The Chicago Teachers Union and the Chicago Board of Education are urging the U.S. Supreme Court to deny a request for a hearing by two teachers, who claim the union violated their free speech by deducting dues to subsidize political positions without their consent.
The union and board are arguing the teachers agreed to the deductions and cannot invoke their First Amendment rights to avoid the consequences of that agreement.
Joanne Troesch and Ifeoma Nkemdi filed for a class action suit in May 2020 in Chicago federal court, against Chicago Teachers Union Local No. 1 (CTU) and the Chicago Board of Education. They demanded refunds of dues for 24,000 school employees.
Troesch and Nkemdi said the board deducts dues, passing the money to the union. Every August, union members can stop deductions by giving notice. Plaintiffs said they learned in fall 2019 of a U.S. Supreme Court ruling from June 2018, which said public employees have the First Amendment right to refrain from paying dues or fees that subsidize political positions of the union that represents their work unit in collective bargaining. That case was Janus v. American Federation of State, County and Municipal Employees.
As a consequence, plaintiffs assert they told the union in October 2019 - as soon as they learned of the Janus decision - that they were leaving the union, and they no longer wished to have union dues deducted from their pay. Nonetheless, the union continued those paycheck deductions through Sept. 1, 2020, because of the August-only "escape period."
U.S. District Judge John Lee dismissed the lawsuit in February 2021, declaring Troesch and Nkemdi had agreed to the August window. The U.S. Court of Appeals for the Seventh Circuit upheld Judge Lee's ruling on appeal.
Plaintiffs have since turned to the U.S. Supreme Court, asking the high court to overturn the lower court dismissals.
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.
In replies filed Sept. 27, the union and board say the case does not warrant the court's attention.
The union and board made similar arguments to one another, both saying, as the Board of Education put it: "The First Amendment does not provide a right to nullify contractual obligations."
The board added: "Troesch and Nkemdi incurred payroll deductions pursuant to their own consent, and that consent was reflected in their written agreements. This case does not involve involuntary payroll deductions. The supposed First Amendment claim does not fit these facts."
The union and board argued almost 30 lower courts have unanimously rejected claims identical to those put forth by Troesch and Nkemdi, with the nation's high court refusing to review one of these cases as recently as June 2021. The union said the Court of Appeals' ruling against Troesch and Nkemdi is "faithfully grounded" in the high court's precedents.
"The ruling here [by the Court of Appeals] does not conflict with this Court’s Janus decision. Troesch and Nkemdi have a different union membership status than the employee in Janus. While Janus decided only the rights of non-union members who had never consented to pay union fees, Troesch and Nkemdi had agreed in writing to join the CTU and to pay CTU dues. Troesch and Nkemdi’s agreement included an opt-out window," the board contended.
The union maintained that even if the "legal landscape" was different when plaintiffs signed their deduction agreements, "It is well established that changes in the law — even constitutional law — do not provide a basis to void contractual obligations."
The union also argued appellate briefs on the merits of the case were never filed, so the record is "too sparse to support a fulsome review."
Troesch and Nkemdi have been represented by the Chicago firm of Morris & De La Rosa, as well as by the National Right to Work Legal Defense Foundation, of Springfield, Va.
The union has been defended by Dowd, Bloch, Bennett, Cervone, Auerbach & Yokich, of Chicago and Bredhoff & Kaiser, of Washington, D.C.
The board has been defended by in-house counsel.