Tag Archives: unions

Striking SEPTA Workers Deserve Public Support

On Friday, a judge denied an injunction request from Southeastern Pennsylvania Transportation Authority (SEPTA) management, who wanted striking SEPTA workers, represented by Transport Workers Union (TWU) Local 234, to be forced to go back to work.  The judge made the right decision.  At a follow-up hearing on Monday at 9:30 AM, the judge should stand firm, as TWU Local 234 has every right to strike and is justified in doing so.

The union, which represents a group of bus drivers, trolley operators, mechanics, and other transit workers whose base salaries seem to max out around $70,000 a year, has been trying to negotiate a new contract with SEPTA for months.  The union was unhappy with a potential increase in their health care premium contributions – from about $550 annually to a little less than $4,800 annually – that would have coincided with some increased co-pays.  They’ve also been bargaining to improve their pensions, which have long been less generous than both the typical public pension and the pensions SEPTA managers receive.

twu-local-234-1

Perhaps most importantly, the union has asked for scheduling changes that would improve safety for workers and customers alike.  Bus operators can currently be required to work 16 hours in a day or 30 hours in back-to-back days and may only get 15-minute lunch breaks.  They have inadequate opportunities to go to the bathroom and can’t sleep on-site in between their unpaid breaks, which creates a major problem for drivers with commutes.  SEPTA management has thus far insisted that their scheduling practices are necessary for “flexibility” purposes, despite the fact that research on sleep and crash statistics recommend against them.

So while SEPTA management may have reduced the magnitude of their proposed hike to health care premiums and offered some salary increases since the strike began, those who believe in worker rights, economic justice, and public safety should be firmly in the union’s camp when it comes to negotiations.

Some Democrats seem to have sided instead with SEPTA management, which has “argued the strike was keeping children from school, making travel around the city difficult for people with disabilities and those in need of medical treatment, and threatening to disenfranchise voters in Tuesday’s presidential election,” as reported by Philly.com.  Former Pennsylvania Governor Ed Rendell, who appears particularly worried that the strike will depress voter turnout on Tuesday and be “a real plus for Donald Trump,” has even argued that the state legislature should take away SEPTA workers’ right to strike in the future.

The problem with this formulation, however, is that it ignores both the power differential between labor and management and which of those two entities is more likely to be on the public’s side.  Union members risk a lot when they go on strike – their jobs and their pay are on the line.  They don’t decide to strike lightly, and TWU Local 234 made this decision because, as their president Willie Brown has said, “It’s the only tool [they] have available to [them].”  Binding arbitration (when both parties to a negotiation submit their offers to a neutral third party who makes a final decision on which offer to go with) can be an effective alternative to strikes for public sector employees, but while Brown “said he would be willing to go to binding arbitration to avoid a strike[,] SEPTA officials said…that wasn’t an option they were willing to consider.”

Note also that, for all the hand-wringing about union members supposedly not caring about the election, many of its members plan to volunteer to help get out the vote on election day (for the record, TWU Local 234 has also endorsed Hillary Clinton).  SEPTA Board chairman Pasquale Deon, on the other hand, has contributed thousands of dollars to Republican Senator Pat Toomey, whose record includes strong support of the Pennsylvania voter ID law that was struck down as unconstitutional in 2014.  Deon also donated to two Republican presidential candidates – Wisconsin Governor Scott Walker and New Jersey Governor Chris Christie – whose careers are characterized as much by defunding poor kids’ schools, denying people access to the medical care they need, and constructing obstacles to voting as they are by virulent anti-union crusades.

To summarize: Pasquale and the rest of SEPTA management chose not to engage in good-faith negotiations.  They chose not to go to binding arbitration.  And their rhetoric is belied by the other causes they support.  Yes, having public transportation up and running on election day would be ideal, but those worried about whether that will happen should be applying pressure to Pasquale and his friends, not complaining about bus drivers’ efforts to secure affordable health care, improvements in their retirement security, breaks long enough to catch some sleep in between shifts, and enough time to use the bathroom during the workday.

