Tag Archives: teachers unions

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

Hillary Clinton’s Missed Opportunity

Last week, presidential candidate Hillary Clinton received an endorsement from the National Education Association. Before that, she met with the NEA’s board of directors, and blogger Mike Antonucci posted Clinton’s responses during the meeting. Clinton talked about ESEA reauthorization, testing, standards, and college affordability. But what Clinton chose not to talk about in a meeting with a room full of teachers is just as instructive as what she did talk about.

Seeking the support of the nation’s largest teachers union would have been a great time for Clinton to discuss her plans for improving the teaching profession, but she declined the opportunity. The closest Clinton got to discussing how she views the profession happened when she touted her New College Compact proposal—a college tuition assistance program. While talking about the proposal, according to Antonucci, Clinton said, “If you do public service, and I consider teaching public service, you will have a lot of debt forgiven depending on how many years you serve as a public school teacher.”

This framing of the teaching profession contrasts with the Obama Administration’s work, which has influenced states and districts, and by extension, the general public, to reconsider teaching as less of a public service and more of a true profession. Through Race to the Top, ESEA waivers, TIF and other programs, the Obama Administration set forth an ambitious path forward to reshape the teaching profession. Under these policies, teachers are held accountable for student achievement and paid handsomely when they lead students to academic success and take on leadership roles that improve overall school performance.

As many districts, big and urban to small and rural, struggle to fill teacher vacancies, treating teaching like a charity role is not the kind of policy that is going to attract and retain the professionals needed in public education. To be sure, Clinton has many more months to unveil her full education policy platform. Her remarks to the NEA’s board of directors were just the tip of the iceberg, but hopefully Clinton will not stay silent on pressing teacher policy issues for much longer.

Could Seattle Be a Test Case for Teacher Evaluation in a Post-ESEA Era?

Seattle Public Schools students headed back to school late this week after a teachers strike delayed the start of the school year by about one week. The main grounds for the strike were lack of teacher pay increases and heavy teacher workloads—both of which got sorted out in the deal negotiated by the Seattle Education Association (SEA) and the school district. Another significant result of the negotiation? Student test scores will no longer be tied to teacher evaluations.

A major reason the SEA was able to slide in the negotiation about student test scores and teacher evaluations is the fact that Washington State does not have an ESEA waiver, which requires student growth to be a “significant” part of evaluations (how significant is largely left up to the states). For teachers of tested grades and subjects, the waiver rules require that state tests be included at some level. Interestingly, the ESEA bills moving to conference in the coming months will not include teacher evaluation, effectively removing the federal requirement for the use of student test scores in teacher evaluation. All of this raises the question: could what happened in Seattle be an indicator of what may happen to teacher evaluation systems across the country? Continue reading