The plaintiffs in the first two cases, Troesch v. Chicago Teachers Union and Fischer v. Murphy in New Jersey, said that so-called “escape periods” — short windows of time in which employees can opt out of paying union dues — are allowing states to avoid compliance with the court’s 2018 decision in . 

In Janus, the court ruled that the fees violate non-union members’ First Amendment rights because that money subsidizes political and policy positions.

The court on Monday also denied a request to hear a case from a Chicago teacher, , who argues he should receive a refund for the union fees he paid. Ocol has the picket line in the past two Chicago teacher strikes in 2016 and 2019.

A Supreme Court ruling on the post-Janus lawsuits would have impacted nearly 5 million members of public sector unions, according to the National Right to Work Legal Defense Foundation, which has been fighting what it calls “schemes” to get around the 2018 ruling. For example, 17 states limit withdrawal from the union to official escape periods, which can range from 10 to 30 days. If educators miss that opt-out window, school districts continue withdrawing the union dues from their paychecks for another year. Some of the laws were passed shortly after the Janus decision. But the Foundation and its clients haven’t been successful, and the appellate courts for the 3rd, 7th, 9th and 10th circuits have upheld restrictions on when employees can opt out of paying fees.

“We are disappointed the Supreme Court did not take this opportunity to clarify this important issue,” Patrick Semmens, the Foundation’s vice president, said in a statement. “We believe the Janus ruling does not permit public sector employees’ constitutional rights to be limited to an arbitrary union-created ‘escape period,’ and that eventually the High Court will need to step in to prevent Janus from being undermined.”

The Foundation continues to press that point. In late October, the Foundation asked the court to hear several that don’t involve teachers. The anti-union attorneys argue some new employees are never informed about their right to refuse to pay dues under the Janus decision.

According to Colin Sharkey, executive director of the non-union Association of American Educators, thousands of teachers contact the organization each year for help on how to exit their union.

“Numerous states made it even harder to leave the union in the aftermath of the Janus decision, greatly limiting the will of many public employees,” he said.

But unions, which have seen declines in membership, maintain that they negotiate on behalf of all employees, whether or not they want to be part of a union. 

Randi Weingarten, president of the American Federation of Teachers, said the court’s denial “exposed these frivolous cases for what they are: a cynical attempt by well-funded, anti-union radicals to flood the zone with countless post-Janus lawsuits to drain unions of resources.”

But despite their resignations, the Chicago Public Schools continued to withdraw dues from their paychecks on the union’s 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’ rights with so-called “escape periods” — windows of time, ranging from 10 to 30 days, in which employees can opt out.

If employees miss that window — which National Right to Work Legal Defense Foundation attorney William Messenger described as a “mandatory subscription service” — unions continue to collect the dues.

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

The Supreme Court won’t 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’s 2018 decision in . In a major blow to unions, the court ruled in that case that collecting union, or “agency,” fees from “nonconsenting” public-sector employees is unconstitutional because the money subsidizes unions’ political and policy positions. The justices said unions can’t just presume that employees have waived those rights. Some predicted the Janus decision would seriously cripple the unions’ political power, but their over school reopenings shows that hasn’t been the case.

Making it ‘harder to resign’ 

Referring to the escape periods, the Troesch petition says, “The Court should not allow the fundamental speech rights it recognized in Janus to be hamstrung in this way.” But so far, the lower courts haven’t 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’s Ocean Township School District are challenging that state’s 10-day escape period. The 3rd Circuit ruled against those teachers in January.

An escape period is considered a “maintenance of membership” strategy, explained Michael Hartney, a political science professor at Boston College.

“The union has an incentive to try to make it harder to resign,” he said. “If people were dropping out like flies every year, they wouldn’t be able to budget.”

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’t join unions in states with collective bargaining laws still can’t 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.

“Across the country, public-sector unions have resisted Janus’s instructions and devised new ways to compel state employees to subsidize union speech,” they wrote. “When constitutional rights are at stake, this Court requires ‘clear and compelling’ evidence of waiver precisely to protect individuals from unwittingly relinquishing their fundamental freedoms.”

Union leaders argue the precedent is in their favor.

“The union feels that this lawsuit was correctly dismissed by the federal trial and appellate courts, and believes those rulings will stand,” 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’t 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’s ruling in that case made the dues deductions unconstitutional.

But in the 3rd Circuit ruling, Judge Patty Shwartz wrote, “That 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.”

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

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 “such a shot across the bow.”