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  • By: Anthony P. Sciarrillo, Esq.


The United States Supreme Court (Supreme Court) issued several decisions during the 2017-2018 term that impact K-12 education. On June 27, 2018, the Supreme Court held in Janus v. AFSCME, that unions cannot force non-members to pay agency fees. The Supreme Court held that “The State’s extraction of agency fees from nonconsenting public-sector employees violates the First Amendment.” This decision breaks from a longstanding precedent, overruling Abood v. Detroit Bd of Ed, a case that allowed for this type of arrangement as long as the dues were not used for political purposes. In a 5-4 opinion, the Supreme Court reasoned that many things have changed since the ruling in Abood and it was no longer practical.

Mark Janus, an Illinois public employee, opposed many of the positions advocated by the union. In Illinois, public employees are represented by a union. Prior to the Supreme Court’s holding, Janus was required to pay dues into what is known as a “fair-share agreement,” which calls for payment of a certain percentage of union dues for union activity, such as labor negotiations, grievances, and the like. A smaller percentage of union dues, those of which are primarily used for political speeches, were not required to be paid by non-members. Over the years, the charges became increasingly difficult to differentiate. Janus filed suit in Illinois on the basis that the requirement to pay fees to a union to which he does not belong, that holds public purposes contrary to his own, is a violation of his First Amendment rights. The suit was dismissed in District Court due to the Supreme Court’s ruling in Abood, and that dismissal was affirmed by the Seventh Circuit. Janus then appealed to the Supreme Court.

Since Abood, there have been a number of cases regarding the legality of mandatory agency fees, but they have not completely addressed the issue. Janus provided an opportunity for the Supreme Court to truly review the constitutionality of these agency fees. The Supreme Court ruled that these fees violate the rights of the employee by compelling the employee to subsidize the Union’s “private speech on matters of public concern.” In striking down these fees, Justice Alito cited Thomas Jefferson in his majority opinion, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors is sinful and tyrannical.”

The decision in Janus will have an impact in New Jersey. New Jersey utilizes the “Fair-Share” (agency fee) payment provision which takes a percentage of a non-member’s salary for union fees. While unions will still be required to represent the interests of non-members, these non-members will no longer pay agency fees. Districts should determine if they permit a deduction from employees for union fees and whether these employees consent to the deductions. Further, districts should examine their collective bargaining agreements to ensure that they are consistent with the holding in Janus.

The issue of State taxation was addressed in South Dakota v. Wayfair Inc. The Supreme Court overruled precedent that required sellers to have a physical presence in the state before facing tax collection. Prior to this holding, states lost a significant amount of money in sales tax annually. The Supreme Court now allows states to require out-of-state retailers to collect sales tax on internet purchases. These taxes will likely increase the amount of funding available to states as well as school districts.

The Supreme Court also issued a trio of rulings regarding other challenges to the First Amendment. In Lozman v. City of Riviera Beach, Fla., a member of the public was arrested at a city council meeting for refusing to temper his comments during the public comment period and leave the building. The Supreme Court did not address whether the existence of probable cause would automatically bar Lozman from bringing suit in civil court for a First Amendment case. The Supreme Court did hold that the right to petition the government ranks “high in the hierarchy of First Amendment values.”

Masterpiece Cakeshop Lit. v. Colorado Civil Rights Commission dealt with a challenge by a private business owner who refused to make a cake for a same- sex couple on religious grounds. The Supreme Court found that a civil rights panel that ruled against the cake shop had violated the baker’s religious rights, however, it did not fully address issues about conflicts between religious rights and government protections against discrimination on sexual orientation.

In the third case, Minnesota Voters v. Mansky, the Supreme Court struck down Minnesota’s ban on political apparel at polling places. The Supreme Court remarked that states could restrict expressive apparel at polling, but restrictions on issue-oriented messages are unreasonable.

In Trump v. Hawaii, the Supreme Court upheld President Trump’s restrictions on travel to the United States from five countries. The Supreme Court held that the entry ban was a valid exercise of the president’s broad power to regulate immigration.

In Murphy v. National Collegiate Athletic Association, the Supreme Court struck down a federal law that made sports betting illegal in all states outside of Nevada. Individual states now have the ability to regulate sports betting. New Jersey has already opened multiple establishments for this purpose. Educators and others are concerned about the impact gambling may have on students throughout the country. The new law will, however, increase revenues at a time when there are many contentious debates over school funding.

These Alerts provide information about the current developments in New Jersey education law. It is necessarily general and not intended as legal advice or a substitute for legal advice. Questions about individual issues should be addressed to the attorney of your choice. Contact Anthony P. Sciarrillo of Sciarrillo Cornell at

Before making your choice of attorney, you should give this matter careful thought. The selection of an attorney is an important decision. You may, if this letter is inaccurate or misleading, report same to the Committee on Attorney Advertising, Hughes Justice Complex, P.O. Box 037, Trenton, NJ 08625

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