Striking Teachers and the First Amendment

Public Workers have been in the news again in recent days.  Celebrating the fiftieth anniversary of the assassination of Dr. Martin Luther King Jr., we recall that Dr. King was in Memphis to support striking sanitation workers. King joined the sanitation workers to protest both their economic deprivation and race discrimination by Memphis city officials.  In the present day, teachers on strike are engaging in mass demonstrations in Oklahoma, inspired by the strike of their West Virginia colleagues last month.  Oklahoma teachers are not only protesting their low salaries.  They also criticize draconian cuts in education which have led to four-day school weeks in some parts of the state, and the use of 30-year old textbooks.  These are all examples of public workers exercising their First Amendment rights, which have been fiercely contested in this country since the early twentieth century.

Looming over the teacher strikes is the case of Janus v. American Federation of State, County, and Municipal Employees, Council 31.  Janus is a First Amendment based challenged to an Illinois state law which requires public employees to pay union dues to unions that represent them.  Janus argues that paying the dues amounts to unconstitutionally compelled speech.  He is asking the Court to overrule a 40-year old precedent, Abood v. Detroit, which upheld the constitutionality of a similar state law.  Most commentators believe that the Court will rule in the plaintiff’s favor in Janus, resulting in a ruling which would strike a blow to organized labor and devastate public sector unions. Janus, the two faced Roman god of duality, is an apt name for this case.  A ruling in Janus’s favor would use the First Amendment, once the mainstay of advocates for workers’ rights, to undermine the labor rights of workers. 

In her recent bookThe Taming of Free Speech: America’s Civil Liberties Compromise, Laura Weinrib describes the central role that the labor movement played in the civil liberties revolution of the mid 20thCentury.  Established in 1920, originally the ACLU's central mission was to advance a “right of agitation” and protect the labor movement’s right to free speech and free assembly.  Initially, Roger Baldwin, the first ACLU director, was hesitant to raise First Amendment claims in courts.  At the time, courts were hostile to the rights of workers, striking down progressive measures protecting workers rights as violating the so-called “right to contract” and issuing injunctions against striking workers. 

Prior to the 1930s, labor asserted its right to agitation in the political arena, not the courts. Millions of workers took to the street in massive strikes, asserting their right to organize and bargain collectively.  Labor’s distrust of courts is evident in the Norris-LaGuardia Act, which prohibit courts from issuing injunctions in cases involving disputes between labor and management.  According to Weinrib, leaders of the ACLU agreed with labor that the Norris-LaGuardia Act was a crucial civil liberties victory.

In the 1930s, however, the Supreme Court backed away from Lochner, rejecting its right to contract jurisprudence.  Congress also rejected Lochnerand embraced a collective right to contract when enacting the National Labor Relations Act.  In the 1937 case of NLRB v. Jones, the Court upheld the constitutionality of the NLRA.  Pro-labor court rulings began to seem possible. In the 1939 case of Hague v. CIO, the Court held that labor activists had a First Amendment right to freedom of speech and assembly in public spaces.  Hague arguably marks the high-water point of the First Amendment rights of union workers.

Even as labor celebrated the NLRA and Hague, the National Association of Manufacturers and the Liberty League began to formulate an alternative use of the First Amendment to undermine unions.  They formed the “right to work” movement, arguing that workers had a constitutional right notto join a union.  In The Workplace Constitution: From the New Deal to the New Right, Sophia Lee outlines how the right to work campaign raised First Amendment claims against agency fees, laying the groundwork for Janus.  Katherine Fisk has arguedthat a ruling for the plaintiffs in Janus would revive Lochner, based in the same reasoning that labor resisted with their right of agitation.  A century after the progressive movement resisted court rulings against workers’ rights, a Janus-like Court is using the First Amendment to quell the rights of union workers.

Importantly, teachers in West Virginia, Oklahoma and Arizona would not be affected by the Janus ruling.  They already live in states which prohibit government workers, including teachers, from engaging in collective bargaining and going on strike. In those states, the teachers’ only means of bargaining is political pressure on the state legislatures, which set the terms of their employment.   If the Court rules as expected in Janus, public sector workers in every state will be in the same boat as the teachers in West Virginia and Oklahoma.  The mass protests in those states are reminiscent of those of workers in the 1930s who demanded a right to organize in unions.  Will Janus thus ironically inspire more  political activism by public workers? 

This blog entry was first posted on on April 6, 2018.