Farewell Unions -- It's Been Real!

Yesterday's oral arguments could have gone worse for teachers, but it's hard to say how.

8hoursday_banner_1856The last 24 hours have been an all-around downer. Nick Saban won another title, Bowie died, and we learned that Rupert Murdoch and Mick Jagger are Eskimo brothers.  Jesus, that means Bowie and Murdoch are too. Ugh. Then to top it all off we were treated to the Supreme Court kicking around the already desiccated carcass of the labor movement. So long unions! Don’t let the door hit you on the ass on the way out.

The oral argument in Friedrichs v. California Teachers Association could have gone worse, but it would have required Sam Alito dropping trou while Don Verrilli spoke. Going into this argument — a challenge to the power of public unions to charge agency fees to cover collective bargaining expenses from employees who opt out of the union — the best hope for a union win rested with Justice Scalia, who is historically on board with the Abood line. But when Nino is a liberal’s best hope, it’s an uphill battle. Mercifully, Scalia didn’t leave the union hanging for long, making it clear from jump that he sees this as compelled political speech.

The mainstream media, committed to the death to the “Kennedy Swing Vote” trope, forgot that only works when we’re talking about abortion and gay people because Justice Kennedy may have been the most openly hostile to the union:

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

Sounds ominous. On the other hand, what would possibly be the opposite of free riding other than compulsion? But Justice Kennedy latched onto the “compelled” language and tarred the argument accordingly. Nothing like spending the whole argument with one justice comparing your client to Kylo Ren. If Justice Kennedy’s questions are a window into what he’s thinking, anyone who thinks their public union is taking a political position — whether they agree or not — can avoid even the nominal agency fee and just enjoy the benefits of collective bargaining with none of the cost. And if you think there are any labor issues that aren’t political, Justice Scalia disagrees:

The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition. Should the government pay higher wages or lesser wages? Should it promote teachers on the basis of seniority or on the basis of ­­all of those questions are necessarily political questions.

What does “government as employer” deference mean after this? Apparently not a whole hell of a lot. Union representatives are putting on a brave face that most of their members won’t defect from the system — even when the Court flips the script and forces people to “opt in” rather than “opt out” when it comes to subsidizing the union. Many teachers have faith in the union’s role, but it’s hard to believe this isn’t going to hit hard.

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While the teachers are the easiest punching bag for anti-union activists, Justice Breyer in particular kept reminding everyone that a sweeping decision to overturn 40 years of Abood would gut public unions representing everyone from firefighters to lawyers. If everything a public employer does is political, then there’s not much left for these folks.

On the other hand, Dmitri Mehlhorn, the former head of Bloomberg Law, now working as an education reform advocate, offers a ray of hope:

A third possible route for the First Amendment to drive reform is how the Friedrichs case might change union politics.  As noted earlier, Rebecca Friedrichs wants to be able to withhold her dues from the California Teachers Association because she does not agree with the CTA’s lobbying positions regarding teacher accountability.  As I have documented elsewhere, substantial numbers of public school teachers agree with Rebecca Friedrichs. The teachers who feel most threatened by school choice and accountability, however, tend to turn out more often for internal union elections.  With turnout hovering at around 20%, the teachers’ union electorate is far more hostile to reform than most teachers. This matters because the teachers’ unions have an annual budget of over $2.2 billion, of which their annual advocacy budget amounts to roughly $700 million. The union leaders who spend these budgets have strong incentives to protect low-performing teachers from the consequences of parent choice or teacher accountability, creating an enormously powerful political force against the interests of students.

Certainly an optimistic view. It rests on the premise that the decision will change the union and that the newly-reformed union will remain powerful enough to promote reform. But it doesn’t really matter what the union believes if it’s financially crippled. In the meantime, regardless of any flaws they may have, the neutering of unions removes the counterweight to those looking to shift funding to more “local” (read: affluent white people) control and push teachers out of their jobs with arbitrary benchmarking while moving in more cheap educational tourists earning their public service chit before moving on to their corporate gig — never bothering to amass the experience real teachers require. Mehlhorn’s argument that teachers’ unions have historically privileged white leadership and exhibit a dogged commitment to a troubled model to the detriment of minority students and parents is insightful and worth reading, but Friedrichs probably won’t spark that sea change to elevate the reform-minded teachers who dissent from the system now. Hell, Friedrichs herself doesn’t even care about the union’s stances — she admits she doesn’t really disapprove of the union’s advocacy — she just wants a free ride. No moderation or internal reform movement is going to get that money in the door.

But it’s the only real hope out there to grasp, because the status quo — of almost 40 years — looks like it’s gone.

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Mehlhorn: Student Rights, Judicial Precedent and Why 2016 Could See a Profound Shift in Education Law [The Seventy Four]