U.S. Supreme Court Issues 4-4 Decision Upholding The Constitutionality Of Fair Share/Agency Shop Clauses For Public Sector Employees
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U.S. Supreme Court Issues 4-4 Decision Upholding The Constitutionality Of Fair Share/Agency Shop Clauses For Public Sector Employees
March 29, 2016
On March 29, 2016, the U.S. Supreme Court issued a divided 4-4 per curium decision in Friedrichs v. California Teachers Ass’n, 2016 WL 1191684, which affirmed a decision by the U.S. Court of Appeals for the Ninth Circuit that upheld the constitutionality of public sector fair share/agency shop agreements. This decision leaves the lower court’s decision undisturbed, creates no newly binding U.S. Supreme Court precedent on the issue, and leaves the door open for other parties to pursue future challenges to the U.S. Supreme Court. Therefore, the Ninth Circuit’s decision is still binding precedent on the states that fall within its jurisdiction, such that requiring teachers to opt out of ‘non-chargeable’ union expenditures (such as political or ideological causes) that exceed a union’s collective bargaining duties is constitutional.
The Ninth Circuit based its decision on the U.S. Supreme Court’s precedent set in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), which held that public employees can be compelled by a collective bargaining agreement to contribute money to a union in order to fund the union’s collective bargaining obligations to bargaining unit members. At the conclusion of oral arguments in Freidrichs, however, many commentators believed Abood’s days were numbered, and that the Court would soon rule that public sector fair share/agency shop agreements are unconstitutional. After Justice Scalia’s death in February 2016, however, the Supreme Court justices could not form a majority opinion on the issue, which leaves us with today’s 4-4 per curiam decision. As a result, the Supreme Court’s Abood decision remains the applicable Supreme Court precedent on the constitutionality of fair share fee clauses in public sector collective bargaining agreements, which by definition includes those in Illinois public sector contracts.
Meanwhile, in Illinois, the constitutionality of fair share/agency shop clauses in public sector collective bargaining agreements was challenged in a lawsuit originally filed by Governor Rauner. See Janus v. AFSCME 31 et al., 1:15CV01235. This case was initially filed in February 2015, but was stayed pending the Supreme Court’s decision in Friedrichs. A status hearing is currently scheduled for July 7, 2016. Given today’s Friedrichs decision, it is anticipated that this Illinois case will now move forward to decision, and may become the vehicle for a new Supreme Court challenge to the constitutionality of public sector fair share fee clauses. At this juncture, however, the ultimate outcome of such a new challenge would appear to depend on the views of the person who takes Justice Scalia’s seat on the Supreme Court.
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