Category Archives: Labor

Friedrichs and Bain Explained

California public school teachers working in traditional school districts are by default members of their local teachers associations, which may be affiliates of either the California Teachers Association (CTA), which is the state branch of the National Education Association (NEA), or the California Federation of Teachers (CFT), the state branch of the American Federation of Teachers (AFT).  While teachers unions, like all other organizations, certainly aren’t perfect, they fulfill several roles that benefit students and teachers alike and are important, powerful advocates for low- and middle-income populations in general.

Despite these facts (or, perhaps, because of them), teachers unions have been under attack for quite some time.  And the anti-labor movement, fueled by wealthy individuals and groups like the American Legislative Exchange Council (ALEC), has been alarmingly successful.  Union membership reached a historic low of 11.1 percent in 2014 (6.6 percent in the private sector and 35.7 percent in the public sector), 25 states have adopted inappropriately-named “Right to Work” laws that deprive workers of bargaining power, and an inaccurate, misleading anti-union narrative has permeated public discourse.

Unions won a major victory in California in 2012 when we (I was a CTA Election Campaign Lead at the time) beat back Proposition 32, but the news has been less stellar since, particularly for teachers unions.  In 2014, Judge Rolf Treu sided in favor of the plaintiffs in Vergara v. California, a misleading lawsuit that attacked various aspects of teacher employment law.  Though the weakness of both the plaintiffs’ argument and the decision suggests that the case may be overturned on appeal, it still represents a dangerous threat to important employee protections that could reverberate beyond education.  Two more recent California cases, Friedrichs v. California Teachers Association and Bain v. California Teachers Association, present related dangers for labor more generally, especially because the Supreme Court will hear oral arguments in Friedrichs early next year.

As was the case with Vergara, there’s a lot of misinformation floating around about both Friedrichs and Bain.  The discussion below thus sets the record straight on how teachers-union dues and spending work in California, explains the basic arguments of both Friedrichs and Bain, debunks myths the plaintiffs have propagated, and explains why courts should rule against the plaintiffs in both cases.

How Teachers-Union Dues and Spending Work in California

Spending by teachers unions falls into two legal categories: it is either “chargeable” – that is, pertaining to collective bargaining and classified as nonpolitical – or “nonchargeable,” or classified as political.  Public school teachers in CTA-affiliated schools have three options when it comes to paying union dues:

1) If a teacher takes no action, he or she pays for both the chargeable and nonchargeable portion of CTA spending. Whether or not a teacher pays dues to their local association for nonchargeable spending may vary from local to local.

2) If a teacher marks a box on his or her membership form (shown below), that teacher can choose not to contribute towards CTA’s political activities. The teacher must still pay the nonchargeable portion of his or her dues, but that money remains in CTA’s general fund and can be used only for chargeable activities.  A teacher selecting this option remains a full-fledged member of the union.

Teachers who do not want to contribute to CTA’s political activities can check a box on a one-page form to opt out.

Teachers who do not want to contribute to CTA’s political activities can check a box on a one-page form to opt out.

3) A teacher can affirmatively opt out of paying the nonchargeable portion of his or her dues altogether. This decision must be made each year for which a teacher wishes to opt out.  A teacher who exercises this option and pays lower dues is considered an “agency fee payer.”  Agency fee payers are still represented by the union in collective bargaining and labor disputes, but they lose some advantages associated with union membership, the most significant one being the right to vote in union elections.

Each year, CTA must determine the portion of its spending that falls into the chargeable and nonchargeable categories.  It is required by law to send a “Hudson notice” showing the breakdown and the amount of the agency fee to any teacher who has chosen option 3 in a previous year.  Teachers receiving the Hudson notice also receive a letter explaining that they have at least thirty days to decide whether to opt out of the nonchargeable portion of dues again in the coming year (which they can do either by filling out a simple one-page form, shown below, or by writing a letter).

Teachers who want a rebate for the political portion of their dues can fill out this simple one-page form.

Teachers who want a rebate for the political portion of their dues can fill out this simple one-page form.

In recent years, CTA has designated about 65 percent of its dues to be “chargeable.”  If an agency fee payer disagrees with the unions’ stated breakdown between political and nonpolitical expenses, he or she can check a box on the above form to initiate an independent review of the union’s expenses.  The fee payer does not need to be present or provide evidence for that review, the costs of which are all borne by the union.

Friedrichs and Its Free Speech Arguments

The plaintiffs in Friedrichs seek to overturn Abood v. Detroit Board of Education, which in 1977 established that public sector unions could charge all employees for activities related to “collective bargaining, contract administration, and grievance adjustment purposes” – that is, that public sector unions could require employees to pay the chargeable portion of union dues.  The plaintiffs in Friedrichs prefer not only to make all union dues optional, but to change the default dues setting to “not contribute,” forcing members to take affirmative action to allocate any money at all to the union.

Building on Abood’s holding that public sector unions cannot compel employees to contribute to any “ideological cause,” the plaintiffs in Friedrichs assert that the distinction between collective bargaining activity and ideological lobbying activity undertaken by a public-sector union is a meaningless one.  They make four arguments in this vein:

1) They assert that “the broad fiscal impact of bargaining about wages and benefits makes it political speech about public affairs” (emphasis theirs). In other words, they note that public schools are funded by taxes, and that teacher compensation is a large part of what is covered by that funding.  Since the allocation of tax dollars is a matter of public importance and collective bargaining influences that allocation, they argue that collective bargaining must be considered political.

2) They contend that, because collective bargaining often pertains to matters debated in the education policy world, it is inherently political.

3) They argue that because the political activity of California’s teachers unions sometimes focuses on issues that are also collectively bargained (laws related to teacher employment, for example), it is absurd to argue that collective bargaining is somehow different from lobbying.

4) They assert that recent legal precedent suggests broad acknowledgment that the reasoning in Abood was incorrect, and that Harris v. Quinn in particular implies that the time is ripe for overturning Abood.

In the plaintiffs’ view, rules about inherently political activities like collective bargaining constitute a violation of employees’ free speech rights.

Part of this argument is bizarre on its face, as evidenced by the plaintiffs’ suggestion that union negotiations about class size and teacher employment protections are analogous to “threats to ‘blow off their front porches’ during a labor dispute or protest signs declaring that ‘God Hates Fags.’”  However, the plaintiffs are correct that recent legal precedent has significantly weakened Abood – given the makeup of the current Supreme Court (which is responsible for that precedent), it wasn’t a surprise that the Court decided to hear Friedrichs.

The plaintiffs also make a legitimate point about the fuzzy distinction between political and nonpolitical activity, but they ignore the fact that we draw seemingly arbitrary lines between the two all the time.  For example, many large corporations have lobbyists who fight against unions and labor standards, charitable arms that donate to organizations that undermine unions and labor standards, and managers who discourage unionization (both legally and illegally) at their stores – each of these activities is overlapping and affects the public interest, but only the first is typically classified as political.  Or consider the artificial division between the “news” and “editorial” teams at mainstream media outlets: “news” reports contain a plethora of implicit assumptions in them, but only editorials are technically considered political.

The activities classified as nonpolitical above can have a substantial fiscal impact; corporations that offer low wages and meager benefits increase the need for government support of low-income workers, for instance, and news articles exert a major influence on public policy debates.  For this reason, the plaintiffs’ arguments, if accepted, could potentially invalidate a whole lot of rules that differentiate political from nonpolitical activity.  It would simply be incorrect to suggest that Walmart and the Wall Street Journal engage in nonpolitical activities and unions don’t.

There is a legitimate question of where to draw the line between political and nonpolitical speech.  But even if there were a coherent argument about why public sector negotiations about working conditions should be considered more political than other forms of speech mentioned above (a condition that doesn’t appear to be satisfied), such an argument would still present an intractable problem: if accepted, it would likely restrict the ability of managers to discipline employees.  As Ian Millhiser explains at ThinkProgress, even Antonin Scalia foresees this potential problem (though that certainly doesn’t mean he’d be unwilling to rule against unions in Friedrichs) – if contributions to collective bargaining can violate an employee’s free speech rights, employer rules about the discussion of compensation packages and working conditions almost certainly can as well.

Fine – The “Political Speech” Argument Doesn’t Hold Water.  But Why Shouldn’t Nonmembers Be Allowed to Opt Out of Chargeable Spending?

The Supreme Court held in Abood that unions could collect an “agency fee” (the portion of dues that funds chargeable union spending) from nonmembers for two primary reasons:

1) The promotion of “labor peace:” The government has an interest, according to the Court’s opinion in Abood, in minimizing the potential for conflict between employees. The agency fee helps ensure that an employer will negotiate with one and only one bargaining unit, thus reducing the likelihood of employee disputes.

2) The prevention of “free rides:” Teachers unions cannot exclude nonmember teachers from the contracts they negotiate – all teachers, whether they are members or not, reap the benefits of the higher wages, better benefits, improved working conditions, and employee rights that unions secure. Without the agency fee, union members would be forced to subsidize the benefits of nonmembers.

