With lawyers representing the 10 California teachers in Friedrichs v. the California Teachers Association vowing to resume their fight to overturn mandatory union fees when a new justice joins the U.S. Supreme Court, the 4-4 split that the Court announced last week amounts to a reprieve, not a victory, for the CTA and other unions representing public employees.
It’s also an opportunity to learn from a near-death experience.
“Teachers unions must not hunker down,” said Katharine Strunk, an associate professor of education and policy at the University of Southern California’s Rossier School of Education. “It’s time for them to do a reality check to see what it is that members want to protect.”
The court’s tie vote provided breathing room for the CTA and public employee unions in 23 states, including California, whose laws allow unions to charge all employees mandatory “agency fees” for the costs to represent them. Agency fees do not include the union’s costs of campaigning, lobbying and politicking covered by full dues that employees pay when they voluntarily join a union.
For now, unions can continue to collect the money, and to prepare for a possible post-Friedrichs world. That’s precisely what Eric Heins, president of the CTA, said the union had been doing since the lawsuit was filed three years ago. The Friedrichs case, he said, “did give us a sense of urgency to engage our members. That’s good stuff to do regardless of how Friedrichs turned out, and we will continue that work.”
Two years ago, while Friedrichs was working its way through the courts, the CTA prepared a presentation for its local leaders about the case. With the fatalistic title “Not if but when: Living in a world without Fair Share…,” it laid out a broad strategy to persuade teachers to voluntarily pay union dues if, as then appeared likely, the U.S. Supreme Court struck down agency fees.
The presentation became the CTA’s strategic plan, which emphasized “positive messages” about union members’ work and more face-to-face engagement with members by local union leaders. The goal was for a union official to touch base with every teacher at least once every year.
John Lindner, a 4th-grade teacher in the Oak Grove School District in San Jose and a member of the CTA’s decision-making body, the State Council, said that local leaders have followed the CTA strategy and “promoted the value of union dues.”
“I tell them the union provides us with energy and equal standing with the administration – that it’s really ineffective to try as individuals to address employee and students’ needs; there’s value in working together,” he said.
Heins said that once teachers understand that the CTA fights for issues that are important to them, like smaller class sizes, “they have no trouble joining the union.”
While about 90 percent of teachers have joined the CTA, Strunk said it faces sobering external and internal challenges. Well-funded opponents like the Washington, D.C.-based Center for Individual Rights, which filed the Friedrichs case, and Students Matter, which brought the Vergara lawsuit seeking to overturn tenure and other union protections, are turning to the courts to challenge teachers unions. And the high-profile cases are affecting public opinion. According to a 2014 poll that USC and the public policy nonprofit PACE conducted, 49 percent of respondents said that unions had a “somewhat or very negative impact” on K-12 education, while a third said they had a “somewhat or very positive impact.”
Looking ahead, Strunk said, a new generation of teachers will face new economic realities. With districts facing rising pension costs and, in some large districts, unfunded health-care commitments for retired teachers, future teachers could decide those aren’t their priorities, that “they want protections but not these protections,” Strunk said.
If Justice Antonin Scalia had not died of a heart attack in early February, five of the Court’s justices appeared poised to declare agency fees an unconstitutional intrusion of the First Amendment rights of the plaintiff teachers. As a result of the tie vote, the plaintiffs can ask for the case to be reheard when a new justice is appointed. If the plaintiffs eventually win, public-employee unions would have to persuade teachers each year to join the union; unions would face the prospect of mass defections and substantial loss of revenue and power, as has happened in “right-to-work” states where all union fees and dues are voluntary.
Teachers’ changing priorities
Most teachers have little involvement with their union besides having their dues automatically deducted from their paychecks. In the 2014 contested election for a new president of United Teachers Los Angeles, the state’s largest local, fewer than 1 in 4 teachers voted. Uninvolved or apathetic teachers may not choose to pay full dues or the minimum costs of representation if, under Friedrichs, they were asked every year to opt in.
