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Friedrichs v. 2.0? U.S. Supreme Court May Get a Second Chance to Free Teachers from Forced Unionism

Friedrichs 2.0? Supremes May Get a Second Chance to Free Teachers from Forced Unionism

The Coulson Effect on Education

An education free market stalwart leaves us way too soon.

On February 7th, Andrew Coulson tragically passed away at age 48 from brain cancer. As Senior Fellow in Education Policy at the Cato Institute, he led the charge for free market reforms in education. An unapologetic capitalist, he believed that the market would inevitably lead to better educational outcomes for all kids. And it was really more than a belief. When the former computer engineer saw a problem, he got busy tinkering under the hood to see what the problem was and how best to fix it.

Coulson was a kind, brilliant man whose sense of humor was always at the ready. His colleagues, Jason Bedrick and Neal McCluskey, found him to be “almost impossibly sunny.” Even those coming from a very different political/education angle appreciated and respected him. Reformer Doug Tuthill, a one-time union leader and self-described liberal Democrat, said of him, “Andrew loved facts and logic. He had an engineer’s mind and was relentlessly methodical in laying out his arguments.  I appreciated his commitment to civility and rationality in private and public discourse, and was always influenced, if not persuaded, by his reasoning and facts.”

Before I met Coulson in 2010, we had a brief email relationship, and in 2009 he sent me a copy of “The Effects of Teachers Unions on American Education,” a paper he wrote for the Cato Journal. While the teachers unions are quick to impress upon the world how much they do for teachers, they never get around to telling you specifics. Oh sure, they go on about salary and benefits, but are their claims true? Coulson, using piles of data, cut through union happy talk and left us with a very different view.

One of the claims of the teachers unions is that collective bargaining is the life-blood of the union movement, but Coulson handily debunks that. While collective bargaining has some effect on teacher salaries, it is not nearly as great as is commonly assumed.

Coulson cites Stanford economist Carolyn Hoxby who suggests that the real union wage premium is somewhere between zero and 10 percent. Looking at rural Pennsylvania districts, economist Robert Lemke found the public school union wage premium at 7.6 percent. Cornell’s Michael Lovenheim looked at three Midwestern states  and concluded that “unions have no effect on teacher pay.” Coulson clarifies that salary hikes have all undeniably occurred, but “they have occurred in both unionized and nonunionized public school districts.”

So if salary hikes (and other collective bargaining goodies) haven’t done much for union members, what have the unions accomplished for their teachers? Coulson maintained it protects them from having to compete in the educational marketplace.

Another great Coulson contribution came in the one (that I am aware of) interchange between Andrew and American Federation of Teachers president Randi Weingarten, and it didn’t work out too well for the union leader. In 2011, she wrote an insufferable op-ed in the Wall Street Journal in which she claims that “Markets Aren’t the Education Solution.” Coulson responded with “Dear Ms. Weingarten: I’ll Show You Mine if You’ll Show Me Yours,” in which he wrote he’d “prefer to reach policy conclusions based on empirical research.” As Coulson pointed out, Weingarten came to her conclusion “based on the testimony of a few foreign teachers’ union leaders and government officials who… run official government education monopolies.” Coulson produced a most interesting chart that clearly shows how many studies favor education markets over state school monopolies, and vice-versa, in each of six outcome areas.

Coulson

Not surprisingly, Weingarten didn’t (because she couldn’t) deliver a rejoinder.

Coulson nails the subject: “The NEA and AFT spend large sums on political lobbying so that public school districts maintain their monopoly control of more than half a trillion dollars in annual U.S. k-12 education spending. And since both the U.S. and international research indicate that achievement and efficiency are generally higher in private sector—and particularly competitive market—education systems, the public school monopoly imposes an enormous cost on American children and taxpayers.”

To further bring Coulson’s thesis to light, one only needs to look at recent events. A small sampling:

  • In Jefferson County, Colorado, a “parent” group led the charge to get rid of a school board majority “with an extreme anti-public education agenda.” In reality, it wasn’t parent-led, it was union-led. The National Education Association and its state and local affiliates fully subsidized an ugly and unfortunately successful campaign to unseat the NEA-dubbed “right-wing school board.
  • In New York City, the unions are on an eternal mission to cripple Eva Moskowitz’s highly successful (non-unionized) charter franchise.

