Teachers who opted out of the New Jersey Education Association after a 2018 Supreme Court ruling said they wouldn’t have to pay union dues if they did were before a federal appeals court last week, hoping to revive their dismissed lawsuit against a state law that puts limits on when that can happen.

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Deputy Attorney General Eric Apar said the 2018 law has never been applied in the restrictive way appellants contend and that four of the teachers who are plaintiffs in the cases actually stopped paying dues three months sooner than their contracts would have otherwise allowed.

“The (Workplace Democracy Enhancement Act) has simply had no effect on their ability to terminate their dues deductions,” Apar said.

“Every appellant who has attempted to revoke his or her dues authorizations has by now done so successfully,” he said.

William Messenger, a staff attorney with the National Right to Work Foundation, said that before and Janus v. AFSCME decision in 2018, teachers in New Jersey had no choice but to support their union because at a minimum they had to pay 85% of regular dues.

“Under Janus, the teachers have a First Amendment right not to pay for union speech, and therefore dues seized by the government and union especially after they resigned and objected violate that right,” Messenger said.

U.S. Circuit Judge Peter Phipps said the choice that used to face teachers – full union membership or a non-membership representation fee that still cost 85% of full dues – was no longer there after Janus.

“So it seems then that what we’re looking at is employees who have a choice, but one of the options was unconstitutional,” said Phipps, who dissented last month when the 3rd Circuit Court of Appeals affirmed lower-court decisions in favor of two Pennsylvania public-sector unions in dues-related cases.

Ramya Ravindran, an attorney for the teachers union, said it’s not a false choice.

“All of these plaintiffs admit that they understood membership was optional. They were not required to join,” Ravindran said. “The cost difference between the two obviously changed after Janus.”

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A pair of lawsuits in 2018 challenged the WDEA, which the state enacted in anticipation of the Supreme Court decision a month later in the Janus case. The lawsuit was dismissed in late 2019.

The law creates a 10-day window after a person’s work anniversary for them to opt out. The NJEA said it isn’t enforcing that window and allows such requests to be filed at any time.

“This is a state statute,” said Jonathan Mitchell, an attorney for the teachers who filed the lawsuit. “And the NJEA doesn’t get to decide what the statute means. That’s for the state authorities to decide. And statutes normally mean what they say.”

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