Petition for Writ of Certiorari — JoAnne Troesch, et al., Petitioners v. Chicago Teachers Union, et al.

APPENDIX

TABLE OF APPENDICES

Appendix A

Order, United States Court of Appeals for

the Seventh Circuit, Troesch v. CTU, No.

21-1525 (Apr. 15, 2021) ................................. App-1

Appendix B

Order, United States District Court for the

Northern District of Illinois, Troesch v.

CTU, No. 20 C 2682 (Feb. 25, 2021) ............. App-4

Appendix C

Judgment, United States District Court for the

Northern District of Illinois, Troesch v.

CTU, No. 20 C 2682 (Feb. 26, 2021) ........... App-18

Appendix D

Opinion, United States Court of Appeals

for the Seventh Circuit, Bennett v.

AFSCME, 991 F.3d 724 (7th Cir. 2021) ..... App-20

Appendix E

Relevant Constitutional and Statutory

Provisions ................................................... App-41

U.S. Const. amend. I.............................. App-41

Act 115 Ill. Comp. Stat. 5/11.1 (2019) ... App-41

App-1

Appendix A

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

Everett McKinley Dirksen

United States Courthouse

219 S. Dearborn Street

Chicago, Illinois 60604

Office of the Clerk

Phone: (312) 435-5850

www.ca7.uscourts.gov

ORDER

April 15, 2021

Before

MICHAEL S. KANNE, Circuit Judge

DIANE P. WOOD, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

JOANNE TROESCH and

IFEOMA NKEMDI, on

behalf of themselves and

the putative class,

Plaintiffs - Appellants

v.

No. 21-1525

CHICAGO TEACHERS

UNION, LOCAL UNION

NO. 1, AMERICAN

FEDERATION OF

TEACHERS and THE

BOARD OF EDUCATION

OF THE CITY OF

CHICAGO,

Defendants - Appellees

Originating Case Information:

District Court No: 1:20-cv-02682

App-2

Northern District of Illinois, Eastern Division District

Judge John Z. Lee

The following are before the court:

1. MOTION TO DISMISS OR STAY, filed on March

29, 2021, by counsel for Appellee Board of Education

of the City of Chicago.

2. APPELLEE CHICAGO TEACHERS UNION’S

JOINDER IN MOTION TO DISMISS OR STAY,

filed on March 31, 2021, by counsel for Appellee

Chicago Teachers Union.

3. APPELLANTS’ RESPONSE TO MOTION TO

DISMISS OR STAY, filed on April 5, 2021, by

counsel for appellants.

JoAnne Troesch and Ifeoma Nkemdi appeal the

dismissal of their complaint alleging that the Board of

Education of the City of Chicago and the Chicago

Teachers Union violated the First Amendment by

permitting union members to stop their dues

payments only during an annual escape period. The

parties agree that the outcome of Troesch and

Nkemdi’s appeal is controlled by our recent decision

in Bennett v. Council 31 of the American Federation of

State County and Municipal Employees, 991 F.3d 724

(7th Cir. 2021), in which we held that it does not

violate the First Amendment for a union to continue

deducting dues that an employee voluntarily agreed

to pay. Accordingly,

App-3

IT IS ORDERED that the motion is GRANTED and

the judgment of the district court is summarily

AFFIRMED.

form name: c7_Order_3J (form ID: 177)

App-4

Appendix B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOANNE TROESCH and

IFEOMA NKEMDI, on

behalf of themselves and

the putative class,

)

)

)

)

)

Plaintiffs,

)

)

v.

)

)

CHICAGO TEACHERS

)

UNION LOCAL UNION

)

NO. 1, AMERICAN

)

FEDERATION OF

)

TEACHERS, and THE

)

BOARD OF EDUCATION )

OF THE CITY OF

)

CHICAGO,

)

)

Defendants.

)

No. 20 C 2682

Judge John Z. Lee

MEMORANDUM OPINION AND ORDER

Joanne Troesch and Ifeoma Nkemdi, on behalf of

themselves and a putative class of similarly situated

employees (collectively, “Plaintiffs”), allege that the

Chicago Teachers Union (“CTU”) and the Chicago

Board of Education (“the Board”) (collectively,

“Defendants”) violated their First Amendment rights

App-5

under Janus v. American Federation of State, County,

and Municipal Employees, Council 31, 138 S. Ct. 2448

(2018), by continuing to enforce their signed

agreements to pay union dues until the annual

August window for revoking their dues authorizations

after they resigned their memberships in CTU in

October 2019. Defendants have moved to dismiss the

complaint with prejudice under Rule 12(b)(6), arguing

primarily that Plaintiffs fail to state a First

Amendment violation. For the following reasons, the

motions are granted. This case is terminated.

I.

Background1

The Illinois Educational Labor and Relations Act

(the “IELRA”) requires public-sector educational

employers like the Board, which oversees Chicago

Public Schools (“CPS”), to bargain over and enter into

collective bargaining agreements (“CBAs”) with

unions that have been chosen by a majority of

employees in a bargaining unit to serve as the

employees’ exclusive representative. See 115 Ill.

Comp. Stat. 5/3, 5/7, 5/10; About, Chicago Board of

Education,

https://www.cpsboe.org/about

(last

2

accessed Nov. 23, 2020). For employees of CPS, that

exclusive bargaining representative is CTU, an

1 When considering a motion to dismiss, the Court “must accept

as true all well-pleaded factual allegations and draw all

reasonable inferences in favor of the plaintiff.” Heredia v. Capital

Mgmt. Servs., L.P., 942 F.3d 811, 814 (7th Cir. 2019).

2

The Court may take judicial notice over these and other

relevant “matters of public record,” that the complaint does not

address. See Newcomb v. Brennan, 558 F.2d 825, 829 (7th Cir.

1977).

App-6

affiliate of the Illinois Federation of Teachers. Compl.

¶ 11, ECF No. 2.

Plaintiffs, along with roughly 24,000 other

teachers and school personnel, are employees of the

Board, and their employment terms are and have been

governed by a series of CBAs that CTU has negotiated

with the Board over the years. Id. ¶¶ 10–11. The

current CBA is effective from July 1, 2019, through

June 30, 2024, while the prior CBA was effective from

July 1, 2015, through June 30, 2019. Id. ¶ 10.

Both CBAs contain an identical Section 1-6,

entitled “Dues Checkoff.” This section provides that

the Board “shall deduct from the pay of each

bargaining unit employee from whom it receives an

authorization to do so the required amount of fees for

the payment of UNION dues.” Id. ¶ 12. Section 1-6

further states that any such “bargaining unit

employee may terminate the dues check off,” meaning

the dues authorization, “during the month of August

by submitting written notice to the BOARD and the

Union.” Id.

The authorization to which Section 1-6 of the CBAs

refers is part of CTU’s membership agreement, which

employees may sign if they so choose. See Pls.’ Ex. A,

Chicago Teachers Union Membership Applications of

J. Troesch and I. Nkemdi (“Membership Agreements”)

at 2–3, ECF No. 2-1. While becoming a member of

CTU “is not a condition of . . . employment,” see id.,

doing so carries numerous benefits, including the

ability to vote on contract demands, contract

proposals, strike proposals, and union elections; to

submit contract proposals; to influence political

endorsements; and to obtain legal representation in

App-7

the event of a dismissal proceeding. See Pls.’ Ex. C,

11/15/19 Letters from Union to J. Troesch and I.

Nkemdi (“Resignation Acknowledgement Letters”) at

2–3, ECF No. 2-1. Members also provide important

financial support for CTU’s bargaining efforts. See id.

In September 2017, Plaintiffs each signed

agreements to become members of CTU. Compl. ¶ 14;

see Membership Agreements at 2–3. In so doing, they

each signed a “Membership” provision stating that

their membership in CTU “shall be continuous unless

I notify CTU President in writing of my resignation.”

