Union Fate (Janus vs. AFSCME)

March 2018

Updated: July 2018

Is the Supreme Court’s decision in Janus vs. AFSCME a triumph or tragedy?

BY // Hanna Skandera

I suppose the answer depends, at least in part, on the road you’ve walked in life. Our experiences often influence our perspective on issues like this.

As a former State Secretary of Education, I was admittedly frustrated by the tendency of labor unions to spread false or incomplete information to teachers and the public. I believe their actions were designed, in many cases, to create chaos and confusion, foment strife and angst, and beat back student-centered reforms and new approaches in education. Attempts at compromise and constructive dialogue were often met with unrelenting opposition. Politics was at the heart of their work, and politics is sadly a zero-sum game. None of it served kids well, and in my opinion, none of it served teachers well, either.

So, if you’re like me, the Janus decision represents a victory – not just for students and families, but for the many teachers across America who have felt intimidated and marginalized in their workplaces by an overly-aggressive (and overtly political) labor union. It’s also a victory for the basic premise that Americans should have the right to choose the speech and activities they subsidize and support with the wages from their work.

However, I fully recognize that if you are a union activist, for example, the Janus decision is an affront to your work and beliefs. In your opinion, the ruling erodes the protections of educators in the workplace and could diminish the voice of teachers in policy debates and political contests.

And so goes the back and forth – all of it based on authentic experiences.

In the end, perhaps what we have before us is an opportunity for all sides. It is an opportunity for unions to re-define their value and become a more representative voice of the broad and diverse population of teachers they represent. And, it is an opportunity for education leaders to re-engage in serious and constructive dialogue – as well as committed collaboration – with America’s teachers, whose work should be honored in all that we do.

Originally posted March 2018

Late last month, the Supreme Court heard arguments about Janus v. AFSCME, a case that could threaten the future of unions across the U.S., including those that serve teachers. Should the Court rule in Janus’ favor, what are the implications for teachers, schools and, importantly, students?

The Line asked two education advocates to weigh in. Here’s what Paul Toner, executive director of Teach Plus Massachusetts, and Mark Rosenbaum, director of Public Counsel Opportunity Under Law and adjunct professor of law at University of California, Irvine School of Law, shared.

Post-Janus Unionism – Is Militancy the Way Forward?

BY // Paul Toner

In February, the Supreme Court of the United States heard arguments in a case entitled Janus v. AFSCME Council 31, concerning a public sector employee who is opposed to paying agency fees or “fair share” to the union responsible for negotiating his collective bargaining agreement.

Whether you are an educator in a union, or not, what happens to Mark Janus will be important to you, to unions and to the future of public education.

Mark Janus, a child support specialist for the Illinois Department of Healthcare and Family Services, is not arguing that the fees he pays to his union are onerous, nor that he can better negotiate a contract alone. Janus is arguing that collective bargaining with any public employer is a political act and that mandatory fees are an infringement on his First Amendment rights. “The union voice is not my voice. The union’s fight is not my fight,” he has written. He is opposed to union-backed politicians and positions that he believes have made Illinois’ fiscal crisis worse.

For anyone who would see this argument as an outlier, think again. This is one of many cases that have been working their way to the Supreme Court and given the current makeup of the court, Janus is likely to win.

In a similar 2016 case, Friedrichs v. California Teachers Association, there was a 4-4 split decision due to the death of Justice Anton Scalia. Now that conservative Neil Gorsuch has taken his place, most observers expect a 5-4 vote against the union.

In all such cases, we as a society are tempted to immediately pronounce winners and losers but the only real certainty here is change.

Currently, agency fees are slightly less than full union dues. They are determined by subtracting the cost of political expenditures (campaigning, political donations, etc.) from the cost of full membership. Agency fee payers get the protections of the collective bargaining agreement but cannot engage in most other union activities or access union resources.

Protestors rally outside capitol building with Unrig the System Signs - in response to Janus v AFSCME case
Janus v. AFSCME Protest (Credit: Mike Ferguson/AAUP)

The difference between an agency fee and full union dues can be substantial, often several hundred dollars a year. But if Janus wins, the choice for educators will be between paying full union dues, which can be a thousand dollars or more, or nothing at all. The potential for new educators with low pay and no union history, or educators with political views differing from the unions, to opt out of membership is a real threat. Even under the status quo, a U.S. Department of Education survey found that between the years 1999-2000 to 2015-2016, union participation by public school teachers had already dropped almost 10 percent.