Coulson’s research led him to understand that we are “paying dearly for the union label, but mainly due to union lobbying to preserve the government school monopoly rather than to collective bargaining.” The good news is that because of Andrew Coulson and other school choice warriors, that monopoly is unraveling, albeit very slowly.

One final note: Losing Coulson was blow for those of us who are desperately trying to minimize the damage done by the teachers unions and the government education monopoly. But there was a second death of note last week. Supreme Court Justice Antonin Scalia passed away this past Saturday. The Friedrichs decision, which presumably would have favored the plaintiffs 5-4, is now on hold. In all likelihood, a vote on the case, which could kill mandatory union dues, hasn’t yet been taken and the result of the remaining Justices’ vote will probably be 4-4, leaving the current Abood decision in place. The plaintiffs’ best hope is that the case gets held until a new SCOTUS Justice is appointed – and that the appointee is not named by either the current president, Hillary Clinton or Bernie Sanders.

In any event, we lost two great freedom fighters last week. Their life’s work must continue; it’s up to all of us to dig in and ensure that their efforts have not been in vain.

Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers and the general public with reliable and balanced information about professional affiliations and positions on educational issues. The views presented here are strictly his own.

Bye-bye Abood?

SCOTUS appears to be ready to dump mandatory public employee union dues payments.

Last Monday, the Supreme Court heard oral arguments in the Friedrichs v California Teachers Association lawsuit. The case centers around whether or not teachers and other public employees should be forced to pay dues to a union as a condition of employment in states that don’t have right-to-work (RTW) laws. Reviewing the comments and questions from the Justices, a favorable outcome is looking very good for the plaintiffs.

The lawyers and court-watchers have been anticipating a 5-4 decision, with Antonin Scalia being the swing vote. The typically conservative justice had in the past come down on the side of forced agency fees or “fair share,” which is a full dues payment minus the money the union spends on politics should a teacher object. The unions claim they are compelled to represent every teacher, and thus, every teacher should have to pay something for their services. That set up has been law since SCOTUS enshrined it in the Abood decision in 1977 in an attempt to ensure “labor peace.”

But Scalia seems to have had a change of heart. Noting the differences between private and public unions, he said, “But the problem is that it is not the same as a private employer, that what is bargained for is, in all cases, a matter of public interest. And that changes…the situation in a way that that may require a change of the rule. It’s one thing to provide it for private employers. It’s another thing to provide it for the government, where every matter bargained for is a matter of public interest.” (P. 76)

Even more damning, Scalia ended up essentially agreeing with the main point of the plaintiffs’ argument. “The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition. Should the government pay higher wages or lesser wages? Should it promote teachers on the basis of seniority or on the basis of all of those questions are necessarily political questions.” (P.45)

Anthony Kennedy, traditionally the Court’s swing voter, showed little sympathy for the union position. He dismissed the classic union rallying point that refers to those RTW state employees who “benefit” from union activities but don’t pay money to them as “free riders.” Kennedy rejected that argument, referring to them instead as “compelled riders.”

And you ­­ the term is free rider. The union basically is making these teachers compelled riders for issues on which they strongly disagree.

Many teachers think that they are devoted to the future of America, to the future of our young people, and that the union is equally devoted to that but that the union is absolutely wrong in some of its positions. And agency fees require, as I understand it — correct me if I’m wrong — agency fees require that employees and teachers who disagree with those positions must nevertheless subsidize the union on those very points. (P.43)

Kennedy also brought up the frequently fuzzy line between political spending and so called chargeable (non-political) fees, asking the lawyer for the state of California. “Do union — do unions have public relations programs of or newspaper articles, media programs to talk about things like merit pay, protecting underperforming teachers and so forth? Do the unions actually make those arguments, and aren’t those chargeable expenses? (P.44)

The union lawyers kept stressing that forced dues were essential to their survival, but Scalia disagreed, pointing out, “Why do you think that the union would not survive without these – these – fees charged to nonmembers of the union? Federal employee unions do – do not charge agency fees to nonmembers and they seem to survive; indeed they prosper….” (P.50)

The union lawyers and four Justices sympathetic to their cause didn’t have much of a defense. They kept making the same tired old points and added the stare decisis argument, the doctrine of precedent, which came up several times. Lawyers cite it when an issue has been previously brought to the court and a ruling already made. Generally, courts will adhere to the previous judgment, though this is not always the case.

