A conservative legal strategy aimed at seeking refunds of objectors’ teachers’ union fees collected before the landmark Janus decision in the U.S. Supreme Court is running into a roadblock—one court ruling after another that rejects the theory behind the cases.
This week, a federal appeals court upheld the dismissal of a class action brought on behalf of Ohio teachers who declined to join their teachers’ union and sought refunds of years of fees the unions were allowed to charge them for collective bargaining, known as “fair share” or agency fees.
The Feb. 24 decision by a unanimous three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, is the third by a federal appeals court as well as more than a dozen by federal district courts that reject refunds of agency fees collected before the Supreme Court’s 2018 ruling in Janus v. American Federation of State, County, and Municipal Employees Council 31.
In that 5-4 decision, the high court overruled a 1977 precedent that had authorized the collection of agency fees from public employees who refuse to join their union. The majority in Janus said collective bargaining in education was a matter of public concern, and nonmembers could not be compelled under the First Amendment to helped fund with which they disagreed.
The Ohio class action was one of many filed around the country seeking to apply Janus retroactively to fees collected under the authority of the 1977 decision, Abood v. Detroit Board of Education. And the strategy pushed by “right-to-work” organizations and others is not the only one they are using to try to use the Janus decision to further attack public-employee unions. As Education Week’s Madeline Will has reported, there are also challenges to opt-out procedures for union members and to the right of a single public-employee union to be the exclusive bargaining representative for a defined group of workers.
In the Ohio case, Sarah R. Lee, a teacher in the Avon Lake city school district, filed a suit seeking class status for all teachers who had paid agency fees to their national, state, and local teachers’ unions. The suit sought a refund of “all” such fees.
The Avon Lake Education Association, the Ohio Education Association, and the National Education Association sought dismissal of the suit, arguing that they had collected agency fees before Janus in good faith in reliance on state law and prevailing Supreme Court precedent.
A federal district court agreed with the unions and dismissed the suit. In its Feb. 24 decision in Lee v. Ohio Education Association, the 6th Circuit court panel upheld the dismissal.
Writing for the court, Judge Richard Allen Griffin said even if the Janus decision might be considered retroactive under certain legal principles, the unions’ good-faith defense would overcome any retroactive remedy.
The court rejected Lee’s arguments that the agency fees were akin to an unconstitutional tax or criminal fine, which may be required to be refunded even if collected in good faith.
Griffin noted that both the U.S. Court of Appeals for the 7th Circuit, in Chicago, and the U.S. Court of Appeals for the 9th Circuit, in San Francisco, have issued similar decisions, as have some 20 federal district courts.
“We now add our voice to that chorus,” the judge wrote. “The union was authorized by Ohio law and binding Supreme Court precedent to collect agency fees. Until Janus said otherwise, the union had a legal right to receive and spend fair-share fees collected from nonmembers as long as it complied with state law and the Abood line of cases. It did not demonstrate bad faith when it followed these rules.”