By Threatening Protections for Teachers, “Janus” Case Also Threatens Students’ Interests

Jeff Bryant’s piece on Tuesday about what the St. Paul Federation of Teachers accomplished in its recent negotiations and threatened strike couldn’t be more timely. The union negotiated an agreement with the school district on February 12, 2018.

After all, on Monday, February 26, the U.S. Supreme Court will hear oral arguments in the case of Janus v. AFSCME.  This is the most recent case to challenge union “agency” or “shop” fees charged to teachers or other public employees who elect not to join a union but whose interests are represented by the union they have chosen not to join. These non-members are already exempt from paying the portion of union membership fees that cover the union’s political activity. The current case was brought by Mark Janus an Illinois member of AFSCME, the American Federation of State, County and Municipal Employees Council.

The Associated Press‘s Mark Sherman explains the Janus case targeting public employee unions: “The unions represent more than 5 million government workers in 24 states and the District of Columbia.”  The U.S. Supreme Court considered the same issue two years ago in Friedrichs v. California Teachers Association, but the justices split 4 to 4 after Justice Antonin Scalia died. At the time, after Justice Scalia’s death, Louis Freedberg reported for EdSource that the, “U.S. Supreme Court denied a petition from the plaintiffs… to rehear the case that the court had already ruled on in a 4-4 opinion….” Experts are less optimistic about the Janus case, because President Trump’s very conservative appointee Neil Gorsuch will likely decide the case.

These court cases to deny membership dues to public employee unions are, of course, an attack on the continued existence and political power of the unions themselves. These days teachers unions are in the cross hairs because of their size and political power.  Jeff Bryant covers the recent settlement negotiated between the St. Paul, Minnesota teachers union, the St. Paul Federation of Teachers, and the school district’s administration only hours before a threatened teachers’ strike. Bryant’s piece demonstrates why a decision to undermine teachers unions in the Janus case would undermine the public interest—in this case by denying urgently needed services for the children in the schools of St. Paul, Minnesota. At the heart of the union contract being negotiated were demands that the school district invest in direct programming for children.

Nick Faber, the president of the St. Paul Federation of Teachers, is described by Bryant, framing the threatened teachers’ strike about “things that have to do with students.” Bryant continues: “While the union got quick tentative agreements on ‘cost-neutral’ proposals the district was most reluctant to agree on things that cost money, including reducing class sizes, improving education services for English learners and special education students, and funding the implementation of restorative practices—an approach to school discipline that focuses on reconciliation rather than harsh punishments. Reducing class sizes necessitates hiring more teachers and perhaps building more classrooms.  Improving the learning experiences for children who don’t speak English well or who have learning disabilities requires hiring new staff specialists….  And implementing new discipline practices means teachers have to be trained in the new practices and they need time for the process of reconciliation to play out.”

Bryant explores serious school funding challenges even in a state known historically for being relatively generous to schools: “Minnesota, normally thought of as one of the more progressive states in the nation, has for the past few decades trended with most of the rest of the country in cutting public services while giving more tax breaks to private organizations and the wealthiest individuals.  Education funding has been particularly hard hit, with aid to public schools nearly $1 billion short, in inflation adjusted dollars of what it was in FY 2003, according to a calculation by the North Star Policy Institute. Nearly $400 million of this reduction is concentrated in just two districts: Minneapolis and St. Paul, the districts with the highest concentrations of low-income black and brown students. Recently, Minnesota increased education spending to slightly exceed pre-recession levels. But funding increases have been too small to keep pace with the growing needs of educating English language learners and students with learning disabilities.

No strike by school teachers during a contract negotiation can command an increase in either state funding or local school taxes, but, according to Bryant, “Using their contract negotiations as leverage, St. Paul teachers aimed to address under-funding by publicly calling on the district to join forces with them to go after big money holders to pay their fair share to support public schools.”  One demand is that large, tax-free nonprofits, which are making relatively small  “compensatory” donations to the schools as gifts, begin to make gifts that are commensurate with their size. “The city had also given businesses millions of dollars in various forms of tax abatements….  And big businesses use their charitable contributions to local schools for public relations purposes while dodging far larger amounts of tax contributions they could be paying to the community.” “St. Paul Federation of Teachers presented a detailed analysis showing Minnesota corporations had benefited from changes in state laws to substantially lower their effective tax rates and sequester much of their holdings in offshore tax havens.”