The outcome of Monday’s hearing is ultimately unlikely to matter much in Tuesday’s election.  Philadelphia policy “prioritizes spots [for polling places] within walking distance of people’s houses,” as The New Republic noted in 2008, and officials overseeing Philadelphia’s elections have pointed out that a 2009 strike did not depress turnout in that year’s local election.  Lyft and Uber are offering free rides to the polls that day, there are services connecting volunteer drivers to people who need rides, and the governor always has the option to extend voting hours if a lack of public transportation turns out to be a major voting obstacle.

What Monday’s hearing will impact, however, is TWU Local 234’s bargaining power.  More generally, people’s attitudes about the strike will impact the future of organized labor, an institution that raises wages for members and non-members alike, boosts opportunities for kids, and advocates broadly for the interests of low- and middle-income people.

The ethics are on the union’s side.  The public should be, too.

Update (11/7/16): SEPTA and TWU Local 234 reached a deal before the follow-up injunction hearing and the union will be back at work during the election.

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Filed under 2016 Presidential Election, 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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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 Presidential 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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Teachers Unions: What We Do and How Students Benefit

The National Labor Relations Board (NLRB) recognized the Northwestern University football team’s right to unionize in February and the players just held a unionization vote. Quarterback Kain Colter began the program’s union movement primarily to address player safety, but supporters of the team’s efforts believe unionization will improve college athletes’ experiences across the board. Northwestern management, however, opposes granting a collective voice to their underlings; the university tried to convince players not to unionize and has appealed the NLRB’s ruling. The NCAA, meanwhile, has begun a fear-mongering campaign to obfuscate the plethora of issues with the way it conducts business, issues that a union can help the players address.

If that story sounds familiar, it’s because the NCAA’s behavior in this case resembles that of wealthy interests in most other industries. Misinformation about union purpose and impact abounds in education especially; prominent education reformers have successfully hoodwinked large swaths of the intelligent public into believing that teachers unions undermine student interests. I am often taken aback by the inaccurate, negative comments about teachers unions I still hear from otherwise well-meaning members of charter school networks, education advocacy groups, and Teach For America (TFA).

I am encouraged, however, by the initial efforts taken by TFA and Leadership for Educational Equity (LEE) staff in the Bay Area to debunk member misconceptions about teachers unions. A few weeks ago, LEE invited me to speak to a group of current corps members, alumni, and LEE and TFA staff at an event called “Unions Matter.” During the event, I described the difference between social justice unionism and industrial unionism and laid out five important roles that unions play:

1) The traditional union role – Most people are familiar with this category of union activity; it covers salary, benefits, working conditions, and grievances. Anti-labor interests often denigrate teachers unions that focus on this “industrial” role, arguing that it has little to do with student interests, but they’re wrong for three primary reasons. First, there’s an extremely high correlation between good working conditions for teachers and good learning conditions for students. Unions that advocate for adequate classroom resources, a sustainable work day, and functioning air conditioning systems do so as much for their students as for their members. Second, the families of many students in low-income communities benefit significantly from the strength of the organized labor movement. The ability of unions to collectively bargain for fair wages and benefits is essential for the well-being of low-wage workers who are frequently exploited by their employers. Third, people mimic what we do more than what we say. If we want teachers to inspire their students to take collective action and advocate for themselves, district leadership needs to model that approach with teachers.

2) Collective voice – Unions provide a forum for educators to band together, prioritize action items, and communicate with management about those items. For example, the San Jose Teachers Association (SJTA) has helped teachers identify professional development and resource needs during the rollout of the Common Core State Standards, and San Jose Unified School District (SJUSD) has worked hard to respond to teachers’ collectively expressed requests. When district leadership unintentionally overlooks the impact initiatives have on students’ classroom experience, union members can use their collective voice and collaborate with administration to quickly resolve problems. Unions also foster a sense of community among members, connecting teachers across the district and thus building school and district culture.

3) Community and family outreach – SJTA helps coordinate teachers during Read Across America, sponsors little league baseball teams, works with parents from community service organizations like Sacred Heart, partners with Vision to Learn to bring eye doctors and prescription eye glasses to students who might not otherwise have them, and awards scholarships to aspiring teachers in our high schools. Unions can, should, and often do engage parents and advocate for students and public education at community events.

