The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today, in Thompson v. Marietta Education Association, the U.S. Court of Appeals for the Sixth Circuit rejected a constitutional challenge to a law requiring government employees to accept exclusive representation by a public sector union. This requirement would seem to be in conflict with the principles underlying Janus v. AFSCME, but an older as-yet-not-overturned Supreme Court precedent upheld such arrangements, so the Sixth Circuit panel's hands were tied.
Judge Thapar wrote for the court. His brief opinion for the court begins:
By signing on the dotted line, public employees accept the government as their employer. In Ohio, the law requires them to also accept a union as their exclusive bargaining representative. It's a take-it-or-leave-it system—either agree to exclusive representation, which is codified in state law, or find a different job. This take-it-or-leave-it system is in direct conflict with the principles enunciated in Janus v. AFSCME, 138 S. Ct. 2448 (2018). But when the Supreme Court decided Janus, it left on the books Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984). And because Knight directly controls the outcome of this case, we affirm the district court's decision upholding the challenged Ohio law.
Later in the opinion, Judge Thapar writes:
Thompson's first claim is that Ohio law impermissibly allows the Marietta Education Association to speak on her behalf during collective-bargaining sessions, and that this amounts to compelled speech and association in violation of the First Amendment. See Ohio Rev. Code §§ 4117.05(A), 4117.11(B)(6).
The First Amendment protects "both the right to speak freely and the right to refrain from speaking at all." Wooley v. Maynard, 430 U.S. 705, 714 (1977). Likewise, "[f]reedom of association . . . plainly presupposes a freedom not to associate." Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984). These rights capture the more basic truth that "[f]orcing free and independent individuals to endorse"—either implicitly or explicitly—"ideas they find objectionable is always demeaning." Janus, 138 S. Ct. at 2464. The Supreme Court has thus explained that "designating a union as the exclusive representative of nonmembers substantially restricts the nonmembers' rights." Id. at 2469. And the Court has deemed exclusive public sector bargaining "a significant impingement on associational freedoms that would not be tolerated in other contexts." Id. at 2478.
Given the Supreme Court's language, one might think that Thompson should prevail. Yet Supreme Court precedent says otherwise. And lower courts must follow Supreme Court precedent. See Agostini v. Felton, 521 U.S. 203, 237 (1997).
The primary precedent blocking Thompson's way is Knight. There, a group of non-union community college instructors challenged Minnesota's collective-bargaining statute. They objected to the State's recognition of an exclusive representative to speak for all employees at "meet and confer" sessions. These sessions concerned subjects outside the scope of mandatory collective bargaining. See 465 U.S. at 274–78. But the Supreme Court rejected the challenge. It held that Minnesota had "in no way restrained [the instructors'] freedom to speak . . . or their freedom to associate or not to associate with whom they please." Id. at 288. To the contrary, the Court held that the instructors' First Amendment rights were not unduly infringed because they remained "free to form whatever advocacy groups they like" and were "not required to become members of [the union]." Id. at 289.
Knight controls here. If allowing exclusive representatives to speak for all employees at "meet and confer" sessions does not violate the First Amendment, we see no basis for concluding that the result should be different where the union engages in more traditional collective bargaining activities. It appears that every other circuit to address the issue has agreed. . . .
To be sure, Knight's reasoning conflicts with the reasoning in Janus. But the Supreme Court did not overrule Knight in Janus. And when an earlier Supreme Court decision "has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989). We do so here.
This strikes me as the proper way for a lower court to handle controlling Supreme Court precedent. There may well be conflict within the Court's own precedents, as Judge Thapar observes in his opinion, but resolving this conflict is the work of the Supreme Court, not lower courts.