The plaintiffs in Friedrichs contend that these reasons are not compelling.  They argue that, while labor peace concerns should prevent multiple, rival unions from co-existing, “the fact that public employers have an interest in dealing with one union rather than many…does not justify the additional and quite different proposition that the state can force all employees to support that one union [unless] ‘free riding’ would cause the extinction of the exclusive union” or if it would lead to a loss of benefits for the free-riding members.  Teachers unions, the plaintiffs argue, cannot (and have not even tried to) show that the invalidation of agency fees would weaken nonmembers’ benefits or threaten the unions’ existence.

The plaintiffs in Friedrichs also argue that it is the norm for advocacy groups to secure benefits for nonmembers – because “free riding” is allowed for doctors who don’t join the American Medical Association, they contend, it should be allowed for teachers as well.  They assert that whether or not coverage under union-negotiated contracts is even a benefit for nonmember teachers is debatable, as collectively-bargained contracts may include components (like the provision of retirement benefits or certain salary structures) with which nonmembers disagree.

Mainly because they believe labor peace and free rider concerns cannot justify what they term “compelled speech,” the plaintiffs in Friedrichs insist that “Public-Sector Collective Bargaining Would be Unconstitutional Even If It Were Not Core Political Speech.”

Yet there are several gaping holes in the plaintiffs’ arguments.   First, teachers unions could actually mount a clear and compelling case that the invalidation of agency fees would cause substantial harm to their operations.  Unions in states that have restricted collective bargaining are reeling; in Wisconsin, for example, where Governor Scott Walker initiated an anti-union crusade in 2011, compensation has fallen by 10 percent for members of the Wisconsin State Employees’ Union.  NEA membership in the state has fallen by a third and AFT membership by half.  Those are probably some of the reasons why both proponents and opponents of Friedrichs assert, in most articles written about the lawsuit, that it presents an existential threat to teachers unions.  To be fair, unions that step up their organizing efforts and effectively advertise how they benefit workers may be able to remain relevant even if the lawsuit proves successful (AFSCME, the SEIU, the NEA, and AFT are already focused on doing so), but a ruling in the plaintiffs’ favor would clearly make organizing significantly harder.

Second, the plaintiffs’ claim that union-negotiated contracts might harm rather than benefit some nonmembers is a red herring (and debatable, though let’s assume it’s true for the purposes of this argument).  While some nonmembers might think they could obtain more attractive compensation packages and better working conditions by negotiating independently with their school districts, members on the whole are definitively better off (in terms of compensation and working conditions) because of the union.  And there isn’t a multi-issue advocacy organization in the world, the American Medical Association included, in which every person covered under the group’s advocacy supports every action the group takes.

This claim also misses a key point about public goods: people must sometimes contribute to things they might not want because other people depend on their contributions.  To take the most obvious example, I support very little of our government’s defense spending, but I still have to pay the portion of my taxes that fund it.  Similarly, individuals who don’t want health insurance must still buy it, as taxpayers would otherwise be forced to subsidize their care. In both of these scenarios, as in the union case, allowing people the option to decline to fund part or all of the given service would make the whole system worse for those who depend on it.  Whether an individual wants everything in a collectively-provided service is less relevant than both whether that individual’s contribution is necessary for sustaining the service and whether the service is an important one to provide.

Nor are such mandated contributions limited to the public sector.  As Gordon Lafer explains, lawyers must pay mandatory fees to practice law and condominium owners are required to pay association fees.  Lafer also observes:

[E]mployer associations themselves refuse to live by the same rules they seek to impose on unions.

In Owensboro, Kentucky, the local Building Trades Council decided to withdraw its membership in the local Chamber of Commerce, but asked if it could still receive full member benefits even though it would no longer be paying dues. Absolutely not, answered the Chamber. “It would be against Chamber by-laws and policy to consider any organization or business a member without dues being paid. The vast majority of the Chamber’s annual revenues come from member dues, and it would be unfair to the other 850+ members to allow an organization not paying dues to be included in member benefits.”

Third, the whole idea that contributions to collective bargaining constitute “compelled speech” is preposterous.  While individuals who want to work as teachers in most traditional public schools today must pay the agency fee and accept the terms of their collectively-bargained contracts, individuals who want employment in any job must accept contracts that contain a variety of demands from their employers. Whether they’re negotiated by worker representatives or mandated by employers without union input, conditions of employment are conditions of employment.

Put differently, the plaintiffs are arguing that a school district can legally require its teachers, if they want to stay employed, to teach 35-student classes, to supervise events without pay after the school day is over, to attend meetings that they don’t think will help them improve their teaching, and to accept whatever salary the district is willing to offer.  But the same district cannot legally require its teachers to allocate a portion of their salaries to a group that negotiates those terms of employment on the teachers’ behalf.  According to the plaintiffs, employers can make employees follow rules unless one of those rules ensures that employees have a say over the rules they have to follow.  Such a position plainly has nothing to do with free speech and everything to do with views about who should have power in employer-employee relationships.

In short, requiring nonmember teachers to pay the agency fee is perfectly reasonable and similar to a range of practices in both the public and private sectors.  Teachers unions fulfill a variety of very important roles, many of which would be difficult to impossible to fulfill without the agency fee requirement.

Okay, Okay!  I Get That It’s Reasonable to Require the Agency Fee.  Can’t We At Least Change the Agency Fee Payer Process?

The plaintiffs in Friedrichs conclude by arguing that, at the very least, CTA’s requirement that dissenting teachers opt out of nonchargeable (political) dues each year is unconstitutional.  They assert that teachers should ideally have to opt in to nonchargeable dues and should definitely not have to renew their objections to such dues each year.

Enter Bain v. California.  The plaintiffs in Bain do not challenge the existence of the agency fee. They write: “The categorization of expenses as “chargeable” or “non-chargeable” is not at issue in this action. Plaintiffs do not object to paying the chargeable portion of dues as a condition of union membership.”  Instead, they contest the loss of union membership associated with opting out of nonchargeable dues.  The core argument from the Bain plaintiffs’ preliminary statement reads as follows:

9. Teachers who wish to remain members of their unions must contribute to both the unions’ “chargeable” and “non-chargeable” expenditures. In other words, every teacher who is a union member is forced to fund the unions’ political and ideological activities.

10. Resigning union membership has significant adverse consequences for a teacher. By becoming a non-member, a teacher is forced to give up important employment-related benefits that are available only to union members. For example, a non-member teacher is forced to forgo the ability to participate in the unions’ disability insurance program (including insurance that is necessary for full maternity-leave compensation), legal representation in cases of employment disputes, death and dismemberment compensation, and disaster relief, among many other benefits.

11. The teachers’ unions ensure that these employment-related benefits are available only to their members, and not to non-members, despite their obligation to negotiate equally on behalf of all teachers…Indeed, the unions use their exclusive bargaining status to ensure that these benefits are not provided by the employer, and therefore not available to non-members, so that teachers are deterred from (and penalized for) exercising their First Amendment right to opt out of contributing to the unions’ political and ideological expenditures.

12. In addition, by becoming a non-member, a teacher is forced to give up her ability to vote in elections that determine the union’s leadership and its collective bargaining position, and prevented from voting on employment-related matters, such as whether to adopt the collective bargaining agreement that determines the terms of teachers’ employment.

13. Because of these substantial employment-related benefits and voting rights that are available only to members, many teachers who do not wish to contribute to the unions’ political or ideological activities are effectively compelled to abandon their First Amendment rights and join (or remain members of) the unions. By punishing teachers for—and deterring teachers from—exercising their First Amendment rights, this arrangement violates the First Amendment.

14. Plaintiffs are public school teachers who wish to retain the employment- related benefits and voting rights that come with union membership, but also wish to exercise their First Amendment right to avoid contributing to the unions’ political or ideological activities. They seek the same right to opt out of funding the unions’ political and ideological activities that non-members have. They should not be forced to make the untenable choice of either (a) abandoning their First Amendment rights or (b) abandoning the employment-related benefits and voting rights the unions secure only for their members.

This argument would be pretty convincing if key parts of it weren’t misleading and/or untrue.

First, the Bain plaintiffs’ claims about benefits available exclusively to members are deceptive.  For example, they assert that “legal representation in cases of employment disputes” falls into this category.  While that’s technically correct – nonmembers do not have access to CTA lawyers – the plaintiffs fail to mention that union representation when a teacher has a grievance, which is sufficient in most cases, is provided to members and nonmembers alike.

Another example is maternity leave, which the plaintiffs in Friedrichs also mention.  Though CTA does not provide nonmembers with the same opportunity as members to purchase a specific disability insurance package that covers maternity leave, nonmembers have the opportunity to purchase very similar plans on the individual market.  Importantly, the complaints in both lawsuits omit the fact that the basic parental leave all employers in California (with 50 or more employees) are legally obligated to provide – up to twelve weeks of leave during which an employee still has health insurance coverage and a guaranteed job when she returns – are only available because of the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA), which unions were instrumental in helping to pass in 1993 (they also played a major role in securing California’s Family Temporary Disability Insurance program, which workers can use concurrently with the leave under FMLA and CFRA, in 2002).  In addition, some local teachers associations secure additional parental leave benefits, which go beyond those guaranteed by FMLA and CFRA, from their school districts.

