Goldwater Defends Constitutional Rights of Indiana School Employees

The First Amendment protects the rights of all individuals to freely associate with—and disassociate from—whatever private organizations they choose. Yet in Indiana, school employees’ rights could be flipped on their head if teachers unions succeed in subverting legal protections that prevent unions from collecting dues from teachers and other school employees without their consent. That’s why this week the Goldwater Institute filed a brief in federal court defending the State of Indiana’s protections for school employees’ speech and associational rights.

Many public-sector unions have found that compelling people to associate with them—or making it difficult to resign membership—is sometimes easier than convincing people to remain. Courts and legislatures have begun to recognize this problem and curtail it. In 2018, the U.S. Supreme Court made clear in its landmark Janus decision that “[t]he right to eschew association for expressive purposes is . . . protected” by the First Amendment. The Court held that affirmative consent, proven by the high legal burden of “clear and compelling evidence,” is required for any payment made to a union. Indeed, affirmative consent forms the very foundation of the right of free association.

After Janus, states like Indiana wisely recognized that more legal protections were needed to ensure that union membership and union dues payments (typically deducted directly from employees’ paychecks) were truly consensual. So, Indiana passed a set of statutory protections that imposed conditions on the access that school employee organizations—a legal term used to describe teachers unions and other school employee unions—have to taxpayer-funded payroll systems.

These provisions include protections for the right to resign from a union and stop automatic dues payments to a union. They also require that payroll deduction authorization forms for union dues contain a message from the State of Indiana advising teachers and other school employees of their constitutional rights.

Of course, recognizing that if union members can freely leave and stop paying dues—as countless employees across the country have done in recent decades—then unions would have to do more to attract and retain members, a group of teachers unions in Indiana decided instead to run to court and baselessly claim that the new statutes violated the unions’ speech and associational rights!

Unfortunately, even though the first judge to hear the case found that the statutes imposed no burden on the unions’ rights, the judge found that the statutes nevertheless violated the First Amendment because they affected only “pro-union teachers” and not to other public-sector unions.

That decision is now before the Seventh Circuit Court of Appeals, and the Goldwater Institute’s amicus brief explains precisely why it is wrong. Not only did the district court judge mix up various First Amendment legal doctrines such as viewpoint discrimination and speaker-based discrimination (ignoring Supreme Court precedent in the process), the court also failed to recognize that the statutes are carefully designed to protect constitutional rights and therefore pass even the strictest form of judicial scrutiny that might apply.

Given teachers unions’ outrageous behavior in the wake of the COVID-19 pandemic, including efforts to keep schools closed far beyond what science could support, the Indiana legislature was justified in focusing on school employee unions. This is particularly true because the Indiana Constitution requires the legislature to “encourage” and “provide” schools that are “open to all.” Teachers unions have no constitutional right to access public payroll systems to collect dues any more than they have the right to stand in the way of students’ education.

The Goldwater Institute will always defend the constitutional rights of free speech and free association for all citizens, especially when teachers unions try to twist the meaning of those rights in court to their unfair advantage. We are hopeful that the federal appellate court will recognize this shameful tactic and uphold Indiana’s modest protections for the rights of Indiana school employees.

You can read our amicus brief here.

Click here to read more about Goldwater’s work to protect employees from being trapped in public-sector unions. You can find out more about what Goldwater is doing to limit taxpayer subsidies for private unions here, and read about our work to protect associational rights here.

Parker Jackson is a Staff Attorney at the Goldwater Institute.