It will be important to watch whether the St. Paul Federation of Teachers’ advocacy for fairer and more generous taxing policies pays off by yielding local changes in policies like tax abatement and in state school finance increases, but in the meantime, according to union president Faber, “We spend a lot of time coalition building with other local organizations.” Bryant concludes, “One consequence of this kind of broad-based organizing is that parents in St. Paul are visibly on the teachers’ side and have become vehemently opposed to any proposals to further cut funding for their children’s schools.”

Minnesota is a state where public employee collective bargaining remains strong, unlike its neighbor, Wisconsin, which led the attack on public sector unions—beginning in 2011, after the 2010 red tide in which eleven states experienced the election of trifecta Republican governments—senate, house, and governor. Here is Gordon Lafer, in The One Percent Solution: How Corporations Are Remaking America One State at a Time, describing the anti-union wave across these states: “Starting in 2011, the country has witnessed an unprecedented wave of legislation aimed at eliminating public employee unions or, where they remain, strictly limiting their right to bargain.  At the same time, the overall size of government has been significantly reduced in both union and nonunion jurisdictions. The number of public jobs eliminated in 2011 was the highest ever recorded, and budgets for essential public services were dramatically scaled back in dozens of states. All of this–deunionization, sharp cuts in public employee compensations, and the dramatic rollback of public services–was forcibly championed by the corporate lobbies, who made shrinking the public sector a top policy priority in state after state… Furthermore, cuts in public services were not made reluctantly—as a temporary calamity to be mitigated whenever possible—but were embraced by legislators as an affirmative policy choice. Many of the states that enforced the most draconian cuts simultaneously adopted new tax breaks for corporations and the wealthy…”  (pp. 45-46) “The labor movement serves as the primary political counterweight to the corporate agenda on a long list of issues that are not per se labor-related. To the extent that unions can be removed as a politically meaningful force, the rest of the agenda becomes much easier to execute.” (p. 93)

As we watch what happens with the Janus case later this spring, it will be important to remember that in St. Paul, Minnesota, as the teachers’ contract came up for negotiation this winter, the teachers demanded as negotiating points the expansion of programs needed by their students. The St. Paul Federation of Teachers lifted up the need to reduce class size, improve education services for English learners and special education students, and redesign the discipline system to focus on mediation and reconciliation rather than harsh punishments. And the union made a point of challenging tax breaks to benefit corporations and the wealthy, who, teachers insisted, should be supporting the wellbeing of the community and its children.

Update: For an in-depth discussion of the Janus case and its implications, check out this article in today’s Detroit News.

Teachers Union Prevails at Supreme Court; Tomorrow CTU Will Show Why Unions Matter

On Tuesday, in the teachers’ union case, Friedrichs v. California Teachers Association, in a 4-4 split decision, the U.S. Supreme Court upheld the right of public sector unions to charge fees to non-members for the unions’ protection of all teachers in collective bargaining. The case intended to undermine the power of unions was brought by a libertarian organization, the Center for Individual Rights.  Ten California teachers had agreed to sue to eliminate the membership fees they are required to pay to their local teachers’ unions even though they are not members.  Tuesday’s split decision by the Court upholds a 1977 Supreme Court decision that divided union dues into two categories—establishing that non-members must pay their teachers’ unions for representing them in collective bargaining but that union members must also pay a second fee to support the unions’ political activities.

