Will Courts Order Unions to Refund Fees?

Conservative groups are pushing ahead after last month’s Supreme Court ruling on union fees. Now, they are pursuing lawsuits against unions to require them to “disgorge” (refund) fees that were collected prior to the Janus ruling. Their theory is that unions unconstitutionally took payments from objecting employees.

So far, they have lost in three cases; but the Supreme Court, with its noticeable appetite for cutting down unions, might rule otherwise.

The financial impact on unions would be catastrophic.

But the implications reach beyond unions.

The Trump administration’s lawyer who has been heading up these disgorgement lawsuits also sued Houston on behalf of a taxpayer. The lawsuit aimed to recover money that Houston had spent on employee benefits for same-sex couples before the Supreme Court ruled that same sex marriage is constitutional.

But let’s think ahead a bit.

Since 1968, religious schools have been allowed by the Supreme Court to receive subsidies for things like textbooks, which are quite expensive. In Board of Education v. Allen, a taxpayer sued under the First Amendment—the same law in these disgorgement lawsuits.  Allen argued that a New York law that loaned textbooks to Catholic schools violated the doctrine of separation of church and state. He lost on a 6-3 vote.

The Janus case that just ruled that union fees are unconstitutional stemmed from a 1978 Supreme Court rulings, Abood v. Bd. of Education. The Court ruled that these fees are not an abridgement of First Amendment rights.

So, if conservatives succeed in getting courts to order First Amendment refunds to employees who are represented by unions, I look forward to the day when the Supreme Court has a different lineup and a taxpayer sues to overrule the 1968 Allen case. No, I don’t really want parochial schools to refund taxpayers for 50 years of subsidies—but I would go there if the Supreme Court ruled that unions must repay fees retroactively. That’s because the First Amendment doesn’t recognize favored and disfavored groups.

In law, as in life, be careful what you wish for: What comes around usually goes around.