There have been several landmark cases where prior rulings have been completely disregarded, most notably in Plessy v Ferguson (1896). The Court ruled the “constitutionality of state laws requiring racial segregation in public facilities under the doctrine of ‘separate but equal.’” But in 1954, stare decisis was set aside when the court overturned Plessy. In Brown v the Board of Education of Topeka, the Court reversed itself, saying that “separate educational facilities are inherently unequal.” Referring to Friedrichs, George Leef writes in Forbes, “Where First Amendment rights are at issue…stare decisis and the convenience of teachers’ unions seem very small considerations.”

The media weigh in

Reading countless reports and articles on the trial, I could not find one that thought it went the union’s way. Typical is a piece from Politico titled. “SCOTUS support for anti-union plaintiffs,” which begins, “The Supreme Court appeared ready Monday to bar public-sector unions from collecting ‘fair-share’ fees from non-members, a move that could deal a political blow to Democrats by reducing union membership drastically and draining union coffers.”

The only glimmer of hope came from American Federation of Teachers president Randi Weingarten who wrote, “As I listened (and admittedly, I’m not impartial!), I felt they failed to present a compelling argument for why the court should overturn 40 years of precedent — precedent that has led to labor peace in the public sector, better services for communities, easier administration for state and local governments, and, of course, fair pay and benefits for working families.”

But as she said, she is not impartial. In fact, anything but.

The usual pro-union suspects weighed in and essentially agreed that the plaintiffs would probably emerge victorious, but their reporting was leaden with a heavy dose of anger and angst. Perhaps the most hysterical was an article on Huffington Post titled, “This is Bad! Attack on Teacher Unions is an Assault on Students, Workers and Democracy.” His slant was obvious; in a brief article, he used the word “rightwing” seven times and just to change things up, he threw in “right-wing” a couple of times.

What happens next?

The justices may very well have already voted or will do so very soon, but it’ll likely be June before their decision is announced. Between now and then a lot can happen. The Justices’ minds can be changed by other justices and can be affected by public opinion and (indirect) union pressure. Hence the PR war will go on.

If the unions lose, how bad will it be for them?

Probably not nearly as bad as they are making it out to be. First, they can get rid of the free rider problem by becoming a members-only organization. (Some state laws may have to be tweaked, but that shouldn’t be an onerous task.) Then, if a teacher likes their union they can pay for services rendered. If they want no part of the union, they won’t join. There are other organizations like the Association of American Educators and Christian Educators Association International that provide many of the benefits and protections offered by the union.

Also, by becoming a members-only entity, the unions will enlist only true believers. But they will, however, have to be more responsive to the needs and wishes of their members since teachers as well as other public employees will no longer be forced to pay them.

Nina Rees, president of the National Alliance for Public Charter Schools, writes that children could be winners should the plaintiffs prevail, “…teachers may gain greater leverage in determining the policies that union leaders pursue. If that leads to policies that reward great teaching and put more of the best teachers in the classrooms that need them most, students will win.”

And there are union stalwarts who aren’t crying in their beer. Trade union activist Shamus Cooke asserts that unions need to step up their organizing game if they are to remain powerful. Samantha Winslow makes pretty much the same point in “Organizing Is the Key to Surviving Friedrichs.”

If Friedrichs is successful, who will be the big loser?

Democrats and the left.

There is no doubt that union warchests will take a hit if all teachers aren’t forced to fill them. While no one knows how many teachers will refuse membership, I think a conservative guess would be that one-third will choose to avoid ties to the union. If so, the California Teachers Association’s $180 million a year gravy train would be sliced down to $120 million. As you can see here (H/T Colin Sharkey), CTA gives 96.7 percent of that gravy to Democrats. And what doesn’t go specifically to Democrats goes to leftist causes. On a national level, National Education Association and American Federation of Teachers’ spending just about all goes in a leftward direction.

Final word

The Abood decision, which claimed it would ensure “labor peace,” did so at the cost of freedom of association for millions of teachers across America over a 39-year period. “Labor peace” has also come at great expense to parents, children and taxpayers who have suffered as the unions coffers were used in part to kill education reform, keep kids in failing schools and raise taxes. Hopefully, the judges will soon rid our lives of Abood and if they do, trading bad policy for “labor peace” will become a sad relic of another time.

Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers and the general public with reliable and balanced information about professional affiliations and positions on educational issues. The views presented here are strictly his own.

Myths the Union Organizer Tells Us

Socialist teacher union honcho’s distortions about union political spending and “labor peace” are, well, par for the course.

