Workers suffered two judicial setbacks this summer, in cases with potentially far-reaching effects. In Harris v. Quinn, the Supreme Court of the United States held that home health care workers could not be required to pay agency fee costs, as provided by an agreement between SEIU and the State of Illinois state legislature. In Vergara v. State of California, a California trial court held that California’s laws on tenure for public-school teachers violated the California Constitution.
Harris v. Quinn
Over the years, an increasingly conservative Supreme Court has been chipping away at workers’ rights, especially targeting the establishment of a “union shop,” in which all employees must either join the union and pay dues or pay an “agency fee” to cover the costs of union activity on their behalf.
Unionists say that agency fees are a fair solution to the “free rider” problem in collective bargaining. By law, unions have a duty to represent all members of a bargaining unit, not just those who have chosen to join the union. If a non-member’s rights under the union contract are violated, the union is obliged to offer them representation. When the union wins a wage increase, the higher pay goes to all members of the bargaining unit, union member and non-member alike.
These representational activities cost money to carry out, and an agency fee is designed to cover the cost of providing representation to non-members. Since non-members derive substantial economic benefits from such representation, unions argue charging an agency fee is only fair.
Imagine a group insurance plan where anyone covered could stop paying the premium but would continue to receive benefits. In most cases, such a plan would quickly collapse – and that’s what right-wing anti-union groups, like the one that brought the suit in Quinn, are hoping will happen to unions if agency fee requirements are struck down.
Agency Fee
When unions seek gains for everyone in a bargaining unit, it’s not just required by the law – it’s basic to their nature: the strength of labor unions is inherently derived from collective action. If an employer who signs a union contract could at any time cut individual side deals, hiring workers at any pay to which those workers individually agreed, the contract would soon be worthless. Allowing individual employees to reject coverage by a collective bargaining agreement might appeal to Ayn Rand fans, but for workers it’s a recipe for being powerless and poor.
The Harris v. Quinn lawsuit, filed by the National Right-To-Work Legal Defense Foundation, argued that the home health care worker who served as lead plaintiff should not be obligated to pay the costs of her labor representation. The suit asserted that charging her an agency fee violated her First Amendment rights, an argument that the Supreme Court had previously rejected.
Under Illinois state statute, home health care workers were deemed to be employed both by the individual person they were assisting in the home and by the state of Illinois, which paid their wages. In Illinois, as in California and a number of other states, wage rates for publicly funded home care workers are set according to a uniform schedule, under an agreement between the state and the workers through their union. The individual in whose home they work has the power to hire and fire.
Although this kind of joint employer arrangement is not uncommon, a 5-4 majority of the Court said that it was a new and different circumstance than that authorized by precedent, which primarily addressed employees working full-time for a single employer. The Court’s majority defined the case as an attempt to extend previous precedent to a new situation and then declined to do so. Its opinion holds that home health care workers, as organized under Illinois law, have a right under the First Amendment to refuse to pay the agency fee.
Some members of the Court undoubtedly relished the thought of using Quinn to remove the ability of unions to collect an agency fee from any non-union employee, but a strong well-targeted dissent by Justice Kagan managed to head off such thinking. Kagan argued forcefully that for both single employers and joint employers, precedent compelled non-members to pay the agreed-on agency fee. But she could not muster a fifth vote for her position, and the result was another incremental weakening of union rights.
Unions will now have to organize just that much harder to persuade workers in these situations of the benefits of paying union dues or an agency fee. This can be done, as shown by successful unions in states that ban union-shop agreements across the board. But while it’s possible, this new narrowing of union rights imposes an additional burden on home care workers who seek to improve their low pay and weak benefits. They will now have to fight that much harder in order to win.
The right wing’s ambition is to extend that burden to the labor movement as a whole, by further whittling down and eventually abolishing the agency fee.
Vergara v. State of California
To understand what’s at stake in the attacks on public-school teacher tenure, it’s helpful to look back at why tenure laws were adopted in the first place.
“In early public schools, principals hired and fired teachers based on personal connections, whims, and politics,” Diana D’Amico, assistant professor of education at George Mason University, wrote this summer in Columbia University’s Teachers College Record. Tenure laws were a Progressive-Era reform designed to counter this kind of favoritism, which harmed students’ education.
Public-school tenure first came to the US in the early 1900s, when “‘good-government’ reformers borrowed the concept from Germany,” journalist Dana Goldstein wrote in The Atlantic in June. “During the Progressive Era, both teachers unions and school-accountability hawks embraced the policy, which prevented teaching jobs from being given out as favors by political bosses.”
Tenure laws, which required administrators to show cause before firing a teacher, also helped protect academic freedom and thus the quality of education. In 1937, for instance, a teacher in Whitely Township, PA, was dismissed on charges that included “‘advising’ her pupils that ‘the human race originated from monkeys,’” reported the Brooklyn Daily Eagle. The paper noted that while the case had “echoes of the famous Scopes trial” of 1925, it could have a different outcome: “Her lawyer has announced that he would appeal to the county court under the state’s new teacher tenure law.”