In other words, the maternity leave “benefits” referenced by the plaintiffs are hardly benefits at all and are significantly less important than the benefits teachers unions are fighting to strengthen all the time.  The Bain plaintiffs’’ assertion that “unions use their exclusive bargaining status to ensure that [certain employment-related] benefits are not provided by the employer” is a blatant fabrication.

The deception here actually runs even deeper: while there’s no evidence that unions try to restrict benefits available to employees, the employers the Bain legal team typically represents do engage in that kind of behavior.  Lead attorney Theodore Boutros’s bio, for instance, proudly touts his role in helping to ensure that Walmart would not be held accountable for sex discrimination (resulting in lower pay and fewer promotions) against over 1.5 million women in 2011.  And the organization behind Friedrichs, the Center for Individual Rights, has strong ties to individuals and organizations, like the Koch Brothers and ALEC, that routinely put the kibosh on paid leave initiatives (not to mention workers’ abilities to secure a decent living).

The hypocrisy aside, the plaintiffs have their seemingly most legitimate argument when it comes to agency fee payers’ loss of voting rights – in some respects, there’s an important debate to be had about this practice.  Agency fee payers contribute to the unions’ collective bargaining activities, and since most union votes have a significant impact on collective bargaining, one could argue that agency fee payers deserve the right to vote in union elections.  Though letting agency fee payers vote might exacerbate the free rider problem, forcing teachers to choose between contributing to disliked political spending or losing the ability to vote seems unfair.

The problem with that formulation, however, is that it’s based on a false choice.  As explained earlier, teachers in districts represented by CTA can opt out of contributing to nonchargeable expenditures while remaining full-blown union members – with the right to vote and the ability to purchase CTA’s preferred disability insurance package – if they check a box on a simple one-page form.  Teachers who exercise this option will still pay full union dues, but all the money they contribute will go towards the unions’ chargeable expenditures, which the Bain plaintiffs (unlike the plaintiffs in Friedrichs) admit they aren’t contesting.

This option is actually a much better solution to the plaintiffs’ manufactured problem than is agency fee payer – it lets teachers opt out of contributions to nonchargeable expenses while simultaneously addressing the free rider concern.  Its very existence should nullify the lawsuit.  In fact, it’s probably a large part of why a judge dismissed Bain in September.  Unfortunately, however, the plaintiffs plan to continue pursuing the case.

What It Boils Down To

The fact that Friedrichs and Bain rely on a variety of misleading and/or dishonest claims illustrates what’s really driving these lawsuits. They aren’t about free speech or free choice and they’re not about constructing sensible policy.  Instead, they’re about undermining organized labor and further diminishing union strength and worker bargaining power.

For wealthy interests who benefit when workers lose and those congenitally opposed to teachers unions, these lawsuits are thus welcome.  But those who truly care about workers’ rights and are interested in the facts would do well to oppose both Friedrichs and Bain.

*Unions were also instrumental in

Note: A version of this post originally appeared in The Washington Post.

Update (12/5/15): This post was revised to note that unions also helped secure California’s Family Temporary Disability Insurance program in 2002.

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Filed under Education, Labor

What’s Wrong with the Democratic Party

Two things that happened this week illustrate much of what’s wrong with the Democratic party.

First, Hillary Clinton campaign spokesman Brian Fallon doubled down on Clinton’s commitment, voiced at the last Democratic debate, to avoid any tax increases at all on the “middle class.”  Second, the Service Employees International Union (SEIU) endorsed Clinton for president.

Taken together, these events demonstrate a long-term problem that plagues Democrats and prevents the growth of a truly power-balancing agenda: the prioritization of political opportunism over principled policymaking.  Despite the presence of an increasingly viable progressive alternative, Democrats continue to lean against their own interests in the mistaken belief that it will help them win elections. Then they wonder why we’re stuck with rising inequality and a political system rigged against the majority of the population.

For starters, Clinton’s and Fallon‘s attacks on Sanders’ single-payer health care proposal were wildly misleading.  Fallon cited a scary-sounding statistic about the cost of Sanders’ plan when it would actually save Americans significant amounts of money: taking private insurers out of the mix would lower overall health care costs and thus boost disposable income for most Americans.  Clinton gave a similarly disingenuous description of Sanders’ plan at the debate – she said Sanders would “eliminate Medicare” when he would actually expand it (in fact, Sanders frequently touts his plan as “Medicare for All”).

Fallon is right to insist that “the wealthiest Americans finally start paying their fair share” – higher taxes on the rich could raise a sizable amount of money and are an appropriate first step – but it’s unlikely that policymakers could make the investments America needs without at least some additional contribution from the bottom 96 percent of families, the members of which, at least in Fallon’s mind (see table FINC-07), are all apparently included under the heading of “middle class.”  (It’s also relevant that Sanders, much to Donald Trump’s chagrin, is far more committed to making the wealthy “pay their fair share” than is Clinton, perhaps because wealthy donors bankroll Clinton’s campaign.)

Social Security and Medicare, two of our most important and effective government programs, are financed by payroll taxes that hit the actual middle class, as would be paid family leave legislation introduced by Senator Kirsten Gillibrand (of which Sanders is a co-sponsor).  Complaints about taxes that pay for these sorts of programs are supposed to come from Republicans, not the Democratic frontrunner.  The Clinton campaign’s anti-tax rhetoric obscures the fact that social spending is well worth taxpayer dollars; it lends credence to attempts to gut government revenue sources and slash important programs.

Unions can’t be fans of such rhetoric, as it spells trouble in the long-run for both their members and the disadvantaged populations for whom they advocate.  Compared to Clinton, Sanders also has a much better record and equivalent or better policy positions on just about every issue that unions care about.  Yet the majority of national unions to endorse so far have jumped on the Clinton bandwagon (the exceptions are National Nurses United and the American Postal Workers Union).

Why are unions endorsing the candidate less in sync with their interests?  The most likely reason is (what they believe to be) political pragmatism.  It’s natural to want to be remembered as early allies and to want to be as involved as possible in Clinton’s policymaking process; especially if they believe a Clinton victory to be inevitable, unions may view an early endorsement as the best way to curry favor with and influence the platform of the eventual nominee.

This perspective isn’t crazy; the American Federation of Teachers in particular, the first major union to endorse Clinton, has almost certainly had a hand in Clinton’s “evolving” rhetoric on education policy.  Union endorsements probably also played a role in Clinton’s reversal on the Trans-Pacific Partnership.

At the same time, the unions’ political calculus undermines progressive goals.  It sends a terrible message to both Clinton and the Democratic Establishment: that even in the primary, unions care more about backing the anointed frontrunner than they care about working for candidates who actually fight for their values.  As Glenn Greenwald observed several years ago:

There’s a fundamental distinction between progressives and groups that wield actual power in Washington: namely, the latter are willing (by definition) to use their resources and energies to punish politicians who do not accommodate their views, while the former unconditionally support the Democratic Party and their leaders no matter what they do…Any self-interested, rational politician — meaning one motivated by a desire to maintain power rather than by ideology or principle — will ignore those who behave this way every time and instead care only about those whose support is conditional.

Union support for Clinton is also misguided because Sanders can definitely win both the primary and the general election.  He’s significantly more popular than Clinton among independents, White voters, and young people and has better overall net favorability ratings.  While Sanders is currently much less popular than Clinton among Black and Latino voters, that’s in large part due to a lack of exposure and name recognition.  As Cornel West notes, his support should grow “once Black [and, I’ll add, Latino] people find out who Brother Sanders is.”

This year’s primary election is, in many ways, a referendum on the soul of the Democratic party.  Will the party’s main virtue continue to be what it isn’t (as crazy as the Republicans)?  Or will the Democrats begin to live up to the principles they purport to stand for?  We won’t know for at least a few months, but in the meantime, both the Clinton campaign and union leaders should take a long, hard look in the mirror.

lesserofevils

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Filed under 2016 Election, Labor, US Political System

Hillary Clinton’s Less than Stellar Record on Trade

In this post, Part 4 in a series on Democratic presidential candidate Hillary Clinton, Emilio da Costa describes Clinton’s record on international trade and business issues. Emilio, who holds a master’s degree in City and Regional Planning from Berkeley and a bachelor’s degree in Urban Studies from Stanford, can be contacted on Twitter or by email.

Emilio da Costa

Emilio da Costa

During her career in government, Hillary Clinton has routinely prioritized the interests of corporate profiteers while neglecting the rights of workers. Her support of so-called “free trade” agreements in particular illustrates where her priorities lie.

While in the Senate, for example, Clinton backed agreements with Chile, Singapore, and Oman despite their clear lack of labor protections. As David Sirota and Matthew Cunningham-Cook reported for the International Business Times:

At the time, the AFL-CIO said, “The labor provisions of the Chile and Singapore FTAs will not protect the core rights of workers, and represent a big step backwards.” The union federation also opposed the deal with Oman. Its president, John Sweeney, noted that “the State Department has identified Oman as a destination country for men and women who become victims of  trafficking and forced labor.”

