The much-discussed Supreme Court decision in the case of Janus v. AFSCME (American Federation of State, County and Municipal Employees) is now just over a month old, but already we see states reacting to its important central holding. At its core, the high court ruling simply held that no money can be taken from a state or local government employee’s paycheck and transferred to a union unless that employee first affirmatively consents.
Many refer to this new requirement as “opt-in.” The reasoning behind the employee’s decision is as basic as the Supreme Court’s holding: The First Amendment does not allow any governmental entity to force an individual to fund speech unless he or she first agrees to that funding.
Teachers are the largest category of employees affected by the Janus decision. The biggest impacts of the high court ruling could be to allow school districts to break out of a decades-old collective bargaining mindset, and to encourage a new spirit of professionalism in the teaching profession.
However, as I argued in a Fox News op-ed when the decision was issued, those outcomes are not self-executing. The outcomes depend upon how state and local policymakers and teachers react.
Unfortunately, some of the first state reactions harken back to days when states purposely resisted the realization of individual rights after the Supreme Court had identified violations of those rights.
State leaders should embrace the Supreme Court’s decision and create solid procedures and rules that implement the new opt-in requirement and fill in the operational details.
Sadly, this nation has suffered through similar chapters of overt state-based resistance to our Supreme Court’s constitutional holdings, such as when some stood in the schoolhouse door defying clear constitutional rights the court had articulated requiring school desegregation.
It might behoove today’s practitioners of this resistance strategy to consider how their intellectual forefathers are viewed by posterity.
Take Maryland Attorney General Brian Frosh, for example, who recently told all affected employees that Janus decision essentially does not mean anything. He wrote: “In other words, the decision in Janus does not alter any pre-existing obligation of a public employer to deduct dues from union members.”
That is patent nonsense. If that really was the case, why would the union leadership be so upset?
The reality is that the Janus ruling articulated a right for employees that had long been violated and created the new opt-in test that must be met before a governmental body can transfer part of an employee’s pay to a union.
The Supreme Court held that the opt-in must be “freely given” and shown by “clear and compelling” evidence. It said that opt-in “cannot be presumed.” This is new territory for all states and for all employees of state and local governments, including school districts.
Maryland Attorney General Frosh – and similarly minded state leaders in New Jersey, Rhode Island and a host of other states advancing these nullification strategies – may follow that strategy to the bitter end.
There is a better way forward.