Tag Archives: Supreme Court

There Are No Schools In New Carolina

In the imaginary state of New Carolina, there are no public schools. The citizens and the state legislature have decided that general public education is not a worthwhile use of limited resources, so they’d rather not be bothered with it. Anyone who wants to go to school has to go to a private school or get a tutor. The state will have to pass up any federal education dollars, but that’s okay: there aren’t any schools to fund with it so it’s a wash anyway.

Under the United States Constitution, New Carolina isn’t doing anything wrong.

The Constitution is the articulation of our country’s fundamental rights and the basis upon which we hammer out the contours of those rights by litigating individual cases in federal courts. In these cases, the role of the courts is to interpret the language of the Constitution: What exactly is included in the right to vote? When do you have a right to a jury trial? What’s covered by a right to privacy? States are free to add protections in their own constitutions, they just cannot sink below the minimum guaranteed in the federal constitution.

A 1972 school finance case, San Antonio v. Rodriguez, established that there is no federally protected fundamental right to education in the United States. Rodriguez has been challenged over and over again, but it’s a durable Supreme Court precedent.

Two cases, one in Michigan and one in Rhode Island, have taken up unique but related arguments in favor of recognizing a fundamental federal right to education.  The first, in Michigan, argues that while there may not be a right to education, there ought to be a right to basic literacy. In Rhode Island, the lawsuit argues that the federal courts should recognize a right to the minimum skills needed for basic civic participation. In both cases, the plaintiffs — students challenging the inadequacies of their states’ education programs — are aiming to get federal recognition of a baseline for what schools must provide. A win in a case like this would mean that New Carolina would have to find a way to provide all of its young people with some minimum standard of education, a standard that many existing school systems struggle to meet.

Both cases are moving through the federal courts, and it remains to be seen whether one (or both) will make it up to the U.S. Supreme Court for review. In any case, both cases have the potential to radically alter the relationship between state and local school systems and the federal constitution.

It’s important to note that some real New Carolinas do, in fact, exist. There are a number of places in this country where some of our most vulnerable students are legally denied access to the education programs that they would otherwise be able to participate in: juvenile justice facilities and immigration detention. In some of these places, education programs are diluted versions of local schools. In many of them, “education” consists of a packet of worksheets or some online tutorials. And in others, there is simply no school at all.

If the plaintiffs in either Michigan or Rhode Island prevail, that may change.

Since Janus Isn’t a Simple “Win/Lose,” What Else Are the Justices Deciding?

current U.S. Supreme Court Justices

via Franz Jantzen, Collection of the Supreme Court of the United States

The Supreme Court has yet to announce its decision in Janus v AFSCME, the case that will decide the fate of agency fees — fees paid to unions by non-members to support collective bargaining activities. So while you’re waiting (and studying up on the history of unions using our recently released slide deck), here are three things you need to know about the Court’s decision-making process:

  1. There is a range of possible rulings.

The Supreme Court’s decision is not going to be a simple “win/lose.” While Janus will, in fact, either “win” or “lose” his case, the Court’s written interpretation is what will shape future law and policy. And this written interpretation could be very narrow, quite broad, or fall somewhere in the middle. A very narrow finding, for example, could be to affirm the lower court’s ruling. Under this ruling, nothing would change. On the other end of the spectrum, the Court could go beyond the agency fee question presented in the case and find more broadly that exclusive representation is also unconstitutional.

  1. In its decision, the Court will likely reference a long history of precedents on agency fees and free speech.

The Court has been ruling on the issue of agency fees for decades. Analysts and commentators most frequently cite the 1977 Abood case, which endorsed the current agency-fee arrangement. But there are others cases that could be just as important. For example, the 1968 Pickering v Board of Education case dealt with a teacher who was fired after writing a letter to a local newspaper that was critical of some of his school board’s financial decisions. The Court found in Pickering’s favor that his right to freedom of speech was violated when he was fired for writing this letter. In making its decision, the Court had to balance the interests of Pickering, who was a citizen speaking on matters of public concern, and those of the government (in the case, the school board) as an employer seeking to provide efficient public services. This balancing of interests has become known as the Pickering test.

The Court could apply the Pickering test to Illinois’ law, which would require them to balance the interests of Janus speaking as a citizen on a matter of public concern with those of the government as an employer. The Court could find either that the state’s interests as an employer outweigh Janus’ free speech interest (meaning that Janus would lose) or that Janus is speaking as a citizen on a matter of public concern and that this free speech interest outweighs the state’s interests as his employer (meaning that Janus would win).

Another case the Court may reference is the 1991 Lenhert v Ferris Faculty Association case, which defined the activities for which unions can compel agency fees from non-members. These activities must 1) be “germane” to collective bargaining, 2) be justified by the government’s interest in maintaining labor peace, and 3) not add to the burdening of free speech.

The Court could decide that agency fees are legal, however it could revisit the definition of the expenses for which unions can charge non-members.