Compl. ¶ 14; see Membership Agreements at 2–3.

They also each subscribed to the aforementioned

“Dues Authorization” section:

During my employment, I voluntarily authorize

and direct my Employer to deduct from my pay

each period, regardless of whether I am or

remain a member of the Union, an amount

equal to the dues and assessments certified by

the Union, and to remit such amount monthly

to the Union. This authorization and direction

shall become revocable by sending written

notice to the Union by United States Postal

Service postmarked between August 1 and

August 31.

Id.; see Compl. ¶ 16. In other words, Plaintiffs agreed

to restrict to the month of August their ability to

revoke their authorizations to have union dues

deducted from their pay, even if they resigned from

CTU during another part of the year.

In October 2019, after becoming aware of the

Supreme Court’s 2018 decision in Janus, Plaintiffs

each sent letters to the Board and CTU resigning their

App-8

membership in CTU effective immediately. Id. ¶ 21;

see Pls.’ Ex. B, 10/18/19 Resignation Letters from J.

Troesch to Board and Union and 10/22/19 Resignation

Letters from I. Nkemdi to Board and Union

(“Resignation Letters”) at 2–5, ECF No. 2-1. The

letters, which were substantively identical, also

sought to invoke Plaintiffs’ purported rights under

Janus

to

immediately

revoke

their

dues

authorizations, asserting that the revocability

restrictions of their membership agreements had been

signed “under a framework Janus declared

unconstitutional.” Id.

CTU responded to each of Plaintiffs’ letters the

following month. Compl. ¶ 23; see Pls.’ Ex. C, 11/15/19

Resignation Acknowledgement Letters from Union to

J. Troesch and I. Nkemdi at 2–4, ECF No. 2-1. CTU’s

response accepted Plaintiffs’ resignations, but stated

that their dues authorizations would remain valid

until September 1, 2020—i.e., after the August 2020

revocation period—pursuant to their membership

agreements. Compl. ¶ 23; see Resignation

Acknowledgement Letters at 2, 4. And the Board

continues to deduct dues from their wages until

September 1, 2020. Id. ¶ 25.

Plaintiffs filed this case in May 2020. Their

complaint asserts two counts under 42 U.S.C. § 1983.

Count I claims that Defendants violated Plaintiffs’

First Amendment rights by enforcing the revocability

restrictions contained in the dues authorizations,

thereby compelling them to continue paying union

dues through August 2020. Compl. ¶¶ 46–48.

Relatedly, Count II claims that Defendants violated

Plaintiffs’ First Amendment rights by continuing to

deduct dues from their wages, pursuant to those

App-9

authorizations, even after they had resigned from

CTU and objected to such deductions in October 2019.

Id. ¶¶ 49–50. Plaintiffs seek a variety of relief for

these alleged deprivations, including declaratory

relief that the revocability restrictions, together with

Section 1-6 of the current and prior CBAs, are

unconstitutional under the First Amendment.3 See id.

at 13–14.

Defendants have moved to dismiss the entire

complaint with prejudice under Rule 12(b)(6). See Def.

Board’s Mot. Dismiss (“Board’s Mot.”), ECF No. 25;

Def. Union’s Mot. Dismiss, ECF No. 26.

II.

Legal Standard

To survive a motion to dismiss under Rule 12(b)(6),

a complaint must “state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007). “A claim has facial plausibility

when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This

standard “is not akin to a probability requirement, but

it asks for more than a sheer possibility that a

Plaintiffs also seek a declaration that 115 Ill. Comp. Stat.

5/11.1, which authorizes restrictions on employees’ ability to

revoke their dues authorizations, Compl. ¶ 9, violates the First

Amendment, id. at 13. Defendants counter that Plaintiffs lack

standing to challenge the constitutionality of this provision

because it did not become effective until December 20, 2019,

about two months after they resigned from CTU. See 115 Ill.

Comp. Stat. 5/11.1. But because, as the Court explains, Plaintiffs

fail to state a violation of the First Amendment in the first place,

the Court need not assess whether they could seek relief as to

this provision.

3

App-10

defendant has acted unlawfully.” Id. (cleaned up).

“Where a complaint pleads facts that are merely

consistent with a defendant’s liability, it stops short of

the line between possibility and plausibility of

entitlement to relief.” Id. (cleaned up).

Determining whether a complaint states a

plausible claim for relief is a “context-specific task

that requires the reviewing court to draw on its

judicial experience and common sense.” Id. at 679.

Moreover, while courts “must take all of the factual

allegations in the complaint as true” for purposes of a

motion to dismiss, they are “not bound to accept as

true a legal conclusion couched as a factual

allegation.” Papasan v. Allain, 478 U.S. 265, 286

(1986). Accordingly, “[t]hreadbare recitals of the

elements of a cause of action, supported by mere

conclusory statements, do not suffice” to state a claim

on which relief can be granted. Iqbal, 556 U.S. at 678.

III. Analysis

Defendants raise two arguments in their motion to

dismiss. Their principal argument is that the

complaint fails to state any violation of the First

Amendment, under Janus or otherwise. See Board’s

Mot. at 8–14; Def. Union’s Mem. Supp. Mot. Dismiss

(“Union’s Mem.”) at 6–11, ECF No. 27. They also

argue that the complaint fails to render either of them

liable under § 1983. See Board’s Mot. at 5–8; Union’s

Mem. at 11–14. For the reasons below, the Court

concludes that Plaintiffs’ First Amendment claims are

App-11

foreclosed by controlling Supreme Court precedent,

and the complaint is dismissed with prejudice.4

Both of Plaintiffs’ First Amendment claims are

based upon the same grievance: Defendants continued

to deduct union dues from Plaintiffs’ paychecks,

through August 2020, even after they had resigned as

members in CTU in October 2019. See Compl. ¶¶ 46–

50. In Plaintiffs’ view, the Supreme Court’s ruling in

Janus entitled them to stop paying dues when they

resigned in October 2019, notwithstanding the

expressed terms of their agreements. See Membership

Agreements at 2–3.

4

In light of the doctrine of constitutional avoidance, it is worth

noting that Defendants’ non-constitutional arguments lack

merit. Regarding § 1983, the Board argues that Plaintiffs fail to

identify an “express municipal policy” or “widespread practice

constituting a custom or usage” that caused their asserted

injuries, as required to trigger municipal liability under Monell

v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978), see

Simmons v. Chi. Bd. of Educ., 289 F.3d 488, 494 (7th Cir 2002);

while CTU argues that Plaintiffs fail to identify a sufficient

nexus between its conduct as a private actor and the conduct of

a state actor, see Hallinan v. Fraternal Order of Police of Chi.

Lodge No. 7, 570 F.3d 811, 815 (7th Cir. 2009). But the Board’s

position that Section 1-6 of the current and prior CBAs, in which

it agreed to enforce dues authorizations outside of the annual

August revocation period even where an employee has since

resigned from CTU, does not constitute an express policy is

unpersuasive. As for CTU, it overlooks that the Seventh Circuit

has found state action where, as here, a union is “a joint

participant” with state actors in an arrangement to have union

fees deducted from employees’ paychecks. See Janus v. Am. Fed’n

of State, Cty. & Mun. Emps., Council 31, 942 F.3d 352, 361 (7th

Cir. 2019), cert. docketed, No. 19-1104 (U.S. Mar. 10, 2020).

App-12

Plaintiffs’ theory, however, finds no support in

Janus. There, public sector employees brought a

challenge to an Illinois law that “forced [them] to

subsidize a union, even if they ch[o]se not to join and

strongly object[ed] to the positions CTU t[ook] in

collective bargaining and related activities.” 138 S. Ct.

at 2459–60. The Court held that such an “agency-fee”

arrangement—so called because employees who

declined to join CTU still had to pay an “agency” or

fair-share fee5—violated the First Amendment rights

of nonmember employees “by compelling them to

subsidize private speech on matters of substantial

public concern,” overruling Abood v. Detroit Board of

Education, 431 U.S. 209 (1977). Id. at 2460. In so

doing, the Court reasoned that extracting fees from

employees who had given “[n]o form of . . . consent” to

subsidize union speech, id. at 2486, triggered at least

intermediate scrutiny, which the challenged charges

failed to meet. See id. at 2465–69, 2474–78.