The presidents of CTA locals in the San Jose and San Juan school districts, which are leaders in creating participatory unions, said they didn’t create a contingency plan laying out what they’d do if the court overturned agency fees. But they said that the battle for teachers’ loyalty will be won not in Sacramento, but at the local level.
Jennifer Thomas, president of the San Jose Teachers Association, said her members’ expectations are greater now than in generations past. San Jose teachers want the union to become involved “beyond bread-and-butter issues – to work on any problems that they face in their classroom. So the union has to have capacity in policy and instructional knowledge,” she said.
“My job would be a thousand times easier if all I had to do was to go to the board and ask for more money,” she said. This year’s union budget, at members’ request, included professional development money for members to attend conferences not covered by the district, such as training related to students with autism.
Shannan Brown, president of the San Juan Teachers Association, also said “a huge focus of our association is professional issues.” San Juan Unified and the union have a number of work groups on issues including redesigning the elementary school report card, special education and realigning college course requirements. As in San Jose, the district and the union are part of multi-year effort to redesign teacher evaluations.
The union is serving as “the conduit” for teachers to become involved in issues affecting students, Brown said. “To a large extent, that is why our members support our work.”
The “core engagement of members” is critical to survival, Thomas said. Otherwise, the union “will rot from the inside out.”
In the face of a steady decline in student enrollment and ominous projections of a district budget deficit, United Teachers Los Angeles, the state’s largest local, has been more confrontational with charter schools, visible in media and assertive in negotiations with the district under President Alex Caputo-Pearl. It viewed the threat from Friedrichs as “a catalyzing force – and extra stimulus” to engage its 32,000 members, said UTLA’s secretary Daniel Barnhart.
“My job would be a thousand times easier if all I had to do was to go to the board and ask for more money.” – Jennifer Thomas, president, San Jose Teachers Association
Barnhart said UTLA has become more systematic in sending its leaders out to every school in the nation’s second-largest district. There have been more than 1,400 visits to schools, after which UTLA staff summarize the discussions in a database. By some metrics, the dialogue is paying off. The union persuaded members to raise member dues, which had been among the lowest in the state, by $19 per month.
And it has seen a growth in membership, notwithstanding the spotlight that the Friedrichs lawsuit cast on the teachers’ option to pay only agency fees instead of full union dues. Barnhart said the percentage of teachers who are paying only agency fees dropped in two years from about 10 percent to 4 percent. The largest increase in membership coincided with the union vote last year on a contract with a 10 percent pay raise. UTLA converted 900 teachers on election day. Many of the 2,700 teachers who had been paying agency fees “didn’t realize they weren’t members,” Barnhart said. The union gave them a provisional ballot to vote and signed them up, he said.
Heins pointed to the creation of the Instructional Leadership Corps, a joint project with Stanford University, as an example of how the CTA listened to teachers and responded to instructional issues. The corps has trained more than 300 teacher leaders in how to share their expertise in the Common Core.
Ama Nyamekye, executive director of Educators 4 Excellence-Los Angeles, a nonprofit teachers organization with 4,000 members, mostly from the Los Angeles Unified School District, praised the CTA’s effort. But she said UTLA and the CTA must go further in listening to teachers, instead of primarily functioning as a one-way source of information on union issues. Teachers, she wrote in an email, “want a place to be able to understand and even debate complex policy issues and the diverse and nuanced perspectives of teachers. Perhaps most important, teachers want to have those ideas reflected in the agenda of their union.” At the top of the list in Los Angeles Unified, she said, are the implementation of the Common Core standards and the school board’s School Climate Bill of Rights, which deals with positive approaches to discipline.
The CTA, with 300,000 members, whose power has derived from its clout in the state capital, must figure out how to “become more nimble” and to speak to a new generation of teachers that look and think differently than their predecessors, Nyamekye said. And, she said, now that “the pendulum has swung toward local control,” it must ask itself, “What does decentralization look like for our unions to meet specific needs in their districts?”
Strunk said it is equally essential to their long-term success that UTLA and the CTA pivot from the “old school of us versus them” approach. That’s how it has worked in Sacramento with centralized power. Like San Jose and San Juan, unions and districts must see themselves as “long-term partners rather than adversaries,” she said.