Education Week - April 13, 2016 - (Page 15)

GOVERNMENT & POLITICS Fee-Payer Issue Still Alive, Despite Close Call for Unions 4-4 split at Supreme Court has labor foes undeterred Teachers' unions claimed a major victory with the U.S. Supreme Court's 4-4 vote affirming that they may continue to collect service fees from nonunion members. And union opponents may have come as close as they are going to get to upsetting the system for the foreseeable future. The outcome in Friedrichs v. California Teachers Association (Case No. 14-915) was a relief for all public-employee unions, which faced the prospect of the high court overruling a 1977 precedent that authorized them to collect such "agency fees" to spread the costs of collective bargaining to nonmembers. "Abood is the law of the land, and this week's decision leaves that unchanged," Alice O'Brien, the general counsel of the National Education Association, said in reference to the 1977 case, Abood v. Detroit Board of Education. After Justice Antonin Scalia died on Feb. 13, court watchers had speculated that the Friedrichs case would end in a deadlock. When the case was argued in January, Scalia had appeared hostile to the unions' arguments, even though he was once seen as their best hope for gaining the necessary fifth vote to rule in favor of agency fees. The high court issued a short, unsigned opinion in Friedrichs late last month that said the judgment of the court below "is affirmed by an equally divided court." No National Precedent That means the Supreme Court was upholding-without setting a national precedent-a 2014 ruling by a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco. The 9th Circuit court panel had ruled unanimously that the challenge to the service fees by a group of 10 California teachers who refused to join the union could not go forward because of the controlling precedent of Abood. Anti-union forces were left to lament how close they had come in the case to toppling a Greg Schneider/The Center for Individual Rights/AP By Mark Walsh Rebecca Friedrichs, a veteran Orange County, Calif., public school teacher, was the lead plaintiff in a suit by nonunion teachers opposed to paying service fees to the California Teachers Association. The U.S. Supreme Court's deadlock was a blow to union opponents. 40-year-old status quo, with some holding out faint hopes that the justices might grant a rare rehearing in Friedrichs once a successor to Scalia is confirmed. Terence J. Pell, the president of the Center for Individual Rights, a Washington publicinterest legal group that was behind the challenge, said that the deadlock "was not unexpected given Justice Scalia's death." He said the group would ask the high court for a rehearing, "and we expect the court will hold on to the petition pending the confirmation of a new justice." Rebecca Friedrichs, a 28-year Southern California teacher who was the outspoken lead plaintiff in the case, said that teachers "are very patient people," and the dissidents would keep pursuing their goal. "We are in this for the long haul," she said. Teachers' unions say income from agency-fee payers represent a relatively small proportion of their budgets. For example, a 2014 California Teachers Association document states that the NEA state affiliate had 295,000 active members and 29,000 agency-fee payers. According to its 2015 federal labor filing, the NEA had about 94,000 fee payers, alongside its 3 million members overall. And in a conference call with reporters after the Friedrichs deadlock, Randi Weingarten, the president of the American Federation of Teachers, said, "in K-12 we have very few fee payers, less than 3 percent, and we've reduced that number by a little bit as well." The union has 1.6 million members nationally. But the unions have fought to defend the system, in part because the agency-fee requirement pushes certain employees to join and get all the benefits of dues-paying membership. Some court observers believe the issue will bubble up to the Supreme Court again in a year or two, and in a different case. "We're one justice away from what we view as restoring the First Amendment rights of employees not to have to contribute to a private organization as a condition of working for the government," said Patrick Semmens, the vice president of the National Right to Work Legal Defense Foundation. The group is behind some five cases percolating in the lower courts that challenge various union obligations. In a Kentucky case, Cochran v. Jefferson County Board of Education, the foundation is representing nonunion educational support personnel in the Jefferson County school system who object to paying agency fees to the American Federation of State, County, and Municipal Employees. The lawsuit asserts that the objecting workers must pay roughly $13 in agency fees every two weeks to AFSCME. They contend that procedures for opting out of the amount of the agency fee that