By contrast, Janus treated consenting employees

quite differently. The Supreme Court observed that

agency fees and other payments to the union may not

“be deducted from a nonmember’s wages . . . unless the

employee affirmatively consents to pay.” Id. at 2486

(emphasis added). “By agreeing to pay,” the Court

explained, “nonmembers are waiving their First

Amendment rights . . . .” Id. The Court further

explained that, “[t]o be effective, the waiver must be

freely given and shown by clear and compelling

evidence.” Id. (cleaned up). In other words, Janus

5

The 2015–2019 CBA between the Board and CTU contained a

“fair share” clause as well, but Defendants stopped enforcing it

once Janus was decided. Compl. ¶ 13.

App-13

excluded from its holding those nonmember employees

who “clearly and affirmatively consent before any

money is taken from them.” See id.

Janus, thus, did not disturb the Supreme Court’s

conclusion in Cohen v. Cowles Media Co. that “[t]he

First Amendment does not confer . . . a constitutional

right to disregard promises that would otherwise be

enforced under state law.” 501 U.S. 663, 671 (1991).

There, an informant challenged the state supreme

court’s holding that the First Amendment barred

enforcement of a newspaper’s promise to keep his

identity confidential in publishing unflattering stories

about a candidate in the 1982 state gubernatorial

election. Id. at 665–67. The Supreme Court reversed,

holding that “[t]he First Amendment does not forbid”

the doctrine of promissory estoppel from applying to

the press. Id. at 670. Any inhibition on “truthful

reporting,” the Court reasoned, was “no more than the

incidental,

and

constitutionally

insignificant,

consequence of . . . generally applicable law that

requires those who make certain kinds of promises to

keep them.” Id. at 671–72.

The Court need look no further than Janus and

Cohen to dispose of Plaintiffs’ First Amendment

claims. Indeed, courts have universally recognized

that Janus does not articulate a path “to escape the

terms” of an agreement to pay union dues, which

remain binding under Cohen even where an employee

has resigned her membership in CTU. Fisk v. Inslee,

759 F. App’x 632, 633–34 (9th Cir. 2019); accord

Fischer v. Governor of N.J., --- F. App’x ---, Nos. 193914 and 19-3995, 2021 WL 141609, at *8 (3d Cir.

Jan. 15, 2021) (“Because Janus does not abrogate or

supersede Plaintiffs’ contractual obligations, which

App-14

arise out of longstanding, common-law principles of

‘general applicability,’ Janus does not give Plaintiffs

the right to terminate their commitments to pay union

dues unless and until those commitments expire

under the plain terms of their membership

agreements.” (quoting Cohen, 501 U.S. 670)); Belgau

v. Inslee, 975 F.3d 940, 950 (9th Cir. 2020) (“These facts

speak to a contractual obligation, not a First

Amendment violation.”), cert. docketed, No. 20-1120

(U.S. Feb. 16, 2021); Oliver v. Serv. Emps. Int’l Union

Local 668, 830 F. App’x 76, 79 (3d Cir. 2020) (“It is

difficult to imagine language that would be more clear

and compelling as evidence of consent to . . . pay union

dues.”); Loescher v. Minn. Teamsters Pub. & Law Enf’t

Emps.’ Union, Local No. 320, 441 F. Supp. 3d 762, 773

(D. Minn. 2020) (“[Plaintiff’s] reliance on Janus is

misplaced and does not establish a cognizable claim to

relief.”), appeal dismissed, No. 20-1540, 2020 WL

5525220 (8th Cir. May 15, 2020); Hendrickson v.

AFSCME Council 18, 434 F. Supp. 3d 1014, 1023–24

(D.N.M. Jan. 22, 2020) (“[Plaintiff’s] choice was

voluntary, and he may not void his choice after

Janus.”), appeal docketed, No. 20-2018 (10th Cir. Feb.

21, 2020); Bennett v. Am. Fed’n of State, Cty. & Mun.

Emps., Council 31, AFL-CIO, --- F. Supp. 3d. ----, No.

4:19 C 4087, 2020 WL 1549603, at *4 (C.D. Ill. Mar.

31, 2020) (“Plaintiff’s obligation to pay union dues

pursuant to the 2017 Card remains enforceable

despite the new constitutional right identified in

Janus.”), appeal docketed, No. 20-1621 (7th Cir. Apr.

15, 2020); Allen v. Ohio Civil Serv. Emps. Ass’n

AFSCME, Local 11, No. 2:19 C 3709, 2020 WL

1322051, at *8 (S.D. Ohio Mar. 20, 2020) (“Because

Plaintiffs opted to join and pay dues to CTU, the

App-15

properly framed right at issue here is not whether

Plaintiffs have the right to not subsidize OCSEA’s

speech but whether they have a right to tear up those

contracts.”), appeal dismissed, No. 20-3440, 2020 WL

4194952 (6th Cir. July 20, 2020); see also LaSpina v.

SEIU Pa. State Council, 985 F.3d 278, 288 (3d Cir.

2021) (“[W]e decline to find any First Amendment

violation under Janus for an employer’s or union’s

failure to promptly process a member’s resignation

notice and terminate the associated dues

deductions.”).

The same result follows here. “By agreeing to pay”

dues until they could revoke their dues authorizations

during the annual August revocation period,

regardless of whether they remained members of

CTU, Plaintiffs waived their rights not to subsidize

CTU’s speech. See Janus, 138 S. Ct. at 2486. These

waivers were “freely given,” see id., as Plaintiffs each

attested, see Membership Agreements at 2–3 (“I

understand that signing this card is not a condition of

my employment.”). And it is indeed “difficult to

imagine” clearer and more compelling evidence of

these waivers than their own signed agreements. See

Oliver, 2020 WL 5946727, at *2.

Plaintiffs’ arguments to the contrary are

unavailing. They latch onto Janus’s language that

“nonmembers” cannot be compelled to pay union fees,

see, e.g., 138 S. Ct. at 2467, but ignore the Court’s

exclusion of employees who “affirmatively consent[] to

pay,” id. at 2486. They contend that clear and

compelling evidence of consent is absent here, but fail

to explain how their agreements furnish anything less.

Indeed, Plaintiffs do not identify “even a whiff of

compulsion” that led them to sign the agreements in

App-16

the first place. See Belgau, 975 F.3d at 950. They

suggest that their consent was terminated by their

objections to the deductions when they resigned their

union memberships, but point to nothing in Janus (or

any other case) allowing them to “renege on their

promise[s]” to pay dues until the following August

revocation period. See Belgau, 975 F.3d at 950. Nor do

Plaintiffs contend that their promises to pay dues are

unenforceable under state law. See Cohen, 501 U.S. at

671; cf. Kinkel v. Cingular Wireless LLC, 857 N.E.2d

250, 260 (Ill. 2006) (“One party to a contract may not

unilaterally modify a contract term . . . . ”).

Plaintiffs also argue that their consent was not

“voluntary, knowing, and intelligent” because, while

they agreed to the terms of the membership

agreements, they did not specifically agree to give up

their rights under Janus not to subsidize union

speech. See Pls.’ Resp. Opp’n Mots. Dismiss at 10–11,

ECF No. 34 (quoting Erie Telecomms., Inc. v. City of

Erie, 853 F.2d 1084, 1094 (3d Cir. 1988)). But, this

view of the law is much too myopic. As Janus makes

clear, Plaintiffs “waiv[ed] their First Amendment

rights” simply “[b]y agreeing to pay.” See 138 S. Ct. at

2486. And Janus “had no effect” on employees’ preexisting obligations “to pay fees pursuant to

voluntarily signed membership agreements.” Bennett,

2020 WL 1549603, at *3. As a result, Plaintiffs’ prior

dues agreements are not invalidated by that mere

“change[] in intervening law.” See Smith v. Bieker, No.

