agency fees

The Myth of Public-Sector Unions’ “Free Rider” Problem

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.

Charters—But Not Private Choice—Take A Spill

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.

School Choice

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.

Friedrichs Decision Is a Blow Against Educational Excellence

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.

Teachers Unions Are But a Symptom of the Disease

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.

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