Shaun Richman, a former organizing director for the American Federation of Teachers, has written a bizarre piece for In These Times in which he claims that “the Friedrichs v. Calif. Teachers Association SCOTUS Case Could Actually Be a Boon for Unions.” His overarching point is more than a bit arcane, but it’s safe to say he thinks that the case – which, if successful, would make public employee union participation optional nationwide – could cause major chaos that the unions would somehow be able to use to their advantage.

Richman, an acknowledged socialist who prefers to be called “Comrade” (or more informally “Cde.”), may not know where Friedrichs will lead, but he offers a treasure trove of distortions in plotting out his incoherent scenario.

First, we start with a half-truth. Comrade Richman grouses, “Currently, unions that are certified to represent a group of employees in a bargaining unit are legally compelled to represent all of the employees in that unit. That means not just bargaining on their behalf, but expending significant resources on grievances, meetings, communications and everything else that goes into running a union.” Left out is that “exclusive representation” was not something foisted on the unions; it is something that all unions have demanded for the last 80 years. So you really can’t whine about being forced to do something that you have lobbied hard to attain.

Cde. Richman then warns, “…exclusive representation is essential to labor peace.” I cringe every time I read or hear the words “labor peace.” This wretched little term was used in the U.S. Supreme Court’s Abood decision that the Friedrichs lawyers hope to overturn. To me, the words summon up an image of a mafia thug telling the new storeowner in the neighborhood, “You want peace? Here are some envelopes to use for your monthly payments. You have such a nice little store. I’d hate to see anything happen to it.” Labor peace my foot.

Another bit of propaganda from Cde. Richman regarding Friedrich’s “right-wing argument,”

But union membership, including the payment of dues, is completely voluntary. That’s why unions negotiate agency fees into contracts. These fees are calculated through complicated formulas to only represent the true cost of bargaining representation. Agency fees do not pay for things like political activity (unions usually have separate voluntary political funds.

That’s the standard narrative, but it’s far from the whole story. As Mike Antonucci points out, if a union sends a mailer advising members to vote for Candidate X, it can be chalked up as “member communication,” not political spending. The unions are also quite gifted in the phenomena of so called “dark money” – political spending by groups whose own donors are allowed to remain hidden. So again, the unionista is playing very loose with the facts.

Then comes a truly jaw-dropping whopper from Cde. Richman: “Unions are politically cautious and loath to wade into non-economic controversies for fear of alienating a segment of their bargaining unit.” What?! Is it minutely possible that Cde. Richman does not know about teacher union spending habits? Is he not aware that teacher union elites are invariably far left of center and spend heavily to advance their agenda? As RiShawn Biddle notes, the Democracy Alliance, Progress Now, Progressive Inc., Media Matters, et al are heavily funded by the National Education Association. The unions have also been involved with same-sex marriage advocacy, blocking photo ID requirements for voters, and limiting restraints on the government’s power of eminent domain.

In fact, its latest filed labor report shows that NEA spent $131 million on politics in 2014-2015 – and believe me, the Tea Party, Americans for Prosperity and Focus on the Family didn’t see a penny of the union’s largess.

Richman is on the money about one thing, though. He writes, “…if agency fee is compelled speech, then the duty of exclusive representation imposed on unions is also compelled speech.” Bingo! If I don’t want to have to be in a union, the union should have no obligation to represent me. In fact, it would be immoral for me to insist on a service that I was not willing to pay for. But Comrade Richman, once again, exclusive representation is a union-demanded convention. If unions should decide they don’t want to represent non-payers, that would be the fairest solution for all concerned.

That’s the kind of “labor peace” I could really get behind.

Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers and the general public with reliable and balanced information about professional affiliations and positions on educational issues. The views presented here are strictly his own.

Will the Supreme Court Do an “Abood Face?”

The decision in Harris v Quinn could be just the first shoe to drop in the fight against forced union dues.

Last month was not kind to Big Labor. First, the teachers unions in California had some of their favorite work rules knocked out of the state constitution by Judge Rolf Treu in his Vergara decision. Then, on the last day of the month, the Supreme Court agreed with the National Right to Work Legal Defense Foundation in Harris v Quinn and ruled that homecare workers could not be forced to join the Service Employees International Union (SEIU).

Vergara upset the teacher union Pooh-Bahs who just can’t believe that educators who hang on to their jobs for 16 months aren’t entitled to them for life, regardless of whether they’re good, mediocre or teachers from hell. The decision is going to be appealed and no one knows –  if the appeal fails – how the subsequent replacement laws will play out. But if Vergara got the unions in a snit, Harris has pushed them into apoplexy.

