Last month, the Supreme Court’s agreed to review Janus v. American Federation of State, County, and Municipal Employees, Council 31 (Cato filed a brief in support of the plaintiffs). The case is a First Amendment challenge to the “agency fees” that must be paid to a public-sector union by non-members. As a matter of existing First Amendment law, no employee may be compelled to join a union or contribute money to fund a union’s direct political activities, such as political ads. In roughly 22 states (the 28 “right-to-work” states outlaw agency fees), unions may compel non-members to pay agency fees that (ostensibly) only reflect the cost of the union’s representational activities, such as bargaining over wages and working conditions. The agency fee is the product of the Supreme Court’s decision in Abood v. Detroit Board of Education (1977), in which the Court prohibited public-sector unions from compelling non-members to support political speech, but allowed for the compelled support of the union’s other “non-political” activities.
The plaintiff in Janus—like the 2015 Friedrichs case that stalemated after Justice Scalia’s death (in which Cato also filed a brief)—claims that, for public employees, the distinction in Abood between “political” and “non-political” is illusory because the terms and conditions of public employment are inherently a matter of public concern. A teachers union negotiates with a school system over salaries and benefits packages, merit pay versus seniority, the standards for teacher evaluation, and the controversial “tenure” provisions that in some states make it nearly impossible to fire even serial abusers. Each of these represents a core, political issue in education policy, and a teacher who believes that, say, merit-based pay systems would improve the quality of teaching in the school system (where perhaps her own children may attend) can currently be forced to fund negotiations against it.Read the rest of this post »
The annual Education Next gauge of public opinion on numerous education issues is out, and as always it offers lots to contemplate, including special questions this year on the “Trump effect.” I won’t hit everything, just what I see as the highlights.
The poll’s headline grabber is a big drop in support for charter schools, public schools run by ostensibly private entities but subject to many public school controls, especially state standards and testing. When people with neutral opinions were removed, 52 percent of respondents approved of “formation” of charters — that word likely made some difference — down from a peak of 73 percent in 2012. With neutral answers included, only 39 percent of the general public supported charters.
The good news is that support for private school choice programs — superior to charters because they offer access to far wider options, including religious schools — saw upticks. Scholarship tax credits remain the choice champ, with support (absent neutral respondents) rising from 65 percent to 69 percent. With neutrals, support stood at 55 percent of the general public. For vouchers, a lot depends on question wording, but without a loaded emphasis on “government funds,” support (minus neutrals) stood at 55 percent, up from 50 percent the previous year. With neutrals, support was at 45 percent, with 37 percent opposing. Education savings accounts—basically, money parents can use not just for tuition, but other education expenses like tutoring or buying standalone courses — garnered only 37 support from the general public, but the concept is pretty new and people may just not have wrapped their heads around it yet.
Why the big drop in charter support but improved backing of private school choice? As always, wording, question order, and other artifacts of the poll itself matter, but assuming those aren’t the major causes of the results, perhaps the answer is that charters, as a compromise between empowering parents and maintaining government control, have traditionally tended to have the highest profile bipartisan support of the various choice mechanisms. As a result of Trump‐driven polarization, perhaps they have also had the most visible schisms, maybe casting a more negative light on them. Or maybe people have started to perceive, as Education Secretary Betsy DeVos borrowed from Rick Hess to warn, charters are becoming “the Man” they were supposed to replace.
Today, an evenly divided Supreme Court affirmed a lower court's decision in Friedrichs v. California Teachers Association to permit unions to continue charging nonmembers "agency fees" to cover collective-bargaining activities that the union supposedly engages in on their behalf. About half the states require agency fees from public-sector workers who choose not to join a union.
Not only do agency fees violate the First Amendment rights of workers by forcing them to financially support inherently political activities with which they may disagree (as my colleague Ilya Shapiro and Jayme Weber explained), but the unions often negotiate contracts that work against the best interests of the workers whose money they're taking. For example, union-supported "last-in, first-out" rules and seniority pay (as opposed to merit pay) work against talented, young teachers. Moreover, a teacher might prefer higher pay to tenure protections, or greater flexibility over rigid scheduling rules meant to "protect" them from supposedly capricious principals.
In less than an hour, the U.S. Supreme Court will hear oral arguments in one of the most important cases of the year, Friedrichs v. California Teachers Association. The plaintiffs in Friedrichs are ten California teachers who are suing their union because they believe that laws forcing government employees to join a union or pay them “agency fees” as a condition of employment violate their First Amendment right to free speech, which includes the freedom not to speak, and not to be compelled to subsidize the speech of others.
SCOTUS has previously held that the agency fees may cover collective bargaining activities but not the unions’ political activities. However, as the plaintiffs argue, public‐sector collective bargaining is inherently political. For example, more funding for teachers means higher taxes or less money for public parks, etc. The Cato Institute has filed an amicus brief in support of the plaintiffs, and several Cato legal eagles, such as Ilya Shapiro, Andrew Grossman, and Trevor Burrus, have already weighed in.
