This is the second of two posts on the political dimensions of the Friedrichs case. The first post can be read here.
Before Justice Scalia’s sudden death, it appeared that, through the Friedrichs case, the Supreme Court’s conservative majority would succeed in imposing “right to work” status on public sector working people across the nation. As discussed in a previous post, there were signs that this conservative bloc was looking to deliver its decision in time to sideline the four largest public employee unions – the American Federation of State, County and Municipal Employees (AFSCME), the American Federation of Teachers (AFT), the National Education Association (NEA) and the Service Employees International Union (SEIU) – from the 2016 elections. Not coincidentally, these are also the unions that have the strongest political operations in the American labor. If Scalia had not died and these intentions were realized, what would have been the impact on the 2016 election and beyond?
To grasp the full impact of a negative Friedrichs decision, had the conservative justices been successful in their plans, it is necessary to gauge the effect that public employee unions have on the political activism of their members. Ironically, insight into this question can be gleaned from an essay that exhibits a critical attitude toward public sector unions and collective bargaining, Patrick Flavin’s and Michael Hartney’s “When Government Subsidizes Its Own: Collective Bargaining Laws as Agents of Political Mobilization.”1 (Hereafter, F&H.) While not without analytical flaws, a number of which will be discussed below, F&H contributes to the literature with a new way of measuring the effect of teacher unions on teacher political activism and engagement, above and beyond voting. (Teachers have always voted at consistently high rates, with over 90 percent turnout in presidential elections and over 80 percent in mid-term elections.) Consequently, F&H places in relief the union contribution to member political activism that was targeted by the SCOTUS conservatives.
When the Supreme Court of the United States (SCOTUS) delivered its March 29 ruling in Friedrichs v. California Teachers Association, the announcement of a 4 to 4 deadlock was something of an anticlimax. Ever since the sudden February 12 death of conservative Justice Antonin Scalia, SCOTUS watchers had anticipated just such an impasse. Based on Scalia’s questions when the case was argued before the Court a month before his passing, the late justice appeared to be the fifth vote for a decision that would have overturned 40 years of precedent – in effect, imposing “right to work” status on all those working in the public sector and eviscerating their unions. Without this vote, the four remaining conservative justices failed to constitute a majority.
In the days following this decision, observers across the political spectrum described the judicial deadlock in Friedrichs as a victory for public sector workers and their unions (at least for the moment). A more definitive resolution of the issue awaits Senate confirmation of Scalia’s successor, whether President Obama’s pick, Judge Merrick Garland, or someone yet to be named by the next president.
But, so far, what has been missing from most media commentaries is a recognition of the immediate political import of the Court’s impasse, and most especially, its impact on the 2016 election campaign. To understand the full political dimensions of Friedrichs – how the Court’s conservative majority seem to have been prepared to use the case to sway the election – a brief review of the case is necessary.
In this New York Times piece, which was published on March 9, 1986, Al Shanker discusses a study suggesting that union-district partnership, not confrontation, is the best way to enact and implement reforms that will improve schools.
In the last 25 years, teachers' unions have grown in size and influence. In the minds of many they represent an establishment just as much as the local board of education and the superintendent of schools. Many critics of our schools have been eager to portray teacher unions as supporters of educationally undesirable rules and procedures, such as seniority, which were borrowed from the industrial sector. They view teacher unions as fighting for these rules at any cost and using their bargaining powers to shoot down constructive change whenever it threatens to infringe on teachers' vested interests.
But an interesting new study gives us quite a different picture of the impact that teacher unions and collective bargaining have on the reform process. In preparing Teacher Unions, School Staffing and Reform, a Harvard Graduate School of Education research team led by Susan Moore Johnson analyzed 155 contracts chosen at random from a variety of school districts around the country. And, from June of 1984 to February, 1985, they did extensive, in-depth field work in 5 of the districts, where they examined documents, sat in on meetings and interviewed 187 teachers, principals, union leaders and central office administrators.
