The attorneys general of 16 states have joined an effort to persuade the U.S. Supreme Court to take up a class action lawsuit brought by two Chicago Public Schools teachers, who have accused the Chicago Teachers Union of violating the free speech rights of teachers by continuing to take their money to advance CTU political goals, even after the teachers left the union and told CTU to stop.
On July 23, the attorneys general of the states of Alaska, Alabama, Arizona, Arkansas, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, South Carolina, South Dakota, Tennessee, Texas, Utah and West Virginia signed their names to a brief filed in support of the lawsuit.
The brief accuses the Chicago Teachers Union, the American Federation of Teachers and the Chicago Board of Education of all but ignoring a recent decision from the Supreme Court, declaring public employees, like teachers, have the right to keep their job without being forced to pay money to unions whose political goals those workers may not support.
“Across the country public-sector unions have resisted (the Supreme Court’s) instructions and devised new ways to compel state employees to subsidize union speech,” the attorneys general wrote in their July 23 amicus brief.
“Unions place onerous terms on dues forms that prohibit state employees from opting out of paying dues except during narrow (and undisclosed) windows during the year. Unions refuse to inform state employees that they have a First Amendment right not to pay union dues. And unions refuse to stop collecting dues despite unequivocal employee demands.
“The result is that tens of thousands of state employees across the country are having dues deducted to subsidize union speech without any evidence that they waived their First Amendment rights,” the attorneys general wrote.
Chicago Public Schools teachers Joanne Troesch and Ifeoma Nkemdi filed suit in Chicago federal court in May 2020. They are represented in the action by attorneys from the Chicago firm of Morris & De La Rosa, and from the National Right to Work Legal Defense Foundation, of Springfield Va.
In the complaint, Troesch and Nkemdi allege the CTU and the Chicago Board of Education violated their First Amendment right to freedom of expression, by deducting dues from their pay and then using it to help fund the left-wing political efforts sought by CTU’s leadership.
In the complaint, the teachers assert the policies have affected more than 24,000 teachers and other school personnel who belong to the CTU.
The lawsuit centers on the U.S. Supreme Court’s 2018 decision in the case known as Janus v American Federation of State County and Municipal Employees (AFSCME). In that case, the high court ruled the First Amendment should prevent union’s from extracting dues or other fees from the paychecks of public workers who don’t wish to support the union’s political positions.
About a year after the Janus ruling, in October 2019, Troesch and Nkemdi said they told the CTU that they were resigning from the union and told the Chicago school board to no longer deduct union dues or fees from their checks.
The CTU, however, told them they couldn’t leave the union at that time, because the only time such resignations could occur was during an “escape period” in August.
The enforcement of such an “escape period” violates workers’ constitutional rights, the plaintiffs alleged.
Their case, however, was shot down, first in federal district court in Chicago, and again before the U.S. Seventh Circuit Court of Appeals, also in Chicago.
The plaintiffs then appealed to the U.S. Supreme Court, asking the court for a so-called writ of certiorari, or an order agreeing to hear their case.
They urged the high court to intervene, noting states, including Illinois, California and 10 others dominated by union allies in the Democratic Party, have rewritten state laws and rules to help unions allegedly sidestep the Janus decision and continue to extract dues from the paychecks of anti-union workers even after they resign from the union and demand the dues be stopped.
“Employees subject to these restrictions are effectively prohibited from exercising their First Amendment right to stop paying for union speech for 335-355 days each year, if not longer,” Troesch and Nkemdi wrote in their petition, filed June 21.
“Employees who want to stop financially supporting a union outside of the prescribed escape period are compelled by their government employer to continue to financially support the union and its speech until the escape-period restriction is satisfied.”
In the weeks since, various briefs have been filed in support of the teachers’ position, including, most recently, by the 16 state attorneys general.
They argued the Seventh Circuit was wrong to find that “all a State or union needs to deduct union dues is some evidence that at some point in the past the employee joined the union or promised to pay dues.”
“That cannot be right,” the attorneys general wrote. “When constitutional rights are at stake, this Court requires ‘clear and compelling’ evidence of waiver precisely to protect individuals from unwittingly relinquishing their fundamental freedoms.
“… The Seventh Circuit’s decision leaves state employees defenseless to stop compelled dues deductions that subsidize speech with which they disagree.”
Further, they said, the Seventh Circuit’s decision in the case improperly limited the scope of the Janus decision solely to non-union workers paying so-called “agency fees,” or “fair share fees.” Such fees were roughly similar to union dues, and were charged to non-union state workers allegedly to compensate a union for representing them in employment matters, including contract negotiations.
They said other states and labor boards have interpreted Janus to extend those protections to all public employees, whether they are currently union members or not.
Troesch and Nkemdi, the attorneys general said, “are entitled to the First Amendement’s protections against compelled speech.”
The Illinois Attorney General’s office has not yet filed a brief in the case.
The Supreme Court is currently awaiting a response to the teachers’ petition from the CTU and the Chicago Board of Education.