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When Chicago teachers went on strike in 2019, Joanne Troesch, a technology coordinator in the city鈥檚 schools, and Ifeoma Nkemdi, a second grade teacher, decided they no longer wanted to be part of the union.

But despite their resignations, the Chicago Public Schools continued to withdraw dues from their paychecks on the union鈥檚 behalf. The union argues the deduction was legal because the educators signed a contract in 2017 agreeing to the dues.

Troesch and Nkemdi sued, and now are asking the U.S. Supreme Court to take their case. Troesch v. Chicago Teachers Union asks whether signing a membership contract sufficiently authorizes unions to continue collecting the money. The plaintiffs argue that states are denying employees鈥� rights with so-called 鈥渆scape periods鈥� 鈥� windows of time, ranging from 10 to 30 days, in which employees can opt out.

If employees miss that window 鈥� which National Right to Work Legal Defense Foundation attorney William Messenger described as a 鈥渕andatory subscription service鈥� 鈥� unions continue to collect the dues.

鈥淓mployees subject to these restrictions are effectively prohibited from exercising their First Amendment right to stop paying for union speech for 335鈥�55 days each year, if not longer,鈥� the plaintiffs argue in their petition to the court.

The Supreme Court won鈥檛 decide until October whether to hear the Troesch case, but if it does, the outcome would have an impact on 4.7 million members of public-sector unions in 17 states that have escape periods, Messenger said.

The case is the latest to argue that states and unions are skirting the court鈥檚 2018 decision in . In a major blow to unions, the court ruled in that case that collecting union, or 鈥渁gency,鈥� fees from 鈥渘onconsenting鈥� public-sector employees is unconstitutional because the money subsidizes unions鈥� political and policy positions. The justices said unions can鈥檛 just presume that employees have waived those rights. Some predicted the Janus decision would seriously cripple the unions鈥� political power, but their over school reopenings shows that hasn鈥檛 been the case.

Making it 鈥榟arder to resign鈥� 

Referring to the escape periods, the Troesch petition says, 鈥淭he Court should not allow the fundamental speech rights it recognized in Janus to be hamstrung in this way.鈥� But so far, the lower courts haven鈥檛 agreed. The U.S. Court of Appeals for the 7th Circuit in Troesch, as well as the 3rd, 9th and 10th circuits, have upheld the restrictions. Messenger is also asking the court to hear , in which two teachers from New Jersey鈥檚 Ocean Township School District are challenging that state鈥檚 10-day escape period. The 3rd Circuit ruled against those teachers in January.

An escape period is considered a 鈥渕aintenance of membership鈥� strategy, explained Michael Hartney, a political science professor at Boston College.

鈥淭he union has an incentive to try to make it harder to resign,鈥� he said. 鈥淚f people were dropping out like flies every year, they wouldn鈥檛 be able to budget.鈥�

But he added that striking down these union security provisions is less important to right-to-work advocates than overturning a giving unions exclusive bargaining rights. In other words, even employees who don鈥檛 join unions in states with collective bargaining laws still can鈥檛 negotiate their own salary and benefits, Hartney said.

Unions argue that they negotiate on behalf of all teachers and other school staff, regardless of membership

Attorneys general weigh in

Republican attorneys general in 16 states filed with the court in late July, urging the justices to hear the Troesch case.

鈥淎cross the country, public-sector unions have resisted Janus鈥檚 instructions and devised new ways to compel state employees to subsidize union speech,鈥� they wrote. 鈥淲hen constitutional rights are at stake, this Court requires 鈥榗lear and compelling鈥� evidence of waiver precisely to protect individuals from unwittingly relinquishing their fundamental freedoms.鈥�

Union leaders argue the precedent is in their favor.

鈥淭he union feels that this lawsuit was correctly dismissed by the federal trial and appellate courts, and believes those rulings will stand,鈥� said Ronnie Reese, a spokesman for the Chicago Teachers Union. The union and the district have until Sept. 27 to argue why the court shouldn鈥檛 hear the case. Defendants in the New Jersey case have the same deadline.

The plaintiffs in both states argue that even though they signed union contracts before the Janus decision, the court鈥檚 ruling in that case made the dues deductions unconstitutional.

But in the 3rd Circuit ruling, Judge Patty Shwartz wrote, 鈥淭hat is the risk inherent in all contracts; they limit the parties’ ability to take advantage of what may happen over the period in which the contract is in effect.鈥�

Hartney said Justice Samuel Alito, who wrote the Janus opinion, might want to hear the case because he has 鈥渧oiced skepticism that union security provisions outweigh First Amendment violations.鈥�

But Chief Justice John Roberts is known for preferring incremental changes in constitutional law and might not want to take up the issue because the Janus decision was 鈥渟uch a shot across the bow.鈥�

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