Illinois law silences charter school employers on unions – court lets it stand

Under the law, charter schools cannot express a position – any position – on whether their employees should form a union. They cannot speak in favor of it. They cannot speak against it. They must simply say nothing. The law also requires schools to open their doors to union organizers and to use a card check process – rather than a private ballot election – to determine whether employees want union representation, with a neutral third party verifying the result. 

The plaintiffs – led by the Illinois Network of Charter Schools, which represents 134 schools serving more than 60,000 students – argued the law was unconstitutional and should be put on hold while the legal fight played out. Two individual charter school operators, Intrinsic Schools and The Montessori School of Englewood, joined the challenge after being handed renewal agreements already containing the clause. 

Their core arguments were straightforward: federal labor law should override the Illinois statute, and the speech restriction violates the First Amendment. The court rejected both. 

On the federal preemption question, the judge found that the state was not acting as a regulator pushing labor policy – it was acting more like a business owner setting terms for a contract. Because the neutrality requirement is tied specifically to the charter agreement and the public funding that comes with it, the court found it falls within what lawyers call the “market participant exception” – essentially, the state’s right to attach conditions to its own spending. 

The free speech argument proved equally unavailing. The court acknowledged that the law does create a chilling effect – charter schools and their representatives genuinely face the prospect of losing funding if they say the wrong thing about unions. That is real harm, the court said, and it gives the schools legal standing to sue. But standing and winning are two different things. The court drew a line between the government suppressing speech and the government simply declining to fund it. Illinois, the judge concluded, is doing the latter. The law does not force schools to say anything pro-union; it just requires them to stay out of the conversation entirely as a condition of receiving state money.