In some cases, Clinton even directly worked against improved labor standards for workers in other countries. In a piece for The Nation, Dan Coughlin and Kim Ives utilize content from cables obtained by WikiLeaks to describe how Secretary Clinton’s State Department lobbied the Haitian president to help multinational clothing retailers undermine a minimum wage increase unanimously passed by the Haitian Parliament:

Contractors for Fruit of the Loom, Hanes and Levi’s worked in close concert with the US Embassy when they aggressively moved to block a minimum wage increase for Haitian assembly zone workers, the lowest-paid in the hemisphere, according to secret State Department cables.

The factory owners told the Haitian Parliament that they were willing to give workers a 9-cents-per-hour pay increase to 31 cents per hour to make T-shirts, bras and underwear for US clothing giants like Dockers and Nautica.

But the factory owners refused to pay 62 cents per hour, or $5 per day, as a measure unanimously passed by the Haitian Parliament in June 2009 would have mandated. And they had the vigorous backing of the US Agency for International Development and the US Embassy when they took that stand.

To resolve the impasse between the factory owners and Parliament, the State Department urged quick intervention by then Haitian President René Préval.

“A more visible and active engagement by Préval may be critical to resolving the issue of the minimum wage and its protest ‘spin-off’—or risk the political environment spiraling out of control,” argued US Ambassador Janet Sanderson in a June 10, 2009, cable back to Washington.

Two months later Préval negotiated a deal with Parliament to create a two-tiered minimum wage increase—one for the textile industry at about $3 per day and one for all other industrial and commercial sectors at about $5 per day.

Clinton’s record is very similar when it comes to the most recent “free trade” agreement – the Trans-Pacific Partnership (TPP). The TPP has been the subject of well-deserved scrutiny, and not just from “liberals” like the Economic Policy Institute’s Robert E. Scott, Senators Elizabeth Warren and Bernie Sanders, and former US Labor Secretaries F. Ray Marshall and Robert Reich. Former US Treasury Secretary Larry Summers, the economist famous for, among many things, his role in the deregulation of the US financial system, has also raised doubts about the merits of the agreement. Here’s Summers in a surprisingly populist op-ed for The Washington Post:

First, the era of agreements that achieve freer trade in the classic sense is essentially over. The world’s remaining tariff and quota barriers are small and, where present, less reflections of the triumph of protectionist interests and more a result of deep cultural values such as the Japanese attachment to rice farming… A reflexive presumption in favor of free trade should not be used to justify further agreements. Concerns that trade agreements may be a means to circumvent traditional procedures for taking up issues ranging from immigration to financial regulation must be taken seriously…

[The US economy] has supported the greatest economic progress in the history of the world in emerging markets and is working spectacularly well for capital and a cosmopolitan elite that moves easily around the world. But being pressed down everywhere are middle classes who lack the wherewithal to take advantage of new global markets and do not want to compete with low-cost foreign labor. Our challenge now is less to increase globalization than to make the globalization we have work for our citizens.

In that respect, the TPP doesn’t look good. Scott discusses how free trade has historically depressed US wages and why the lack of enforceable currency provisions in the agreement could lead to job losses. Reich and Marshall caution that its “patent provisions risk delaying or even preventing generic competition, thus keeping lifesaving medicine out of patients’ hands.” Warren details how the agreement’s Investor State Dispute Settlement (ISDS) provisions “would allow big multinationals to weaken labor and environmental rules” and why, despite the fact that the “TPP is being hailed as the strongest free trade agreement yet,” our terrible enforcement record when it comes to previous agreements (and the same empty promise being made over and over again) belies that claim.

What does all of that have to do with Clinton? As Sirota and Cunningham-Cook note, Clinton was a strong supporter of the TPP during negotiations:

In a 2012 speech in Australia, Clinton referred to TPP as “the gold standard in trade agreements to open free, transparent, fair trade, the kind of environment that has the rule of law and a level playing field. And when negotiated, this agreement will cover 40 percent of the world’s total trade and build in strong protections for workers and the environment.”

But that was just one speech, right? Wrong.

In a 2012 speech in Singapore, Clinton explicitly promoted the TPP as an initiative that “will lower barriers, raise standards, and drive long-term growth across the region.” She also used the collective “we” in describing the work being done on the pact, saying, “we are making progress toward finalizing a far-reaching new trade agreement called the Trans-Pacific Partnership.” She also said “we are offering to assist with capacity building, so that every country in ASEAN can eventually join.” The video of the key part of her speech can be seen here:

In fact, even CNN, which judging from the recent Democratic primary debate seems to unabashedly favor Clinton, published an article listing 45 times that Secretary Clinton pushed the very trade bill that she now claims to oppose.

Her flip-flop, as Sirota and Cunningham-Cook note, is typical:

Clinton has a history of abruptly changing positions on trade policy. When running for president in 2008, she criticized the North American Free Trade Agreement, despite reports that she supported it while her husband was president. Clinton also pledged to oppose a proposed free trade agreement with Colombia. Only two years later, as secretary of state, she backed that deal while her family’s foundation received money from a Colombian oil firm and its founder.

Though she has tried to justify her reversal this time around, her claims are unconvincing. As Tim Lee explained at Vox:

In the interview with PBS’s Judy Woodruff where she came out against the treaty, she cited two specific objections: It doesn’t have language dealing with currency manipulation, and it has provisions that favor big drug companies over patients.

These are totally plausible arguments for opposing the TPP. But they make no sense as reasons for Clinton to change her mind about the treaty.

Why not? Because, as Lee describes, the “pharmaceutical language in the TPP is better than expected” and “currency manipulation was never going to be part of the TPP.”  If Clinton was serious when she lauded the “gold standard” TPP for “free, transparent, fair trade” in 2012, she should be even more supportive of the deal now.  Instead, the minute that the TPP became widely unpopular, she changed her position, saying that it didn’t meet the “high bar” she had set for it.

I can only draw three logical conclusions from these remarkable contradictions:

  1. Clinton had not read the TPP prior to making her “gold standard” statement and was blindly supportive of it.
  2. She did read it, and she honestly believed what she said in 2012, but is now willing to falsely appear critical of it.
  3. She did read it, her statement in 2012 was a total lie, and now it’s in her interest to lie again and appear concerned.

Unfortunately, none of these conclusions give me any reassurance that it would be a good idea to entrust Clinton with more political power.

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Organized Labor Should Endorse Bernie Sanders

The National Education Association (the union to which I used to belong) is considering an early endorsement of Hillary Clinton.  This decision, like the American Federation of Teachers’ endorsement of Clinton on July 11, would be a huge mistake.

One reason is that it would violate members’ trust.  As Peter Greene, Steven Singer, and Anthony Cody have noted, teacher voice is too often ignored in education reform conversations.  If the NEA follows the AFT and makes a presidential primary endorsement without ample membership involvement, its teachers will feel silenced by their own union.  Not only would that likely depress voter mobilization efforts and spark a backlash within the union, it also runs counter to the very principles of what a union is supposed to be.

An early Clinton endorsement would also be a mistake because she’s a suboptimal candidate.  While Clinton is far more union-friendly than anyone running for the Republican nomination, her labor credentials are significantly worse than her main challenger in the Democratic primary, Vermont Senator Bernie Sanders.

Sanders has been a steadfast union supporter since the 1970s.  His advocacy on behalf of workers as mayor of Burlington, Vermont in the 1980s helped foster the growth of the city’s socially-responsible business culture.  “Thanks to the enduring influence of the progressive climate that Sanders and his allies helped to create in Burlington,” The Nation reported in June, “the city’s largest housing development is now resident-owned, its largest supermarket is a consumer-owned cooperative, one of its largest private employers is worker-owned, and most of its people-oriented waterfront is publicly owned. Its publicly owned utility, the Burlington Electric Department, recently announced that Burlington is the first American city of any decent size to run entirely on renewable electricity.”

Sanders has continued to advocate for the same causes in Congress over the past 25 years.  In 1994, for example, he introduced the Workplace Democracy Act, legislation designed to strengthen collective bargaining rights.  He currently supports the Employee Free Choice Act, which would make it easier for workplaces to hold union elections, and plans to introduce a new Workplace Democracy Act this fall.  He has “convened annual meetings of labor activists to help them develop more successful organizing and bargaining strategies” and still walks picket lines with workers.

To be fair, Clinton also supports the Employee Free Choice Act.  Her campaign rhetoric is pretty pro-union, and the promises she makes in her video to NEA members don’t sound all that different than those made by Bernie (videos below).

But Clinton’s record is significantly worse than Sanders’.  She served on the board of directors of Walmart – which to this day remains one of the nation’s most notoriously anti-union businesses – from 1986 to 1992, for instance.  According to reports that surfaced in 2008, Clinton sat through dozens of board meetings without ever speaking up on behalf of organized labor.  Instead, she stated that she was “proud of Wal-Mart and what we do and the way we do it better than anybody else.”  Though she has since renounced Walmart’s business practices, Clinton maintains close ties with Walmart executives and lobbyists.  And during her presidential campaigns, she’s surrounded herself with staffers who have troubling anti-union connections.

