BY HANK REICHMAN

On Friday, January 19, the AAUP and the National Education Association (NEA) jointly filed an amicus brief with the U.S. Supreme Court in the case of Janus v. AFSCME, Council 31.  In that case the ostensible plaintiff, Mark Janus, backed by the National Right to Work Committee and other anti-union groups, seeks to overturn a unanimous 1977 high court decision (Abood v. Detroit Board of Education), which affirmed that states may permit unions in the public sector to assess agency fees to recover the costs of “collective bargaining, contract administration, and grievance adjustment purposes” while insisting that objectors to union membership or policy may not have their dues used for other ideological or political purposes.  At present some 22 states permit some form of agency fee in public employment.

Janus and his supporters claim that requiring non-members to pay for union representation at all is de facto government-compelled speech and hence a violation of the First Amendment.

“This case is part of a broader effort to weaken the freedom and power of working people, undermine public services, and to erode the common good.  The Supreme Court should consider the benefits of robust collective bargaining and unionization for public employers, employees and the general public, including improved government services, better educational outcomes and higher economic mobility,” said AAUP General Counsel Risa Lieberwitz.  “The court also should not ignore the fact that many of the groups who filed briefs in support of Janus only want to manipulate and weaponize the court’s decision to attack unions and deprive state and local governments of broad societal benefits that accompany collective bargaining.”

The brief argues,

Unlike their counterpart in the private sector, public-sector collective-bargaining laws vary from state to state in almost every particular and have changed—sometimes dramatically—over time. These variations reflect the considered, and often evolving, assessment of state and local governments of how best to manage their workforces for the efficient delivery of services to the public.  Considering the important values of federalism at stake, and recognizing the paramount interest a government has in managing its own affairs, this Court has consistently deferred to the government’s judgments when it acts as an employer rather than as a regulator.

“Public-sector collective-bargaining arrangements in this country come in a variety of shapes and sizes, and they have evolved over time,” the brief continues.  “These arrangements, however, have never been understood to implicate the kinds of First Amendment or other constitutional concerns that apply when the government regulates private speech or conduct.”

After surveying the extensive variety of state laws regulating public employee collective bargaining and how these have evolved over time, the brief concludes that a ruling for the plaintiff would deprive “state and local governments of their prerogative to conduct ‘experiments and pilot programs—real-world laboratories in which ideas can be assessed on the results they produce’—with the ‘benefit of the give-and-take of the political process and the flexibility of social experimentation that only the elected branches can provide.’”  (The quoted material here is from a 2005 article by the newest Supreme Court justice, Neil Gorsuch.)

The brief also addresses the plaintiff’s “claim that government may only proscribe, but not prescribe, workplace speech and association in employment matters.”  Citing a 1988 Supreme Court decision, the brief states that this is a distinction “without constitutional significance” and, citing a 1994 ruling, that the claim ignores “the practical realities of government employment.”

One of the plaintiff’s amici, the brief points out, argues that “public schools have broad power to  prohibit the utterance of a disruptive message” but “lack similar power to compel the support of a favored message.”  But, the AAUP/NEA brief responds, while this may hold for students, “the same constitutional principles would not apply to an employee in a public elementary or secondary school setting.”  Indeed, under the standard established by the Supreme Court in Garcetti v. Ceballos, “that employee could be subject to discipline or termination even for on-the-job speech that is not disruptive.”

That is “because, at bottom,

public employment is an extended exercise in compelled speech and association. The government does not hire employees to refrain from speaking or acting; it hires them to carry out government functions, often through speech and association with others. These government functions frequently involve matters of significant public concern, and in order to see their goals accomplished, government employers exercise a “significant degree of control over their employees’ words and actions.”  Garcetti, 547 U.S. at 418.

The arguments of Petitioner and his supporting amici are blind to this reality. . . .

. . . the First Amendment surely protects private citizens against government regulation that distorts the “marketplace of ideas.” CPST Br. at 15.  But that is not the case for a government employer that, in matters of workplace speech, may prefer “a command economy” over “the free market of ideas.”  Waters, 511 U.S. at 673 (plurality opinion). And, of course, such an employer may prefer to establish working terms in cooperation with a single, duly selected bargaining representative, rather than unilaterally or through negotiations with individual employees. See Knight, 465 U.S. at 291–92.

The brief concludes:

This Court’s decision in Abood is, and should remain, good law. The government is fully justified in ordering its own workplace affairs through collective bargaining with an exclusive representative. And in order to secure that arrangement, the government is equally justified in authorizing and entering agency fee arrangements that ensure the financial stability of its collective bargaining partner. Such a result is fully consistent with the First Amendment, which grants the government the “widest latitude” in conducting its own internal affairs. Sampson v. Murray,415 U.S. 61, 83 (1974). The Petitioner’s claim should therefore be rejected . . .

Multiple additional amicus briefs have also been filed by several state and local governments, unions, political leaders, religious groups, and others.  (For a list go here.)   Of particular interest are briefs filed by the AFL-CIO; the American Federation of Teachers; the Human Rights Campaign and other LGBTQ groups; a large group of labor law and labor relations professors; noted First Amendment scholars Eugene Volokh and Will Baude; a group of distinguished constitutional law scholars; the National Women’s Law Center, the Leadership Conference on Civil and Human Rights and 85 other groups; Senators Richard Blumenthal and Sheldon Whitehouse (in support of the principle of stare decisis); and the U.S. Conference of Catholic Bishops.

Interestingly, the brief by the Catholic bishops, while strongly supporting the right of workers to organize in unions, based on Catholic doctrine dating from the 1891 Papal Encyclical “Rerum Novarum,” and condemning so-called “right-to-work” laws, also argues that a ruling in favor of Janus “would represent another unfortunate decision of this Court that marginalizes the voice of the bishops with respect to an important public policy debate by declaring their position to lie beyond the constitutional pale.”  The brief refers specifically here to the Court’s rulings in Roe v. Wade about abortion and Obergefell v. Hodges on gay marriage.

Oral argument in the Janus case is scheduled for February 26.

To read the full 48-page AAUP/NEA brief go to: https://www.aaup.org/sites/default/files/Janus_AFSCME_AAUP_NEA_Jan2018.pdf

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