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Roll Call

Bringing the Classroom to Court: The Battle for Teacher Protection

Two sets of lawsuits currently moving through the courts have the potential to upend the way teachers unions operate, first in California and potentially across the country.

In one strand, students — backed by education nonprofits — are suing in state courts to overturn laws dealing with teacher job security, discipline and dismissal. The plaintiffs there argue that those teacher protection laws resulted in underperforming teachers disproportionately concentrated in schools serving poor and minority students, depriving them of their right to an equal education.

The other case, currently pending in the 9th Circuit Court of Appeals, a federal court based in San Francisco, would overturn laws in California — and potentially nationally — that require public employees to pay union dues even if they oppose the group’s positions. It follows on a recent U.S. Supreme Court decision on a similar dispute in Illinois.

The first group of cases started in California, where a state superior court judge in June issued a preliminary ruling in Vergara v. California in favor of the plaintiffs. The judge said evidence showing lost learning time and reduced lifetime earnings of those who studied under poor teachers is “compelling” and “shocks the conscience.”

The lawsuit’s goal wasn’t to overturn the five laws it targeted in particular, but rather to eliminate what Felix Schein says are barriers preventing every child in California from having the best teacher possible. Schein is a spokesman for Students Matter, the nonprofit backing the students.

The unions, for their part, said the lawsuit is a distraction from real problems in California schools.

The state has the lowest per-pupil spending and the fewest librarians and nurses per school of any state, along with widespread problems with child poverty, said Gary Ravani, president of the early childhood and K-12 council at the California Federation of Teachers.

“Those are real, on-the-ground problems,” he said.

Any effects of the lawsuit were stayed pending appeal, which will happen after the final decision is issued. Plaintiffs have asked for that by late August or early September.

This type of case is unlikely to stop in California, though.

Students Matter is committed to seeing Vergara through, be it via continuing to litigate, working to help draft new state laws or helping craft broader education policy, Schein said. After that, they’re open to bringing similar lawsuits in other states.

There are only a handful of states where that’s possible, though. Not every state has laws guaranteeing an equal education similar to those the plaintiffs used to fight the laws in California. In others, recent legislative changes or executive branch actions in education policy don’t allow for a full body of evidence that would show detrimental evidence of tenure policies.

That leaves about 20 states. The group then looked for states that either had low overall education performance or big disparities between the best and worst-performing schools, Schein said.

Ultimately a handful — Minnesota, New Mexico, Maryland, Connecticut and Washington — are likely targets, he said.

Other groups are taking up the cause as well, with two similar cases pending in New York.

The nonprofit Partnership for Education Justice, which is supported by former CNN anchor Campbell Brown, filed one July 28 in the New York State Supreme Court. Another group, New York City Parents Union, filed a similar case in early July on Staten Island.

Dollars At Stake

In the second case — Friedrichs v. California Teachers Association — teachers in California are claiming that forcing them to pay dues to the union even when they disagree with its positions violates their First Amendment rights to free speech and association.

Under existing case law, public unions must distinguish between “chargeable” expenses — that is, activities such as contract negotiation — and “non-chargeable” expenses such as political advocacy. All teachers may be forced to pay for “chargeable” expenses but can request a reimbursement for “non-chargeable expenses.”

The plaintiffs argue that there is no difference between political activity and public sector collective bargaining, a charge Ravani refuted as “ridiculous.”

The Friedrichs case comes in the wake of a June U.S. Supreme Court decision in Harris v. Quinn in which the court was presented with the option of overruling fees that workers pay as their “fair share” of the union’s costs.

Instead, in a more narrow decision, the justices ruled that the employees in question, home health aides employed through the Illinois Medicaid program, were not public employees. Thus they were not subject to a rule in Illinois similar to the California rule, the court said.

Terry Pell, president of the Center for Individual Rights, which is representing the plaintiffs in the California case, said the practical goal of the lawsuit is “to convert the entire country to an open-shop system.”

The plaintiffs have asked the 9th Circuit to rule promptly without oral arguments — and against them, as would be consistent with existing case law. That way, they can appeal the ruling to the U.S. Supreme Court.

There is no set timeline, but the appeals court likely would have to rule by the end of the year in order for the Supreme Court to hear the case during its 2014-15 term, Pell said.

Experts and advocates on both sides of the debate split sharply speculating on how the Supreme Court would rule, should it take up the case.

In the Harris case out of Illinois, Justice Antonin Scalia was seen as the swing vote.

During oral arguments, Scalia made a number of points that suggested the precedent that allows unions to charge fees but requires that they distinguish between chargeable and non-chargeable expenses was good law, said Lee Adler, a professor at Cornell University’s School of Industrial and Labor Relations. Scalia did not appear to be prepared to overturn it, Adler said.

For his part, Pell, the advocate for the teachers who are suing the state, noted that the majority Supreme Court opinion — which Scalia joined — made a number of points that the plaintiffs in the California case had raised in earlier court filings. If the plaintiffs are successful, it would force the unions to radically change the way they operate.

Unions, unable to count on a steady revenue stream, would have to focus more internally on fundraising and membership matters, Adler said.

Ravani said that though there would be some free riders, the “vast majority” of teachers understand that supporting the union is in their best interest. However, Pell said estimates indicate somewhere between 10 percent and 50 percent of teachers would stop supporting the union.

Whatever the drop, a victory for plaintiffs in the Friedrichs case in federal court could have an effect in the Vergara case in California as well as the suits in other state courts aimed at overturning tenure and other teacher protections, Pell said. The teachers union in California would have less in the way of financial resources to influence the changes required in the ruling, since it couldn’t count on fees from teachers.

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