Trump Pick for Supreme Court Could Devastate California Teachers Association

November 20, 2016 By Chris Reed 18 Comments

Rebecca FriedrichsWhile it may not be immediately apparent, Donald Trump’s victory in last week’s presidential election has deep implications for the balance of political power in California. Because of his win, there could soon be a fifth vote on the U. S. Supreme Court – again – to conclude that teachers at California public schools can’t be compelled to pay union dues to the California Teachers Association in support of political activities with which they disagree.

These dues have made the CTA arguably the most powerful force in state politics, able to win passage of bills increasing taxpayer funding for the state teachers’ pension system, protecting teachers’ jobs and making it difficult for their performance to be evaluated. A Fair Political Practices Commission report found that the CTA and affiliated entitiesspent $212 million to influence state politics from 2000-2009. Dues vary but are generally around $1,000 a year for the CTA’s 325,000 members.

At a January hearing in the Friedrichs v. CTA case, five justices – conservatives Antonin Scalia, John Roberts, Clarence Thomas and Samuel Alito and libertarian swing voter Anthony Kennedy – appeared poised to allow teachers to opt out of CTA dues.

But in February, Scalia died. In March, the court deadlocked 4-4 on the case, and in June, it declined to hear the case again in the term that began in October.

Trump has promised to appoint a justice with Scalia-like views as his replacement. That presumably would mean five votes to put limits on what public employee union dues could be used for.

Are dues solely used for collective bargaining or not?

The case was brought in 2013 by the libertarian-leaning Center for Individual Rights on behalf of Rebecca Friedrichs, an Orange County schoolteacher (pictured above), and other teachers who object to the CTA’s agenda and reject the claim that their dues were being used for “collective bargaining” purposes only.

The center is expected to start the ball rolling again for a new federal trial, and eventual Supreme Court review, in coming months. It’s not clear whether Friedrichs will again be the plaintiff, but there’s a broad assumption that the CTA — labelled “the worst union in America” by conservative publication City Journal — will again be the target.

As California Lawyer magazine detailed last year, conservative federal judges — not just those on the Supreme Court — seem eager to expedite the challenge to union members’ objections to political uses of their dues. Both trial court and appellate judges went along with plaintiffs’ request that the Friedrichs case be rejected based on precedent — specifically, Abood v. Detroit Board of Education, a 1977 Supreme Court ruling upholding compulsory union dues. This request was made to get the case before the high court as soon as possible.

There is little doubt that several justices are eager to scrap the precedent.

At the January hearing on the Friedrichs case, Kennedy ridiculed the argument that compelling teachers to pay union dues that were used to advocate political views they didn’t share was no big deal because those teachers could advocate for their views in other ways.

The contention that upholding Friedrichs’ challenge would destroy public employee unions also was subject to sharp challenge by justices who noted that federal employees’ unions didn’t charge “agency fees” but were able to effectively bargain on pay and benefits.

The four justices who voted to reject the Friedrichs case and side with the CTA criticized what they saw as an unseemly eagerness to reject long-held precedent. They noted that the Abood case’s finding had been challenged repeatedly over the last four decades and had only faced high court doubts in recent years.

This piece was originally published by CalWatchdog.com

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Supreme Court Justices Are About To Tip The Scales In California Politics

January 20, 2016 By Susan Shelley 3 Comments
Photo courtesy Envios, flickr

Photo courtesy Envios, flickr

California politics could be shaken up this spring when the U.S. Supreme Court hands down its decisions in two potentially landmark cases.

The framers of the U.S. Constitution thought they were keeping the judiciary out of politics, but it hasn’t worked out that way. Today the Supreme Court exercises so much power over our lives that if one of the justices mentions retirement, half the country experiences chest pains. And the stress is not unwarranted: Policies that were created by judges can be reversed by judges.