18 C 05472, 2019 WL 2476679, at *2 (N.D. Cal. June

13, 2019) (citing Brady v. United States, 397 U.S. 742,

757 (1970)), appeal docketed, No. 19-16381 (9th Cir.

July 12, 2019).

App-17

In sum, even when all of the well-pleaded factual

allegations in the complaint are taken to be true,

Plaintiffs’ legal theory finds no support in First

Amendment jurisprudence. The complaint is

dismissed, and because “it is clear that any

amendment would be futile,” the dismissal is with

prejudice. See Bogie v. Rosenberg, 705 F.3d 603, 608

(7th Cir. 2013).

IV. Conclusion

For the forgoing reasons, Defendants’ motions to

dismiss the complaint with prejudice are granted.

This case is terminated.

IT IS SO ORDERED.

ENTERED: 2/25/21

John Z. Lee

United States District Judge

App-18

Appendix C

IN THE UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF ILLINOIS

Joanne Troesch,

Ifeoma Nkemdi

Plaintiff(s),

v.

Chicago Teachers Union,

Board of Education of

City of Chicago,

Defendant(s).

)

)

)

)

)

)

)

)

)

)

)

)

No. 20 C 2682

Judge John Z. Lee

JUDGMENT IN A CIVIL CASE

Judgment is hereby entered (check appropriate box):

in favor of plaintiff(s)

and against defendant(s)

in the amount of $

which

includes ______ pre-judgment

interest.

does not include pre-judgment

interest.

App-19

Post-judgment interest accrues on that amount at

the rate provided by law from the date of this

judgment. Plaintiff(s) shall recover costs from

defendant(s).

in favor of defendant(s) Chicago Teachers

Union, Board of Education of City of

Chicago and against plaintiff(s) JoAnne

Troesch, Ifeoma Nkemdi

Defendant(s) shall recover costs from plaintiff(s).

————————————————————————

other:

————————————————————————

This action was (check one):

tried by a jury with Judge __________ presiding,

and the jury has rendered a verdict.

tried by Judge __________ without a jury and the

above decision was reached.

decided by Judge Lee on a motion to dismiss.

Date: 2/26/2021

Thomas G. Bruton

Clerk of Court

Carmen Acevedo

Deputy Clerk

App-20

Appendix D

In the

United States Court of

Appeals

For the Seventh Circuit

——————————

No. 20‐1621

SUSAN BENNETT,

Plaintiff‐Appellant,

v.

COUNCIL 31 OF THE AMERICAN FEDERATION OF STATE,

COUNTY AND MUNICIPAL EMPLOYEES, AFL‐CIO, et al.,

Defendants‐Appellees.

——————————

Appeal from the United States District Court for the Central

District of Illinois.

No. 4:19‐cv‐04087 — Sara Darrow, Chief Judge.

——————————

ARGUED FEBRUARY 17, 2021 — DECIDED

MARCH 12, 2021

——————————

Before SYKES, Chief Judge, and FLAUM and

ROVNER, Circuit Judges.

FLAUM, Circuit Judge. When plaintiff–appellant

Susan Bennett began working as a custodian for

defendant–appellee Moline‐Coal Valley School

District (the “School District”), she had the choice

App-21

either to become a member of defendants–appellees

American Federation of State, County, and Municipal

Employees (“AFSCME”) Local 672 and AFSCME

Council 31 (collectively, the “Union”) and pay union

dues or to decline membership yet pay “fair‐share” or

“agency” fees.6 She chose to join the Union. Following

the Supreme Court’s decision in Janus v. American

Federation of State, County, and Municipal

Employees, Council 31, 138 S. Ct. 2448 (2018), she

notified the Union and the School District that she

wished to resign her membership and terminate all

payments to the Union. The Union allowed Bennett to

resign her membership and opt out of payments, but

only after the lapse of the window set forth in her

union‐membership agreement.

Bennett filed suit in federal district court, asserting

that the deduction of union dues from her wages

violated her rights under the First Amendment to the

U.S. Constitution, as recognized in Janus. She also

asserted that the Union’s exclusive representation of

her interests, even though she is no longer a member,

violates her constitutional rights by allowing the

Union to speak on her behalf. Bennett sought

damages in an amount equal to the dues deducted

from her paychecks up to the statute of limitations as

well as various forms of declaratory and injunctive

relief. The parties filed cross‐motions for summary

judgment, and the district court granted summary

judgment in favor of all defendants–appellees.

Bennett now appeals.

For simplicity, we use “fair‐share fees” throughout to refer to

these fees.

6

App-22

In a matter of first impression before this Court,

Bennett cannot establish that the deduction from her

wages of union dues she voluntarily agreed to pay in

consideration for the benefits of union membership

violated her First Amendment rights under Janus.

Similarly, she cannot establish that Janus rendered

the longstanding exclusive-bargaining-representative

system of labor relations unconstitutional. We thus

affirm the judgment of the district court.

I.

Background

A. Statutory and Legal Background

The Illinois Educational Labor Relations Act

(“IELRA” or the “Act”), 115 Ill. Comp. Stat. 5/1 et seq.,

regulates labor relations between Illinois public‐

sector educational employers and employees. The Act

provides public‐sector educational employees with the

right to choose to join a labor organization for

purposes of representation. Id. § 5/3(a). A majority of

employees in a bargaining unit may select a labor

organization to serve as the unit’s exclusive

representative “with respect to wages, hours and

other terms and conditions of employment.” See id. §§

5/8, 5/10(a). Employees need not become dues‐paying

members of a union that has been recognized as an

exclusive representative, id. § 5/3(a), and a union

recognized as an exclusive representative has the duty

to represent all employees within the bargaining unit

regardless of whether they are dues‐paying members

or not, id. § 5/3(b).

Prior to June 2018, a union certified as the

representative of a bargaining unit could require

nonmember employees to pay fair‐share fees. See id.

§ 5/11. The Supreme Court ended that practice when

App-23

it decided Janus. The Court in Janus held that the

First Amendment prohibits unions and public

employers from requiring public‐sector employees to

subsidize a union unless an employee affirmatively

consents to waive that right. 138 S. Ct. at 2486. This

“waiver must be freely given and shown by ‘clear and

compelling’ evidence.” Id. (quoting Curtis Publ’g Co. v.

Butts, 388 U.S. 130, 145 (1967) (plurality opinion)).

B. Factual Background

Bennett began her employment as a custodian

with the School District in August 2009. Under the

terms of the IELRA, the Illinois Educational Labor

Relations Board had certified the Union as the

exclusive representative of her bargaining unit of

custodial and maintenance employees. Bennett joined

the Union in November 2009 by signing a membership

and dues‐deduction‐authorization card that stated: “I

hereby authorize my employer to deduct the amount

as certified by the Union as the current rate of dues.

This deduction is to be turned over to AFSCME, AFL‐

CIO.” In August 2017, Bennett signed another

membership and dues‐deduction‐authorization card

that stated:

I hereby affirm my membership in AFSCME

Council 31, AFL‐CIO and authorize AFSCME

Council 31 to represent me as my exclusive

representative on matters related to my

employment.

I recognize that my authorization of dues

deductions, and the continuation of such

authorization from one year to the next, is

voluntary and not a condition of my

employment.

