February 20, 2024

Keeping Media and Government Accountable.

Unions oppose First Amendment rights for teachers, others

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Marni Mills is a 20-year member of the Kansas National Education Association in Olathe. When she wanted to cease paying dues, she learned that getting out is harder than making a simple request even though she has a First Amendment right to do so.

“I have been a teacher for 22 years in the state of Kansas and a member of the KNEA my entire teaching career until this year,” Mills wrote in testimony to the House Commerce Labor and Economic Development Committee. “…That changed this year when the ONEA (Olathe National Education Association) started doing everything in its power to stop students from going back to the classroom. When the union started publicly lying to the media saying they represented all of us, I had to get out.”

She was told she couldn’t cancel her membership, however, because she missed the August 1 deadline. 

A proposal before the Kansas Legislature seeks to make it easier for public employees, like teachers, to stop paying dues at will. Opponents of the legislation say the bill will put Kansas law in compliance with a U.S. Supreme Court decision, known as Janus, issued in 2018.

HB 2354 gives public employees the ability to immediately cease payment of dues whenever they choose. The bill also mandates an annual affirmative opt-in opportunity for union members and requires that public employees receive an annual notice informing them of their constitutional right to leave the union at any time.

Similar legislation was approved by House and Senate committees last year but wasn’t voted on by either chamber in the COVID-shortened legislative session

Leaving a union should not be difficult, teacher says

“Leaving the union should not be difficult,” Mills said. “All members should be able to get out at any time without any hassle.”

U.S. Supreme Court Justice Samuel Alito said in the Janus decision that it violates an employee’s First Amendment rights.

“States and public-sector unions may no longer extra agency fees from nonconsenting employees,” he wrote, as it violates their constitutional right to free speech and association. 

ONEA eventually allowed Mills to leave the union, but it required a fight.

“After I threatened to continue to speak against the ONEA publicly to expose their lies, they finally let me out of the union,” she said.

Other public employees might not be so fortunate. According to Kansas law, dues withholding authorizations must be in effect for 180 days before an employee can withdraw it. And the state’s largest teacher union, the KNEA only allows teachers to cease payment in August.

Janus First Amendment rights apply to all 50 states

Jake Miller, an attorney and lobbyist for Working Kansas Alliance, tried to convince legislators that Janus doesn’t apply to Kansas because it only applies to states that were not right-to-work states, where union membership is compulsory.  But that is not true; Janus applies to all 50 states because it established a First Amendment right, and constitutional rights cannot be granted in some states but not others.

The right to opt-out at any time is clear

Vincent Vernuccio, an attorney and senior fellow at the Mackinac Center for Public Policy, points to specific language in Janus that refutes several claims made in testimony yesterday.

“Neither an agency fee nor any other pay­ment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed.”

Some of those who opposed union members being able to exercise their constitutional rights said there was nothing in Janus saying members could opt-out of the union at any time; they also said Janus wouldn’t apply in Kansas because union members made payments that aren’t covered in the opinion.

But the plain language of Janus clearly refutes both contentions.

All forms of payment are covered (” Neither an agency fee nor any other pay­ment…”) and the affirmative consent requirement allows employees to cancel their union membership at any time.  An employer cannot withhold union fees “unless the employee affirmatively consents to pay” and once that consent is withdrawn by notifying the employer that the employee no longer wishes to be a union member, the employer has no legal authority to withhold any payment from employees’ checks.

Constitutional rights exist regardless of whether anyone sues

Opponents of the legislation say the current law isn’t a problem, because no one has sued over the existing law. 

“I’m still struggling,” Rep. Jason Probst, a Hutchinson Democrat, said. “I really hope someone can explain to me. We’ve been three years since Janus and we’ve yet to have a suit. I really need someone to explain to me how in Kansas someone’s constitutional rights are being violated by joining a union.

Rep. Stephanie Clayton, an Overland Park Democrat, also tried to say Janus doesn’t apply in Kansas because no one has filed suit.  Constitutional rights, however, are not conditional upon someone suing to have their rights confirmed;

Fear of retaliation may explain why KNEA or other unions haven’t been sued in Kansas.  According to Garry Sigle, Executive Director of the Kansas Association of American Educators, teachers who consider leaving a union often express concern about reactions from teaching colleagues and local union reps who apply pressure or shun them.

Vernuccio says Kansas should not wait to be sued.

“That’s not a very good use of taxpayer dollars,” he told the committee. “The Supreme Court decision spells out what should be done. It’s clear. There are multiple lawsuits in other states. Kansas has been lucky in the regard that they have not seen a lawsuit.”

Wichita Vice Mayor calls legislation, ‘unfunded mandate’

The vice mayor of Wichita, Brandon Johnson, said portions of the bill that require employers to notify employees of their rights is an “unfunded mandate.”

“The bill would put new requirements on employers, requiring us to second-guess the intent of employees when it comes to choosing payroll deduction for their union dues,” Johnson said in written testimony.

However, Rep. Kristey Williams, an Andover Republican, noted that government employers could stop withholding dues if they find it too burdensome and employees could pay union dues directly rather than using payroll deductions.

No constitutional right to cancel gym memberships

Rep. Pam Curtis, a Kansas City Democrat, said union membership fees are similar to a gym membership agreement, a streaming service agreement, or newspaper subscriptions that cannot be canceled before the term expires. However, Vernucio says that ‘apples and oranges’ comparison is not true.  Unlike gym memberships or other examples, union dues are being taken from employees’ paychecks as a condition of employment; there also is no U.S. Supreme Court case saying people have a First Amendment right to cancel their gym membership.

Other opponents of union members’ First Amendment rights include the Kansas National Education Association, the League of Kansas Municipalities, the Kansas Fraternal Order of Police, and the Kansas State Council of Fire Fighters.  Several teachers submitted testimony supporting HB 2354, along with the Kansas Association of American Educators, Mark Janus, the plaintiff in Janus v. AFSCME, Americans for Prosperity, the Kansas Chamber, and Kansas Policy Institute.

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