The Daily Signal

Opinion: Ohio Union Violating First Amendment by Taking Dues from Public School Staffer Who Opted Out

February 21, 2024

(The Daily Signal)—Suppose you joined a local gym several years ago, but after a while you discovered that you didn’t like some of the gym’s policies. So, you tell the gym that you no longer want to be a member and ask it to stop taking your monthly membership payments.

The gym confirms that you are no longer a member and stops taking payments.

However, a couple of months later, you discover that the gym has started taking payments again without getting your permission. When you ask what happened, the gym claims to have made a mistake by allowing you to leave.

Apparently, the only time you may stop payments to the gym is during a 10-day period occurring once a year. Unless you make your request within that window next year, they’ll just keep taking your money—even though you haven’t been a member or been charged for months.

Surely, the gym can’t just start taking your money without your permission after stopping payments months earlier.

But that’s pretty much what happened to Denise Cogar—except in her case, she tried to quit and stop paying a public sector union, rather than a gym.

When Cogar began working as a paraprofessional for an Ohio school district more than 20 years ago, she joined the Ohio Association of Public School Employees, Local 367, the union that represents the district’s paraprofessionals. It’s an affiliate of the American Federation of State, County and Municipal Employees.

At the end of 2022, she became frustrated with the union, and sent a letter withdrawing her membership and requesting that dues no longer be withheld from her wages on her paycheck. The union confirmed her withdrawal and told her that it would inform the school district to stop withholding union dues.

And the school did stop—briefly.

Four months later, the school district started taking money from her wages again. The union told Cogar that it had made a mistake. Because she hadn’t made her request during the union’s 10-day “opt-out window,” she had to keep paying dues after all.

Worse, the union and the school district’s actions were at the behest of Ohio law, which requires that a government employer withhold dues from its employees on behalf of the union.

But the U.S. Supreme Court in 2018 held in Janus v. AFSCME that public employers cannot give an employee’s money to a public sector union “unless the employee affirmatively consents to pay.” Doing so violates the employee’s First Amendment rights.

Because the union confirmed that Cogar was no longer a member and instructed the school district to stop withholding dues at the end of 2022, dues could only be withheld from her paychecks again if she consented to the withholding. But she didn’t consent—and the union’s reliance on Ohio state law to withhold union dues violated her First Amendment rights.

The union’s violation of the Cogar’s constitutional rights didn’t end there.

Months later, based on the union’s claim that Cogar could only stop paying dues during an “opt-out window” between Aug. 22 to Aug. 31, she tried to stop the withholding of dues again. She mailed an opt-out request to the union, which the union said it had received one day before the window began. As a result, the union refused to stop her dues payments.

The union waited until after that window had closed to tell her that. According to the union, that means she’ll have to wait another full year for the opt-out window to reopen before she can try again—and the union plans to keep charging her monthly dues in the meantime.

The union’s actions to continue to take Cogar’s money without her permission is unjust and unconstitutional.

That’s why Cogar, with the help of the Liberty Justice Center, filed a federal lawsuit in Ohio alleging that the union’s actions, the school district’s withholding of union dues, and the Ohio law on which the union and district relied are unconstitutional because they violate her First Amendment rights.

Government employees have a First Amendment right to decide whether they want their money to support public sector unions, and those unions can’t move the goal posts in order to take an employee’s money without their consent.

Jeffrey Schwab is a Senior Counsel at the Liberty Justice Center, where he litigates cases to protect civil liberties and constitutional rights.