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Mackinac Center Senior Fellow Vincent Vernuccio was about to go on national television when the 2018 Supreme Court decision in Janus v. AFSCME came down. He quickly texted a group of labor experts, including Austen Bannan, Americans for Prosperity’s senior employment policy analyst.
“Does this mean what I think it means?” Vernuccio asked.
In the 5-4 Janus decision, the Supreme Court reaffirmed the free speech rights of government workers, saying they cannot be compelled to support public sector unions’ political speech as a condition of employment.
Or, as Bannan explains, “Janus affirmed that an individual does not have to give up his or her right to free speech to be a public servant.”
As groundbreaking as that statement was, on the day it came down Vernuccio immediately suspected the decision went much further.
After quickly conferring with Bannan and others, Vernuccio went into his television interview and argued the Janus decision also meant employees must be given the choice to opt in to a union, instead of tracking down and filling out paperwork to opt out.
Unions had “to go and get affirmative consent” from the individuals they represent, Vernuccio said.
That portion of the decision made Janus “even bigger” than scholars had imagined it could be.
The Supreme Court issued its Janus ruling in June. By August, Vernuccio, Bannan, and other advocates were working to create a coalition to change state laws and regulations to reflect the landmark decision.
Attorneys general in three states — Alaska, Indiana, and Texas — each issued guidance that their states should no longer automatically collect union dues for public employees without affirmative opt-ins to union membership and dues.
Alaska’s governor even issued an executive order to enforce this, but a court blocked it at the time. Through an administrative decision by its civil service commission, Michigan also instituted an annual opt-in policy.
In a recently signed measure, Indiana went even further, honoring the opt-in rights outlined in Janus in law.
While the difference between opting in and opting out might seem slight, Noelani Kahapea, director of policy and strategic partnerships at the Association of American Educators (AAE), said it is significant.
Opt-out rules are confusing, contradictory, and “vary by jurisdiction,” Kahapea explains. “School teachers should not have to need a law degree to figure out how to stop paying union dues. When are they supposed to find the time?”
AAE was part of a coalition, along with the Mackinac Center, Americans for Prosperity, the Indiana Professional Educators Inc., and the State Policy Network that helped educate Hoosiers about the bill and advance SB 251 through direct and grassroots advocacy.
The coalition worked with teachers to explain how opt-out systems harm teachers.
Lafayette, Indiana, teacher Angela Sheffield wrote in the Journal & Courier that, “This opt out period is nearly impossible to find. Unless a teacher has a hard copy of their membership form, they must go online and attempt to re-join ISTA in order to read the fine print.”
Michael Chartier, then AFP-Indiana’s state director, provided testimony before the state legislature and wrote to policymakers.
In a letter to Gov. Holcomb, Chartier said,
“[This bill] would ensure public education employees are able to exercise their constitutional rights to refrain from paying fees to a union as a condition of employment and to end these optional payments at any time.”
In another letter to senators, he wrote that, “SB 251 would help ensure that Indiana is in full compliance with the First Amendment constitutional rights of its public school employees spelled out in Janus.”
AAE’s Kahapea says teachers overwhelmingly support those aims.
Stephen Delie, who runs the Mackinac Center’s Workers for Opportunity project, says SB 251 will provide immediate financial benefits for teachers who have been affected by COVID-19, or who supplement classroom materials using their own funds:
“With SB 251, teachers now can decide if they are getting value for their money. And certainly this is a way for teachers to have struggled to keep more of their salary.”
Bannan and Kahapea say SB 251, which takes effect on July 1, will help government unions be more responsive to teachers. And that will help students.
“The power of choice is vital,” Kahapea says. “Allowing teachers to exercise choice will enable them to serve students more effectively because it will help teachers advocate for the support they need to do their jobs.”
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