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Dear Randi (Redux),

Given the assertions you make in your latest “Where We Stand” column, we need to talk!

So it’s been a year since I last wrote to you. You sure have been busy! Defending mandatory voting laws and Hillary Clinton, railing against cheese sandwiches and Jeb Bush, it’s totally understandable that you may be getting a bit fuzzy in your, er, facts concerning teachers. I am assuming your errors are honest ones as opposed to the other kind. (No, I am not going to make a joke that you should rename your column “Where We Lie.”) In any event, as president of California Teachers Empowerment Network, an organization that aims to get accurate information to teachers (and everyone else), I would like to take this opportunity to set the record straight.

In your latest column, you erroneously refer to tenure as “due process.” Randi! Randi! Randi! As a lawyer, you surely know that teachers already have tons of due process, and that tenure is just an added layer that makes it just about impossible to fire an incompetent one. In California, on average, two tenured teachers – out of about 300,000 – are canned for poor performance every year. (I’m sure you would admit that somewhat less than 299,998 of the state’s teachers are really competent.) By the way, in CA, we usually don’t use the word tenure, but instead “permanent status.” How pathetic is that? What workers besides teachers – and Supreme Court Justices – have permanent jobs?

Then you throw in the obligatory jab at the Koch brothers, claiming that they are part of an effort to “dismantle public education.” I know attacking the Kochs is de rigeur union shtick, but seriously, Randi…. The Kochs and others (like me) simply want to give parents a choice where to send their kids to school. I know that you strongly favor giving a woman a choice whether or not to abort her unborn child, so why not give a woman who chooses to keep that child a choice where to send her to school?

Next you say, “Our adversaries don’t want a virtuous cycle that gives everyone a shot at the American dream, with access to a high-quality public education.” Goodness! Randi, where did you come up with that?! You have it backwards. By forcing kids to stay in lousy public schools, you are denying them a shot at the American dream. No, I am not saying that all public schools are bad, but there are far too many that are, and why on earth would you want to force kids to stay in one? And by the way, please tell me why it is that only about 12 percent of urban parents send their kids to private schools nationwide, yet in the New York metropolitan area 33 percent of teachers send their kids to private school? In San Francisco that number is 34 percent, and it’s 39 percent in Chicago. I look forward to your addressing this disparity in one of your future columns.

Then you bring up two major lawsuits that the unions are involved in. Mercy, Randi, you are a lawyer! How could you get so much so wrong?! You first mention California’s Bain v. CTA case, writing, “… the plaintiffs are claiming that as nonmembers of a union, they should still get the full benefits of belonging to a union, for free.” Pure nonsense! No one is trying to get anything for free. The case is about teachers who are happy being dues-paying union members but simply do not want to financially support the union’s political agenda. The way things are now is that in order to not support that agenda, a teacher must resign from the union but still pay what’s called an agency fee – about 2/3 of full dues or $700 a year – to the union. Teachers who do go that route are stripped of essential benefits that they are paying for just because they don’t want to fill the union’s political coffers.

Following a complete misrepresentation of Bain, you then mangle Friedrichs v CTA, writing,

The plaintiffs in Friedrichs aim to break unions by eliminating the fee paid by those who have union benefits but don’t join. Agency fee reflects the cost to the union of representing all workers in a bargaining unit. It’s also known as fair share, because it’s only fair if everyone who benefits from the services a union provides also chips in to cover the cost of those benefits.

First, the suit is not about breaking any union. This case is simply about giving teachers a choice whether or not to join one. Then you get into the bogus “fair share” argument. Yes if a teacher wants what a union has to offer, they should of course have to pay for the service. But if a teacher doesn’t want what a union is offering, why do you think it’s “fair” to force them to pay for it anyway? (I have asked this question to scores of people and have never received a good answer. If you are so inclined, please give it a shot; my email address is below.)

And finally, you write that “union members have higher wages…” But higher than whose? If you are talking about non-unionized teachers, you’re not even close. In 2011, Fordham Institute’s Mike Petrilli compared teachers’ salaries in school districts which allow collective bargaining with those that don’t. Using data collected by the National Council on Teacher Quality, he looked at 100 of the largest districts from each of the 50 states and found that teachers who worked in districts where the union was not involved made more than those who were in collective bargaining districts. According to Petrilli, “Teachers in non-collective bargaining districts actually earn more than their union-protected peers – $64,500 on average versus $57,500.” He adds that the unions are really about “… protecting benefits and seniority – not pushing for higher pay. If you’re a young teacher earning a lousy salary and paying union dues, that’s something to be very angry about.”

Once again, I am giving you the benefit of the doubt and not accusing you of maliciously misrepresenting the truth, but rather maintaining that you are flat-out wrong in much of what you wrote. Please remember the words of that wise old philosopher Elvis Presley, “Truth is like the sun. You can shut it out for a time, but it ain’t goin’ away.”

In any event, I hope this helps. If you don’t want to retract any of your misstatements, perhaps we could have a public discussion about your version of the “facts,” as we did in 2010. If you are interested, please send me an email at lsand@ctenhome.org, and we can take it from there. Thanks.

Best,

Larry Sand

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.