Lyle Denniston, writing for Scotus Blog, explains the significance of Court’s decision on Tuesday: “The most important labor union controversy to reach the Supreme Court in years sputtered to an end on Tuesday, with a four-to-four split, no explanation, and nothing settled definitely.  The one-sentence result in Friedrichs v. California Teachers Association will leave intact, but on an uncertain legal foundation, a system of ‘agency fees’ for non-union teachers in California—with the legal doubts for public workers’ unions across the nation probably lingering until a ninth Justice joins the Court at some point in the future… The Court had heard the Friedrichs case on January 11 and, from all appearances then, it seemed to be on its way toward a five-to-four decision to declare that it would be unconstitutional for unions representing government employees to charge fees to workers they represent but who are not among its members, even when the fees cover the costs of normal union bargaining over working conditions, and not lobbying or outright political advocacy.  But the death of Justice Antonin Scalia last month left the Court to either find a way still to decide the case, or to end it with an even split.”

Denniston continues by explaining what is likely to happen following the Court’s split decision this week: “Shortly after Justice Scalia died, the Center for Individual Rights, a conservative legal advocacy group involved in the Friedrichs case, announced that it would ask the Justices to schedule a rehearing on the case if it were to split four to four.  The Center said at the time that it expected such a request would put the case off until the Court’s new Term, which is slated to begin on October 3.  Under the Court’s rules, a rehearing request in the Friedrichs case would have to be filed within twenty-five days following Tuesday’s ruling.  It would require the votes of five Justices to order such a reconsideration, and one of the five must have been one who had joined in the decision.  It is unclear how that rule would work when the judgment had been reached by an evenly divided Court.”

Why is the Friedrichs case so very important?  A decision against public sector unions’ collection of what are called “fair share” fees would have financially weakened unions.  Hannah Halbert of Policy Matters Ohio explains: “Fair share covers the administrative costs of bargaining and administering the contract.”  Strong unions matter in our society where the power of the top One Percent grows increasingly dominant. Unions are among the few powerful voices that challenge the growing influence of money through the super PACs. As unions representing industrial workers have faded, powerful public sector unions have become a target of the far-right. The National Education Association with 3.2 million members is the nation’s largest union.

Richard Kahlenberg of the Century Foundation commented on the broader significance of Friedrichs case in January during the oral arguments at the Supreme Court: “All unions—including, and perhaps especially public sector unions—also contribute to one of the most important foundational interests of the state: democracy.  And they do this in many different ways.  Unions are critical civic organizations that serve as a check on government power.  They are important players in promoting a strong middle class, upon which democracy depends.  They serve as schools of democracy for workers.  And teacher unions, in particular, help ensure that our educational system is sufficiently funded to teach children to become thoughtful and enlightened citizens in our self-governing democracy.”

No place is the important role of a public sector union more visible this week than Chicago, where the Chicago Teachers Union (CTU) has scheduled a one-day “action” tomorrow, April 1, to protest a budget morass across the state of Illinois and the city of Chicago that threatens not only the city’s K-12 public schools but also higher education and the health and social service sectors.  The school funding crisis in Illinois, complicated by the states’ failure to approve a budget for last year, is very real. The Education Law Center rates Illinois’ school funding distribution with a grade of “F” as being among the most inequitable across the states.  The Chicago school district which has been under mayoral control since 1995, is also trapped by massive long-term debt resulting from risky borrowing strategies that culminated in huge losses during the 2008 Recession, losses that Mayor Emanuel delays dealing with.  The Chicago Public Schools sold $725 million in bonds two months ago just to try to make it through the school year, but in early March, according to the Sun-Times, “Chicago Public School principals were being instructed… to stop spending money because the broke school district that has already imposed budget cuts, layoffs and unpaid furlough days is running out of cash to make a giant pension payment on June 30.” Governor Bruce Rauner’s failure to sign a budget for last fiscal year has also resulted in the threatened closure of Chicago State University.

Tomorrow’s protests will also target the governance of increasingly unpopular Rahm Emanuel. The Chicago Teachers Union’s day of action will demonstrate the needs of Chicago’s children in public schools, and it will also provide a voice for others who are being left behind in the state and city budget crises. Here, according to Chicago’s DNA Info, is how CTU spokesperson Stephanie Gadlin describes the purpose of tomorrow’s one-day city shutdown: “Mayor Emanuel is tone deaf and blind to what is happening to the people of this city.  On April 1, we expect to be joined by a number of sectors facing budget cuts, layoffs, social-service cuts, university closure and people seeing a reduction of health-care benefits for low-income, immigrant and working-class people.”

