Education Week - January 29, 2014 - 19

Collective-Bargaining Case Takes Spotlight at High Court
Implications mulled
for teachers' unions
By Mark Walsh
The U.S. Supreme Court has now
heard arguments in a case with the
potential to shake up the collectivebargaining
landscape for teachers'
unions and other public-employee
labor organizations.
Harris v. Quinn (Case No. 11-
681), argued Jan. 21, is a relative
sleeper involving eight Illinois
home health-care workers (out of
28,000 in the state) who declined to
join the union and object to paying
agency, or "fair-share," fees for being
represented by one.
Anti-union advocates asked the
justices to overrule a key 1977 precedent
that authorizes public-worker
unions to collect service fees from
nonmembers for costs related to collective
bargaining.
William L. Messinger, repre-
senting the objecting workers on
behalf of the National Right to
Work Legal Defense Foundation
of Springfield, Va., told the justices
that the 1977 decision, Abood v. Detroit
Board of Education, should be
discarded because compulsory fees
infringe upon the First Amend-
ment free-speech and -association
rights of the objectors.
President Barack Obama's administration
joined the state of Illinois
and public-employee unions in arguing
against disturbing the labor-law
landmark.
"There is very substantial ... contractual
reliance throughout the
country on the constitutionality of
Abood," U.S. Solicitor General Donald
B. Verrilli Jr. told the court.
Signals From the Right
In Abood, the high court upheld
a Michigan law that designated a
single union as the exclusive bargaining
agent for Detroit teachers.
Adopting some of its precedents on
private-sector "union shop" agreements,
the court said teachers in
public school districts could be required
to pay union fees related to
collective bargaining-but not for
the union's political purposes-
whether they joined or not.
The Illinois case comes amid a
backdrop of growing challenges for
public-employee unions, from declining
membership numbers to efforts
in several states to roll back collective-bargaining
rights.
"This potentially could be a very
big deal," Joseph E. Slater, a professor
at the University of Toledo and a
scholar of U.S. labor history, said in
an interview.
Two years ago, in Knox v. Service
Employees International Union,
the court ruled 5-4 that publicemployee
unions had to get nonmembers
to opt in to special dues
assessments in certain circumstances.
Writing for the majority
in Knox, Justice Samuel A. Alito
Jr. invited further challenges to
the status quo in public-employee
unionism when he wrote that "our
cases have substantially impinged
upon the First Amendment rights
of nonmembers."
The national "right to work" movement
picked up on the signal, and
is advancing several cases designed
to test the viability of precedents
such as Abood. A group of nonunion
teachers in California is challenging
that state's collective-bargaining
law for teachers.
The Abood precedent, unsurpris-
ingly, gets support from teachers'
unions. The National Education Association
and its affiliate, the California
Teachers Association, filed a friend-ofthe-court
brief in the Supreme Court
saying Abood was rightly decided and
remains viable. (The American Federation
of Teachers didn't file its own
brief in the case, though the AFL-CIO,
of which it is a member, did.)
The Illinois home-health workers
serve under a Medicaid program
designed to encourage the states
to de-institutionalize some people
with disabilities. The workers were
getting paid about $7 per hour,
with high rates of turnover and
low morale, when Illinois decided
to make them state employees for
collective-bargaining purposes and
to certify a union (the Service Employees
International Union) as
their bargaining representative.
Worker Turnover
In rejecting the challenge to the
service fees by the objecting health
workers, the U.S. Court of Appeals
for the 7th Circuit, in Chicago, held
that the state largely controlled the
employment of the program's homehealth
workers and thus Abood applied
to their collective-bargaining
arrangements.
The National Right to Work foundation
appealed, and significantly
broadened the potential impact of
the decision by asking the court to
overrule Abood.
During the Jan. 21 oral argu-
ments, there was as much discussion
about teachers and their unions
as there was about the home-health
workers.
Justice Alito suggested that a
nonunion teacher opposed to the
union's goals of keeping the tenure
system and rejecting merit pay
would nonetheless see some of his
service fee go to support such goals.
Justice Anthony M. Kennedy
questioned charging nonmembers
for teachers' union advocacy for
smaller class sizes and shorter
hours, matters that ultimately affect
the size of the government
workforce.
"Is not the size of government a
question on which there are fundamental
political beliefs, fundamental
convictions that are being sacrificed
if a nonunion member objects
to this line of policy?" he said.