The following meme, describing cumulative donations the candidates have received over the past thirty years, is illustrative:

Clinton has worse policy positions on key union issues as well.  Bernie Sanders has been a leader in the effort to oppose the Trans-Pacific Partnership, a “free trade” deal that could undermine environmental and consumer safety protections and have harmful impacts on workers both in the US and abroad; Clinton, despite recent attempts to distance herself from the TPP, was heavily involved in negotiating and promoting it.  Sanders has been a vocal proponent of a $15-an-hour federal minimum wage by 2020, which workers around the country are campaigning for; Clinton long resisted taking a specific position on the issue and only recently spoke favorably about raising the federal minimum to $12-an-hour.

Sanders’ positions on education issues also tend to be more power-balancing than Clinton’s.  Both candidates have called for universal pre-K and increased college affordability, but while Sanders believes education is a right that should be guaranteed free of charge to all students, Clinton hypocritically opposes free college for “kids who don’t work some hours to try to put their own effort into their education.”  At the K-12 level, Sanders also has a stronger vision and record. After initially supporting the House of Representatives’ version of No Child Left Behind in May of 2001, he voted against the final version of NCLB that year because he foresaw problems with “the bill’s reliance on high-stakes standardized testing to direct draconian interventions;” Clinton, on the other hand, cast her vote in favor of NCLB.  Sanders believes that “the federal government has a critical role to play” in education policy, one that includes “guaranteeing resource equity,” “increased emphasis on a well-rounded curriculum,” and providing “the resources necessary to provide effective professional development;” Clinton might not necessarily disagree, but while Sanders asserts that he will “direct education funding toward the low-income students who need it most” in his response to the AFT’s candidate questionnaire, this commitment is noticeably absent from Clinton’s writeup.

In fact, on practically every topic – from criminal justice issues to health care to foreign policy – Sanders has Clinton beat.  His platform isn’t perfect, but it’s far and away more in line than Clinton’s with what typical Democratic voters profess to want.  As far as I can tell, nobody at the AFT (or NEA) actually argues that Clinton has better policy positions than Sanders; their endorsement processes seem to be driven by the belief that Clinton is more electable.

The problem with that thinking is twofold.

First, Sanders is actually just as electable, if not more so, than Clinton.  In national polls that pit potential Democratic nominees against potential Republican nominees, Sanders and Clinton do about as well as each other.  If Sanders had anything like Clinton’s name recognition, he’d almost certainly outstrip her; among voters who know who he is, Sanders’ favorability is much higher than Clinton’s (see page 5).  He’s shooting up in Democratic primary polls as more and more voters learn about him and now holds sizable leads in New Hampshire, Iowa, and Oregon.  College students prefer Sanders to Clinton by more than a 3-to-1 margin, policy positions like the ones he holds are wildly popular across the board, and his campaign is showing no signs of losing momentum.

Second, the biggest impediment to a Sanders victory is none other than the political calculus the unions seem to be engaged in.  Politicians are electable if people are willing to support them, while concerns about electability generally undermine progressive goals and become self-fulfilling prophecies.  Rather than settling for Hillary Clinton because they – erroneously – think she’s the best that people will buy, unions should rally behind the better candidate – Bernie Sanders – and start selling him to the American public.

Labor for Bernie, a grassroots movement started by rank-and-file union members, could ultimately prove more important than endorsements from the major national unions.  And Sanders already has the support of National Nurses United.  Nonetheless, it’s incumbent upon NEA leadership, and the leaders of other major unions, to start paying attention to why so many union members feel the Bern.  Sanders, much more than Clinton, deserves organized labor’s official support.

Update (10/3/15): The NEA endorsed Clinton – without any explanation of why members should prefer her to Sanders.

Update (10/26/15): For those interested in the analysis behind the updated meme below, which compares donations during the 2016 presidential campaigns alone, see this post.

Bernie Hillary Meme

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Filed under 2016 Election, Labor, US Political System

Social Justice Unionism, Education On Tap Style

I recently discussed why teachers unions are important agents of social justice on “Education On Tap,” a Teach For America (TFA) podcast created by Aaron French. I really enjoyed the conversation – French goes above and beyond his promise to make the show “a little bit of fun” – and appreciated TFA’s continued (though still very young) efforts to deconstruct myths about organized labor and education reform ideas.

You can listen to the podcast below:

A couple additional details on two of the topics we discussed:

1) How we refer to education stakeholders: We often use the phrase “reformer” to describe people on one “side” of the education debate. As Nick Kilstein explains, we typically think “reformers” do the following:

1. Support market forces including choice and competition as a mechanism to improve all schools. This is usually done through vouchers and charter schools.

2. Support business practices including evaluation, promotion and merit pay to motivate and attract teachers

3. Hold that teachers and schools should be accountable for student achievement, usually measured by standardized testing

4. Support alternate paths to the classroom through programs like Teach For America

5. Affiliate themselves with no-excuses charter schools

However, neither French nor I (nor Kilstein) are crazy about this term, for a few reasons. First, the group of people we call “reformers” sometimes have drastically different views on these topics. For example, opinions about the appropriateness of suspending students vary widely among people who support the rapid expansion of charter schools. Because “reformers” don’t hold monolithic views, it doesn’t make a ton of sense to lump them all into the same category.

Second, using the term “reformers” erroneously suggests that only a certain group of people support school improvements. However, teachers in unions and other critics of typical education reform efforts fight for school reforms themselves; they just have a different (and, on balance, more evidence-based and theoretically sound) perspective about which reforms we should pursue on behalf of students in low-income communities. Despite misleading claims to the contrary, very few people actually support the “status quo” in education. Though the word has become associated with negative imagery for a lot of education stakeholders, nearly everyone is a “reformer” to some extent.

Third, the use of a term like “reformers” reinforces the notion that there are two polarized “sides” in education debates, the “reformers” and their opponents. As I discussed with French, I believe the “sides” are much less in opposition than they sometimes appear to be, and that most people in education are in general agreement on the vast majority of issues. The more we can deconstruct the notion of “sides,” the better.

That said, I don’t have a great solution to either the first or third problems (for the second, I’d recommend that we use clunkier phrases more like “proponents of market-driven reforms to education” and “advocates for a comprehensive social justice approach to education policy” when we can). Categories can be useful for brevity’s sake, and as is evident below, it’s hard to construct an argument while avoiding categorization altogether. Still, I think it’s worth reflecting on our naming conventions as we endeavor to be more nuanced.

2) Why unions are power-balancing advocates for low-income kids: French explained during our discussion that many people believe the San Jose Teachers Association (SJTA, the local union for which I served as an Executive Board member from 2012 to 2014) to be an atypically progressive union. In reality (and I believe French agrees), the vast majority of unions, including national teachers unions like the National Education Association (NEA) and American Federation of Teachers (AFT), are some of the most power-balancing institutions out there.

Recent research by Martin Gilens confirms this fact: unions consistently advocate on behalf of less advantaged populations on a wide range of social justice issues. They serve as an important counterbalance to wealthy interests and exploitative policies, and have made extremely important gains for working Americans throughout their history. It’s probably not a coincidence that the steep decline in unionization over the past thirty years has coincided with a steep increase in earnings, income, and wealth inequality.

That doesn’t mean unions can’t be wrong on certain issues. We should absolutely condemn the behavior of police unions that defend racist positions, for example, and demand that they be held accountable and change. Teachers unions shouldn’t be immune from criticism, either, and it’s imperative that we confront them when we believe their positions are misguided. Not all teachers unions have realized their potential as social justice unions just yet, and while I firmly believe that a different approach from the education community would help more of them do so, organized labor must also proactively analyze and revise practices that don’t fit its mission.

Yet we must also remember that teachers unions have very strong track records on behalf of low- and moderate-income families, and more credibility as advocates for low-income kids than many of the people and organizations who malign unions. Even if you think certain teachers unions are wrong about aspects of education policy, it’s completely inaccurate to argue that their existence harms low-income kids. The empirical evidence is clear (much clearer, in general, than the evidence about education policy ideas) that teachers unions are a major net positive for low-income populations.

There’s joint responsibility to change the tone of education conversations, and union members must avoid becoming reflexively defensive when confronted with criticism. We do ourselves and our students a disservice when we react by ignoring people outright or slinging insults right back; instead, we should try to understand the legitimate elements of critiques, address them, and educate people on where they’re wrong and how to have more productive dialogue.

At the same time, union members and leaders are understandably offended when proponents of market-driven reforms (making an attempt!) imply that union opposition to these reforms is borne of laziness, selfishness, and/or incompetence. Everyone needs to remember that teachers in unions, who are directly student-facing and who will actually implement education reform ideas, typically have good ideas about what students need, and that both private and public sector unions are important advocates for low-income people in general. While there is some shared responsibility, the tone of the debate cannot change until proponents of market-driven reforms acknowledge these facts. The sooner anti-union messaging becomes a thing of education reform conversations past, the sooner we can collaboratively develop great policies for students.