4) Political advocacy – School boards, other elected officials, and ballot initiatives matter significantly for students, and unions work hard to elect candidates and pass propositions that will positively impact kids’ lives. Without the efforts of the California Teachers Association and local California teachers associations in 2012, Proposition 30 would likely have failed, an outcome that would have resulted in a significantly shorter school year, increased class sizes, layoffs, a reduction in extracurricular programs, and/or a reduction in elective offerings in most California schools. SJTA also helped put two excellent SJUSD school board members in office in 2012. In addition to education-specific issues, teachers unions can advocate for a broader set of social justice policies that make a difference in our students’ lives; that purpose explains why SJTA joined the South Bay Labor Council in supporting San Jose’s minimum wage increase in 2012 and why we consider endorsements for the Santa Clara County Board of Supervisors and the San Jose City Council.

5) Education reform – Though typical uses of the phrase “ed reform” conjure anti-labor images, teachers unions can and often do drive smart, ethical modifications to education policy that improve opportunities for teacher satisfaction and student learning. SJTA and SJUSD recently co-developed a new teacher evaluation system (see Article 16000 of our contract) that, though not yet fully implemented, uses multiple measures of effectiveness to help teachers of all skill levels grow professionally, requires multiple evaluators for both formal and informal observations, and grants joint control of the process to teachers and administrators. We are hoping California will grant our request to either shorten or lengthen permanent status timelines when doing so is in the joint interests of students, teachers, and the school. Our contract also allows for new teacher leadership pathways (although we currently lack the funding necessary to implement our Model Teacher and Master Teacher Leader positions). We co-developed several other teacher-empowering, student-centered policy decisions with our school district and other unions can and often try to do so as well.

The current and former teachers I talked to at the LEE event were, as most teachers I encounter from both TFA and other programs are, thoughtful, intelligent, and passionate about improving the lives of low-income kids. They astutely noted that they don’t see all of these roles pursued by their unions all the time and wondered how SJTA became so proactive. Their question is a great one, and while I haven’t been involved in SJTA long enough to see the process unfold firsthand, I believe I can lend some insight.

Throughout history, labor-management relationships have typically involved some combination of management withholding information, misappropriating money, imposing unreasonable working conditions, and lying to the media about the effects of negotiations and employee objectives (the NCAA is currently engaged in all of this behavior in its attempt to prevent the Northwestern football team’s attempt to unionize). It’s important to note that, anytime one perceives intransigence from a teachers union, that intransigence is typically in response to irresponsible and/or unethical behavior from the school district. The district and union have a joint obligation to behave responsibly, but unions are the less powerful entity in the union-district relationship and the onus is therefore more on districts to create the conditions – transparency, openness to union ideas, respect for union membership, and a willingness to work together – under which a union can adopt the social justice approach described above. SJTA can function as we do in large part because SJUSD has demonstrated its commitment to honest, collaborative negotiations and messaging. Most seemingly obstinate union positions, on the other hand, arise in response to corrupt and/or incompetent management decision-making processes.

That said, unions must also work proactively to define themselves as social justice organizations. I believe establishing a positive mission statement (SJTA’s is to “empower teachers to educate, inspire, and change lives through public education”) can go a long way. We should try to develop contract structures, like salary formulas (see Appendix A of our contract), that enable us to spend a smaller percentage of collective bargaining time on salary and benefits. We must also consider innovative ideas that have a compelling rationale and research base behind them.

It’s important to remember that members of teachers unions work directly with students every day – we are students’ most credible advocates. We care deeply about educational equity and the learning that takes place in our classrooms. Education reformers who are likewise passionate about helping students succeed will therefore stop bashing unions and start working with us to develop the intelligent, ethical policies that can benefit students most.

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Student Advocates Oppose Both Bad Teaching and Bad Lawsuit

Note: A version of this piece originally appeared in Valerie Strauss’s column in The Washington Post.

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Bad-Teacher-2011-bad-teacher-23846153-1800-1027

Vergara v. California, a lawsuit challenging three components of teacher employment law in California’s Ed Code that began on January 27, has garnered considerable media attention.  The plaintiffs’ legal team contends that due process rights for teachers, a cumbersome teacher dismissal process, and seniority-based layoffs violate the Equal Protection Clause of the Fourteenth Amendment.  They argue that, as a result of teacher employment policies, poor and minority students learn from a disproportionately large number of “grossly ineffective” teachers.  These ineffective teachers ostensibly cause education’s observed “opportunity gap” between low-income, predominantly minority students and their higher-income, mostly-white peers.