App-24

I hereby authorize my employer to deduct from

my pay each pay period that amount that is

equal to dues and to remit such amount

monthly to AFSCME Council 31 (“Union”). This

voluntary authorization and assignment shall

be irrevocable for a period of one year from the

date of authorization and shall automatically re‐

new from year to year unless I revoke this

authorization by sending written notice … to

my Employer and to the Union postmarked not

more than 25 days and not less than 10 days be‐

fore the expiration of the yearly period de‐

scribed above, or as otherwise provided by law.

Therefore, as a condition of her most recent union

membership agreement, Bennett authorized the

School District to deduct union dues from her

paychecks and remit that amount to the Union until

August 21 during each authorized year. On that date,

her authorization would automatically renew for the

following year unless she revoked it. The membership

agreement also contained a provision establishing a

fifteen‐day window in which Bennett could revoke her

authorization and stop the withholding of union dues

from her wages. See 5 Ill. Comp. Stat. 315/6(f)

(requiring—if the exclusive representative and public

employer agree on an automatically renewing one‐

year period of irrevocability for dues authorizations—

a minimum of “an annual 10‐day period” during which

employees may revoke their dues‐deduction

authorizations); 115 Ill. Comp. Stat. 5/11.1(a) (same).

On November 1, 2018, after the Supreme Court

issued its Janus decision, Bennett sent a letter to

AFSCME’s national office stating that she wanted to

resign her union membership and asking the Union to

App-25

stop collecting dues. On November 5, 2018, she wrote

to the School District’s chief financial officer,

informing him that she intended to resign her union

membership and requesting that the School District

not honor any prior dues‐deduction authorization she

had signed. In their December 3, 2018 response, the

School District told Bennett to contact the Union

regarding her inquiries, as the School District has no

role, authority, or discretion in determining union

membership or dues deductions. Ten days later, on or

around December 13, 2018, the Union sent a letter to

Bennett advising her that it would accept her

resignation from membership as soon as it received

written notice that she wanted to resign but,

regardless of whether she resigned from the Union,

she could not revoke her dues‐deduction authorization

until a two‐week window from July 17 to August 11,

2019.

Bennett resigned her union membership on March

4, 2019, but the School District continued deducting

union dues. On July 29, 2019, Bennett sent another

letter to the School District requesting to revoke her

dues‐deduction authorization. The Union learned of

that letter and treated it as an effective revocation of

her dues‐deduction authorization under the

membership agreement. The School District thus

stopped deducting union dues from Bennett’s wages

in August 2019.

C. Procedural Background

While waiting for the arrival of her two‐week

revocation window, Bennett brought this action under

42 U.S.C. § 1983 and 28 U.S.C. § 2201(a) against the

Union, the School District, and certain Illinois state

App-26

officials (the “state defendants”). In Count I of the two‐

count complaint, Bennett alleged that the Union and

the School District violated her First Amendment

rights to free speech and freedom of association by

deducting dues from her wages without her

affirmative consent. She alleged that the dues‐

deduction authorizations she had signed prior to the

issuance of the Janus decision did not provide

affirmative consent because they were the product of

an unconstitutional choice between paying full union

dues or a fair‐share fee. As a remedy, Bennett sought

damages from the Union in an amount equal to the

dues deducted from her paychecks, both before and

after Janus was decided. She also sought various

forms of declaratory and injunctive relief against the

Union and the School District. In Count II, brought

against the Union and the state defendants, Bennett

alleged that the system of exclusive representation set

forth in the IELRA violates her free speech and

associational rights. She sought a declaration that the

Act is unconstitutional and injunctions barring its

enforcement.

The state defendants moved to dismiss Count II

under Federal Rule of Civil Procedure 12(b)(6). The

remaining parties—Bennett, the Union, and the

School District—submitted a joint stipulated record

and filed cross‐motions for summary judgment under

Federal Rule of Civil Procedure 56(a) as to both

counts. The district court granted the Union’s and the

School District’s motions for summary judgment, as

well as the state defendants’ motion to dismiss, and

denied Bennett’s motion for summary judgment. The

court dismissed Bennett’s action with prejudice, thus

disposing of all claims against all parties.

App-27

This appeal followed.

II.

Discussion

We review de novo dismissals under both Rule

12(b)(6) and Rule 56(a). See Degroot v. Client Servs.,

Inc., 977 F.3d 656, 659 (7th Cir. 2020) (motion to

dismiss); Skiba v. Ill. Cent. R.R. Co., 884 F.3d 708, 717

(7th Cir. 2018) (summary judgment). Per the parties’

agreement, the district court treated the state

defendants’ 12(b)(6) motion as one for summary

judgment under Rule 56(a). Accordingly, we will

review all motions on appeal under the summary

judgment standard. “Summary judgment is

appropriate when there is no genuine dispute as to a

material fact and the movant is entitled to judgment

as a matter of law.” Est. of Jones v. Child.’s Hosp. &

Health Sys. Inc. Pension Plan, 892 F.3d 919, 923 (7th

Cir. 2018). When, as here, the parties filed cross‐

motions for summary judgment, we construe all

reasonable inferences in favor of the party against

whom the motion was granted. Gill v. Scholz, 962 F.3d

360, 363 (7th Cir. 2020). Therefore, we will view the

facts in the light most favorable to Bennett and draw

all reasonable inferences in her favor.

A. Deduction of Union Dues

Bennett first challenges the dismissal of Count I of

her complaint, which alleged that the Union and the

School District violated her First Amendment rights

by deducting union dues from her paychecks. She does

not dispute that she voluntarily authorized the

deduction of dues or that she was not required to join

the Union as a condition of employment. Nor does she

dispute that she voluntarily signed the revised union‐

membership agreement in 2017. Instead, Bennett’s

App-28

appeal turns on the premise that the Supreme Court’s

Janus decision establishing the First Amendment

right of public employees not to subsidize a union

without first affirmatively consenting to waive that

right applies to deduction of union dues. She contends

that the district court erred because it did not apply

Janus’s test for waiver, and under that test she did

not waive her right. Bennett thus effectively argues

that the Janus decision voided her dues‐deduction

authorization.

As the Union and the School District point out,

however, the Ninth Circuit and a panel of the Third

Circuit, as well as several district courts, have

addressed this very argument that Janus’s waiver

requirement applies to union members as well as

nonmembers and found it unavailing. Although not

precedential here, the cases before the courts of

appeals bear similarities to the case at hand. In the

Third and Ninth Circuit cases, the plaintiffs were

public employees who had, prior to Janus, signed

union‐membership agreements authorizing their

state employers to deduct union dues from their

paychecks. See Fischer v. Governor of New Jersey, No.

19‐3914, 2021 WL 141609, at *1–2 (3d Cir. Jan. 15,

2021) (nonprecedential decision); Belgau v. Inslee, 975

F.3d 940, 945 (9th Cir. 2020), petition for cert.

docketed, No. 20‐1120 (U.S. Feb. 16, 2021). After the

Supreme Court issued its Janus decision, each group

of plaintiffs requested to resign their union

memberships and terminate their payments. See

Fischer, 2021 WL 141609, at *2; Belgau, 975 F.3d at

946. Their unions allowed the plaintiffs to resign, but

their state employers continued to deduct dues from

their paychecks until the terms of their dues‐

App-29

deduction authorizations expired as set forth in state

law or the plaintiffs’ membership agreements. See

Fischer, 2021 WL 141609, at *2; Belgau, 975 F.3d at

946. The plaintiffs in each case sued their union and

various state defendants, asserting that the

defendants violated their First Amendment rights, as

established in Janus, by collecting union dues from

them without their consent and after they requested

to terminate all such payments; by their formulation,

Janus abrogated the commitments set forth in their

membership agreements and required the state to

obtain a constitutional waiver to deduct union dues

from its employees’ wages. See Fischer, 2021 WL

141609, at *3, *7; Belgau, 975 F.3d at 944, 950.

