt passion for the quality of their students’ education.

That said, the issue of wages can never wander too far from unions’ front door. This school year the future has arrived in statewide wildcat and grass roots strikes by teachers in Oklahoma, West Virginia, and threatened in Arizona. Each of these states is a “right to work” state, anticipating the Janus decision on a state basis by some years. Arguably as a result of weakened unions, all three states have dropped to the lower quartile of cost adjusted salaries among the states.

As the forces of conservatism seem to ascend, they will by their nature continue to cut education costs, and push teachers in state by state over the edge. Teachers’ unions can and should anticipate that day, help create and manage it, or find events pass them by.

One other dynamic the contours of which we cannot yet see clearly — the Every Student Succeeds Act (ESSA), the latest federal education law, in effect acknowledges the failure of the federal government to guide education reform in the capillaries of the nation, school by school. Power devolves to the states in ESSA. Will this shift of moment rouse teachers’ unions from business as usual to enter the local debates as a more assertive advocate of teachers’ professional perspective? That voice seems muted to me of late; if Janus proves to be a stimulus of teacher union revival, then his supporters may rue the day they got what they wished for.

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