This piece apeared on Choice Media.

By Bob Bowdon

A lawsuit appealed to the U.S. Supreme Court is challenging the doctrine of exclusive representation that gives teachers unions the sole right to negotiate teachers’ salaries with school districts, even the salaries of non-members.

The seeds were planted in the now-famous Janus v. AFSCME decision from 2018, when the high court ruled that public school teachers in every state, not only in the right-to-work states, could fully quit their teachers unions. Fully quit — in the sense of paying the union neither the membership dues, nor the suspiciously-calculated agency fees charged to “non-members.”

But after the Janus decision there remained a puzzling, you might say glaring difference between teachers unions and most other membership organizations. In 40 states, to this day, teachers unions are still required to negotiate salaries and benefits on behalf of all teachers, not just their members. This tradition is known as exclusive representation, and it formed the core rationale for why unions were awarded those non-member agency fees in the first place, in the now-discarded Abood precedent from 1977.

Exclusive representation was addressed explicitly during the Janus oral arguments in questions from two of the liberal Justices to an attorney for the plaintiffs.

WILLIAM L. MESSENGER, Attorney: Well, an agency fee isn’t necessary for exclusive representation.

JUSTICE SOTOMAYOR: Why not? You have free riding.

MR. MESSENGER: Well, the reason, Your Honor, is exclusive representation in and of itself is a valuable benefit for a union. It provides unions with extraordinary powers to compel the government to listen to it at the bargaining table, to not listen to other advocacy groups.

JUSTICE GINSBURG: But it drains it of resources that make it an equal partner in the marketing setting. If you are right, that it’s not only the people who are opposed to the union but also union supporters who may think I’d rather keep the money in my own pocket, and then you’ll have a union with diminished resources, not able to investigate what it should demand at the bargaining table, not equal to the employer that it faces.

We can set aside Justice Ginsburg’s assertion that the teachers unions need non-member money to sufficiently “investigate what it should demand.” (Can someone send me a sample such investigation budget? What part of “Always ask for 10-20% more than the last contract” requires extensive sleuthing?) But however askance we view the value of such expensive teacher union Inspector Clouseau’s, these representations nevertheless do affect non-member teachers. And that begs the question: Why are they happening at all? Why should a private organization to which I don’t belong, that I may not even like, have the exclusive right to negotiate my government job salary?

It’s important to understand that while exclusive representation was discussed in the Janus public hearing, it wasn’t challenged in that case. In a legal strategy that could be called “not biting off more than you can chew,” the Janus attorneys argued that teachers unions could continue as exclusive representatives of teachers just fine without the need to compel cash from non-members. To many, though, it was only a matter of time before a different case came along to chew the rest of the representation sandwich.

Calling Professor Reisman

Queue Professor Jonathan Reisman, associate professor of economics and public policy at the University of Maine at Machias. The lawsuit bearing his name, Reisman v. Associated Faculties of the University of Maine (AFUM), is being brought by the Ohio-based Buckeye Institute. It argues that non-members’ First Amendment rights are compromised not just by compelled agency fees, but also by compelled representation in bargaining. They argue that a private group negotiating for workers without their consent is at least as much a free speech violation as that group taking their money to negotiate for them.

One of the lead attorneys on the Reisman case, Andrew M. Grossman, summarizes the case this way.

“Despite resigning his union membership, Professor Reisman is required by Maine law be represented by a union with which he does not agree and of which he is not a member. Following the Court’s landmark Janus ruling, it is clear that these laws are unconstitutional, and we hope the Court will recognize them as such.”

It should be noted that the plaintiffs have lost the first two rounds. The case was first filed on August 10, 2018 at the U.S. District Court for the District of Maine, which dismissed it on December 3, 2018. Then it was appealed to the U.S. Court of Appeals for the First Circuit in Boston, which also threw it out on October, 4, 2019. But no one is talking about those lower court rulings anymore, since the Buckeye Institute appealed to the U.S. Supreme Court on January, 2, 2020.

Why Should We Care about this Case?

Imagine a truly stellar, hard-to-find, highly credentialed, chemistry or math teacher suddenly winning the right to negotiate a higher salary without worrying about what the local union bosses think? To some, Reisman could open the door to a nationwide revolution in merit pay policies, if only in districts where school board members might have worked the private sector… like at all.

But not so fast, says attorney Grossman. “The judgement we’re seeking doesn’t necessarily compel districts to negotiate individually with teachers who aren’t members of a union.” And he’s right. School boards could certainly cling to years-in-the-bunker-determined salaries if they wanted, no matter who’s doing the negotiating. Differentiated pay policies would have to overcome the decades-long inertial group think of the government school culture. Many district leaders could be paralyzed by the fear that rivalries and resentments would be spawned among the rank and file the first time a board member furtively whispers the forbidden words: “Maybe not every teacher performs the same.” And lots of elected school board members, after all, identify more as trouble diffusers than change agents.

Still, even some of the bluest states have a few libertarian-minded school boards scattered about there and yonder. All it might take is a few of those districts to strike the match of differentiated pay to then set ablaze the curiosities of the best teachers elsewhere. And in that scenario, if unions were to stubbornly cling like barnacles to their prized one-size-fits-all salary structures, you know what that might trigger? More teachers quitting the club.

“Wait, so if I quit the teachers union, I not only skip the dues payments, but I could also negotiate merit pay for myself? Hmmm. This is getting more interesting,” muses excellent Teacher X.

Brother, Can you Spare a Cert?

Of course, any appeal to the U.S. Supreme Court faces long odds of getting another life. In a typical year, the high court will hear about 150 cases out of the 8,000 that are appealed. That said, sometimes previous SCOTUS decisions give little clues about the future legal challenges the Court would like to hear next. And occasionally, big clues. In the Janus majority opinion, Justice Alito offers this not-so-subtle tip as early as the fifth paragraph:

“Designating a union as the employees’ exclusive repre­sentative substantially restricts the rights of individual employees. Among other things, this designation means that individual employees may not be represented by any agent other than the designated union; nor may individual employees negotiate directly with their employer.”

This deserves emphasis. Something done every year, by every school district in 40 states, “substantially restricts the rights of individual employees” according to a SCOTUS majority opinion? The tempting language was a tea leaf not missed by the Buckeye Institute’s President and CEO Robert Alt. He’s also one of the lead attorneys on the Reisman case.

“[A lawsuit making it to the Supreme Court is] always a long shot, but the odds look significantly better in this case because of the very favorable language in Janus suggesting that the Court has problems with exclusive representation — with how exclusive representation infringes on first amendment rights.”

Leslie Hiner, attorney leading the EdChoice Legal Defense & Education Center, is considering Reisman as a potential Supreme Court education trifecta.

In Janus, SCOTUS curtailed the overreaching power of government to force teachers to pay teachers unions even when the teachers did not choose to join. In Espinoza v. Montana Department of Revenue, SCOTUS may continue to uphold parents’ right to choose how and where their children are educated by curtailing the overreaching power of government to deny parents the option of choosing religiously-affiliated schools for their children’s education. Finally, Reisman would be the trifecta if SCOTUS curtails the power of government that forces teachers to have their salary and benefits bargained by a teachers union of the government’s choosing, regardless whether the teacher wants to be a member of that union.

So while there’s no guarantee the U.S. Supreme Court will agree to hear Reisman v. Associated Faculties of the University of Maine, if it does, you can be sure we’ll all be hearing a lot more about it too. And so will the best teachers.