Right now the Supreme Court is considering whether to change the rules that control state redistricting, and whether to abolish mandatory union dues for public employees. The impact of the two decisions could make California’s predictable elections a lot less predictable.

In the redistricting case, Evenwel v. Abbott, the issue is whether Texas should be allowed — perhaps even required — to draw its legislative district boundaries based on eligible voters instead of total population.

For example, an Assembly district might have a population of half a million people but far fewer citizens who are eligible to vote. The court’s ruling could result in the district’s boundaries being redrawn to take in new geographical areas with more citizens and fewer immigrants. The decision could scramble the political map in Texas and potentially in other states with a high proportion of non-citizens, including California.

Until the mid-20th century, the federal courts stayed out of state redistricting. That changed when Chief Justice Earl Warren decided to get involved.

As governor of California in the 1940s, Warren had opposed a plan to draw district lines based on population instead of geographical area. At the time, rural Senate districts with fewer voters had the same political power as urban districts jammed with voters. The votes of city residents were, in a sense, unequal to the votes of rural residents. Los Angeles was outvoted on everything.

As chief justice, Warren had second thoughts about the fairness of that arrangement. In two landmark decisions, Baker v. Carr and Reynolds v. Sims, the court imposed a “one person, one vote” standard that required voting districts to have roughly equal populations.

But the Evenwel case could be a new landmark.

The second case that could shake up California politics, Friedrichs v. California Teachers Association, may determine whether public employees have the right to refuse to pay union dues. Ten California teachers are suing the CTA over the automatic deduction from their paychecks of “agency fees,” or what unions call “fair share fees.”

Public employee unions have had the power to collect fees from non-members ever since the Supreme Court ruled in a 1977 case, Abood v. Detroit Board of Education, that mandatory dues were legal as long as no one was forced to pay for a union’s political activities. But the teachers argue that everything the union does is a political activity, because it negotiates with government officials for salaries and benefits paid from tax dollars.

If the court rules against the union, the continuous stream of cash that has flowed from teachers’ paychecks to the California Teachers Association could slow to a trickle. That may limit the CTA’s campaign spending, which for decades has flooded the political landscape to elect union-friendly lawmakers. Other public employee unions could find themselves in the same boat.

The Supreme Court’s decisions could unsettle California politics virtually overnight.

We’ve had some low-turnout elections, but this must be some kind of record. Thirty-eight million people live in California and its future may be decided by nine voters.

 

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Collective Bargaining Fails Students, Competent Teachers and Taxpayers

November 26, 2015 By Larry Sand 4 Comments

Ashs-teacher-and-studentsA new study reveals that collective bargaining for teachers has a negative effect on future earnings, occupational skill levels and hours worked. Writing in Education Next, researchers Michael Lovenheim and Alexander Willen dissect the long-term ramifications of states that mandate collective bargaining for teachers. While they find no clear effects of collective bargaining laws on how much schooling students ultimately complete, their results do show that laws requiring school districts to engage in the process with teachers unions lead students to be less successful in later life. “Students who spent all 12 years of grade school in a state with a duty-to-bargain law earned an average of $795 less per year and worked half an hour less per week as adults than students who were not exposed to collective-bargaining laws. They are 0.9 percentage points less likely to be employed and 0.8 percentage points less likely to be in the labor force. And those with jobs tend to work in lower-skilled occupations.”

The researchers did a meticulous job adjusting, when necessary, for ethnicity and gender. They also took into account school finance reforms and changes in the generosity of state earned-income tax credits. But taking all the variables into account made little difference in the results, and indeed strengthened their confidence that collective bargaining is responsible for the effects they document.

This is not the first study that found collective bargaining agreements (CBAs) to be detrimental to students. In 2007, Stanford professor Terry Moe reported that collective bargaining “appears to have a strongly negative impact in the larger districts, but it appears to have no effect in smaller districts (except possibly for African American students—which is important indeed if true).”