Both circuit court panels rejected the plaintiffs’

Janus arguments. Relying on the Supreme Court’s

decision in Cohen v. Cowles Media Co., 501 U.S. 663

(1991), they explained that “[t]he First Amendment

[did] not support [the plaintiffs’] right to renege on

their promise to join and support the union” because

that “promise was made in the context of a contractual

relationship between the union and its employees.”

Belgau, 975 F.3d at 950. See also Fischer, 2021 WL

141609, at *8 n.18 (“[E]nforcement of Plaintiffs’

membership agreements does not violate the First

Amendment given that those agreements are

enforceable under laws of general applicability ….”).

Applying those First Amendment principles, the

circuit court panels also agreed that “‘Janus does not

extend a First Amendment right to avoid paying

union dues’ when those dues arise out of a contractual

commitment that was signed before Janus was

decided.” Fischer, 2021 WL 141609, at *8 (quoting

Belgau, 975 F.3d at 951). Having determined that the

App-30

plaintiffs suffered no infringement upon their First

Amendment rights, the Third Circuit panel and the

Ninth Circuit rejected the argument that Janus

requires a constitutional waiver before union dues are

deducted. See id. at *8 n.18; Belgau, 975 F.3d at 952.

In reaching this holding, both panels noted that they

were joining a “swelling chorus of courts” recognizing

that Janus did not create a new waiver requirement

for union members. See Fischer, 2021 WL 141609, at

*8; Belgau, 975 F.3d at 951.

We see no reason to disagree. The First

Amendment “does not confer … a constitutional right

to disregard promises that would otherwise be

enforced under state law.” Cohen, 501 U.S. at 672.

Bennett authorized the deduction of union dues as

part of her membership agreement with the Union—

that is, “in the context of a contractual relationship.”

See Belgau, 975 F.3d at 950. The Illinois common law

of contracts is a “law of general applicability” that

applies broadly, rather than targeting any individual,

and does not offend the First Amendment. See Cohen,

501 U.S. at 670. The First Amendment therefore does

not, without more, render unenforceable any “legal

obligations” or “restrictions that … are self‐imposed”

through a contract. See id. at 671.

Moreover, it is generally accepted that “the legal

framework that existed at the time of a contract’s

execution must bear on its construction” and that “a

subsequent change in the law cannot retrospectively

alter the parties’ agreement.” Fla. E. Coast Ry. Co. v.

CSX Transp., Inc., 42 F.3d 1125, 1129–30 (7th Cir.

1994) (applying Florida law to settlement agreement).

See also 11 Williston on Contracts § 30:23 (4th ed.

2020) (“[C]hanges in the law subsequent to the

App-31

execution of a contract are not deemed to become part

of [an] agreement unless its language clearly indicates

such to have been [the] intention of [the] parties.”).

Rather, “[b]y binding oneself [by agreement,] one

assumes the risk of future changes in circumstances

in light of which one’s bargain may prove to have been

a bad one.” United States v. Bownes, 405 F.3d 634, 636

(7th Cir. 2005).7 “That is the risk inherent in all

contracts; they limit the parties’ ability to take

advantage of what may happen over the period in

which the contract is in effect.” Id. We see here no

clear indication that the parties intended the terms of

Bennett’s membership agreements and dues‐

deduction authorizations to incorporate future

changes in the law. Consequently, we agree with the

reasoning of the Third and Ninth Circuit panels and

conclude that the First Amendment does not provide

Bennett with a right to renege on her bargained‐for

commitment to pay union dues.

We also agree that Janus does not require a

different result. In that case, the Supreme Court held

that the practice of automatically deducting fair‐share

fees from nonmembers who “need not be asked” and

“are not required to consent before the fees are

deducted” violated those nonmembers’ First

Amendment rights by compelling them to subsidize

the union’s speech. Janus, 138 S. Ct. at 2460–61,

2486. In contrast, Janus said nothing about union

Although Bownes involved a plea agreement, we made

explicitly clear that the analysis applied equally to contracts. See

405 F.3d at 636 (“In a contract (and equally in a plea agreement)

one binds oneself to do something that someone else wants, in

exchange for some benefit to oneself.”).

7

App-32

members who, like Bennett, freely chose to join a

union and voluntarily authorized the deduction of

union dues, and who thus consented to subsidizing a

union. While Bennett tries to decouple the decision to

join the Union from the decision to pay union dues by

framing the right at issue here as the “right to pay no

money to the Union” (as she claims was recognized in

Janus), she cannot do so: “By joining the union and

receiving the benefits of membership, [Bennett] also

agreed to bear the financial burden of membership.”

Belgau, 975 F.3d at 951. See also Oliver v. Serv. Emps.

Int’l Union Loc. 668, 830 F. App’x 76, 79 n.3 (3d Cir.

2020) (nonprecedential decision) (explaining that one

“cannot simultaneously choose to both join the Union

and not pay union dues”); Allen v. Ohio Civ. Serv.

Emps. Ass’n AFSCME, Loc. 11, No. 2:19‐CV‐3709,

2020 WL 1322051, at *8 (S.D. Ohio Mar. 20, 2020)

(“By joining the union, Plaintiffs simultaneously

acquired all of the benefits and burdens of

membership.”), appeal dismissed, Nos. 20‐3440 & 20‐

3495, 2020 WL 4194952 (6th Cir. July 20, 2020).

Nothing in Janus suggests that its holding

regarding

union‐related

deductions

from

nonmembers’ wages also applies to similar financial

burdens on union members. The Janus Court

explicitly “dr[ew] the line at allowing the government

to … require all employees to support the union.” 138

S. Ct. at 2478. The Court also explicitly stated that

“[s]tates can keep their labor‐relations systems

exactly as they are—only they cannot force

nonmembers to subsidize public‐sector unions.” Id. at

2485 n.27. As we stated on remand in that case, the

Court “was not concerned in the abstract with the

deduction of money from employees’ paychecks

App-33

pursuant to an employment contract.” Janus v. Am.

Fed’n of State, Cnty. & Mun. Emps., Council 31

(“Janus II”), 942 F.3d 352, 357 (7th Cir. 2019). Nor did

it provide “an unqualified constitutional right to

accept the benefits of union representation without

paying.” Id. at 358. Stated differently, “[t]he only

right … recognized is that of an objector not to pay any

union fees.” Id.

In a last‐ditch effort to evade this conclusion,

Bennett argues that Janus’s waiver requirement

nonetheless applies to the deduction of union dues

“[b]ecause all employees are nonmembers when they

first sign a union membership card and authorize

dues deductions.” She seizes on language in Janus

stating that an employee’s affirmative consent is

required before “an agency fee [or] any other payment

to the union may be deducted from a nonmember’s

wages,” and that “[b]y agreeing to pay, nonmembers

are waiving their First Amendment rights, and such a

waiver cannot be presumed.” Janus, 138 S. Ct. at

2486. She argues that the second part of this passage

must apply to employees in Bennett’s position

because, by definition, only union members have

agreed to pay money to the union. In other words, she

contends that it cannot apply to nonmember

employees who have never agreed to pay the union

and thus never waived their First Amendment rights.

Bennett, however, is not a nonmember as the term

was used in Janus. Read as a whole, Janus

distinguished between those who consented to join a

union—as Bennett did—and those who did not. In the

same passage on which Bennett relies, the Court

made clear that a union may collect dues when an

“employee affirmatively consents to pay.” Id. As we

App-34

explained above, Bennett voluntarily signed the

membership agreements, which “authorize[d] [her]

employer to deduct” her union dues and remit them to

the Union. In August 2017, she also agreed that this

authorization would remain in effect for the duration

of her employment unless she validly revoked the

authorization. Having consented to pay dues to the

union, regardless of the status of her membership,

Bennett does not fall within the sweep of Janus’s

waiver requirement. See Belgau, 975 F.3d at 952

(explaining that Janus “in no way created a new First

Amendment waiver requirement for union members

before dues are deducted pursuant to a voluntary

agreement”). Having determined that Bennett did not

suffer a violation of her First Amendment rights, we

conclude that the district court appropriately granted

summary judgment for defendants–appellees as to

Count I.

