Education Week - January 6, 2016 - (Page 22)

GOVERNMENT & POLITICS High Stakes in Union-Fee Case Before Supreme Court By Mark Walsh The face of the movement seeking to upend the public-employee labor sector has had a back-and-forth relationship with her own local teachers' union. Rebecca Friedrichs, the lead plaintiff among a small group of California teachers whose case goes before the U.S. Supreme Court on Jan. 11, started her teaching career in a small school district in Orange County by refusing to join the local union. Later, she joined the union and even became an officer. Friedrichs is now back to her roots as a so-called agency-fee payer-a nonmember of the union who must pay the proportion of dues that goes for collective bargaining and a few other related costs. The main legal question in Friedrichs v. California Teachers Association (Case No. 14-915) is whether a key Supreme Court precedent authorizing such agency-fee arrangements should be overruled. "The unions have core values that are in direct opposition to my core values," Friedrichs said in an interview. "They're using those fees to support their core values and their agenda." 'A Big Deal' Friedrichs and nine other teachers are asking the Supreme Court to overrule that 1977 precedent, Abood v. Detroit Board of Education, and hold that states may not allow unions to exact such fees from public employees who refuse to join. Abood held that state interests in maintaining labor peace and eliminating "free riders" justified requiring nonmembers to pay such fees, which are also known as service fees or "fair share" fees. The Friedrichs case holds high stakes for the future of public-sector unions, not least the teachers' unions that are parties to the case. The challengers "are asking for a ruling that would take down the collective bargaining laws of 23 states, all of which rely on fair-share fees," said Alice O'Brien, the general counsel of the National Education Association, which is defending the Abood precedent alongside the California Teachers Association, the union's state affiliate, and the 10 local affiliates in the Southern California districts where the objecting teachers work. "The union will obviously lose funds" if nonmembers are no longer required to pay for collective bargaining, O'Brien said. "Some people will make the rational choice to not pay for services that are provided for free by the union." Charlotte Garden, an associate professor at Seattle University's law school and a labor-law expert, said "the case is a big deal." "It's not heralding the end of public-sector unionism the way some people have suggested," said Garden, who helped organize a friend-of-the-court brief by labor-law professors on the unions' side. "But it is going to matter a lot in terms of upsetting settled labor contracts." If the pro-union voices speak as if the risks to 40 years of settled public-sector labor law are very real, that's because they are. Conservatives on the Supreme Court have been signaling their desire to overrule Abood for several years now. In a 2014 decision in Harris v. Quinn, the Supreme Court stopped just short of overturning Abood when it held that a group of Medicaid home-health workers were really not government employees and could not be forced to pay agency fees to a union representing a majority of such workers in Illinois. Differing Views Writing for a 5-4 majority in Harris, Justice Samuel A. Alito Jr. wrote at length about Abood's "questionable foundations," but he concluded it wasn't necessary to overrule the 1977 decision in the Illinois case. Alito had raised similar concerns in a separate case two years earlier. In a dissent for the court's liberal bloc, Justice Elena Kagan wrote: "For some 40 years, Abood has struck a stable balance-consistent with this court's general framework for assessing public employees' First Amendment claims-between those employees' rights and government entities' interests in managing their workforces." The case highlights a reality about how union dues and agency fees operate in many states. In California, public-sector unions actually collect the full amount of dues from objecting employees. Then, the agency-fee payers must "opt out," or affirmatively object, to paying for unions' political and lobbying activities, and they then get a refund for those nonchargeable activities. Some union expenditures are clearly related to collective bargaining, and thus "chargeable" to fee payers; others are clearly not related, and thus "nonchargeable." But many categories of spending-legal services, public relations, back-office administration- an opt-in is required when a public-sector union collects a special assessment. Union Yes, Then No Rebecca Friedrichs, a California teacher, is the lead plaintiff in a case before the U.S. Supreme Court challenging the right of the teachers' union to charge her fees as a non-member. are at least partially chargeable. In the 2012-13 school year-a year detailed in the factual record in the case-45.9 percent of the National Education Association's expenditures qualified as chargeable to nonunion agency-fee payers, while 68.4 percent of the California Teachers Association's expenses were chargeable. For the local unions involved in the Friedrichs case, the amount qualifying as chargeable ranged from 84.4 percent to 100 percent, reflecting the fact that spending at the local-affiliate level is more likely to be related to collective bargaining and contract management. Despite the proportions that they could charge, the unions actually charged fee-payers only 40 percent for NEA expenses, 65.4 percent for CTA spending, and 65.4 percent for local union spending. Differences in what could be charged and what is charged provide a cushion in case of disputes over the chargeability of particular expenses. (Such disputes go to an independent arbitrator.) The second question in Friedrichs is whether the First Amendment requires that fee-payers "opt in," or affirmatively consent, to having any of their pay go to union political and lobbying expenses. The Supreme Court has moved in