What emerges is a valuable insight into the dynamics and complexity of the reform process, why some proposals work and why others fall flat. Though new programs tend to be formulated in legislative chambers or in governors' mansions, the key to success, the authors conclude, is what happens on the district level, within the individual collective bargaining unit. And some interesting patterns emerge.
Our guest author today is David Cay Johnston, a distinguished visiting lecturer at the Syracuse University College of Law and a former Pulitzer prize-winning financial reporter at The New York Times. This article is adapted from his remarks to an ASI-sponsored conversation on the topic in March, which also included remarks from Chad Aldeman, Teresa Ghilarducci, and Dan Pedrotty. A video of this event can be found here.
So the question is whether there is a pension crisis. The answer is yes, absolutely. It’s just not the one that politicians always talk about.
Contrary to that you hear about on TV, in market economics, defined benefit pensions are the second most efficient way to provide for income in old age. The most effective way would be a national program that spreads risks to everyone. The least efficient way to do it is through defined contribution plans.
There is abundant evidence for this. Defined contribution plans work very well, but only as supplements for prosperous people such as me and my wife, who is a public charity CEO, they are not at all effective for most people. That’s be because defined contribution plans violate specialization, one of the most basic tenets of market economics as taught to us by Adam Smith, the man who first explained market economics.
On September 17, 2013, the U.S. Department of Labor (DOL) announced the Home Care Final Rule, which extends the Fair Labor Standards Act’s (FLSA) minimum wage and overtime protections to domestic workers who provide home care assistance to the elderly, the infirm, and the disabled. The Home Care Final Rule is essential to improving the lives of two million domestic workers who, unlike other U.S. workers, are in many states not protected by the FLSA regarding minimum wage, overtime, sick leave, and vacation. Domestic work differs from other jobs in that the work takes place inside other people’s homes, which often puts domestic workers’ wellbeing at the mercy of their employers.
The exclusion of domestic workers from the FLSA was a concession to Southern politicians in the early 1900’s. It had left many homecare aides vulnerable to abuse and mistreatment by their employers. The rule was scheduled to go into effect on January 1, 2015. However, lawsuits filed by homecare corporations have hindered the change and served as an excuse for states to postpone implementation. For example, in Home Care Association of America v. Weil, U.S. District Court Judge Richard Leon vacated the portion of the Rule that prevents third-party home care providers from using the companionship services exemption, and later vacated the revised definition of companionship services.
As of July 2015, only five states have passed the Domestic Workers Bill of Rights: New York; Hawaii; California; Massachusetts; and Oregon. New York was the first state to pass the law (in July 2010) after six years of efforts by domestic workers, unions, employers, clergy and community organizations. The bill was introduced in two other states, Connecticut and Illinois, but has yet to be passed.
The following are the texts of the two speeches from the opening session of our recent two-day conference, “In Defense of the Public Square,” which was held on May 1-2 at Georgetown University in Washington, D.C. The introduction was delivered by Leo Casey and the keynote address was delivered by Randi Weingarten. The video of the full event will be available soon here.
Remarks by Leo Casey
We meet here today in “defense of the public square.”
The public square is the place where Americans come together as a people and establish common goals in pursuit of our common good.
The public square is the place where Americans – in all of our rich diversity – promote the general welfare, achieving as a community what we never could do as private individuals.
The public square is the place where Americans weave together our ideal of political equality and our solidarity with community in a democratic political culture, as de Tocqueville saw so well.
A robust and vibrant public square is an essential foundation of democracy. It is the place where the important public issues of the day are subject to free and open debate, and where our ideas of what is in the public interest take shape. It is the ground upon which communities and associations are organized to advocate for policies that promote that public interest. It is the site for the provision of essential public goods, from education and healthcare to safety and mass transportation. It is the terrain upon which the centralizing and homogenizing power of both the state and the market are checked and balanced. It is the economic arena with the means to control the market’s tendencies toward polarizing economic inequality and cycles of boom and bust. It is the site of economic opportunity for historically excluded groups such as African-Americans and Latinos.
