Janus v. AFSCME

Stephanie Olson
July 17, 2017

Last year, the Supreme Court was set to hold that the First Amendment prohibits the government from requiring public sector employees from paying mandatory union dues. In Friedrichs v. California Teachers Association, the Court appeared ready overrule Abood v. Detroit Board of Education, a 1977 case that blessed this practice. But after Justice Antonin Scalia’s untimely passing, the Court deadlocked 4-4. Thus, Abood survived.

After Justice Neil Gorsuch filled Justice Scalia’s seat, Abood‘s days appear numbered. In June, National Right to Work Legal Defense Fund filed a petition for a writ of certiorari in Janus v. AFSCME, a case that presents the same issue as Friedrichs: whether Abood should be overruled. Last week, the Freedom Foundation filed an amicus brief in support of certiorari in Janus on behalf of itself and Rebecca Friedrichs—the lead plaintiff in the aforementioned case.

National Right to Work Legal Defense Fund and other amicis supporting certiorari eloquently explain why the Court should grant Janus and overrule Abood. The Foundation and Ms. Friedrichs took a different angle: we focused on ensuring the Court asks the right questions. We argued that the Court should grant certiorari and ask the parties an additional question: whether the First Amendment requires states and unions to obtain employees consent before deducting union dues. In other words, are requirements that employees opt-out of union membership unconstitutional? Indeed, in Knox v. SEIU 1000, Justice Alito signaled that allowing states and unions to deduct dues before obtaining employees’ consent is likely unconstitutional. Only by answering this question will the Court ensure that all public employees can effectively exercise their First Amendment rights.

In our brief, we provide several real experiences that illustrate why the Court should also address the constitutionality of opt-out requirements. First, we highlighted how the California Teachers Association has effectively prevented many teachers from opting out through their “check the box” scheme. Second, we focus on how SEIU 775 has engaged in “lawfare” to prevent the Foundation from informing home healthcare providers about their constitutional rights. If SEIU 775 had to get workers to opt-in to union membership, then they would have to take time—not use their union dues to prevent their members from learning about their rights. Third, we explain why choice architecture—the science about how environmental features influence decision making—shows how public employees are being tricked into staying in union membership.

Janus is shaping up to be one of the biggest cases next year. The Court may finally correct its forty-year old mistake and recognize that forcing public employees to pay an agency fee violates the First Amendment. But even if the Court holds as such, it will mean little if workers can’t exercise that right. An opt-in requirement would ensure that the average worker can exercise her right to not pay union dues.

- Litigation

Stephanie Olson

Litigation Counsel

Stephanie Olson serves as the Foundation’s Litigation Counsel. Stephanie graduated from the University of Washington School of Law with Honors, where she served as the Symposium Editor for the Harvard Journal of Law & Public Policy and the Articles Editor for the Washington Journal of Law, Technology & Arts. She also externed at the Western District of Washington United States District Court, competed on UW’s national American Association of Justice Mock Trial Team, and served as President for the Federalist Society UW Student Chapter. Stephanie gained litigation experience while working at UW’s Innocence Project Clinic, the Washington State Attorney General’s Criminal Litigation Unit, and the Washington Appellate Project. She also became a Blackstone Fellow through the Alliance Defending Freedom Blackstone Fellowship. Additionally, Stephanie is a published author in the Ephemeris Journal of Philosophy, the American Bar Association’s Criminal Justice Section blog, and the University of Washington’s Law, Technology & Arts Blog. Prior to law school, Stephanie worked as a paralegal at large firms in downtown Seattle and volunteered as a local and national leader for anti-human trafficking campaigns. Through her experiences working in Washington’s public, private and non-profit legal sectors, Stephanie is uniquely qualified for fighting for freedom in the Pacific Northwest. When not litigating, Stephanie loves connecting with her hometown roots. She grew up in Woodinville, Washington and enjoys cheering for the Seahawks, Sounders and Dawgs, volunteering with youth soccer teams, catching concerts at the Gorge, and grabbing friends to hike one of the many numerous and scenic hiking trails scattered throughout the state. Stephanie obtained her Bachelor’s Degree in International Relations from Wheaton College, where she first became passionate about fighting for freedom in the context of international human rights. The time also further deepened her love for the mountainous northwest region, where she now resides.