B. Exclusive Representation

Bennett also appeals the dismissal of Count II of

her complaint, which alleged that provisions in the

IELRA providing for the Union’s exclusive

representation of her interests—even though she is no

longer a member—violate her First Amendment free

speech and associational rights. The First

Amendment “forbids abridgment of the freedom of

speech.” Janus, 138 S. Ct. at 2463. It also

“encompasses both the freedom to associate and the

freedom not to associate.” Hill v. Serv. Emps. Int’l

Union, 850 F.3d 861, 863 (7th Cir. 2017) (citing Knox

v. Serv. Emps. Int’l Union, Loc. 1000, 567 U.S. 298,

309 (2012)). “Mandatory associations are subject to

exacting scrutiny, meaning they require a compelling

state interest that cannot be achieved through

App-35

significantly less‐restrictive means.” Id. Bennett

argues that the IELRA creates a mandatory

association subject to heightened scrutiny. We agree

with the district court that caselaw forecloses this

argument.

In Minnesota State Board for Community Colleges

v. Knight, 465 U.S. 271 (1984), the Supreme Court

rejected a First Amendment challenge to a Minnesota

law that provided for exclusive‐bargaining‐unit

representation for purposes of collective bargaining

and on matters outside the scope of mandatory

negotiations. See id. at 273–78. The Court held that

the challenged law “in no way restrained [the

employees’] freedom to speak … or their freedom to

associate or not to associate with whom they please,

including the exclusive representative.” Id. at 288.

The Court explained that the employees’ free speech

rights had not been infringed because the law did not

deny nonunion members access to a public forum, and

public employees had no right to be heard by, or

negotiate individually with, their government

employer. See id. at 280–83, 286–87. Similarly, the

Minnesota law did not violate the employees’

associational rights because they remained “free to

form whatever advocacy groups they like” and were

“not required to become members of [the union].” Id.

at 289.

We followed Knight to uphold the constitutionality

of the exclusive‐bargaining‐representative provisions

of the Illinois Public Labor Relations Act—the parallel

statute to the IELRA—in Hill v. Service Employees

International Union, 850 F.3d at 864–66. In that case,

a group of home healthcare and childcare providers

argued that these provisions violated their First

App-36

Amendment associational rights because the statute

forced them into a mandatory association with the

union that represented their bargaining unit. Id. at

862–63. We held that the exclusive representation

statute did not infringe on the plaintiffs’ freedom of

association because, as in Knight, the plaintiffs “do not

need to join … or financially support” the union8 and

could form their own groups or oppose the union if

they chose. Id. at 864. We further rejected the

plaintiffs’ argument that the law created a mandatory

association triggering heightened scrutiny because

the exclusive‐representation system of labor relations

did not compel them to express a particular message,

accept undesired members into their own associations,

or modify their expressive conduct. Id. at 865.

Knight and Hill control here to foreclose Bennett’s

claims based on the alleged infringement of her First

Amendment free speech and associational rights.

Bennett contends that exclusive representation

creates a mandatory association subject to exacting

scrutiny because it compels her to both associate with

the Union and endorse speech that she finds

objectionable. She further argues that exclusive

representation under the IELRA does not meet that

heightened standard because it does not serve a

compelling state interest. As we did in Hill, we again

reject these arguments against the constitutionality of

exclusive representation.

Although we decided Hill prior to Janus, at that time the

Supreme Court had already struck down as unconstitutional the

part of the Illinois Public Labor Relations Act that required the

Hill plaintiffs to pay mandatory fees. See Harris v. Quinn, 573

U.S. 616, 656 (2014).

8

App-37

Moreover, we find Bennett’s attempts to

distinguish Knight and Hill from this case

unavailing. First, Bennett argues that Knight is

distinct because it did not involve a compelled‐

representation challenge but addressed only whether

the plaintiffs could force the government to listen to

their views. We considered and rejected that

argument in Hill because Knight acknowledged that

exclusive bargaining required the state to treat the

union representatives as expressing “the faculty’s

official collective position” even though “not every

instructor agrees with the official faculty view on

every policy question.” Knight, 465 U.S. at 276. The

Knight Court nonetheless concluded that this system

of labor relations “in no way restrained appellees’

freedom to speak … or their freedom to associate or

not to associate with whom they please, including the

exclusive representative.” Id. at 288.

Second, Bennett asserts that Hill itself is distinct

because the plaintiffs there were “partial” public

employees—and their union thus had a limited ability

to collectively bargain on their behalf. Accordingly, she

argues that the Hill plaintiffs experienced a lesser

degree of forced association than Bennett does as a

“full‐fledged” public employee. As explained above,

however, we based our decision in Hill on Knight,

which considered the exclusive representation of full

public employees. Compare Knight, 465 U.S. at 275–

76 (explaining that the Minnesota State Board for

Community Colleges, the plaintiff faculty members’

employer, operated and retained final policy‐making

authority over the state’s community college system),

with Harris, 573 U.S. at 621–23, 645–46 (describing

plaintiff care providers as “partial,” as opposed to “full‐

App-38

fledged,” public employees because Illinois law

established that private persons receiving homecare

services are “employers” of and “control[] all aspects

of the employment relationship” with care providers,

while “the State’s role is comparatively small”).

We also disagree with Bennett’s narrow reading of

Hill; our reasoning in that case, rather than being

specific to partial public employees, is equally

applicable to Bennett because—like the Hill

plaintiffs—she remains free to join or support a union

and to associate or not associate with whomever she

chooses. See Hill, 850 F.3d at 864–65. Nor must she

modify her expressive conduct. See id. at 865. In any

event, since Hill, we have stated that “Knight and its

progeny firmly establish the constitutionality of

exclusive representation” for full public employees.

Ocol v. Chi. Tchrs. Union, 982 F.3d 529, 532 (7th Cir.

2020).

Finally, we remain unpersuaded by Bennett’s

argument in the alternative that Janus overturned

Knight (and by extension Hill). She relies on a passage

in Janus characterizing exclusive representation as “a

significant impingement on associational freedoms

that would not be tolerated in other contexts.” 138

S. Ct. at 2478; see also id. at 2460 (explaining that

exclusive representation “substantially restricts the

rights of individual employees”). But Janus did not

mention, let alone overrule, Knight or otherwise

question the constitutionality of a system of labor

relations based on exclusive representation. The same

passage from Janus that Bennett relies on reaffirms

that “[i]t is … not disputed that the State may require

that a union serve as exclusive bargaining agent for

its employees …. We simply draw the line at allowing

App-39

the government to go further still and require all

employees to support the union irrespective of

whether they share its views.” Id. at 2478. After

acknowledging this principle, the Janus Court

concluded that “[s]tates can keep their labor‐relations

systems exactly as they are,” other than charging fair‐

share fees. Id. at 2485 n.27.

In contrast, Knight speaks directly to the

constitutionality of exclusive representation. “The

[Supreme] Court’s instructions in this situation are

clear: ‘If a precedent of this Court 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 [that] directly controls,

leaving to this Court the prerogative of overruling its

own decisions.’” Price v. City of Chicago, 915 F.3d

1107, 1111 (7th Cir. 2019) (alteration in original)

(quoting Agostini v. Felton, 521 U.S. 203, 237, (1997)).

Consistent with that instruction, we apply Knight’s

directly applicable precedent and hold that the

IELRA’s exclusive‐bargaining‐representative arrangement does not violate Bennett’s First Amendment

rights. We find further reinforcement for this

conclusion in the fact that every circuit court to

address this issue after the Janus decision has held

that exclusive representation remains constitutional.