goes for the union's political activities, which the nonmembers are not required to pay, are cumbersome at best. Merrick Garland and Labor Because it's clear that the eight current justices are split on the issue, the fate of the public-employee-union service fees for nonmembers would seem to come down to whoever fills Scalia's seat. Based on the record of Judge Merrick B. Garland, President Barack Obama's nominee for the vacancy, unions may have reason to be optimistic, while anti-union groups the opposite. In his 19 years on the U.S. Court of Appeals for the District of Columbia Circuit, Garland has ruled in numerous cases involving the National Labor Relations Board, which handles such matters as union organizing at private employers. Legal experts who have examined Garland's record in these cases suggest he is generally sympathetic to unions. "His record on NLRB matters is generally deferential to the labor board, and even when he hasn't been, he has tended to rule for the unions," Semmens said. "Which is not very encouraging to us." Associate Editor Stephen Sawchuk contributed to this article. As First Education Secretary, Shirley M. Hufstedler a Pacesetter By Andrew Ujifusa When Congress approved the creation of a U.S. Department of Education as its own Cabinet-level agency in 1979, it did so only after encountering opposition from both sides of the aisle. Many conservative lawmakers were concerned that it would be a bureaucratic intrusion into education, while some liberals were worried its creation would make getting additional federal aid for education more difficult, among other concerns. Then, when President Jimmy Carter, a supporter of a separate education department, made his selection for the nation's first secretary of education, he picked Shirley M. Hufstedler, at the time a serving federal appeals court judge and former California Court of Appeals judge who did not have a background in education policy. Her time as secretary was short-although she was sworn in by Carter in December 1979, the Education Department only began operations in May 1980, and she left in early 1981, when President Ronald Reagan took office. But Hufstedler, who died on March 30 in California at age 90, helped organize the department during its earliest days, provided a steady hand at the tiller, and helped Carter show Congress that the department would not be the tool of any particular group. "She was serious about bringing people together and having them work in a serious way," said Marshall "Mike" Smith, her chief of staff from December 1979 to August 1980 who is now a consultant for foundations, "and there was a lot of uncertainty." 1968 to 1979, the opinion she wrote that she was particularly proud of was a dissent in Lau v. Nichols, a case that involved the San Francisco school district's failure to provide English-language instruction to around 1,800 children of Chinese ancestry. The 9th Circuit ruled that this Record on the Bench was not a violation of the U.S. ConAnd Hufstedler, while not a K-12 stitution's 14th Amendment. But in policy expert when she took over the a dissent, Hufstedler argued that department, had dealt with educa- children of Chinese ancestry in San tion while on the bench and had firm Francisco schools were being denied beliefs about its importance. equal protection by not receiving In a 2007 interview for the Califor- supplemental services. Ultimately, nia Appellate Court Legacy Project, the U.S. Supreme Court overturned Hufstedler recalled that during her the 9th Circuit's ruling in the case. 11 years as a judge on the U.S. Court "[B]y the time I became secretary of Appeals for the 9th Circuit from PAGE 18 > " She was serious about bringing people together and having them work in a serious way." MARSHALL "MIKE" SMITH Former Chief of Staff EDUCATION WEEK | April 13, 2016 | | 15

Table of Contents for the Digital Edition of Education Week - April 13, 2016

Education Week - April 13, 2016
N.Y. Flip-Flop Affects Policy In Key Areas
Students Help Shape Measures Of ‘Soft Skills’
Kasich’s K-12 Record
Can Latin Build Young Vocabularies?
DIGITAL DIRECTIONS: FCC ‘Lifeline’ Effort Expanded to Bridge the Digital Divide
News in Brief
Report Roundup
Study: Tracking Not an Issue For Career-Tech-Education
San Diego Strives to Close Gap In Access to Advanced Courses
High School Coursework Seen Falling Short
Blogs of the Week
Fee-Payer Issue Still Alive, Despite Close Call for Unions
As First Education Secretary, Shirley M. Hufstedler a Pacesetter
ESSA Negotiators Dig Into Regulatory Details
Shield From Deportation Threat To Get Day at High Court
State of the States
Blogs of the Week
JONATHAN LASH: Buildings, Blocks, and Experience
ZOE WEIL: You Are What You Teach
HAROLD O. LEVY: How Should Schools Purchase Technology for the Classroom?
TopSchoolJobs Recruitment Marketplace
PAUL KIHN: The District Is Dead. Long Live the District.

Education Week - April 13, 2016