Frederick Hess, of the American Enterprise Institute, and Martin West from the Brookings Institute point out that CBAs “are vestiges of the industrial economic model that prevailed in the 1950s, when assembly-line workers and low-level managers were valued less for their knowledge or technical skills than for their longevity and willingness to serve loyally as a cog-in-a-top-down enterprise. Collective bargaining contracts are especially problematic on three fronts: 1) they restrict efforts to use compensation as a tool to recruit, reward and retain the most essential and effective teachers, 2) they impede attempts to assign or remove teachers on the basis of fit or performance and 3) they over-regulate school life with work rules that stifle creative problem solving without demonstrably improving teachers’ ability to serve students.”

In this brief video, Stanford researcher Caroline Hoxby details in practical terms how CBAs stifle any management flexibility in determining the best slot for a teacher at a given school as well as denying them the opportunity to get rid of the underperformers – rigidity being the hallmark of CBAs.

So if CBAs don’t do much for students, they surely must benefit teachers, right? Well, no, and they especially penalize the good ones. Low pay, excessive bureaucracy and ineffective colleagues are all attributable to CBAs and anathema to great teachers and high-performing schools. And we lose thousands of our best educators as a result.

“Wage compression” occurs when the salaries of lower paid teachers are raised above the market rate, with the increase offset by reducing pay of the most productive ones. “Why strive to become better if I am not going to be compensated for it?” is the attitude of many. Mike Petrilli of the Fordham Institute takes it one step further, claiming CBAs hurt the bottom line of all teachers. He compared teachers’ salaries in districts across the country which allow collective bargaining with those that don’t. He found that teachers who worked in districts where the union was not involved actually made more money than those who were in collective bargaining districts. According to Petrilli, “Teachers in non-collective bargaining districts actually earn more than their union-protected peers – $64,500 on average versus $57,500.”

CBAs don’t do much for taxpayers either. Professor Joe A. Stone of the University of Oregon writes, “In an average California school district, 85 percent of the district’s operating budget is tied to collective bargaining contracts, for both certificated and classified personnel.” (Over 55 percent of California’s general fund expenditures – over $63,000,000,000 – is targeted for education.)

University of Arkansas professor Jay Greene sums it up quite succinctly. “Until the ability of teachers unions to engage in collective bargaining is restrained, we should expect unions to continue to use it to advance the interests of their adult members over those of children, their families and taxpayers.”

One final note: Union leaders and their fellow travelers love to spread the myth of the “right” to collectively bargain. In fact, New York Attorney General Eric Schneiderman recently announced that he is leading a coalition of 20 states and the District of Columbia in filing a friend-of-the-court brief urging the U.S. Supreme Court to deny Friedrichs and maintain forced dues payment for public employees. In a press release, Public Advocate Letitia James said, “Collective bargaining is a fundamental right. I join Attorney General Schneiderman in supporting this right, and standing up for collective bargaining.”

But there is no “right” to collectively bargain. David Denholm, president of the Public Service Research Foundation, writes that the “right” is non-existent. He writes, “Collective bargaining is a legislated privilege given to unions by friendly lawmakers.” (“Friendly” in this case, of course, means those put in office by the people sitting across from them at the negotiating table.)

CBAs are wrong for kids, wrong for good teachers and wrong for taxpayers. But they sure work well for union bosses, many of whom make fat salaries that most teachers are forced to pay for the “right” to be exclusively represented by them. Some bargain.

Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers and the general public with reliable and balanced information about professional affiliations and positions on educational issues. The views presented here are strictly his own.

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Supreme Court Case That Could Topple Teachers Unions

October 10, 2015 By James Poulos 7 Comments

Rebecca FriedrichsFaced with the greatest legal challenge to their core source of revenue, California unions have braced for defeat and scrambled for alternatives.