Some observers believe eliminating agency fees would be catastrophic, rapidly speeding union decline. Such rapid decline, however, is unlikely but the longer-term threat is real. Unions that have relied on agency fees as leverage to encourage membership will need to demonstrate their value and worth to educators who now have a clear choice. Unions have been preparing for this for several years and organizers are conducting member outreach hoping to solidify membership before an adverse decision this spring.

To union critics, it will be seen as a victory. They cite examples of corrupt union leaders, undue political influence, obstruction to reasonable reforms and the support of political candidates whose views are in direct conflict with many of their members as reasons to support Janus.

But this latter view ignores the fact that many school district administrators prefer the efficiency of collective bargaining and dealing with one bargaining representative. Unions and collective bargaining have brought stability to the workplace. Where labor management relationships are strong real reforms can be made.

Where labor management relationships are strong real reforms can be made.
Paul Toner, Executive Director, Teach Plus Massachusetts

Ironically almost concurrent with the Supreme Court deliberation, approximately 20,000 teachers in West Virginia went on strike for nine days, seeking higher wages and the stabilization of health insurance costs. This is in a so-called “right to work” state with no collective bargaining rights and no right to strike.

It was an old-fashioned job action, with loud, raucous marches on the state capitol in Charleston, nightly national news coverage and impassioned speeches on behalf of West Virginia educators who rank near the bottom in annual compensation.

That it occurred in West Virginia is emblematic of the dichotomy in how we feel about unions and their activities. The state’s history is filled with examples of job actions, most notably by coal miners. Most of us can credit unions for their historical role in establishing worker safety, child labor laws, minimum wages, reasonable working schedules and a host of other benefits, many of those directly benefitting students. West Virginia is also a state where many union members of all types are unlikely to support the progressive Democratic candidates and issues often supported by unions. If you were an employee like Mark Janus, you would argue that the financial footing in West Virginia is hardly less precarious than it is in Illinois and the union violated your rights.

It is notable that in Roman mythology Janus is seen as the god of transitions, for we are almost certainly entering a phase of rapid transition. The potential for the weakening of current union structures may very well delight critics but cause more labor strife, not less. It may lead to more, different types of unions or associations, especially in education.

Some may disagree, but as educators, this is where we must engage respectfully and act collectively on behalf of those we serve – public school students.
Paul Toner, Executive Director, Teach Plus Massachusetts

Many in the union movement see a return to traditional union militancy as the best strategy for maintaining membership and power. West Virginia educators achieved much of what they were after. Many union members consider the outcome a victory. It is already creating talk of similar actions by teachers in Oklahoma, Arizona and Kentucky.

In states and districts where pay is low and benefits few, educators want their unions to fight to improve their status. Post-Janus, however, teacher unions will need to go beyond the traditional industrial union model. Many educators also want their union to lead their profession and to concentrate on improving our public schools through actions and agreements that allow teachers to best serve and prepare their students for future success. This will require flexibility and collaborative leadership by labor and management in the workplace and government.

Much of that work will be, and must be, political. Increasingly, supporting public education at all is a political choice. Unions will need to be strong advocates for more substantial school funding, improving teacher preparation, school safety, immigration reform and many other efforts that support our most at risk families.

Some may disagree, but as educators, this is where we must engage respectfully and act collectively on behalf of those we serve – public school students.

Paul Toner is executive director for Teach Plus Massachusetts, where he leads Teach Plus’ policy and teacher leadership work in Greater Boston and the Commonwealth. He also is a member of The Line’s Editorial Advisory Board.

Paul joined Teach Plus from Cambridge Strategic Partnerships, LLC, an education consulting firm where he served as president. Prior to that, Toner served as vice president and president of the 113,000 member Massachusetts Teachers Association (MTA) from 2006 to 2014 after serving as president of the Cambridge Teachers Association from 2001 to 2006.

Toner, a middle school social studies teacher, lawyer and former teacher union leader, has dedicated his career to seeking collaborative, innovative solutions to improving public education.  As leader of the MTA and CTA, he was a strong advocate for educators and students while working with district and state leaders to focus on improving student achievement through labor-management collaboration.

Protestors rally outside capitol building with Union Leaders - in response to Janus v AFSCME case
Janus v. AFSCME Protest (Credit: Mike Ferguson/AAUP)

The Likely Losers in Janus that No One is Talking About

BY // Mark Rosenbaum

It’s hard to come up with forty-plus-year-old decisions from the Supreme Court that affect civil rights one way or the other and have been subsequently overruled by the Supreme Court. Plessy v Ferguson (1896) was reversed by Brown v. Board of Education (1954). But the question there was what took so long. That’s not a hard one to answer (entrenched racism). I teach constitutional law and no others spring to mind.