Despite the plaintiffs’ claims, this lawsuit unfortunately does not address the needs of low-income students.  First, the anti-union and anti-social welfare backgrounds of the people behind Vergara v. California both suggest the lawsuit is primarily intended to dismantle labor laws.  Second, ethics and empirical research suggest a focus on teacher evaluation and support has more potential to improve instruction and benefit students than a focus on dismissal.  Third, while the challenged statutes should be improved, they offer important protections for both students and teachers, protections that more responsible reforms can preserve.

Most arguments against teacher employment laws either make faulty assumptions or severely mischaracterize the laws’ impact.  Yet Vergara proponents have been especially successful at conflating teacher employment law with the existence of horrible teachers when the existence of horrible teachers has no relevance to this case.

California Ed Code provides the following procedure for the immediate suspension and quick dismissal of any teacher exhibiting egregious behavior:

44939.  Upon the filing of written charges…charging a permanent employee of the district with immoral conduct, conviction of a felony or of any crime involving moral turpitude, with incompetency due to mental disability, [or] with willful refusal to perform regular assignments without reasonable cause…the governing board may…immediately suspend the employee from his duties and give notice to him of his suspension, and that 30 days after service of the notice, he will be dismissed, unless he demands a hearing.    If the permanent employee is suspended…he may within 10 days after service upon him of notice of such suspension file with the governing board a verified denial, in writing, of the charges. In such event the permanent employee who demands a hearing within the 30-day period shall continue to be paid his regular salary during the period of suspension and until the entry of the decision of the Commission on Professional Competence, if and during such time as he furnishes to the school district a suitable bond, or other security acceptable to the governing board, as a guarantee that the employee will repay to the school district the amount of salary so paid to him during the period of suspension in case the decision of the Commission on Professional Competence is that he shall be dismissed. If it is determined that the employee may not be dismissed, the school board shall reimburse the employee for the cost of the bond.

Beatriz Vergara, one of the students after whom Vergara v. California is named, testified that one of her 7th grade teachers made racist remarks about Latino students and that another 7th grade teacher routinely called female students “stick figure” and “whore.”  Such verbal abuse is deplorable, should constitute unprofessional and “immoral conduct,” and falls within Section 44939 of Ed Code.  Vergara also testified that her 6th grade math teacher slept during class, behavior that is also completely unacceptable, should constitute “willful refusal to perform regular assignments,” and also falls within Section 44939 of Ed Code.  Her testimony, while upsetting, has no relationship with the challenged statutes in this case; competent, knowledgeable administrators could and should have suspended these teachers immediately and then, if the charges were legitimate, had the teachers dismissed.  Neither permanent status nor dismissal law (nor any teachers union) condones verbal abuse, physical abuse, sleeping on the job, or any other form of gross negligence or misconduct.

Teachers who don’t commit misconduct can still be ineffective teachers.  For the plaintiffs to have an Equal Protection case, however, the challenged statutes would need to directly cause more ineffective teaching at low-income schools than high-income schools.

Yet very little evidence, if any, suggests that teacher quality at low-income schools is worse than teacher quality at high-income schools.  Most studies of teacher effectiveness rely on a statistical approach known as value added modeling, an approach that attempts to quantify a teacher’s contribution to student test scores.  Value-added models have serious limitations and are unstable, meaning they have a high margin of error.  For example, a recent study compared teacher value-added scores on two different tests taken by the exact same students and found that only about one-third of the teachers in a given quintile of performance on one value-added measure scored in the same quintile on the other test.  Even if value-added modeling could perfectly indicate teacher effectiveness, the plaintiffs’ own expert witnesses have acknowledged in their research that “the quality of teaching…does not differ substantially across schools.”  Anecdotally, I’ve observed a similar distribution of teacher quality in the low-income schools at which I currently work and the expensive private school I attended for middle and high school.

Even if evidence suggested that teacher quality in low-income schools is worse on average than teacher quality in high-income schools (it doesn’t), permanent status, dismissal, and seniority-based layoff procedures apply equally in schools that serve high-income populations.  While layoffs are probably less likely to occur in California’s basic aid (richer) districts, one could make a much stronger Equal Protection case about the reductions in staffing, resource cutbacks, and furlough days poorer districts experience as a result of budget cuts than one could build about the order in which teachers are laid off.  Permanent status and dismissal laws affect rich and poor communities in exactly the same way.  That it would even be possible for the statutes challenged in Vergara v. California to cause a difference in teacher quality between low- and high-income schools is questionable.