California Lawsuit Challenges Mandatory Agency Fees

If the California Teachers Association and its parent, the National Education Association, represent Goliath, then ten teachers and a small union alternative called the Christian Educators Association International are fitting stand-ins for David. They’re taking on the CTA with a lawsuit aimed squarely at California’s “agency-shop” law, which they claim violates public school teachers’ First Amendment rights by forcing them to pay annual union fees, even when they’re not union members. The Washington, D.C.–based Center for Individual Rights is representing the teachers, with help from Jones Day, an international law firm. Needless to say, the CTA isn’t happy. Spokesman Frank Wells denounced the suit as a “baseless challenge intended to dilute worker rights,” insisting that “the concept of agency fees is sound.”

But is it? California law does allow for “mandatory monopoly bargaining,” which means, where public education is concerned, that teachers must pay dues or “fees” to a labor union in order to work at a public school. Teachers may “resign” from the union, which frees them from paying the portion of their dues that would be spent for politics. They’re still required, though, to pay an “agency fee” for other union services, such as collective bargaining—whether they want those services or not. And even if a teacher does resign from the union, he must send a letter every year by a specified date to receive a rebate for the political portion of his dues. In short, the onus is on the teacher if he wants the union to respect his independence.

The rationale for collective-bargaining fees is that even nonmembers benefit from collective bargaining; there should be no “free riders.” But the line between what counts as a “chargeable” fee and what constitutes outright political activity has become blurrier over the years. As the plaintiffs’ lawyers argue, unions use their power “to extract compulsory fees as a convenient method of forcing teachers to pay for activities that have little to do with collective bargaining.” They point to The California Educator, CTA’s highly political magazine, which the union claims as a chargeable collective-bargaining expense. They also note how union leaders deemed a recent Gay-Lesbian-Bisexual-Transgender (GLBT) conference to be “predominantly chargeable.” The plaintiffs also maintain that the NEA, which receives a portion of fees from every CTA member, classifies expenditures that have little to do with collective bargaining—such as expensive staff junkets—as chargeable.

Thus, the teacher-plaintiffs want the court to “declare that California’s practice of forcing non-union members to contribute funds to unions, including funds to support their collective-bargaining activities, violates the First Amendment, and enjoin Defendants [the union] from enforcing this unconstitutional arrangement.” The legal terrain for such an argument is more favorable than it has ever been, thanks to recent Supreme Court rulings.

Some background: in 1977, in Abood v. Detroit Board of Education, the Court ruled that compulsory dues are unconstitutional and that unions could collect only those fees necessary for collective bargaining and sundry other representational activities. (The justices extended their ruling to private unions 11 years later, in Communication Workers of America v. Beck.) In 1986, in Teachers v. Hudson, the Court set out specific requirements that unions must meet to collect fees from nonmembers without violating their First Amendment rights. But nonmembers blanched as unions took a more expansive interpretation of the Court’s decisions. And so the justices last year issued a somewhat sterner rebuke in Knox v. Service Employees International Union,Local 1000. In that case, brought by the National Right to Work Foundation, the justices ruled 7–2 that the SEIU could not force its nonmembers to pay the portion of union dues spent on political activities—even if the union believed it was for the workers’ own good. In 2005 and 2006, as part of its campaign to defeat Governor Arnold Schwarzenegger and a pair of ballot initiatives that would reduce union power and reform pensions, the SEIU imposed a temporary, 25 percent across-the-board dues hike on its dues-paying members and some 28,000 fee-paying nonmembers alike. The union argued that campaigning against the initiatives would benefit all workers. Had this view prevailed, it would have eradicated the legal distinction between politics and collective bargaining. But even liberal justices Sonia Sotomayor and Ruth Bader Ginsburg saw through it and voted with the majority.

Further, Justice Samuel Alito’s majority opinion in Knox raised two crucial points that may bode ill for future forced political activity by public-sector unions, especially as it pertains to nonmembers. Alito said that the unions’ existing “opt-out” rules aren’t sufficient to protect individuals. “An opt-out system creates a risk that the fees paid by nonmembers will be used to further political and ideological ends with which they do not agree,” he wrote. Instead, unions should afford nonmembers the chance to “opt in” to special fees if they want to contribute to organized political campaigns. At the same time, Alito questioned whether public employees who want no part of the union should have to pay fees at all. “[B]y allowing unions to collect any fees from nonmembers and by permitting unions to use opt-out rather than opt-in schemes when annual dues are billed, our cases have substantially impinged upon the First Amendment rights of nonmembers,” Alito wrote. “In the new situation presented here, we see no justification for any further impingement. The general rule—individuals should not be compelled to subsidize private groups or private speech—should prevail.”

The Center for Individual Rights cites Knox in the opening paragraph of its suit. How things will play out in district court in California isn’t clear yet. But it’s worth noting that right now, workers in 26 states and the District of Columbia must pay union dues as a condition of employment. The other 24 states are “right-to-work” states, where workers can choose whether or not to join. If the California case winds up before the Supreme Court, the justices will get an opportunity to extend their Knox reasoning to its logical conclusion and give all workers a real choice.

Larry Sand, a retired teacher, is president of the California Teachers Empowerment Network. This article originally appeared in City Journal on July 11th, entitled “Opportunity Knox,” and is republished here with permission from the author and the publisher.