that direction in recent years, ruling that states may require such affirmative consent, and that such Friedrichs has spent her entire 30-year career in the 2,400-student Savanna district in Anaheim, Calif., teaching from kindergarten through 4th grade at different times. After several years as an agency-fee payer, Friedrichs decided to join the union after all, at least for a time. "After several years of standing on principle, it dawned on me that I wanted to have a voice in my union," Friedrichs said. She even became a union leader, serving as a campus representative and later as an executive-board member of her union local. "But even then, I had no voice because I wasn't in step" with all of the union's priorities, says Friedrichs. She didn't want to go knocking on doors on behalf of political candidates endorsed by the union, and she had even suggested openness to private school vouchers, something staunchly opposed by the NEA and its affiliates. Friedrichs quit the union for good and now must pay the agency fee, which for a full-time teacher amounts to about $650 a year, or about 65 percent of the roughly $1,000 per year that union members are charged in local, state, and national dues. (Friedrichs, one of three agencyfee payers at her school, has been working half-time recently so she has time to travel and speak out about the case.) A central claim of Friedrichs and the other objecting teachers is that collective bargaining itself is "quintessentially political," so when the teachers' unions lobby the school district or the state for better pay and working conditions, they are engaged in political speech and expressing views the objecting teachers may not agree with. "At the fundamental level, when a public-employee union negotiates for higher salaries, it is negotiating with the government over taxpayer spending," said Terence J. Pell, the president of the Center for Individual Rights, a Washington public-interest legal organization that is representing Friedrichs and the other nonunion teachers. "A lot of teachers like their union," Pell says. "They're going to join and pay dues. What we're really fighting for is the free-speech rights of those who don't really agree with the union." But what teacher is not in favor of higher pay and better working conditions? Friedrichs said that amid tough economic conditions in her district, she and some other teachers were in favor of a small pay cut so that the New K-12 Law Adds to Buzz as State Legislatures Set to Convene By Daarel Burnette II For more than a decade, state legislators say they've stood on the sidelines while their education departments followed the federal government's blueprint in rolling out demanding accountability systems. So legislators let out a collective sigh of relief when President Barack Obama signed the Every Student Succeeds Act last month. The first new version of the nation's main K-12 law since 2002 rolls back the direct federal role in improving student outcomes and hands much of that power to governors and legislatures. And with the 2016 state legislative season about to begin in 46 states, lawmakers throughout the country will be looking closely at that opening as they wrestle with a range of K-12 issues, from academic standards and teacher evaluations to testing and the turnaround of lowperforming schools. "Legislators are super-excited," said Michelle Exstrom, the education program director for the National Conference of State Legislatures. "They've been asking for a decade for 22 | EDUCATION WEEK | January 6, 2016 | some of these changes, and they have been very frustrated that we've been limping along with the [No Child Left Behind Act] waiver system that enticed states to put in place policies they wouldn't put in place otherwise." At the same time, many states will have more locally specific concerns to address, such as reversing teacherstaffing shortages, fixing school funding formulas that courts have deemed unfair, and, in a handful of cases, cutting state money bound for school districts' budgets. "We need to take a step back and look at what we're doing well and what we're not doing so well," said Alice Hanlon Peisch, a Massachusetts state representative who chairs that state legislature's joint education committee. Most states are currently operating on yearlong waivers from the NCLB law, the previous version of the Elementary and Secondary Education Act. Those waivers are set to expire in August under ESSA, the new version of the law. Because ESSA was passed so late in 2015, observers say many legislators will use the next few months pulling together task forces to study what flexibility they have and where constituents want to make adjustments. ESSA will take full effect in the 2017-18 school year. "I'm not anticipating that they'll start passing legislation in the new year," said Jennifer Thomsen, a policy researcher for the Education Commission of the States. "It's so new, a lot of them are still sort of digesting it." There have been tensions in the past between state and local officials on who calls the shots on education policy. While district advocates expect a move away from a one-size-

Table of Contents for the Digital Edition of Education Week - January 6, 2016

Education Week - January 6, 2016
News in Brief
Report Roundup
Wash. Ruling Could Inspire Charter Opponents Elsewhere
As New SAT Looms, Anxious Students Ramp Up Testing
Digital Directions: U.S. Ed-Tech Plan Calls Attention to ‘Digital-Use Divide’
Standards for Principals’ Bosses Sharpen Focus on Role
Blogs of the Week
Inside ESSA
High Stakes in Union-Fee Case Before Supreme Court
New K-12 Law Adds to Buzz as State Legislatures Set to Convene
Ed. Dept. Budget Sees Slight Boost In FY 2016 Deal
Blogs of the Week
Amanda VanDerHeyden, Matthew Burns, Rachel Brown, Mark R. Shinn, Stevan Kukic, Kim Gibbons, Ggeorge Batsche, & W. David Tilly: RTI Works (When It Is Implemented Correctly)
Ron Wolk: To Change Education, Change the Message
TopSchoolJobs Recruitment Marketplace
Paul Herdman: As Feds Step Back, The First State Steps Up

Education Week - January 6, 2016