Regarding Harris, I searched the internet long and hard to find a statement from a union leader that went something like this:

The decision doesn’t harm the union movement in the least. It gives hard working men and women the freedom to choose whether or not to join us. If they do join, they will enjoy the benefits and perks that come with union membership. If they choose not to join, we will not force them to. They are free to make whatever deal that they and their employer agree to. As patriotic Americans, we believe in liberty and that means giving all workers a choice.

Okay, I confess. I really didn’t search long and hard. In fact, I didn’t search at all; it would have been a complete waste of time. Instead, we were treated to union leaders doing what they usually do when they don’t get their way: trot out the usual half-truths, fear-mongering and lies to rally the troops and garner public sympathy.  Chalkbeat reports,

‘This court has built a record of weakening the rights of both voters and working families; no one should be surprised by this decision,’ said American Federation of Teachers President Randi Weingarten in a statement.

Weingarten is saying  that one working family has a right to force a member of another working family into a union.

Dennis Van Roekel, president of the National Education Association, the nation’s largest teachers union, defended the ‘fair share’ practice. ‘Fair share simply makes sure that all educators share the cost of negotiations for benefits that all educators enjoy, regardless of whether they are association members.’

There is nothing fair about forcing a worker to pay dues to an organization that he or she does not want to belong to.

The NEA website goes deeper into the “fair share” philosophy:

All union members who enjoy the benefits, rights, and protections of a contract should, in fairness, and must, according to Illinois state law, contribute to maintaining that contract. Sometimes called ‘agency fee,’ fair share is a percentage of full union dues, based on the actual cost of collective bargaining, contract maintenance, and other services provided to all union members. 

Well yes, all those who benefit from the union contract, should pay dues. But if they don’t want any part of your contract, why are you trying to force them to pay you?

Mind you, Harris was a narrow decision. Justice Samuel Alito’s ruling drew a distinction between the home care workers and ‘full-fledged’ public employees

… who were required to pay union dues under the Court’s Abood v. Detroit Board of Education precedent in 1977. In that sense unions dodged a more sweeping decision that could have jeopardized dues payments from all public workers.

But – and this is what’s scaring the spit out of unionistas – Alito added that Abood (which maintains that it is illegal to withhold forced dues from dissenters beyond the cost of collective bargaining) is “questionable on several grounds.” Collective bargaining issues, he wrote, “are inherently political in the public sector.”

In the private sector, the line is easier to see. Collective bargaining concerns the union’s dealings with the employer; political advocacy and lobbying are directed at the government… But in the public sector, both collective bargaining and political advocacy and lobbying are directed at the government. (Emphasis added.)

Clearly, Alito left the door open for the court to do something of an “Abood face.” The next shoe that drops could lead to the unions’ worst nightmare – making union membership optional nationwide. (At this time 26 states are forced union states, while 24 are right-to-work.)

In fact, that “next shoe” is awaiting a fitting. Friedrichs et al v CTA is on a path to reach SCOTUS within a year or two. This litigation has ten teachers and the Christian Educators Association International – a union alternative – taking on the California Teachers Association with a lawsuit aimed squarely at California’s “agency-shop” law, which forces teachers to pay dues for collective bargaining activities, though – as per Abood – paying for the unions’ political agenda is not mandatory. The plaintiffs’ lawyers are challenging the law, claiming collective bargaining is inherently political and that all union dues should be voluntary.

Terry Pell, president of the Center for Individual Rights, a public interest law firm representing Rebecca Friedrichs and her co-plaintiffs, was upbeat after the Harris ruling was announced.

Today’s decision is a good sign of things to come. The Court will soon have before it another union dues case, one that asks it to recognize the First Amendment rights of all employees to decide whether to pay union dues, not just home healthcare workers.

He importantly added,

We’re not attacking collective bargaining. … That’s not at issue. All we’re saying is individual teachers get to decide whether to pay dues to that organization. You can have collective bargaining and you can have a strong union, but you don’t have to have compulsory dues.

If Friedrichs is successful, and the court overturns Abood, workers will have a choice. To paraphrase President Obama, “If you like your union, you can keep your union.” But if you don’t, you can’t be forced to join. Freedom of choice – sounds like the American way to me.

Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers with reliable and balanced information about professional affiliations and positions on educational issues.