All Colorado school districts now appear to be complying with the U.S. Supreme Court’s decision that teachers and other public school employees cannot be forced to pay “agency fees” to unions if they are not union members.

A 1977 Supreme Court decision had allowed the practice of unions and school districts involuntarily deducting fees from an employee’s paycheck on the theory that because non-union workers benefit as a result of collective bargaining, they should be required to pay their fair share of the costs of the bargaining process.

In 2018 the court reversed itself, saying that the 1977 ruling was “wrongly decided and is now overruled” and threw it out, citing First Amendment freedom of speech concerns.

Complaints have been long heard that public employee unions were using member’s dues for political advocacy that members may disagree with rather than strictly for employment compensation negotiations.

“Under Illinois law, public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities,” wrote Justice Samuel Alito. “We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”

While most Colorado school districts complied with the ruling right away, stopped deducting agency fees from non-union employees, and removed the provisions from their collective bargaining agreements with the school unions, as late as May 2021 at least five Colorado districts still had those illegal provisions in the agreements, although it does not appear that any of them actually deducted fees.

In May, the Public Trust Institute, a non-profit public interest law firm “found the problematic contract provisions in union agreements in the following school districts: Adams 12 Five Star, Alamosa, Thompson, Pueblo 60 (Pueblo City Schools) and Pueblo 70 (Pueblo County Schools). PTI uncovered provisions at five Colorado school districts that automatically enroll school employees in the unions and/or withhold union dues or fees from their paychecks despite employees refusing to join the union or resigning from the union.”

The collective bargaining agreements allowed teachers to opt out of union representation, but to do so they had to fill out and submit a “revocation form available through the Association representatives between September 10 and September 20” of every year.

If the deadline was missed, even by a day, even due to unforeseen circumstances, including the form not being made available in time, some unions refused to accept them and demanded the district subtract the fee from the employee’s paychecks amounting to as much as $850 for that school year.

Dan Burrows, Director of the Public Trust Institute says even if the provisions in the agreement are not enforced and no agency fees are subtracted from the employee’s paycheck, presence of the language is “inherently coercive.”

“The courts refer to it as chilling people’s free speech,” said Burrows. “If people see the rule, people are inclined to just presume that the rule is enforced. So, when these teachers get their handbook and they see the CBA they say ‘well if I don’t join, I have to essentially pay dues anyway, so I might as well join right now.’ A teacher is not an attorney. They don’t spend time reading Supreme Court case law to know whether that’s allowed or not.”

According to Pam Begnino, teachers will not know for sure if the practice has been halted until the end of September, although the districts involved did not subtract any dues last year.

Alamosa School District RE-11J, the last known holdout, has removed the offending language from the collective bargaining agreement with Alamosa Education Association, according to Begnino.

“I am sure that it is a relief to the Alamosa staff who choose not to join the union. Now their paychecks are protected,” said Begnino.

Attempts to reach the other districts were unsuccessful Wednesday night.