Much of the constitutional analysis floating around the interwebs has focused on whether or not overcoming the supposed “free rider” problem constitutes sufficient grounds for states to grant unions the right to expropriate funds from non‐members to cover collective bargaining activities that supposedly benefit them. Champions of free speech have generally attacked the other side’s strongest case, therefore their arguments assume that all teachers do, in fact, benefit from that collective bargaining, but that freedom of speech entails the freedom not to be forced to pay for someone else to advocate even on your supposed behalf. In an op‐ed for the Orange County Register, however, Ilya Shapiro and I explain how collective bargaining can actually come at the expense of some teachers:
[E]ven if collective bargaining weren’t inherently political, it’s easy to see how workers could object to the supposed “benefits” negotiated on their behalf. For example, a teacher might prefer higher pay to tenure protections, or a defined‐contribution pension plan – such as a 401(k) – to one that has defined benefits.
There are countless ways in which union‐negotiated contracts or laws that the unions lobbied to enact can actually harm the interests of individual teachers. For example, “last‐in, first‐out” laws protect long‐serving teachers regardless of ability at the expense of talented, young teachers. Worse, as we explain, such contracts and laws can harm the interests of the very children our education system is supposed to be designed to serve:
Collective bargaining also can come at the expense of students. When schools lack high‐quality math teachers because the union contract requires they be paid the same amount as gym teachers, kids lose out. And when that contract has “last in, first out” (LIFO) rules that force a district to lay off a talented young teacher before a low‐performing teacher with seniority, students suffer.
Last year, a judge in California struck down such tenure and LIFO rules after finding “compelling” evidence that making it hard to fire low‐performing teachers had a negative impact on students, especially low‐income and minority students. The judge pointed to research by Harvard professor Thomas Kane showing that Los Angeles Unified School District students who were taught by an English teacher in the bottom 5 percent of competence lose the equivalent of several days of learning in a single year relative to students with average teachers.
“Indeed,” the judge concluded, “it shocks the conscience.”
Sadly, the deleterious effects of collectively bargained tenure rules can be serious and long‐lasting. In a 2012 study of more than 2.5 million students, Harvard professors Raj Chetty and John Friedman and Columbia professor Jonah Rockoff found that students who had just a single year in a classroom with a teacher in the bottom 5 percent of effectiveness lose approximately $50,000 in potential lifetime earnings relative to students assigned to average teachers.
If the Friedrichs plaintiffs win, it won’t solve all these problems. Some states will still have LIFO rules, teacher salary and benefits schedules, or related matters enshrined in statute. Nevertheless, if the Friedrichs plaintiffs prevail, it will mean that district school teachers will no longer be forced to support advocacy that they believe works against their interests or the interests of their students. In the long run, less funding for such advocacy may well translate into fewer policies that come at the expense of some teachers and students. Ultimately, a win for the plaintiffs in Friedrichs would be a victory for teachers and their students.
Just as some public schooling defenders like to caricature their opponents as self‐important, money‐grubbing “corporate reformers” or malevolent destroyers of “public education,” there is a tendency on the other side to attack teachers unions as the root of all evil. They aren’t. They are a natural symptom of a government monopoly that, because it is a monopoly, strongly favors the monopolization of labor. One employer, one employee representative.
Unless someone has compelling evidence to the contrary — I’ve never seen any — teacher union officials and members are no different than anyone else: they are simply trying to get the best deals for themselves. What separates them from non‐unionized workers — and unionized workers in the private sector — is not their desires, but that their employment comes from a system into which “customers” must pay, and which is controlled completely by politics. Public‐sector unions have big advantages in politics, where organization, numbers, and motivation — millions of people advocating for their very livelihoods — translate into power.
That brings us to today’s Wall Street Journal piece on union political spending. That spending is huge, and manifested in far more ways than contributions to candidates. Between 2005 and 2011 the Journal estimates unions spent $3.3 billion on political activities, which beyond candidate donations included everything from trying to persuade members to vote a certain way, to supplying bratwursts to demonstrators in Wisconsin.
There would be no major freedom issue if all of this were spending by unions with completely voluntary membership, and which operated in truly free markets. There would, then, be no compelled support of politicking. But this is absolutely not the case when it comes to teachers unions and other public sector unions.
For one thing, teachers often are, for all intents and purposes, forced to join unions as a condition of employment, even when they are required to “just” pay big “agency fees” to cover collective bargaining. Moreover, the ultimately taxpayer‐supplied dues money is used to get more dough out of taxpayers who have no choice but to be schools’ “customers.” And we’re not talking pocket change here: according to the Journal’s numbers, between 2005 and 2011 the National Education Association spent $239 million on politics and lobbying, and the American Federation of Teachers spent $138 million. And that doesn’t include the outlays of all their state and local affiliates.
Despite those power‐wielding expenditures, the members and leaders of teachers unions still aren’t evil. They are normal, self‐interested folks. The effects of their actions, however, are to compel people to fund political speech and activities against their will, and often against their personal interests. But we shouldn’t attack unions for that. We must attack the government schooling monopoly.