On the other hand, it’s much easier to tick off decisions by the Court that have endured through many generations and are still on the books though they disgrace all that our judicial system is supposed to stand for: think of Dred Scott v. Sandford (1857) (freed slave as property) and Korematsu v. United States (1944) (internment camps for Japanese American citizens and lawfully present aliens from Japan as constitutionally justified by national security where no evidence of seditious conduct) for starters. One response is that the holdings in these cases have withered away into nothingness over time. The point here, however, is that outright overruling of decades-old rulings is a rare phenomenon.

So it’s worth reflecting on the fact that the overruling of Abood v. Detroit Board of Education (1977) this term in Janus v. AFSCME is a foregone conclusion, one that was only strengthened in the course of oral argument on February 26. Abood held that public employee unions, if authorized under state law, could charge non-members a “fair share” of union costs in representing both members and non-members on work-related matters. And there is little to suggest that the outcome will not be detrimental to public service unions. It’s an undisputed note that Janus and predecessor cases were orchestrated and handsomely financed by avowed foes of unions generally. Why else would such entities support these cases? The overwhelming judgment by the nation’s most respected economists is that the question is not if, but how much, such unions be weakened. When the decision comes down in favor of the anti-unionists, there won’t be any celebrating by union supporters or their brushing it off as inconsequential.

Close up of AFSCME member t-shirt at union meeting AFSCME Meeting (Credit: WFSE/AFSCME C28)

The well-established test for overruling a decision is not whether a majority of the Court thinks that the original holding is incorrect. If that were all that was required, you’d expect a whole slew of past decisions to be reversed every time a new Justice was added to the Court who would have voted with the minority in past 5-4 rulings and whose vote would then be a difference maker. A key factor in determining whether reversal is warranted in our system respecting stare decisis (precedent) is the degree to which such decisions have been relied upon. It’s what gives stability and integrity to the opinions of the Supreme Court. And on that criterion, there’s really no respectable other side to the position that Abood has been for decades the structure for nearly half the states and thousands of municipalities to negotiate a zillion contracts with public service unions.

A fair percentage of the back and forth during the argument was over what constitutes “work-related matters” as opposed, say, to political matters defined more broadly. My guess is that the eventual majority, rejecting a suggested compromise by Justice Breyer, will not draw such a distinction. But wherever such a line might arguably be placed, I don’t think many, or any workers for that matter, public sector or not, would say that wages and working conditions fall outside the “work-related” category.

We wouldn’t be talking about Janus today if Justice Antonin Scalia had not passed away not long after argument in Frederichs v. California Teachers Association, a predecessor case that resulted in a 4-4 vote and therefore is of no precedential value. To get at the real-world impact of what’s about to come down, it’s the case to think about.

An October report from the Learning Policy Institute, titled “Solving the Teacher Shortage: How to Retain and Attract and Retain Excellent Educators,” found that “67 percent of teachers report salary and compensation to be an important factor in their decision to leave the profession” and that “teaching conditions – which also define learning conditions for students – are a strong predictor of teachers’ decisions about where to teach and whether to stay.” That surely doesn’t come as any surprise.

Now when it turns out that teachers’ unions suffer as result of Janus, the already documented shortage in our nation’s most underserved schools is going to grow, both because teachers will increasingly leave the profession and because young, talented persons won’t enter it in the first place. That’s a loss to women and men who entered hard-to-staff, already underperforming schools in already disadvantaged communities or are thinking about doing so.

But by far the victims hit hardest will be the children and their families…
Mark Rosenbaum, Director of Public Counsel Opportunity Under Law

But by far the victims hit hardest will be the children and their families at these schools who are still waiting on Brown’s promise of the equal educational opportunity necessary for them to achieve their dreams and become full civic participants in our democracy – just like their counterparts in more advantaged schools and communities. In a case framed as about free speech, their voices will be the ones that are lost.

Mark Rosenbaum is director of Public Counsel Opportunity Under Law, which aims to eliminate economic injustice. He also is an adjunct professor of law at University of California, Irvine School of Law. The views expressed in this essay are those of Rosenbaum only.

Rosenbaum has argued four times before the United States Supreme Court, more than 25 before the Ninth and Sixth Circuit federal Courts of Appeal, three before the California Supreme Court and before the United States Court of Military Appeals.

Rosenbaum has been principal counsel in landmark cases in the areas of K-12 public and higher education, voting rights, poverty law and homelessness, racial, gender, class and sexual orientation discrimination, health care, immigrants’ rights, foster care and criminal defendants’ rights.

Rosenbaum is currently litigating major K-12 access to literacy cases in Detroit (www.Detroit-accesstoliteracy.org) and California (www.literacycalifornia.com) and involving trauma (www.traumaandlearning.org.).

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