DNA Info quotes the Service Employees International Union’s statement supporting the day-long action of the teachers: “SEIU Healthcare Illinois is proud to stand in solidarity with the Chicago Teachers Union and the April 1 day of action. Just like the teachers, the tens of thousands of nursing-home workers, home health-care workers and child-care workers whom we represent find themselves under attack at the bargaining table by Gov. Bruce Rauner and greedy nursing-home owners who refuse to honor their dignity.”

Drama at Supreme Court During ‘Friedrichs’ Oral Arguments Was Blatantly Political

Have you noticed the political and ideological operation of the U.S. Supreme Court lately?  In case you need a refresher on this trend, in a fine Washington Post column, Dana Milbank takes us right inside the drama of the courtroom during Monday’s oral arguments on the teachers’ union case, Friedrichs v. California Teachers Association.  Like others who sat in the courtroom during oral arguments, Milbank believes the court will decide against the interests of public employee unions—against the 99 percent and for the One Percent. (This blog examined the substance of this case and its origins yesterday.)

Milbank explains: “By all appearances at Monday’s argument, the five Republican-appointed justices are ready to upend a 40-year precedent guiding labor relations in favor of a new approach that will deplete public-sector unions’ finances and reduce their political clout.  The case, from California, involves arcane issues of ‘agency fees’ and member opt-outs, but make no mistake: This is about campaign finance, and in particular, propping up the Republican Party.”

Milbank is specific: “(T)he only real counterweight to Republican super PACs in this new era is union money.  And the Supreme Court is about to attack that, too.”  Remember that with 3.2 million members, the National Education Association is the nation’s largest union.  What the Supreme Court decides in this case will also affect other public employees’ unions—police, fire, the American Federation of Teachers,  AFSCME—the American Federation of State, County and Municipal Employees, and SEIU—the Service Employees International Union.

Milbank quotes the lawyer for the plaintiffs, Michael Carvin, who told the Court that a decision against the unions would not necessarily make anything adverse happen to the unions.  But when the attorney went outside after the session to speak with the press, he declared, “It may limit their revenue somewhat, but of course they can compensate for that by being less involved in things like politics.”

Milbank describes Justice Stephen Bryer’s reservations about the advisability of overturning previous Supreme Court precedents except in extreme situations: “Bryer reminded his colleagues that when the court jettisons precedent, it’s usually to right an egregious or basic wrong, such as the Plessy v. Ferguson precedent justifying segregation. ‘I don’t see anything too basic in the lines you’re drawing,’ he told Carvin.”  The attorney for the plaintiffs is described praising every one of the Court’s conservative majority and treating the Court’s three liberal woman with discourtesy: “Carvin frequently interrupted and talked over the three female justices…. (and) referred to the other side’s argument as the ‘so-called’ opposition….'”

Citizens United and other recent Court rulings created the modern era of super PACs and unlimited political contributions by the wealthy…” Milbank concludes. “(W)hat’s sinful and tyrannical is for billionaires to take over the electoral process and the government—and for the highest court in the land to take aim at he last remaining counterweight.”

Attack on Public Employee Unions Is A Project of the Far Right

Yesterday the U.S. Supreme Court heard oral arguments in the case of Friedrichs v. California Teachers AssociationAdam Liptak of the NY Times explains what is at stake in this case: “Under California law, which is similar to ones in more than 20 other states, public employees who choose not to join unions must pay a ‘fair-share service fee,’ also known as an agency fee, which is typically equivalent to members’ dues.”  “Such fees are constitutional, the Supreme Court ruled in 1977 in Abood v. Detroit Board of Education. ‘To compel employees financially to support their collective-bargaining representative has an impact upon their First Amendment interests,’ Justice Potter Stewart wrote for the majority.  But he wrote, ‘such interference as exists is constitutionally justified’ to prevent freeloading and to ensure ‘labor peace.'”

