Vergara, Harris, and the Fate of the Teacher Unions



By 07/08/2014

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The most interesting story coming out of the landmark Vergara and Harris decisions is the coming irresistible-force-immovable-object collision of reformers’ aggressive new litigation strategy and teachers unions’ stout-defense approach to leadership.

These cases provide the nation’s unions an opportunity to produce next-generation leaders who strengthen labor’s long-term position through new rhetoric and priorities. But the unions’ recent bearing—elevating aggressive individuals wedded to longstanding ways—may be a path to their political marginalization or worse.

Most observers interpreted the Vergara-Harris tandem as an anti-union one-two combination. The Vergara decision was the uppercut, a jarring repudiation of California’s policies on tenure and seniority. Harris was the enervating body blow setting up the denouement. It chipped away at unions’ ability to extract dues from nonmembers in the name of preventing “freeriders” ; the Court emphasized the right of individuals to refuse to financially support organizations with which they disagree, which could have major implications for mandatory-dues policies.

Said simply, Vergara struck down union-supported policies, and Harris may eventually serve to turn off a stream of income upon which unions depend for their negotiating and advocacy activities.

A doughty response from labor was to be expected. This is no glass-jaw gang.

But their reaction has been positively martial. The first paragraph alone in the NEA’s statement included “privatizing public education and attacking educators,” “ultra-rich cronies,” and “deep-pocketed corporate special interests.” The California Federation of Teachers declared, “The judge fell victim to the anti-union, anti-teacher rhetoric.” The Chicago Teachers Union (CTU) announced that it will “stand in solidarity in this fight for economic and social justice.”

The conventional wisdom is that this is simply proportionate-response behavior. Since these cases represent an existential threat, nothing less would be appropriate.

But I think this is an under-informed assessment. Something much bigger is afoot.

We’re in a period of profound change in teacher-union leadership. A number of more combative leaders have recently ascended across the nation, motivated by what they see as timid union reaction to educator-hostile policies and contracts and energized by Chicago’s strike (which humbled an imperious mayor). The agendas and aspirations of these new leaders are aligned with some self-organized groups of frustrated teachers.

In the wake of Vergara, reformers are promising copycat lawsuits in other states. Reinvigorated unions aren’t just promising to appeal Vergara and repulse its progeny; they seem committed to doing so with relish. Randi Weingarten declared, “This will not be the last word.” The CTA vowed to appeal because the decision to “strip teachers of their professional rights hurts our students and our schools.” Diane Ravitch wrote that Vergara will “be appealed until there is no higher court.”

In one sense, this reaction is understandable. These fights would serve as catharsis for beleaguered unions—opportunities to release resentment over testing, evaluation, NCLB, VAM, and more. They would also serve as battles in a therapeutic proxy war against the superpower of maddening economic conditions—stagnant wages, stubborn unemployment, the credit and housing crises.

But teachers and supporters of organized labor more generally should respond cautiously to this call to arms. It could amount to a self-inflicted war of attrition, a long series of painful public loses that demoralize the troops and embolden opponents, ultimately enfeebling teachers unions.

The most important outcome of Vergara wasn’t the ruling; it was the spectacle of the trial. The public narrative was that low-income kids had filed a bill of particulars against organized labor. The plaintiffs assembled a devastating case, detailing how state law conspired against disadvantaged kids. District superintendents explained the injurious influence of these policies. The judge wrote that the evidence “shocks the conscience.”

If unions appeal, these facts will continue to be splashed across front pages and serve as fodder for cable-news distemper. Taking a last-stand approach to similar suits elsewhere will invite a deluge of heartrending anti-tenure and anti-seniority stories. Unions will be forced to respond to grim statistics and relentless reporters. Judges will likely side with the plaintiffs, issuing Vergara-like withering decisions. When unions do win, these will be pyrrhic victories.

It is in this context that a federal appeals court (and possibly the U.S. Supreme Court) will hear Friedrichs v. California Teachers Association, which takes on compulsory teacher-union dues directly. Informed by countless chilling anecdotes about the consequences of today’s tenure and seniority policies, conservative and liberal judges alike may nod in agreement when the plaintiff’s attorney argues soberly, “My client shouldn’t be forced to fund an organization that advocates for such laws.”

Teacher unions’ current and rising leadership appear to be defiantly (and unnecessarily) marching their members toward this Waterloo.

There is an alternative, though it might seem implausible in the current environment. First, the appeal of Vergara could be halted. Instead of relitigating the case, unions might work with the California legislature to rewrite the challenged laws so they primarily protect students not jobs. Second, the national unions and their affiliates could seek to amend tenure and seniority rules in other states so Vergara-inspired lawsuits don’t get off the ground.

Of course, this requires union leaders who don’t see today’s rules on tenure and seniority as labor’s raison d’être. Perhaps there are budding leaders, in local affiliates up through the national bodies, able to craft winning platforms with a new orientation. They could provide an enormous service, showing the compatibility of K–12 reform and teachers unions, advancing school improvement and preserving organized labor.

But is this kind of dramatic about-face remotely possible? Yes, if we see the unions’ recent direction as a temporary diversion from their longer-term reform-oriented evolution. We might think of this period as being bracketed by the “Emanuel Bookends.”

Rahm Emanuel’s mishandling of teacher issues in Chicago and the CTU’s subsequent strike set off this era. But one of his most famous quotes reminds us that extraordinary circumstances (say, two major court decisions) enable extraordinary changes in direction, like ending an era through inspirational new leadership.

“You never let a serious crisis go to waste. And what I mean by that it’s an opportunity to do things you think you could not do before.”

-Andy Smarick

-This first appeared on the Fordham Institute’s Flypaper blog.




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