Since proponents of Vergara can’t legitimately tie the challenged statutes to student harm, they resort to equating defense of due process with support of incompetence.  For example, a recent opinion piece in the LA Times notes that a majority of teachers believe at least one colleague with permanent status “should be dismissed for poor performance.”  This fact is irrelevant to the effect of permanent status; ask any group of professionals in a large workplace whether someone at the workplace should be dismissed for poor performance and a high percentage will respond in the affirmative.  Articles like this one argue that permanent status causes poor performance despite a complete lack of evidence in support of this claim.

Teachers who work with poor and minority students every day are often their most credible advocates.  Teachers unions believe deeply that poor and minority students deserve access to an excellent education and abhor teacher misconduct and negligence as much as anyone else.  They also believe students benefit when teachers are treated with respect.  The defendants in Vergara v. California therefore oppose both ineffective teaching and deceptive lawsuits that erroneously link it to due process protections.

Correction (2/24/14): The opinion piece referenced in this post was written by an outside writer and published in the Times, but was originally referred to incorrectly as an editorial.

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Students Matter. Teachers Do, Too.

Imagine reading the following statement on a website:

We think it’s simple: reward…passionate, [successful students] and hold those accountable who are failing… [S]triking down the following laws…will create an opportunity for lawmakers, teachers, administrators and community leaders to design a system that’s good for teachers and students…

  • [Law 1: As long as they have attended school for at least eighteen months, this law gives students accused of wrongdoing the opportunity to hear what they did wrong and try to correct their behavior before being expelled. It] forces [teachers and] administrators to…grant [due process rights to students facing an expulsion]…before [teachers and] administrators are able to assess whether a [student] will be [successful] long-term.

  • [Law 2: Though this law allows districts to quickly expel students who commit serious offenses, it requires districts and schools to prove that other expulsions are warranted]. The process for [expelling] a single [unsuccessful student] involves a borderline infinite number of steps, requires years of documentation…and still, rarely ever works. In the past…year…in the entire state of California, only [8,562 students] have been [expelled], and the vast majority of those [expulsions] were for egregious conduct.

  • [Law 3: This law dictates the order in which schools facing economic pressure should expel students.  The] law forces [teachers] to [expel successful students] and keep [unsuccessful students] instead, just because they [are older].

The arguments for striking down these laws would disgust most of us.  Shouldn’t we assume all students want to learn and avoid expelling them if at all possible?  Law 1 doesn’t go far enough – students should have due process rights preventing unwarranted expulsion from the first time they set foot in a school, as it is our duty to provide them with a public education.  Likewise, it is perfectly reasonable for the student expulsion process in Law 2 to require well-documented proof of the reason for expulsion.  Expulsion should always be a last resort, and the burden of proof for an expulsion should fall not on the student, but on the teacher and school.  Finally, while Law 3 is ridiculous, the premise of the complaint with Law 3 misses the point entirely: isn’t the real problem with the law the idea that we would expel students for economic reasons?  Shouldn’t we only ever expel students if they create an unsafe learning environment for other students on campus?

Most of us would conclude not only that the people who wrote the arguments above had no compassion, but that they also did not believe in educational equity.  If they believed in educational equity, they would focus on supporting unsuccessful students instead of expelling them.  If they believed in educational equity, they would ask how the adults in charge could help unsuccessful students improve their performance.  If they believed in educational equity, they would divert their energy away from expelling a small minority of students and towards creating systems that address the needs of most children.  There is a small element of truth to what they say – the expulsion process described in Law 2 seems unnecessarily cumbersome, and in the terrible situation in which factors out of our control would force us to expel certain students, using age as our expulsion criterion seems like a stupid approach.  But the overarching paradigm of this critique runs counter both to our values and a logical analysis of the stated goal (“design a system that’s good for teachers and students”).

