Teacher unions dodged the bullet on Tuesday as the U.S. Supreme Court deadlocked 4-4 in Friedrichs v. California Teachers Association, which was expected to overturn the practice of mandating fees from non-members to help pay the cost of collective bargaining.
But the plaintiffs are reloading. The Center for Individual Rights has already announced that it will file a petition for a re-hearing once a new Justice has joined the court.
After oral arguments, it was expected that the four-decades old precedent would be overturned, but the death of Justice Antonin Scalia deprived the plaintiffs of a majority vote and a victory.
It’s about Muscle
There’s plenty of legal and common sense logic to support “fair share” assessments from teachers who don’t want to join the union or who are prohibited from doing so by their religious beliefs. As constitutional law scholar Catherine Fisk argued in this column: “to require a union to spend its members’ dues representing nonmembers impinges the First Amendment rights of the union and its members to the same extent that requiring nonmembers to pay their fair share of the union’s costs impinges on the nonmembers’ rights. The union has a legal duty to represent all employees fairly, and it can charge dissenting nonmembers only for the costs of discharging that duty.”
But Friedrichs is not about legal logic; it’s about political muscle.
A lot of big, conservative money stands behind Rebecca Friedrich’s smiling face, and a lot of union money went into defending labor’s fiscal turf. More will follow.
I’m not buying the argument raised by some of the Justices during oral arguments that the effects of allowing Friedrichs to not pay for the collective bargaining representation that the union is required to provide her would be inconsequential to the union. The intent of the case was to cripple unions, and where agency fee provisions are eliminated, it has.
Since 2011, when Wisconsin Gov. Scott Walker engineered the elimination of agency shop provisions, membership in National Education Association and American Federation of Teachers affiliated unions has fallen by 50 percent.
So, What To Do?
So, what should organized teachers do?
The conventional wisdom is that all hangs on the naming of a new Justice, and thus all unions, teachers included, should work hard in the Presidential and Senate elections. Fisk, in her law blog, points to the huge implications of a shift toward a liberal majority court: “an astonishingly large number of cases limiting rights and protections for workers were also decided five-to-four with Justice Scalia in the majority.”
But grassroots politics is necessary also. Unions often think of organizing as something they did “back then,” when teachers were rallied to gain collective bargaining. But, as we said in United Mind Workers, “unions need to engage in continuous organizing. Getting a contract and a recognition agreement is never enough. And they need to vastly expand the scope of what teachers are organized around. First, the need to get organized around quality: quality teaching and quality education. Doing so changes the authority/responsibility dimensions of teaching as an occupation.”
Organizing around teacher quality allows unions to solve on-the-ground problems all the time, through the contract and through other substantive interactions with a school district. California’s new Labor Management Initiative is working with teams of union leaders and administrators to further productive relationships.
A confluence of political factors provides substantive opportunity to get tangible things right. Unions can get teacher evaluation—as illustrated in four posts last week highlighting a new report about Poway, San Jose and San Juan districts. They can link their efforts with the state’s new Local Control Funding Formula and its associated accountability plan. And they can fix problems of staff stability before they get hauled into court, yet again.
Rebecca Friedrichs is not likely to change her mind. But many other teachers may, and if they see their union both protecting their employment interests and helping them solve real educational problems, they are much more likely to pay union dues, even if they are not required to.
The dirty little secret of the people behind Friedrichs is that they want the teacher unions to appear thuggish and inflexible, confusing bullheadedness with solidarity. The worse the image that the CTA presents, the better for them. Even Justices read the newspapers.
Near-death experiences are supposed to inspire thoughts about living life differently. I hope this one will.