Richard Kahlenberg writing for the Century Foundation, explains what’s at stake in this case: “The current legal framework in which courts weigh cases such as Friedrichs is narrowly constrained, balancing the free speech rights of dissenting union members against the state’s interests in promoting stable labor relations with its public employees. In the 1977 case of Abood v. Detroit Board of Education, the U.S. Supreme Court reached a sensible compromise that properly balanced these two sets of interests by splitting union dues into two categories: those that support political speech, and those that support bread-and-butter collective bargaining.  Because the First Amendment’s free speech clause provides a right to not be compelled by the state to subsidize speech with which one disagrees, dissenting public employees cannot be required by the state to join a union, or to subsidize the union’s political and lobbying efforts to promote certain positions of public  concern.”  In Abood, “the Court held, the state may prevent employees from being ‘free riders’ by compelling contribution to that portion of union membership dues that underwrite the cost of collective bargaining over issues such as wages and benefits… Free speech rights are never absolute… For instance, the government may, in fact, compel taxation from an individual who is opposed to the war in Afghanistan, and then use those funds to engage in speech to recruit soldiers for the war effort. Free speech rights must always be balanced against other considerations.”

Certainly there is politics behind this lawsuit. Those behind the Friedrichs case are known to be allied with and funded by groups that seek to weaken teachers’ unions and reduce the public expense incurred by paying teachers fairly and offering health plans and pensions.  Here is Liptak in the NY Times: “‘In this era of broken municipal budgets and a national crisis in public education,’ a brief for the plaintiffs said, ‘it is difficult to imagine more politically charged issues than how much money local governments should devote to public employees, or what public policies public schools should adopt to best educate children.” With 3.2 million members, the National Education Association is the nation’s largest union, and opponents of collective bargaining view it as an important target.

Brian Mahoney, reporting for Politico, connects the dots directly between plaintiffs in Friedrichs and far-right funders who have sought for many years to undermine the right of public employees to organize: “The lawsuit… was brought by Rebecca Friedrichs and eight other California public school teachers who declined to join the union that represents them in collective bargaining.  But the lawsuit’s true author looks to be the Milwaukee-based Lynde and Harry Bradley Foundation.”  For more than 25 years, Wisconsin’s Bradley Foundation has served as the primary funder for the development, promotion and expansion of the Milwaukee Voucher Program.  Mahoney continues: “The Bradley Foundation funds the Center for Individual Rights, the conservative D.C. nonprofit law firm that brought the case; it funds (or has funded) at least 11 organizations that submitted amicus briefs for the plaintiffs; and it’s funded a score of conservative organizations that support the lawsuit’s claim that the ‘fair-share fees’ nonmembers must pay are unconstitutional.”  Groups that have submitted amicus briefs supporting the plaintiffs the Friedrichs case—and that have received funding from the Bradley Foundation over the years—include the Cato Institute, the Manhattan Institute, the Institute for Justice, the Beckett Fund for Religious Liberty, and the Mackinac Center for Public Policy.   Mahoney adds that the Bradley Foundation was significantly involved in political efforts that passed right-to-work laws in Michigan and Wisconsin. A spokesperson from the Center for Individual Rights told Mahoney that the Center for Individual Rights sought out the plaintiffs in this case; it wasn’t Rebecca Friedrichs and the other plaintiffs who themselves sought legal assistance to represent their rights.

Richard Kahlenberg reflects at length on the consequences for all of us if the Supreme Court reverses its 1977 Abood decision and affirms the Friedrichs plaintiffs: “All unions—including, and perhaps especially, public sector unions—also contribute to one of the most important foundational interests of the state: democracy.  And they do this in many different ways.  Unions are critical civic organizations that serve as a check on government power.  They are important players in promoting a strong middle class, upon which democracy depends.  They serve as schools of democracy for workers.  And teacher unions, in particular, help ensure that our educational system is sufficiently funded to teach children to become thoughtful and enlightened citizens in our self-governing democracy.”

Commentators, here and here, who observed the oral arguments yesterday predict that the Court is likely to split along ideological lines to overturn Abood and weaken the position of public employee unions.