  1. The Court will avoid a constitutional question whenever possible.

Canons of construction are principles that provide guidance to the courts as they interpret statutes. One of these principles is to “first ascertain whether a construction of the statute is fairly possible by which [a constitutional] question may be avoided.” In other words, if there is a reasonable interpretation of the statute that does not conflict with the Constitution, the Court will adopt this interpretation.

This could be the case for Janus: The Court could find that there is an equally reasonable interpretation of Illinois’ law that does not raise a First Amendment free speech issue. The Court would have to adopt this interpretation, and Janus would lose.

While the Court’s decision is expected in the coming days, there’s no way to predict what it will be. So in the meantime, check out our deck on the history of unions and the implications of the Janus decision here.

7 Things You Didn’t Know About Teachers’ Unions

Sometime in the next few days, the decision in the Supreme Court case Janus vs. AFSCME will shape the future of public sector unions by determining if agency fees are legal. This is a big deal, especially for teachers’ unions. They stand to lose loads of money if the Supreme Court rules in favor of Janus.

Earlier this month, we released a slide deck report to inform the ongoing conversations about Janus and its outcome. Here are seven key facts from “Overview of the History and Status of Teachers’ Unions to help you understand union membership trends, teachers’ unions specifically, and the meaning of those pesky agency fees.

  1. Union membership has been declining for a long time

Click to enlarge. “Overview of the History and Status of
Teachers’ Unions,” slide 11.

Union membership peaked in the mid-1950s when 35 percent of wage and salary workers were in a union compared to only 11 percent today.

2. But it is mostly declining because of private sector workers

Click to enlarge. “Overview of the History and Status of Teachers’ Unions,” slide 12.

3. Yet there are still lots of unionized workers in lots of states

Click to enlarge. “Overview of the History and Status of
Teachers’ Unions,” slide 15.

In 26 states, more than one-quarter of public sector employees are in a union. In 11 states, more than half are. Continue reading

Making a Federal Case Out of It: How Mark Janus Got to the Supreme Court

Mark Janus, child support specialist in the Illinois state family services agency, is challenging the state’s collective bargaining laws in a case that’s now before the U.S. Supreme Court. This case has potentially far-reaching implications, and oral arguments are scheduled for the end of this month.

When I was in law school, there were so many moments that I thought: “Why am I only learning this here, now, in law school? Everyone should know this stuff!” Civil procedure — the rules that govern the movement of a lawsuit through the courts — is one of those things. So let me outline the things you need to know to understand how Janus got to the Supreme Court. (Like any good lawyer, I’ll add that the answer to just about every legal question is actually “it depends…,” but for the sake of clarity, I’ve taken some liberties to simplify.)

The case started when Illinois’ governor Bruce Rauner sued to challenge his own state’s union agency fee statute, the law permitting collective bargaining units to charge all represented workers for the cost of representation even if they opt out of the union. The district court determined that his office hadn’t been harmed by the law and therefore lacked what’s called standing to sue. But the case was preserved by Mark Janus, whose lawyers had filed papers to be included as an intervener, an additional party who claims they have rights and/or injuries that are about to be adjudicated in an existing case. So when the court dismissed the Governor’s complaint, it opted to recognize Janus’s complaint as the operative one, meaning the one that’s current or pending before the court. Continue reading

We Can’t Sue Our Way to Equitable Schools

Last week marked 62 years since the Brown v. Board of Education Supreme Court decision, and our public schools are by and large, as segregated as they were when the policies were banned. After all, the mandate to “outlaw segregation” is not the same thing as “have integrated schools,” and the farther a decision has to travel from courtroom to outcome, the less likely it is to deliver on its objective.  And yet Brown remains a cultural touchstone with deep and consistent resonance for education professionals, civil rights activists, and attorneys.

supreme-court-546279_1280Civil rights litigation is regarded with a reverence that is, perhaps, disproportionate to its reality. It is expensive, time consuming, fractious for communities, and emotionally exhausting. In 1976, leading critical race studies professor Derrick Bell published “Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation,” challenging the mainstream celebration of school desegregation litigation and describing the problem as one of a conflict of interest between lawyers invested in challenging segregation laws and their Black clients who wanted only high-quality schools for their children. Linda Brown, the student about whom the famous case was filed, has talked extensively about feeling exploited by a process that ultimately couldn’t provide integrated schools for her own children.

When we think about the purpose and effect of impact litigation, there are two recent cases that illustrate an important distinction: In a case like Obergefell v. Hodges, a righteous court opinion changed people’s lives overnight. Recently, we heard the same sort of evocative language used by the plaintiffs in Vergara v. Californiawhere the legal victory alone wouldn’t guarantee changes, and any changes wouldn’t be felt for years.  As a former education civil rights attorney myself, I’ve thought a lot about how these types of litigation both unite and divide the civil rights community as well as the part they play in education reform. Continue reading