Some time after its new term begins this month, the Supreme Court will hear arguments in Friedrichs v. California Teachers Association, which challenges the union’s collection of mandatory fees from members. The case’s stakes have been raised as high as possible by plaintiffs’ supporters. “We are seeking the end of compulsory union dues across the nation,” said Terry Pell, president of the Center for Individual Rights, according to the Sacramento Bee.

“Since 1997, the Supreme Court has held that requiring non-union members to pay the cost of collective bargaining prevents ‘free riders,’ meaning workers who get the benefits of a union contract without paying for it,” as NBC News noted. “But in subsequent rulings, several of the court’s conservatives have suggested that the decision should be overruled.” Legal analysts suggested the track record implies a victory for California’s plaintiffs. Erin Murphy, a federal appeals lawyer, told NBC News she “would not feel very good about my prospects if I were the unions.”

Crisis mode

At the end of the Legislature’s final session, pro-union Democrats attempted an unusual “gut and amend” maneuver, wherein a bill’s contents are wiped out and completely replaced without revisiting the standard hearing process. The new language would have required one-on-one, union-sponsored “public employee orientation” for existing and new employees. The content of the orientation “would be the sole domain of the union and not open to negotiation,” with employees “required to attend in person during work hours. Taxpayers would pick up the tab,” the Heartland Institute added in a critical summary.

Although the effort failed, it was a notable reflection of state unions’ concern that they can’t rely on the Supreme Court to protect their current practices. “Public employee unions haven’t had mandated orientations because they don’t need them,” U-T San Diego’s Steven Greenhut observed, calling the last-minute gut and amend a “pre-emptive strike” on the court’s hearing of Friedrichs. “Newly hired workers must already pay dues to the recognized union.”

Not all union supporters have framed the impending decision as a crisis, however. “Even some pro-union voices have argued the Friedrichs case doesn’t portend the end of the world for public-sector unions, in that it might force them to become more responsive and democratic,” Greenhut suggested.

But the court’s decision is likely to hinge on more fundamental questions pertaining to the very definition of a union.

What’s a union?

One element of the problem has been that unions fear members just won’t pay dues if they can get away with it — the so-called “free rider” problem, familiar from the idea that many fewer Americans would pay taxes were they merely voluntary. “No one knows how many would, with annual dues in the CTA, for example, often topping $1,000,” according to the Los Angeles Daily News. “That makes this a life-and-death case for the unions,” which fear the political power of their main adversaries — certain large corporations and high-net-worth individuals — would go undiminished. It would be very difficult, in other words, for the court to successfully separate the question of unions’ political power from the question of their existence.

That has led analysts to focus on a second aspect of the problem of what a union really is. One Justice, Antonin Scalia, has indicated in the past that the existence of unions within the American system of law depends on their ability to generalize the burdens of keeping them running. “In a 1991 case, he wrote that because public sector unions have a legal duty to represent all employees, it’s reasonable to expect all workers to share the costs,” the Daily News noted.

For that reason, the question of what counts as political expenditures would likely come to the fore before the court. But the plaintiffs in Friedrichs have anticipated the controversy, because they see it as the foundation of their entire case. “All union fees, they argue, are in some way used for political activities and since they don’t always agree with the union’s stance, having to pay any fees is an infringement on their first amendment rights,” the Guardian reported.

Originally published by CalWatchdog.com

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Pair of Federal Lawsuits Could Undo CTA’s Dominance.

July 30, 2015 By Larry Sand 2 Comments

brochure04_MyCTAThe U.S. Supreme Court will hear oral arguments in Friedrichs v. California Teachers Association in the fall. The 2013 lawsuit on behalf of Orange County teacher Rebecca Friedrichs, nine other teachers, and a professional association of Christian educators, takes aim at the constitutionality of California’s “agency shop” law, which forces public-school educators to pay dues to a teachers’ union, whether they want to or not. Friedrichs is now front-and-center in a concerted legal effort to constrain the outsize political influence of teachers’ unions in California and around the United States. “This case is about the right of individuals to decide for themselves whether to join and pay dues to an organization that purports to speak on their behalf,” said Terry Pell, president of the Washington D.C.-based Center for Individual Rights, the public-interest law firm that is representing Friedrichs. “We are seeking the end of compulsory union dues across the nation on the basis of the free-speech rights guaranteed by the First Amendment.”