And yet in America today, the public square is under extraordinary attack. A flood of unregulated, unaccountable money in our politics and media threatens to drown public debate and ravage our civic life, overwhelming authentic conceptions of the public interest. Decades of growing economic inequality menaces the very public institutions with the capacity to promote greater economic and social equality. Unprecedented efforts to privatize essential public goods and public services are underway. Teachers, nurses and other public servants who deliver those public goods are the object of vilification from the political right, and their rights in the workplace are in danger. Legislative and judicial efforts designed to eviscerate public sector unions are ongoing.
In response to these developments, a consortium of seven organizations—the Albert Shanker Institute; the American Federation of State, County and Municipal Employees; the American Federation of Teachers; the American Prospect; Dissent; Georgetown University’s Kalmanovitz Initiative for Labor and the Working Poor; and the Service Employees International Union—has organized a to bring together prominent elected officials, public intellectuals, and union, business and civil rights leaders “in defense of the public square.”
So-called achievement gaps – the differences in average test performance among student subgroups, usually defined in terms of ethnicity or income – are important measures. They demonstrate persistent inequality of educational outcomes and economic opportunities between different members of our society.
So long as these gaps remain, it means that historically lower-performing subgroups (e.g., low-income students or ethnic minorities) are less likely to gain access to higher education, good jobs, and political voice. We should monitor these gaps; try to identify all the factors that affect them, for good and for ill; and endeavor to narrow them using every appropriate policy lever – both inside and outside of the educational system.
Achievement gaps have also, however, taken on a very different role over the past 10 or so years. The sizes of gaps, and extent of “gap closing," are routinely used by reporters and advocates to judge the performance of schools, school districts, and states. In addition, gaps and gap trends are employed directly in formal accountability systems (e.g., states’ school grading systems), in which they are conceptualized as performance measures.
Although simple measures of the magnitude of or changes in achievement gaps are potentially very useful in several different contexts, they are poor gauges of school performance, and shouldn’t be the basis for high-stakes rewards and punishments in any accountability system.
A few weeks ago, the Minneapolis Star Tribune published teacher evaluation results for the district’s public school teachers in 2013-14. This decision generated a fair amount of controversy, but it’s worth noting that the Tribune, unlike the Los Angeles Times and New York City newspapers a few years ago, did not publish scores for individual teachers, only totals by school.
The data once again provide an opportunity to take a look at how results vary by student characteristics. This was indeed the focus of the Tribune’s story, which included the following headline: “Minneapolis’ worst teachers are in the poorest schools, data show." These types of conclusions, which simply take the results of new evaluations at face value, have characterized the discussion since the first new systems came online. Though understandable, they are also frustrating and a potential impediment to the policy process. At this early point, “the city’s teachers with the lowest evaluation ratings” is not the same thing as “the city’s worst teachers." Actually, as discussed in a previous post, the systematic variation in evaluation results by student characteristics, which the Tribune uses to draw conclusions about the distribution of the city’s “worst teachers," could just as easily be viewed as one of the many ways that one might assess the properties and even the validity of those results.
So, while there are no clear-cut "right" or "wrong" answers here, let’s take a quick look at the data and what they might tell us.
Our guest author today is Connie Williams, a National Board Certified Teacher librarian at Petaluma High School in Petaluma, CA, past president of the California School Library Association, and co-developer of the librarian and teacher 2.0 classroom tutorials.
Down the road from where I live, on the first-of-the month, a group of vintage car owners gather for a “cars and coffee” meet up. The cars that show up with their drivers cover many years and obsessions. Drivers park, open up the car hoods and take a few steps back and begin talking with other car owners and visitors who happen by. These are people who are interested in the way cars work, their history, and they all have stories to share.
How do they know so much about their cars? They work on them – gaining insight by hands-on practice and consultations with experts. If they’re wealthy enough, they pay someone else to do the work, yet they don’t just hand over their cars to them. They read about them, participate in on-line groups, ask for guidance, and they drive them. Most often, when they drive them, someone stops and asks questions about their cars and they teach what they know to others.
This is an example of the kind of learning we would hope for, for all our students – a passion that is ignited and turns into knowledge that is grown, developed, and shared. In this sense, it is inquiry – asking questions and taking the required steps to answer them – that is at the heart of learning.