A big thank you to French for having me on the show, and hope you enjoy the podcast!

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TFA, CTA, and What It Means to Be a Union

A former instructional coach and one of only five people selected nationwide as a 2012 recipient of the Horace Mann Award for Teaching Excellence, Jen Thomas is now President of the San Jose Teachers Association (SJTA).  In this post, also destined for the next issue of the California Educator, Jen discusses the California Teachers Association’s (CTA’s) recent cover story about Teach For America (TFA) and the responsibility that comes with being part of a union.

SJTA President Jen Thomas

Jen Thomas

Like any president would be, I was delighted when I received the October edition of the California Educator and saw one of San Jose TA’s members smiling from the cover. Clinton Loo was not only a very talented math teacher, but a member of our local’s governing body: he spent the 2013-2014 school year as our Secretary-Treasurer.

My excitement turned quickly to concern, though, when I saw the title of the article in which Clinton was featured: “Teach for America: Do-gooders or school Rhee-formers?” My concern was the rhetorical choice this framing implied. My colleagues and friends from TFA are either “do-gooders” with the saccharine naiveté that implies, or agents of Michelle Rhee and her intolerable demagoguery.

The October issue of California Educator, featuring TFA alum and former SJTA Secretary-Treasurer Clinton Loo on the cover.

The October issue of California Educator, featuring TFA alum and former SJTA Secretary-Treasurer Clinton Loo on the cover.  

As CTA, this article highlights two serious problems: inadvertently undermining our union brothers and sisters who came to us from the TFA program, and not resolving the problems generated by the organization.

1) CTA members who come from Teach for America should feel that they are as valued and supported as any other teacher entering the classroom.  First and foremost, a teacher is our colleague. We must be united in support of one another, and that starts with being extremely careful with how we frame important questions about the changing political landscape in our profession when these questions can lead to division in our ranks.

2) What are we doing about these issues and are they unique to Teach for America members?

  • High TFA turnover is an issue, but about 50% of all teachers leave in their first five years, driven out by workload, wage stagnation, and the abject failure of our society to prioritize education.  Many TFA corps members stay in San Jose for long past their two-year mandate and often they leave for the same reason any teacher leaves: The job is entirely unsustainable. Our compassion for that should be where we anchor this conversation.
  • No, five weeks training is not enough time to make a quality educator. We’ve also seen teacher training programs of a year or even two years that do not produce teachers ready to face the real strains and struggles of the classroom.  Poor preparation puts a terrible burden on our system; what are we going to do about it?
  • That TFA members don’t become actively involved in the union because they see themselves as education transients is a broad statement and contradicted by our experience in San Jose. Perhaps we are unique, but TFA corps members and alumni don’t deserve to all be painted with the same brush.
  • Where’s our plan to be as strong as Leadership for Educational Equity? Let’s build on our political strength and create a powerful support and training program to elect public officials from the teaching ranks.

Issues of training, policy, and politics; issues of values, arrogance, and teaching as a hobby – all of these are valid and worth a discussion aimed at remedy rather than rhetoric. In the meantime, every CTA member past and present – regardless of how they came to the classroom – should believe that we are united together in support of the work we do for our students, our colleagues, our communities, and our futures.

That’s what it means to be a union.

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The Political Lens: What Global Warming and Wright v. New York Have in Common

During the 2003-2004 school year, my chemistry teacher told my class that global warming wasn’t occurring.  I believed her.  When I attended New Jersey’s Governor’s School of International Studies in the summer of 2005, a professor told me the opposite – the evidence for global warming, and for the human contribution to it, was virtually incontrovertible.  Confused about what to think, I began to research the issue.  I also reached out to some of my other former teachers to ask for their input.

Three things became immediately clear.  First, most popular articles about global warming contained more empty rhetoric than useful information.  The mainstream media, as it far too frequently does, focused not on the truth but on grandstanding and a false sense of balance.  Second, I didn’t know enough climate science to look through a given study’s results and determine their legitimacy.  Third, I didn’t have to – a different approach could tell me everything I needed to know about each study’s likely veracity.

Global warming research falls into two categories: research by legitimate scientists and “research” funded by big energy interestsLegitimate scientists, who have no economic incentive to lie, conclude that global warming is a manmade crisis deserving our immediate action.  The few studies that suggest otherwise are normally sponsored by organizations like Exxon and the American Petroleum Institute, interest groups with billions of dollars invested in the activity responsible for global warming.

As with global warming, knowledge of the individual and organizational incentives behind opposing “sides” of any debate provides us with critical information.  This “political lens,” though not completely foolproof, reminds us that certain claims deserve a larger dose of skepticism than others.  The agendas behind a movement are especially important to consider when we lack in-depth knowledge of a particular issue.

In education policy debates, “reformers” far too often selectively and inaccurately apply the political lens or dismiss its importance.  That dynamic surfaced after Stephen Colbert interviewed former CNN anchor Campbell Brown on July 31. Brown’s organization, Partnership for Educational Justice, had filed Wright v. New York three days before the interview.  Wright, modeled after Vergara v. California, challenges several aspects of teacher employment law.

A small group of teachers, parents, and grassroots organizers showed up to protest Brown’s appearance on the show.  Colbert, responding to the protesters and the Twitter hashtag #questions4campbell, asked Brown about her organization’s funding sources.  Brown refused to disclose her donors.  Amidst the criticism that followed, various stakeholders have rushed to Brown’s defenseThey continue to argue that a focus on Brown’s donors and political affiliations is a “desperate effort to distract from the real conversation” about teacher employment law.

The truth of the matter, however, is that educators would love to focus on substantive conversations about teacher employment law.  Teacher “tenure” and dismissal and layoff procedures, though they are intended to protect both student and teacher access to a positive, productive educational experience, don’t always work as intended.  Unions recognize this problem and recommend legislative improvements that simultaneously address issues with the execution of the laws and preserve their important components.  We also frequently discuss the laws on their merits.  Additionally, student advocates would love to see reformers, unions, and legislators engaged in substantive conversations about how to unite behind and fight for causes that matter considerably more for the lives of low-income students: in-school causes like funding equity and improved teacher support and out-of-school causes like the living wage and immigrant rights.

Unfortunately, pro-Wright propaganda, featured much more prominently in the mainstream media than legitimate arguments for the defense, often drowns out these “real conversations.”  No teacher has a job for life, competent school districts can and do dismiss bad teachers, and there is absolutely no evidence that teacher employment law causes inequities between low-income and high-income schools***, yet relatively large swaths of the American public have bought Brown’s misleading narrative and harbor severe misconceptions about the statutes and their effects.  Brown isn’t leading her crusade with a rigorous analysis of the facts and sound logical argument; instead, she “addresses” the lawsuit’s substantive critiques by ignoring inconvenient statistics and logic and implying that disagreement indicates a disregard for the well-being of children.  It’s hard for the public to understand the nuances of education law and research when Wright supporters prominently and erroneously equate opposition to the lawsuit with the defense of horrible teachers.

Thus while education law and research is arguably less complicated than the science behind global warming, the political lens is equally important to consider in this debate.  It’s theoretically possible that the unions who defend teacher employment law do so to protect teachers who call students names and sleep in class.  And it’s theoretically possible that Campbell Brown and her unnamed donors care more about the lives of low-income kids than do the unionized teachers who work with them every day.  It’s also theoretically possible that Exxon produces more honest research about global warming than does the entire scientific community.  But these theoretical possibilities are all extremely unlikely.

Instead, it’s significantly more likely that Campbell Brown’s donors, like the people who funded Vergara v. California, actively exacerbate economic inequality.  That Wright v. New York and Vergara conveniently allow them to undermine organized labor and distract us from the ways their business and political activities harm the families of the very same low-income students they purport to help.  That teachers in unions care deeply about delivering an excellent education to their students, and that their opposition to the lawsuit stems from its negative narrative, erroneous claims and premises, and failure to provide solutions to the actual causes of teacher quality issues.  In other words, looking through our political lens reminds us that there are literally billions more “adult interests” in support of Wright v. New York than in its defense.

Educators must continue to clarify facts about teacher employment law and support responsible reforms.  Most proponents of challenges to the statutes are well-intentioned, and a focus on agendas alone would not do the issues justice.  It is also entirely legitimate, however, to call attention to the profit and political motives behind lawsuits like Wright and Vergara.  Knowledge of donors and allies helps us understand why, when unions and Campbell Brown present conflicting information about the law’s intent and effects, Campbell Brown’s claims warrant significantly more suspicion.

Campbell Brown graphic

***While the plaintiffs in Wright, unlike those in Vergara, do not erroneously contend in their complaint that the laws cause inequities between low- and high-income schools, the idea that low-income students are disproportionately impacted by bad teachers was mentioned by Brown in her appearance on The Colbert Report and still surfaces in discussions of the lawsuit.

Update: A version of this post appeared on The Huffington Post on October 2.

