In Janus v. AFSCME, a public employee challenged the State of Illinois’ requirement that he financially support the union at his workplace. The Supreme Court held the laws compelling him to fund the union violated his free speech and association rights. The Court reasoned that all union speech to the government, including collective bargaining, is political in nature, and there is no compelling governmental interest in forcing public employees to fund that speech. The Court found unpersuasive arguments by the union and Illinois that compulsory dues are necessary for labor peace and the smooth functioning of the government’s labor relations system.

Janus left open the question of whether being forced to be represented by a union also violates free speech and association rights, though it recognized that forced representation is “itself a significant impingement on associational freedoms that would not be tolerated in other contexts.” But the Court was not called upon to opine on the constitutionality of exclusive representation, and it did not do so.

That issue is now squarely on the Court’s doorstep. Avraham Goldstein and five other faculty members at the City College of New York (CUNY) object to any association with the Professional Staff Council (PSC), the union recognized by the State of New York as their exclusive bargaining representative.  These professors have already resigned their union memberships and stopped paying dues, but they want nothing to do with PSC’s mandatory representation concerning their wages and working conditions.  To further compound the professors’ free speech and association injury caused by having a state-designated mandatory agent, PSC takes ideological positions striking at the core of the professors’ religious beliefs and identities, such as antisemitic resolutions condemning Israel and supporting boycotts of that country. The professors’ revulsion at PSC’s positions is a key source of their desire to disassociate to the maximum extent possible.

However, New York state law makes PSC the professors’ sole and exclusive bargaining representative for purposes of setting their wages and working conditions. The professors cannot opt out of this mandatory representation, nor can they opt out of the bargaining unit. Nor can they simply authorize the state to unilaterally set their wages and working conditions, just as it does for management officials, confidential employees, and other state workers who by law are carved out of the exclusive representation system.

The professors filed suit in 2022 challenging New York’s designation of the PSC as their exclusive agent. Despite finding that the professors’ “dismay at being situated in a bargaining unit led by persons with views they find reprehensible is undeniably sympathetic,” the district court held that the professors’ First Amendment “interest is not implicated by the inclusion of a non-member in a bargaining unit.” According to the district court, the Supreme Court’s decision in Minnesota State Bd. for Cmty. Colleges v. Knight controlled, and “[t]he professors’ speech and association rights . . . were not infringed by exclusively empowering the union to negotiate for the state on behalf of the bargaining unit and to express ‘the faculty’s official collective position.’”

Knight dealt with “meet-and-confer” provisions and held that a state cannot be forced to negotiate or meet with individual employees. The professors argued to no avail that Knight is distinguishable because it did not deal with their issue: whether compelled representation by a mandatory state-designated agent violates their First Amendment rights. The professors are not asking to meet or negotiate with their public employer. Rather, they only seek to rid themselves of an unwanted agent for doing so.

On March 18, 2024, the Second Circuit affirmed, agreeing that Knight controls. First, the Second Circuit downplayed the professors’ desire to end PSC’s state-imposed exclusive agency, minimizing the extent of the PSC’s mandatory agency relationship. “Any legal authority that PSC has to negotiate on behalf of Plaintiffs is restricted to the narrow scope of collective bargaining with CUNY.” Second, the court reasoned that “Plaintiffs may not themselves directly bargain with or select their own representative to bargain with CUNY over their employment terms,” but failed to recognize that the professors never sought to bargain with CUNY. To the contrary, they sought to be excluded completely from the PSC’s bargaining unit and mandatory agency as a way of protecting their freedom of association.

Other courts have recognized that employees have “a cognizable associational interest under the First Amendment to challenge” a union’s certification as their exclusive bargaining representative because they are thereby “thrust unwillingly into an agency relationship.”

Moreover, other courts recognize the tension between Knight and Janus.  The Sixth Circuit in Thompson v. Marietta Education Association stated that “Knight’s reasoning conflicts with the reasoning in Janus,” though it still held Knight was controlling because “a cramped reading of Knight would functionally overrule the decision.” Although the Sixth Circuit felt bound by Knight, it understood that Knight did not resolve the key constitutional question presented in Goldstein: whether exclusive representation is a mandatory expressive association protected by the First Amendment.

It is expected that the professors in Goldstein will file a petition for certiorari during the summer of 2024, asking the Court to clarify or overrule Knight. If the Court takes the case, it will have the opportunity to protect public employees from forced agency relationships with organizations they abhor, and to resolve the tension between Knight and Janus.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].