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The Agency Fee Lives . . . for Now

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eye on the news

The Agency Fee Lives . . . for Now

The Supreme Court just handed them a victory, but the teachers’ unions have big problems. March 29, 2016
Politics and law

Government union leaders must have breathed a sigh of relief. A divided Supreme Court on Tuesday declined to overturn a 40-year precedent allowing public-sector labor groups to charge fees even to those who don’t want to join a union. Unions had feared that the court would outlaw these charges, known as agency fees. The plaintiffs in Friedrichs v. California Teachers Association said the levies forced them to support the political activities of a union whose partisan views they didn’t share. The death of Supreme Court Justice Antonin Scalia in February, however, changed the balance of the court, producing a deadlock in the case and leaving in place, at least for now, a prior court decision that allows unions to continue collecting agency fees, with some restrictions.

Though the CTA and its parent organization, the National Education Association, avoided a serious setback, the Friedrichs lawsuit exposed deeper problems within the groups that the court victory won’t solve. Rising dues and shrinking education budgets have taken a heavy toll on labor. Membership in the NEA is down by some 260,000 over the last five years. A study last year by the blog Education Intelligence Agency found that 22 NEA affiliates have fewer members today than they did 20 years ago. Seventeen state teachers' unions operated in the red in the 2014 school year. Among the biggest losers has been the Michigan Education Association, with revenues sharply down, and the Louisiana Association of Educators, which has only half the members it did two decades ago.

Teachers themselves increasingly question the role of their unions—and of compulsory fees. A poll last year by Harvard’s Program on Education Policy and Governance found that only 38 percent of teachers support required agency fees, compared with 50 percent who oppose them. Polling by the Harvard group also found public support for teachers’ unions waning, with only 30 percent saying that education unions have a positive effect on schools, while 39 percent said their impact was negative.

After the plaintiffs filed Friedrichs, the NEA and its affiliates did some soul searching. They funded studies looking at how they could continue to operate in a world without agency fees. The result was an acknowledgment that the unions had neglected basic organizing in recent years, in large part because they could rely on automatic dues and fee payments from teachers in many states. In response, the NEA created a Center for Organizing to encourage local affiliates to rebuild their ranks with grants from the national organization. Local unions, the NEA said, should reach out beyond typical recruiting areas. In 2013, the NEA’s main competitor, the American Federation of Teachers, persuaded the 34,000-member National Federation of Nurses to join forces. Looking to secure similar alliances, the NEA changed its bylaws to allow organizing outside traditional workplaces.

The NEA has a long way to go to convince teachers that the dues they charge are worth the price. When a 2011 law ended mandatory deduction of dues for government workers in Wisconsin, public-sector union membership plummeted in the state. The Wisconsin Education Association Council, the state’s main teachers’ union, lost nearly half of its members. Boasting 100,000 members before the law, the union has about 54,000 today. Total public-union membership in the state is down by about 75,000.

The reprieve granted the teachers’ unions by the Supreme Court may only be temporary. The justices didn’t settle the question at the heart of the case: Do compulsory agency fees violate the rights of those who don’t support a union’s political agenda? The Center for Individual Rights, which represented the plaintiffs in Friedrichs, has already signaled its intention to seek a rehearing. Even if the court doesn’t retake the case, the group can seek new plaintiffs and file a new case when the court gets a justice to replace Scalia. Considering that some 100,000 teachers across the country have chosen not to join a union but are compelled to pay agency fees anyway, finding plaintiffs for a new case shouldn’t be difficult.

Photo by Mark Wilson/Getty Images

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