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Paid Sick Leave and the Three Lenses of Policy Analysis

Some political debates have two equally valid sides.  More often than not, however, the evidence is significantly more one-sided than journalists and pundits suggest.  AB 1522, a bill that the California Senate’s Committee on Appropriations just shunted into its Suspense File for consideration on August 14, is an example of legislation for which there is no ethical, intellectually honest opposition.  Three related lenses of policy analysis demonstrate why AB 1522’s minimum requirement of three paid sick days for all California workers deserves our support.

The ethical lens: The debate about paid sick leave, at its core, is about values.  It is undisputed that high percentages of low-income workers, particularly women and Latinos, currently lack the access to paid sick leave enjoyed by more privileged populations.  Supporters of a guaranteed minimum number of days recognize that low-income workers must often decide between working through illness and leaving bills unpaid.  Nobody should have to make that choice.

Opposition to guaranteed paid sick days, on the other hand, elevates considerations of employer profit and flexibility above the job security and subsistence of sick low-income workers.  No matter its professed motivation, therefore, anti-paid sick day activism is immoral by most people’s standards.

The factual lens: Few opponents of AB 1522 explicitly state a disregard for the plight of the working poor.  Instead, they call the bill a “job killer,” enumerating a long list of reasons that guaranteed paid sick leave will allegedly harm working Americans.  Some of the listed reasons are obvious fabrications; for example, the idea that employers who already offer paid sick leave “will have to completely change their existing policies and accounting procedures” is directly contradicted by the law’s provision that “an employer is not required to provide additional paid sick days…if the employer…makes available an amount of leave that satisfies the accrual requirements.”

Other opposition arguments, though slightly more time-consuming to debunk, are no less untrue.  To contend that AB 1522 “will reduce jobs,” its detractors, like those who oppose paying employees a living wage, embrace an economic theory that’s inconsistent with the facts.  Even studies that rely exclusively on the unverified assertions of employers fail to suggest negative economic consequences of paid sick leave laws.  The first report opponents of AB 1522 attempt to marshal in support of their claims concludes only that it was “too early to make a definitive judgment about” the economic effects of Connecticut’s paid sick leave law in February 2013.  A more comprehensive study of the Connecticut law’s effects in March 2014 notes:

most employers reported a modest effect or no effect of the law on their costs or business operations; and they typically found that the administrative burden was minimal.  [Despite] strong business opposition to the law prior to its passage, a year and a half after its implementation, more than three-quarters of surveyed employers expressed support for the earned paid sick leave law.

The findings from the opponents’ second citation, a 2011 report from the Institute for Women’s Policy Research, similarly contradict their claims.  The study finds that “most San Francisco employers reported that implementing the [city’s Paid Sick Leave Ordinance] was not difficult and that it did not negatively affect their profitability.”  While “a relatively small share of employers and employees” reported negative effects, the study concludes that the law “is functioning as intended.”  Just about every study on the economic effects of paid sick leave legislation, in fact, refutes the myths propagated by opponents of the laws.  Research studies also clearly demonstrate “that gaps in paid sick leave result in severe impacts on public health.”  This clear consensus helps explain why “the rest of the world’s rich economies have taken a legislative approach to ensuring paid sick days.”

The political lens: Despite the clear ethical arguments, research consensus, and overwhelming public support in favor of guaranteed paid sick day laws, several states have passed bills that preempt cities’ attempts to enact such legislation.  In 2008, a more robust sick leave bill (AB 2716) died after ending up in the Suspense File of the California Senate’s Committee on Appropriations, the same place in which AB 1522 currently resides.  A coalition of corporate lobbyists, led by chambers of commerce and the American Legislative Exchange Council (ALEC), is responsible.  This coalition has, in the words of David Sirota, successfully recast their “desire to exploit workers as fight-for-the-little guy altruism” by confusing the public and politicians with a relentless stream of unfounded claims.

A simple analysis of the broader advocacy decisions and agendas of the parties to a debate can help us assess the likely veracity of each party’s claims.  For several years now, the corporate coalition that opposes AB 1522 has been systematically “reshaping the fundamental balance of power between workers and employers.”  They have misled the public about a wide variety of issues and maintain clear power and profit motives for misleading the public about sick leave.  People unfamiliar with the specifics of AB 1522 could compare the backgrounds of its opponents with its supporters (typically academics, labor organizations, and other groups that advocate for low-income people) and recognize that proponents of AB 1522 are significantly more likely to be telling the truth.  This political lens heuristic isn’t failsafe – first impressions can be wrong and even the worst organizations sometimes endorse correct policy decisions – but it always provides valuable perspective.  Funding sources and political allies are especially important indicators of truth when topics involve complex research findings and/or similar ethical arguments from each side of a debate.

On the issue of guaranteed paid sick leave, however, each of the three lenses – ethical, factual, and political – is extremely straightforward; if anything, the three days required by AB 1522 are too few.  California lawmakers should rectify their predecessors mistakes and move the bill forward on August 14.

Note: Versions of this post originally appeared on The Left Hook and The Huffington Post.

Update (8/30/14): An amended version of the bill that “would exempt in-home caregivers from the requirement” has “cleared the legislature.”  The SEIU and other unions pulled their support because of the unnecessary and unethical exemption, and I believe they were correct to do so.

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Informed Student Advocates Pursue Reforms that, Unlike Vergara v. California, Actually Address Inequity

Judge Rolf Treu just ruled in favor of Students Matter in Vergara v. California, deeming teacher permanent status (commonly called “tenure”), due process protections for teachers with permanent status, and seniority-based layoffs unconstitutional.  Treu’s opinion unfortunately reflects a misunderstanding of education research and teacher employment law’s effects.  His decision also erodes labor protections without increasing the likelihood of an excellent education for students in low-income communities.

Reformer excitement about the ruling demonstrates how successfully the plaintiffs have conflated teacher employment law with the existence of ineffective teachers.  Informed advocates for low-income students and communities, on the other hand, are deeply disappointed because both ethical considerations and a thorough analysis of the case indicate the error in Treu’s findings.

The California Teachers Association (CTA) plans to appeal the decision and higher courts will hopefully see through the plaintiffs’ weak case.  No matter the appeal’s outcome, Treu’s opinion raises two issues considerably more significant for low-income students than teacher dismissal and layoff procedures:

1) Teacher evaluation and support practices: Treu wrote that 18+ months of employment is not “nearly enough time for an informed decision to be made regarding the decision of tenure,” arguing that administrator fear of permanent status deprives “teachers of an adequate opportunity to establish their competence.”  He wants “to have the tenure decision made after” California teachers finish BTSA, an induction program teachers must complete to clear their credentials, and he suggests a timeline of three to five years.

Treu is correct that some ineffective teachers are currently retained and some good teachers are currently dismissed under California’s system, but he’s wrong about the primary reason why.  Instead, inadequate approaches to teacher evaluation and a lack of quality teacher support have long hindered the development and retention of excellent teachers.  Nearly two years is far longer than a supervisor should need to evaluate teacher performance and potential for growth if evaluation systems provide frequent opportunities for meaningful feedback and support about specific teacher practices.

Unions and many reform organizations actually agree about the goals of teacher evaluation.  The New Teacher Project (TNTP), for example, believes that “the core purpose of evaluation must be maximizing teacher growth and effectiveness, not just documenting poor performance as a prelude to dismissal.”  Similarly, CTA believes that “the purpose of an effective teacher development and evaluation system is to inform, instruct and improve teaching and learning; to provide educators with meaningful feedback on areas of strength and where improvement is needed; and to ensure fair and evidence-based employment decisions.”  Though reformer support for the use of standardized test score results as a percentage of teacher evaluations may decrease teaching quality and detract from student learning, TNTP and CTA also agree about many areas in which evaluation practices need improvement: the training administrators receive on how to give meaningful feedback, the quality of professional growth plans and professional development opportunities, and the frequency and length of classroom observations.

Extending new teachers’ probationary periods indefinitely will not address the underlying causes of the problem Treu identifies.  In fact, the argument that two years isn’t “nearly enough time” implicitly grants license for administrative incompetence and practices that inadequately address new teachers’ professional needs.  Education stakeholders committed to developing and identifying great new teachers should instead pour their time, money, and energy into aligning evaluation and support systems with their goals.  San Jose Unified School District (SJUSD) and the San Jose Teachers Association (SJTA), for example, have invested in administrator training, evaluative consulting teachers with content-area teaching expertise, evaluation documents that more accurately define effective teaching and require narrative feedback, a Teacher Quality Panel consisting of both teacher and administrator members, and non-evaluative instructional coaching support.

2) School funding: Treu’s ruling erroneously considers Vergara v. California part of a historical record of education-related court cases including Brown v. Board of Education, Serrano v. Priest, and Butt v. California.  These three cases, unlike Vergara, dealt with undebatable and direct inequities in access to educational opportunity for low-income and minority students: segregated schools (Brown), inequitable access to school funding (Serrano), and inequitable access to a full school year (Butt).  Treu fails to note that, despite the Serrano case and the advent of California’s new Local Control Funding Formula (LCFF), major inequities in education funding persist in California today.