Earlier this year, the teachers’ unions were hit with yet another lawsuit challenging the current compulsory dues-paying mandate. StudentsFirst, the Sacramento-based activist group founded by former D.C. schools chancellor Michelle Rhee, filed Bain v. California Teachers Association, et al. in federal district court in April on behalf of four CTA members. The case challenges a union rule regarding members who refuse to pay the political portion of their dues. While teachers don’t have to join a union as a condition of employment in California, they must pay dues to the union anyway. Most join and pay the full share, which typically runs over $1,000 a year. But according to the CTA, about 29,000 — or 10 percent — of its active teachers opt out of paying the political or “non-chargeable” part, which brings their yearly expenditure down to around $600. However, to become “agency fee payers,” those teachers must resign from the union and relinquish many perks they had as full dues-paying members.

Unlike the plaintiffs in Friedrichs, the Bain teachers want to remain in the union. But they don’t think they should be effectively forced out of it and lose certain benefits because they’re unwilling to fund the leadership’s political agenda. Some teachers object that union political spending goes in one direction only: leftward. CTA spends millions each year on controversial, non-education-related liberal causes, such as establishing a single-payer health care system, expanding the government’s power of eminent domain, instituting same-sex marriage, and blocking photo ID requirements for voters — while giving virtually nothing to conservative candidates or causes.

The teachers argue that this violates their constitutional right to free speech. Affected teachers lose insurance benefits along with the right to vote for their union representative and contracts. They are barred from sitting on certain school committees. They also lose legal representation in employment disputes and at dismissal hearings, as well as compensation for death and dismemberment, and disaster relief. The plaintiffs in Bain are asking why teachers who pay for union representation won through collective bargaining should lose out on those benefits simply because they refuse to pay for the union’s political campaigns.

That question has generated a great number of half-truths, lies, and general non-answers from the media and union leaders alike. For example, EdSource’s John Fensterwald wrote, “Both the CTA and CFT are obligated to negotiate contracts dealing with pay, benefits and working conditions on behalf of union and non-union teachers.” That’s true; all teachers do become “bargaining unit members,” but only because the unions insist on exclusive representation. The unions would have a better case if they would forego their monopoly status and free dissenting teachers to negotiate their own contracts. A Los Angeles Times editorial claimed the case at its core represents “an attack on the power of any public employee union to engage in politics.” Nonsense. If Bain is successful, unions would remain free to “engage in politics”; they would simply have fewer coerced dollars to spend. Alice O’Brien, general counsel for the NEA, said in a statement, “The Bain lawsuit attacks the right of a membership organization to restrict the benefits of membership to those who actually pay dues.” More nonsense. The teacher-plaintiffs are all dues payers and would remain dues payers if their case is successful.

If the Supreme Court rules in favor of the teachers in the Friedrichs case, it’s unclear what may become of Bain. The two cases have a key difference: Friedrichs claims that all union spending is political, and therefore non-member teachers should not be forced to contribute any dues at all. Bain would help teachers who want union benefits but don’t care for union politics. A favorable outcome in Bain could lead to a more flexible membership scenario, whereby teachers could still be union members, with all the benefits of membership, but not be forced to pay for what has been traditionally regarded as political spending. In any event, the teachers’ unions’ heavy-handed tactics seem to be losing force, and their days of unbridled power may be numbered. That can only be good news for those for whom the unions’ presence in education has become an albatross—teachers, kids, parents, and taxpayers alike.

Larry Sand, a retired teacher, is president of the California Teachers Empowerment Network and a contributor to City Journal’s book, The Beholden State: California’s Lost Promise and How to Recapture It.

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