Though recent movements have increased the documentation required of a school wishing to expel a student for a nonviolent offense, the process described in Law 2 is exaggerated.  Law 3 doesn’t actually exist, and we fortunately have a better law than Law 1 (all students facing expulsion have due process rights no matter how long they’ve been in school).  An examination of these arguments is still instructive, however, because the opinions they reflect aren’t entirely hypothetical – they’re just marshaled against teachers rather than students.  Much of the text above comes directly from the website of Students Matter, the organization behind Vergara v. California.  Here’s the original:

We think it’s simple: reward and retain passionate, motivating, effective teachers and hold those accountable who are failing our children. By striking down the following laws, Vergara v. California will create an opportunity for lawmakers, teachers, administrators and community leaders to design a system that’s good for teachers and students. Because when it comes to educating our kids, there should only be winners.

  • Permanent Employment Statute: The permanent employment law forces administrators to either grant or deny permanent employment to teachers after only 18 months—before new teachers even complete their beginner teacher programs and before administrators are able to assess whether a teacher will be effective long-term.

  • Dismissal Statutes: The process for dismissing a single ineffective teacher involves a borderline infinite number of steps, requires years of documentation, costs hundreds of thousands of dollars and still, rarely ever works. In the past 10 years in the entire state of California, only 91 teachers have been dismissed, and the vast majority of those dismissals were for egregious conduct. Only 19 dismissals were based, in whole or in part, on unsatisfactory performance.

  • “Last-In, First-Out” Layoff Statute: The LIFO law reduces teachers to faceless seniority numbers. The LIFO law forces administrators to let go of passionate and motivating newer teachers and keep ineffective teachers instead, just because they have seniority.

I discussed the plethora of problems with this lawsuit in my last post, not the least of which are the inaccurate characterizations of the laws above and the plaintiffs’ clear anti-labor agenda.  Equally troubling to me, however, is the discrepancy between our vision for the classroom and the Students Matter vision for the world in which the classroom resides. Teachers and students are different – we should be more patient with kids than with adults – but they aren’t different enough to warrant such a drastic discrepancy in how we treat them.  An intense focus on teacher employment law is as unethical and unlikely to improve overall student outcomes as an intense focus on removing poorly behaved students from their classrooms.

We expect teachers to concentrate on classroom structures that support their students.  We recognize that student test scores do not necessarily reflect intelligence or effort, that poor performance on academic assessments may reflect a lack of investment in tests, a poorly designed assessment, pure chance, inadequate instruction, and/or life circumstances outside of a student’s control.  When a student is clearly underperforming or negatively impacts other students with disruptive behaviors, we assume the best about the student.  We assume the student wants to learn and behave appropriately, but that the student may lack the skills necessary to do so.  We do everything in our power to keep that student in our classroom, continuously trying new approaches to help the student improve his or her behavior and academic performance.  We still implement systems to deal with the situation when students, despite all the support they have received, continue to disrupt their peers’ learning.  When we take disciplinary action against these students, however, we stipulate that the teacher and school prove that alternative, supportive measures failed to achieve the desired results and that the disciplinary action is warranted.  We then redouble our efforts to design better student support structures that can help us avoid future expulsions.

We should adopt a similar paradigm when we consider education reform.  We should expect policies, districts, and administrators to concentrate on supporting teachers.  We should recognize that student test score data does not necessarily reflect quality of teaching or effort, that low value-added scores may reflect reasonable concerns about “teaching to the test;” assessments that may not measure what they’re supposed to and that have questionable longitudinal validity; pure chance; inadequate teacher training, evaluation, and support; and/or external factors outside of a teacher’s control.  When a teacher is clearly struggling to meet student needs, we should assume the best about the teacher.  We should assume the teacher wants to teach effectively, but that the teacher may lack the skills necessary to do so.  Especially because teacher turnover is bad for students, we should do everything in our power to help the teacher improve and keep the teacher at our school.  We must still implement systems to deal with the situation when teachers, despite all the support they have received, remain ineffective.  When we take disciplinary action against these teachers, however, we should stipulate that the district and school administration prove that alternative, supportive measures failed to achieve the desired results and that the disciplinary action is warranted.  We should then redouble our efforts to design better teacher support structures that can help us avoid future dismissals.

Students Matter and supporters of their frivolous lawsuit betrayed their true agenda, which has nothing to do with educational equity, when they took the opposite approach in Vergara v. California – they ignore support and focus their efforts primarily on dismissal.  We wouldn’t accept that approach from teachers and we shouldn’t accept it from the ed reform movement.

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