By Kevin Mooney
Sunday, May 29, 2022
In a landmark First Amendment ruling delivered in 2018, the Supreme Court held in Janus v. AFSCME that public-sector unions could not collect so-called fair-share fees from workers who did not want to become members. The decision restored the free-speech rights of millions living in states without right-to-work laws.
As consequential as Janus was, though, its effects have not been immediate. In some more-unionized states, legislatures have not updated their obsolete labor provisions, which has led some workers — unaware of their rights — to be coerced into paying union fees that often subsidize political activism.
For this reason, teachers who challenged union practices prior to the high court ruling have continued to press their case in court as part of their effort to strike down those provisions of state law that are now unconstitutional. Jane Ladley, a 25-year veteran public-school teacher in Pennsylvania, has led the charge.
Ladley’s dispute began in 2014 when she sought to redirect the union fees she would be forced to pay as a Pennsylvania state employee into nonprofits that encourage high-school and college-age students to develop a greater understanding and appreciation of the U.S. Constitution.
The Avon Education Association in Chester County informed Ladley that her first choice was too political and too religious and that her second choice was too partisan. In other words, the union was imposing a viewpoint-based restriction on her selections.
Ladley retired in 2017 without having the opportunity to support charities that could fill the gaps she observed in the learning and teaching of American history.
“In so many areas of our culture, especially education, students don’t get instructed about civics, about history, and about the U.S. Constitution,” Ladley said in an interview with National Review. “The charities I selected would help to bring back this kind of learning. I objected to paying fair-share fees because the money would be funneled into political activity that I do not support.”
“The union has no problem giving their members’ money to the politics that they agree with,” she added, “but somehow charities that uplift America’s Founding period and our constitution are not acceptable.”
In a court victory last week, however, Ladley emerged as the key figure responsible for aligning state labor law with the First Amendment. Her case could have national reverberations in other states with union mandates on the books that conflict with the free-speech rights of workers who do not support the political agenda of union leaders.
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When the Supreme Court struck down fair-share fees as an unconstitutional violation of the First Amendment in June 2018, the Pennsylvania State Education Association refunded the fair-share fees in dispute to Ladley and her co-plaintiff, Chris Meier, a public-school teacher in the Penn Manor School District in Lancaster County. The union also informed state employers to stop processing fair-share fees and sent letters to nonunion members informing them that they no longer needed to pay union fees, according to court documents. That was a victory of sorts, but much to her consternation, Ladley discovered that the unions “would exploit every loophole they had” to keep collecting fees from teachers who did not want to join the union.
“I’ve learned that the unions continue to put fair-share fees into collective-bargaining agreements despite the Supreme Court ruling in Janus,” Ladley said. “What they’re doing is very deceptive because they can lure in new teachers who may not have researched what the law really says, and they might convince them to pay fees even if they prefer not to be involved with the unions.”
During a November 15, 2021, hearing before the Pennsylvania House Labor and Industry Committee, Danielle Acker Susanj, an attorney with the Fairness Center, a nonprofit, public-interest law firm based in Harrisburg, Pa., told elected officials that her firm had identified at least 20 collective-bargaining agreements signed after the Janus ruling that included fair-share-fee language. In other words, the teachers’ unions had apparently inserted language they knew to be illegal.
Dave Perrotti, a Scranton-area public-school teacher, had witnessed firsthand how the unions seek to circumvent free-speech rights. Even after the Court’s Janus ruling, Perrotti was pressured with collection notices for union fees, after he resigned from his local PSEA affiliate in November 2020. Perrotti responded by becoming a client of the Fairness Center and ultimately prevailed in a court settlement just under a year later.
Unfortunately, Pennsylvania is hardly the only state where government union bosses have worked to undermine the high court. On the first anniversary of the Janus ruling, the Commonwealth Foundation, a free-market think tank in Harrisburg, released a study that showed how union-backed legislation sought to enshrine union privileges across the country and dilute the Janus effect. The study also gave letter grades based on how well each state’s laws safeguarded worker freedoms. Pennsylvania, along with every other state in the Northeast, received a “D.”
