On June 27, 2018, the U.S. Supreme Court struck down an Illinois statute requiring non-union public employees to pay “agency fees” to the union representing the employees, expressly overruling a 1997 Supreme Court decision that had approved such required payments. The petitioner, Mark Janus, is a state employee whose employer is represented by a public sector union. Even though he was not a member of the union, he was required to pay about $535 per year to the union for agency fees, an amount equal to 78.06 percent of full union dues. The Supreme Court held that this required payment of agency fees “violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”

This decision is limited to public sector employees, as free speech issues are not implicated by private sector employment. The decision does not directly affect public employees in Texas, as Texas is a right-to-work state that prohibits collective bargaining for most public employers, including public schools. However, the decision will eliminate the revenue stream from agency fees paid by employees in some states to the two national teacher unions, the American Federation of Teachers and the National Education Association, so these unions are preparing for budget cuts.

The previous attempt to overrule the 1997 decision allowing agency fees failed on a 4-4 vote prior to the appointment of Justice Neil Gorsuch to the court following the death of Justice Antonin Scalia. The Janus decision was decided strictly along ideological lines on a 5-4 vote in what many observers consider an anti-union sentiment of the conservative majority on the court. Putting the union issue aside, the decision does appear to strengthen the free speech rights of public sector employees, including the right of free association and the right not to associate.

Employees of Texas public schools have never been required to join a union or pay agency fees. This fact appears to be ignored by proponents of “paycheck protection,” the term used by people who want to take away educators’ ability to have their association dues deducted from their paychecks. This is clearly an attempt to conflate the issue of required agency fees with the issue of having association dues voluntarily deducted from wages, as employees may choose to do with other forms of insurance, services, and charitable contributions. Even though agency fees have never been an issue in Texas, the Supreme Court decision should make it even clearer that public employees in Texas need no such protection.