In 2012-2013, for example, SJUSD received approximately $9,000 per pupil in revenue.  During the same year, Palo Alto Unified School District (PAUSD) received about 60% more money per pupil, approximately $14,500.  While California guarantees a certain amount of annual funding called a “revenue limit” to every school district in the state, some districts, like PAUSD, bring in property tax revenues that exceed the revenue limit.  These “basic aid” districts keep their excess property tax revenue and often pass parcel taxes that further increase the funding discrepancy between lower-income districts and their higher-income basic aid counterparts.

More funding is not a panacea for low-income schools – how districts spend their money determines its return – but research is clear that funding matters a great deal.  Politicians who cut education-related spending for poor communities often cite a 33-year-old study by Eric Hanushek to oppose equitable school funding, yet even Hanushek himself cautiously supports it.  Asked in a 2006 interview if “it’s a good idea to give very high-poverty districts more funding per pupil than an average district,” Hanushek responded: “I think so. I think you have to provide extra resources and help for kids who start at a lower point because of their backgrounds.”  It’s impossible to support educational equity and justify the funding discrepancy between SJUSD and PAUSD.

One of the most important provisions of the LCFF – the supplemental funding it provides to districts that serve high numbers of English language learners, students from low-income families, and students from foster homes – moves California in the right direction.  However, basic aid districts that have long been able to afford better resources for students will continue to exist.  Based on the case history Treu cites, one could construct a very strong case that the existence of basic aid districts violates the Equal Protection Clause of the Fourteenth Amendment and the California Constitution.  Advocates for low-income students could also make an indirect equal protection case about Proposition 13’s effect on school funding disparities.  Unlike Vergara v. California, these cases could continue the tradition of Brown, Serrano, and Butt by remedying a clear instance of educational inequity.

Treu’s ruling also invites an analysis of the definition of appropriate due process.  The judge asserts that “[t]here is no question that teachers should be afforded reasonable due process when their dismissals are sought,” but he claims that current protections for teachers with permanent status constitute “uber due process.”  Treu proposes replacing teacher dismissal law with the rights guaranteed by the decision in Skelly v. State Personnel Board; because of Skelly, permanent employees facing dismissal must receive “notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.”

In essence, Skelly rights ensure that employers treat permanent employees with some semblance of courtesy and respect.  While Treu asserts that due process considerations are “entirely legitimate,” however, he forgets to mention that probationary teachers do not have Skelly rights; in California, probationary teachers can be non-reelected (fired) without cause.  Treu’s argument is completely contradictory given current law – he simultaneously contends that he believes in the concept of due process and that districts should be able to deprive people of it for three to five years.

Labor organizations support Skelly’s basic protections for all employees because of the extensive history of inappropriate employer practices and a belief in treating people fairly.  Due process protections should also include a requirement that administrators adequately support permanent teachers before attempting to dismiss them.  A support-first mindset is not only the most ethical approach, but it’s also important because, as Jack Schneider explains, “you don’t put…effective teacher[s] in every classroom by holding…sword[s] over their heads.  You do it by putting tools in their hands.”  Advocates for workers rights support streamlined dismissal processes for employees who are unwilling or unable to improve; the defendants in Vergara just know that society and schools benefit when employers are required to treat their employees like human beings.

Judge Treu accurately identifies a few key issues in his decision: administrators may struggle to identify quality teaching in fewer than two years, layoffs may deprive schools and students of stellar teachers, and teacher employment law may fail to grant teachers an appropriate amount of due process.  Unfortunately, Vergara v. California neither improves teacher evaluation and support practices nor rectifies the funding inequities that lead to layoffs and resource cutbacks in districts that serve low-income students.  The decision also ignores the complete lack of due process afforded to probationary teachers and fails to deliver a thoughtful recommendation about how to empower teachers to grow professionally.  Informed, honest student advocates who care more about “providing each child…with a basically equal opportunity to receive a quality education” than about destroying organized labor should therefore hope that an appeals court will reverse Treu’s decision.  In the meantime, they should begin work on reforms more likely to improve opportunities for low-income students.

Note: A version of this post appeared on The Huffington Post on June 13.

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Political “Pragmatism” Undermines Progressive Goals

The Working Families Party (WFP) bills itself as “New York’s liveliest and most progressive political party.” Founded in 1998, the WFP sought to use fusion voting and community organizing to “hold politicians accountable” to an admirable set of progressive principles including but not limited to “full public financing of elections…community control and equitable funding of our schools …a guaranteed minimum income for all adults[, a] universal ‘social wage’ to include such basic benefits as health care, child care, vacation time, and lifelong access to education and training …[and a] progressive tax system based on the ability to pay.” For many years, the WFP successfully propelled progressive politicians like Bill de Blasio into elected office.

Unfortunately, however, WFP leaders have lost sight of the party’s original intentions. Despite vocal opposition from many members, the WFP voted on Saturday, May 31 to back Andrew Cuomo in his bid for reelection as New York’s governor. While Cuomo secured the endorsement by promising to support, among other things, a minimum wage hike, public funds for campaigns, and the Democratic Party’s attempt to win control of the state Senate, his actions as a first-term governor demonstrate his unwillingness to actually pursue a progressive economic agenda. He deserves some credit for driving New York’s recent gay rights and gun control legislation, but there’s a reason big business and Republicans love Cuomo: he has worked to dismantle the estate tax and pass massive additional tax cuts, significantly undermined de Blasio’s progressive education initiatives and opposed de Blasio’s proposal to raise New York City’s minimum wage, killed efforts to publicly finance elections, tried to lift a moratorium on fracking, and consistently trampled on other progressive values.

The WFP, in large part, has itself to blame for Cuomo’s anti-poor economic policy agenda – the WFP gave Cuomo its endorsement during his 2010 gubernatorial campaign despite Cuomo’s explicitly pro-corporate platform. The WFP’s endorsement then and decision to stick with Cuomo now illustrate how a misguided concept of political pragmatism, endemic in Left-leaning circles, makes progressive policy considerably less likely in the long run.

The WFP’s endorsement was driven in part by the belief that Zephyr Teachout, the WFP’s alternative candidate, would be extremely unlikely to win in a three-way election that included Cuomo and Rob Astorino, the Republican candidate. Similar concerns about candidate “electability” surface frequently during each Presidential election; pundits and party operatives insist that votes for third party candidates are wasted. Yet psychological research and poll data indicate that liberal voters routinely underestimate the number of other voters who share their policy preferences. Fewer voters care about electability than the media would have us believe and most Americans want the distribution of wealth in the United States to mirror the significantly more equitable distribution in Sweden. As evidenced by Seattle’s recent election of socialist city councilmember Kshama Sawant, claims about who is and isn’t electable are self-fulfilling prophecies; third party candidates have a chance to win when we base our votes on candidate policy instead of our perception of candidate viability. Historical data suggests that a progressive third-party candidate could be particularly viable in the case of New York’s 2014 gubernatorial election.

Perhaps even more troubling is the message the endorsement sends to Cuomo and other politicians. Cuomo has spent the past three-and-a-half years actively undermining most of the WFP’s espoused principles; by granting Cuomo its support anyway, the WFP has given Cuomo license to ignore its legislative priorities during his second term.

As Glenn Greenwald wrote in 2011, “telling politicians that you will do everything possible to work for their re-election no matter how much they scorn you, ignore your political priorities, and trample on your political values is a guaranteed ticket to irrelevance and impotence. Any [politician] motivated by a desire to maintain power rather than by ideology or principle” (a description that sadly fits most politicians) “will ignore those who behave this way every time and instead care only about those whose support is conditional.” Greenwald’s argument applies just as appropriately to Cuomo and the WFP today as it did to Barack Obama and progressive Democrats three-and-a-half years ago. Like Left-wing Democratic support did for Obama in 2012, the WFP’s endorsement, as Salon’s Blake Zeff notes, will allow Cuomo “to make a mockery of the party’s entire priorities list and then waltz to re-election” in 2014.

When we continue to support Democrats who undermine progressive causes, we enable their behavior (comic from http://americanextremists.thecomicseries.com/comics/522).

The Working Families Party’s support for Cuomo mirrors progressive support for Obama in 2012 (comic from http://americanextremists.thecomicseries.com/comics/522)

Which is more important: the difference between mainstream Democrats (like Obama and Cuomo) and mainstream Republicans (like Mitt Romney and Astorino), or sending the message, loud and clear, that the failure to enact progressive policy will hurt politicians at the ballot box? Progressives who argue for a lesser-of-two-evils approach to electoral politics aren’t necessarily wrong – there’s probably enough of a difference (though not as much as most people think) between members of the two major political parties to impact some people’s lives. However, our essentially unconditional support for Democrats-by-name-only deprives us of the opportunity for meaningful challenges to American plutocracy in the long run. Until we draw a line in the sand and punish Democratic politicians who cross it, we’ll continue to get Cuomo- and Obama-style Democrats who actively exacerbate income inequality and further disadvantage people unlucky enough to be born poor.

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Filed under Labor, US Political System