Ladley’s was the first case that the Fairness Center took up after the firm was founded in 2014. Thanks to the heavy lifting of the teachers who were willing to confront recalcitrant union officials, it now stands out as the first known case across the country of state-level enforcement of the Janus ruling.
The Lancaster court had previously ruled the case moot since the PSEA had agreed to stop collecting union fees from nonmembers. But in her January decision, Commonwealth Court Judge Patricia McCullough ruled that the trial court “would have to examine the merits of the teachers’ underlying constitutional claims and/or impact that the likelihood of success of such a claim had on PSEA and its decision to voluntarily discontinue collecting fair share fees.”
The problem with the lower court’s declaring the case moot was that it left open the outstanding question of attorney’s fees and costs, Nathan McGrath, the Fairness Center’s president, explained in an interview with NR.
“For this question to be resolved, the Commonwealth Court decided there has to be a determination as to who would likely prevail if the case had gone forward,” McGrath said. “This kept the Ladley case alive. Initially, Jane’s case was about what happens when there’s a disagreement over a charity. But after Janus, the case was really about the constitutionality of Pennsylvania’s fair-share-fee statute.”
On Monday, the Lancaster court finally spoke definitively and decisively in an order from Judge Leonard Brown that enjoined the PSEA from applying Pennsylvania’s fair-share-fee law against Ladley and her co-plaintiff since the “said law is unconstitutional” under Janus.
“To my knowledge, this is the first time a state court has issued such a ruling,” said McGrath. “Our clients are delighted at this outcome. Should the PSEA or another public-sector union attempt to charge employees fair-share fees in the future, public employees will have this judgment to point to in order to defend their rights.”
Now that the Lancaster court has declared Pennsylvania’s fair-share fee unconstitutional, Vincent Vernuccio, a senior fellow with the Mackinac Center for Public Policy in Michigan, anticipates that other states will begin to follow suit by further enshrining Janus.
“Unfortunately, some state legislatures are willing to do whatever they can to trap public employees into paying union fees so they cannot avail themselves of their rights,” said Vernuccio. “This has been done through arbitrary window periods, captive-audience meetings, and other anti-Janus legislation. What this means is that some lawmakers and union officials are willing to put their own special interests ahead of the First Amendment rights of public employees.”
With two big statewide races this year in Pennsylvania, and with much at stake for public-policy decisions impacting educational opportunities for K–12 students, the political power and influence of the teachers’ unions are front and center. The PSEA, itself an affiliate of the National Education Association, is the largest public-employee union in Pennsylvania with almost 180,000 members. Campaign-finance records show that the PSEA’s political-action committee has spent almost $20 million since 2007 and almost $600,000 so far in 2022. Those same records show the PSEA’s union-dues expenditures on “political activities and lobbying” approaching almost $50 million since 2007. At least some of those political activities and lobbying efforts are directed against school-choice measures that polls show have considerable support across a broad cross-section of Americans in both major parties.
In Pennsylvania, union officials have pulled dues from the coffers of rank-and-file members to fund campaigns opposing legislation that would bring Pennsylvania into compliance with federal labor law.
Last week’s ruling, however, lends added support to such people as state representative Kate Klunk, a York County Republican, who sees the teachers’ unions exercising what she terms “an oversized influence at the expense of the public interest.” Klunk is the lead sponsor of House Bill 2042, which would require public employers to notify nonunion members and new employees that they do not need to make a financial contribution to a union as a condition of employment. Her bill would also repeal the state’s fair-share-fee law, which remains on the books despite the court ruling.
“We can end the confusion,” Klunk said.
Vernuccio, for his part, likes the idea of simultaneously bringing legislative and legal pressure to bear in a key swing state.
“Freedom is not self-executing,” he observed. “You need an awareness campaign and detailed study of state laws to see where they are outdated. Fortunately, this is happening in Pennsylvania.”
Indeed, thanks to Ladley’s persistence, those working to vindicate free-speech rights in other states now have added leverage.
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