Teacher Tenure
While the legislative history and specific forms of tenure for P-12 teachers are distinct from those of tenure in higher education, both arose at similar times and for similar reasons.
In California today, P-12 tenure is under attack in the case of Vergara v. State of California. According to the Washington Post, the lawsuit was organized and funded “by Silicon Valley mogul David F. Welch, [who] pumped several million dollars into the effort.” Like many other wealthy corporate leaders who’ve appointed themselves as reformers of education, Welch thinks that if schools functioned more like the corporations he has run, with managers able to fire employees at will, education would be the better for it.
But allowing teachers to be fired at will is in fact bad for students, and bad for education. That’s shown by the history of tenure, and by the role it plays today.
Tenure “provides teachers freedom to advocate for their students without fear of reprisal,” argues Karen Magee, president of New York State United Teachers (NYSUT). “Because of tenure, teachers can and do speak out against over-testing, outdated textbooks and cuts to academic programs. Teachers can – and do – join parents in advocating for students without the fear they can be unfairly fired for doing so.”
The Vergara suit asserts that California’s public-school tenure law prevents bad teachers from being fired, that those teachers are more numerous in schools with lower-income students, and that this violates those students’ constitutional right to an equal education. The suit says that bad teachers – not dramatic funding disparities between school districts, or existing economic and social inequality – are responsible for disparities in student achievement.
As a remedy, the plaintiffs in Vergara asked Judge Rolf Treu to eliminate California’s statewide tenure rules. And the June ruling by Judge Treu, an appointee of former governor Pete Wilson, did exactly that.
What’s remarkable about this opinion is that it is so sweeping, yet contains no factual record. The ruling in Vergara contains no description of any individual teacher or any individual teacher practice. It does not demonstrate that any teacher practice caused harm to any individual student, and does not even state what bad practices might have harmed students or how. It concludes, however, that these unspecified practices “shock the conscience.”
The blame attached to California’s tenure rules is similarly unsupported. Nowhere in the opinion does the Court even state that the teachers who taught the student plaintiffs in the case had tenure.
The testimony cited in the opinion did not specify what proportion of California teachers are ineffective, though this question was at the heart of its case. Evidence introduced by the state suggested (without details on how this figure was derived) that between 1% and 3% of teachers in California public schools might be considered ineffective. On this basis, Judge Treu removed crucial due-process protections from all California teachers, good or bad.
On Appeal
On August 29, California’s State Superintendent of Public Instruction Tom Torlakson asked the state attorney general to appeal Judge Treu’s ruling, saying that the decision “is not supported by the facts or the law.” Torlakson argued that the ruling wrongly blames teachers for problems not of their making.
“We do not fault doctors when emergency rooms are full,” he said. “We do not criticize the firefighters whose supply of water runs dry. Yet while we crowd our classrooms and fail to properly equip them with adequate resources, those who filed and support this case shamelessly seek to blame teachers who step forward every day to make a difference for our children.” The case is now under appeal.
This isolated and poorly reasoned decision is being touted as the opening battle of a nationwide campaign to declare tenure laws unconstitutional in all states that have them. The theory of these cases is deeply flawed, in particular because it fails to show any causation connecting the tenure laws and student performance.
“There is no evidence that teachers’ employment rights have anything to do with student achievement,” a recent NYSUT statement points out. “Teachers in the wealthiest districts have the identical due process and seniority rights as teachers in the poorest districts — yet students in wealthy districts have much higher graduation and college acceptance rates.” NYSUT notes that “students in our poorer districts have the greatest educational needs but are given the least resources, with our richest districts spending 180% as much on education as our poorer districts do.”
Follow the Money
There is big money flowing into the campaign for corporate-style reform of public education and supporting its poorly disguised attack on public-employee unionism. The Vergara case has inspired a host of well-funded “copycat” cases, including one filed in New York by a group headed by former TV host Campbell Brown. However the Vergara case is finally decided, we are clearly facing a wave of courtroom attacks on tenure laws, and their outcome will be important.
It would be a mistake, however, to just sit back and await the results. The case in defense of teachers’ rights needs to be taken to the public, since this battle will likely get fought out in the legislatures of the various states (as has already been happening in Colorado and elsewhere). If Vergara and similar suits are ultimately unsuccessful, the corporate and conservative interests behind them will not give up easily. And if this attack succeeds in court, supporters of teachers’ rights will need to fight for changes in the law to undo the damage.
There are compelling arguments to make in support of teacher tenure, which protects educators’ ability to speak out for what their students need. The more the public can be educated about the history and current purposes of teacher tenure, the greater public support will be. Fighting against well-funded private interests is always an uphill battle – but teachers have the public interest on their side.
Frank Deale is a professor at CUNY School of Law. Peter Hogness is editor of Clarion.