See Reisman v. Associated Facs. of Univ. of Me., 939

F.3d 409, 414 (1st Cir. 2019), cert. denied, 141 S. Ct.

445 (2020); Oliver, 830 F. App’x at 80–81 (Third

Circuit panel decision); Akers v. Md. State Educ.

Ass’n, No. 19‐1524, 2021 WL 852086, at *5 n.3 (4th

Cir. Mar. 8, 2021); Thompson v. Marietta Educ. Ass’n,

972 F.3d 809, 813–14 (6th Cir. 2020), petition for cert.

docketed, 20‐1019 (U.S. Jan. 28, 2021); Bierman v.

App-40

Dayton, 900 F.3d 570, 574 (8th Cir. 2018); Mentele v.

Inslee, 916 F.3d 783, 786–89 (9th Cir. 2019).

The district court thus appropriately granted

summary judgment for defendants–appellees as to

Count II.

III. Conclusion

Bennett cannot establish the existence of a First

Amendment violation on either of the counts in her

complaint. We therefore AFFIRM the district court’s

grant of summary judgment for defendants–appellees

and denial of summary judgment for Bennett.

App-41

Appendix E

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

U.S. Const. amend. I

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peaceably to

assemble, and to petition the Government for a

redress of grievances.

Act 115 Ill. Comp. Stat. 5/11.1 (2019)

(a) Employers shall make payroll deductions of

employee organization dues, initiation fees,

assessments, and other payments for an employee

organization that is the exclusive representative.

Such deductions shall be made in accordance with the

terms of an employee’s written authorization and

shall be paid to the exclusive representative. Written

authorization may be evidenced by electronic

communications, and such writing or communication

may be evidenced by the electronic signature of the

employee as provided under Section 5-120 of the

Electronic Commerce Security Act.

There is no impediment to an employee’s right to

resign union membership at any time. However,

notwithstanding any other provision of law to the

contrary regarding authorization and deduction of

dues or other payments to a labor organization, the

exclusive representative and an educational employee

may agree to reasonable limits on the right of the

employee to revoke such authorization, including a

App-42

period of irrevocability that exceeds one year. An

authorization that is irrevocable for one year, which

may be automatically renewed for successive annual

periods in accordance with the terms of the

authorization, and that contains at least an annual

10-day period of time during which the educational

employee may revoke the authorization, shall be

deemed reasonable. This Section shall apply to all

claims that allege that an educational employer or

employee organization has improperly deducted or

collected dues from an employee without regard to

whether the claims or the facts upon which they are

based occurred before, on, or after the effective date of

this amendatory Act of the 101st General Assembly

and shall apply retroactively to the maximum extent

permitted by law.

(b) Upon receiving written notice of the

authorization, the educational employer must

commence dues deductions as soon as practicable, but

in no case later than 30 days after receiving notice

from the employee organization. Employee deductions

shall be transmitted to the employee organization no

later than 10 days after they are deducted unless a

shorter period is mutually agreed to.

(c) Deductions shall remain in effect until:

(1) the educational employer receives notice that

an educational employee has revoked his or her

authorization in writing in accordance with the terms

of the authorization; or

(2) the individual educational employee is no

longer employed by the educational employer in a

bargaining unit position represented by the same

exclusive representative; provided that if such

App-43

employee is, within a period of one year, employed by

the same educational employer in a position

represented by the same employee organization, the

right to dues deduction shall be automatically

reinstated.

Nothing in this subsection prevents an employee

from continuing to authorize payroll deductions when

no longer represented by the exclusive representative

that would receive those deductions.

Should the individual educational employee who

has signed a dues deduction authorization card either

be removed from an educational employer’s payroll or

otherwise placed on any type of involuntary or

voluntary leave of absence, whether paid or unpaid,

the employee’s dues deduction shall be continued

upon that employee’s return to the payroll in a

bargaining unit position represented by the same

exclusive representative or restoration to active duty

from such a leave of absence.

(d) Unless otherwise mutually agreed by the

educational

employer

and

the

exclusive

representative, employee requests to authorize,

revoke, cancel, or change authorizations for payroll

deductions for employee organizations shall be

directed to the employee organization rather than to

the educational employer. The employee organization

shall be responsible for initially processing and

notifying the educational employer of proper requests

or providing proper requests to the employer. If the

requests are not provided to the educational employer,

the employer shall rely on information provided by the

employee organization regarding whether deductions

for an employee organization were properly

App-44

authorized, revoked, canceled, or changed, and the

employee

organization

shall

indemnify

the

educational employer for any damages and reasonable

costs incurred for any claims made by educational

employees for deductions made in good faith reliance

on that information.

(e) Upon receipt by the exclusive representative of

an appropriate written authorization from an

individual educational employee, written notice of

authorization shall be provided to the educational

employer and any authorized deductions shall be

made in accordance with law. The employee

organization shall indemnify the educational

employer for any damages and reasonable costs

incurred for any claims made by an educational

employee for deductions made in good faith reliance

on its notification.

(f) The failure of an educational employer to

comply with the provisions of this Section shall be a

violation of the duty to bargain and an unfair labor

practice. Relief for the violation shall be

reimbursement by the educational employer of dues

that should have been deducted or paid based on a

valid authorization given by the educational employee

or employees. In addition, the provisions of a collective

bargaining agreement that contain the obligations set

forth in this Section may be enforced in accordance

with Section 10.

(g) The Illinois Educational Labor Relations Board

shall have exclusive jurisdiction over claims under

Illinois law that allege an educational employer or

employee organization has unlawfully deducted or

collected dues from an educational employee in

App-45

violation of this Act. The Board shall by rule require

that in cases in which an educational employee alleges

that an employee organization has unlawfully

collected dues, the educational employer shall

continue to deduct the employee’s dues from the

employee’s pay, but shall transmit the dues to the

Board for deposit in an escrow account maintained by

the Board. If the exclusive representative maintains

an escrow account for the purpose of holding dues to

which an employee has objected, the employer shall

transmit the entire amount of dues to the exclusive

representative, and the exclusive representative shall

hold in escrow the dues that the employer would

otherwise have been required to transmit to the Board

for escrow; provided that the escrow account

maintained by the exclusive representative complies

with rules adopted by the Board or that the collective

bargaining agreement requiring the payment of the

dues contains an indemnification provision for the

purpose of indemnifying the employer with respect to

the employer’s transmission of dues to the exclusive

representative.

(h) If a collective bargaining agreement that

includes a dues deduction clause expires or continues

in effect beyond its scheduled expiration date pending

the negotiation of a successor agreement, then the

employer shall continue to honor and abide by the

dues deduction clause until a new agreement that

includes a dues deduction clause is reached. Failure

to honor and abide by the dues deduction clause for

the benefit of any exclusive representative as set forth

in this subsection (h) shall be a violation of the duty

to bargain and an unfair labor practice. For the

benefit of any successor exclusive representative

App-46

certified under this Act, this provision shall be

applicable, provided the successor exclusive

representative presents the employer with employee

written authorizations or certifications from the

exclusive representative for the deduction of dues,

assessments, and fees under this subsection (h).

(i)(1) If any clause, sentence, paragraph, or

subdivision of this Section shall be adjudged by a court

of competent jurisdiction to be unconstitutional or

otherwise invalid, that judgment shall not affect,

impair, or invalidate the remainder thereof, but shall

be confined in its operation to the clause, sentence,

paragraph, or subdivision of this Section directly

involved in the controversy in which such judgment

shall have been rendered.

(2) If any clause, sentence, paragraph, or part of a

signed authorization for payroll deductions shall be

adjudged by a court of competent jurisdiction to be

unconstitutional or otherwise invalid, that judgment

shall not affect, impair, or invalidate the remainder of

the signed authorization, but shall be confined in its

operation to the clause, sentence, paragraph, or part

of the signed authorization directly involved in the

controversy in which such judgment shall have been

rendered.