Justices Elena Kagan and Stephen
G. Breyer, who voted for the
union's side in the 2012 Knox case,
both expressed support for Abood as
a matter of stare decisis, or adhering
to precedent.
Justice Kagan told Mr. Messinger
he was making "a radical argument"
for ending compulsory fees that
would essentially compel a rightto-work
environment in all states,
Kagan said.
Even if the court were to go as far
as overruling Abood, Mr. Slater of
the Toledo Law School said "there
will still be public-sector unions
around."
A decision in the case is expected
by late June.
SIG Receives
Makeover
Via Budget
CONTINUED FROM PAGE 15
year, even as it poured additional resources
into other programs, such as
Title I and special education.
Separately, 42 states and the District
of Columbia have received waivers from
the NCLB law-and in doing so had to
spell out how they planned to intervene
in their lowest-performing schools.
Even for foundering schools receiving
no SIG money, waiver states had to
promise to implement interventions
that closely mirror the most popular-
and least stringent-of the four SIG
models, known as "transformation."
Those interventions include extending
the school day and putting in place
teacher-evaluation systems that rely on
student outcomes. The Education Department
has already cited a handful of
waiver states for failing to stick to their
turnaround plans.
U.S. Secretary of Education Arne
Duncan had been resistant to changes
to the SIG program, which was a political
flop even before the Obama administration's
grant money hit classrooms
at the start of the 2010-11 school year.
Conservatives in Congress saw the
program as too restrictive, and education
organizations opposed provisions
in the models that require removal of
teachers and principals.
But Ms. Nolt had an upbeat response
to the newly enacted changes.
"What we've learned from schools
that have made progress with School
Improvement Grants is that there's no
single way to turn around a low-performing
school. It's always hard work,
no matter how it is done," she said.
Fallout Uncertain
Experts are unsure what the fallout
would be if the department does decide
to give states a freer hand with
their turnaround work. Thomas Dee,
a professor at Stanford University's
graduate school of education, worries
that if states are allowed unfettered
flexibility, they may select interventions
that don't do much to fix longfoundering
schools.
"One element of the current program
is the notion of really having a kind of
regime change, and a clear, dramatic
break" from the past, said Mr. Dee, who
found that schools that got SIG grants in
California posted bigger gains after a
year than similar schools that didn't get
the cash infusion.
But Kate Tromble, the director of legislative
affairs for the Education Trust,
a Washington group that advocates in
support of low-income and minority
students, said it will all depend on what
states decide to do with the new leeway.
"I think it'll be a mixed bag," she wrote
in an e-mail. "Some states will use it to
do more targeted turnaround efforts
in their lowest-performing schools and
some states will use it too loosely. That's
generally how these things go-some
states will take the offered flexibility
and do great things, and lots won't."
For her part, Ms. Rentner praised the
language that would spread out the
$2 million in individual turnaround
grants over a period of up to five years,
as opposed to the three years schools
have had until now. In the first year of
the program, most schools focused on
school climate, she said. The additional
time will give schools more opportunity
to work on bolstering academics, she
explained.
Meanwhile, the new "whole school re-
form" model brings with it its own set
of complications, said Ms. McLaughlin,
who is now the president of the Washington-based
Knowledge Alliance, which
represents education research organizations.
Under that model, schools could
partner with an outside organization to
implement a turnaround remedy that
has a strong track record of moving the
needle on student achievement.
It can be tough to figure out which
interventions meet that threshold,
she said. "You're asking districts and
states to make those judgements," Ms.
McLaughlin said. "Can the department
maintain a list of programs that meet
the evidence level? Or is that too prescriptive?
I think there are procedural
hurdles."
But, she added, such issues are likely
surmountable. There could be a role for
the Institute of Education Sciences and
other federal research organizations in
getting out information to school districts,
she said.
The reluctance on the part of Congress
to boost SIG funding-more than
the policy change-raises red flags, Ms.
Tromble said.
"Yes, money doesn't change every-
thing, but if turnaround is a federal priority,
which it seems to be, ... then you
have to fund your priority," she said. "To
set a priority and then take the money
away sends a very confused message to
states about what they're supposed to
be doing."
Extends the time that schools can receive the grants
from three years to five years.
SOURCES: U.S. Congress; Education Week
LOOSENING THE REINS
The Obama administration's signature school turnaround
effort-the School Improvement Grant program-could
undergo a major reworking under language included in
the fiscal year 2014 spending bill recently signed into law.
Allows states to submit their own turnaround plans to
the U.S. secretary of education for approval, instead of
having to do one of four controversial turnaround models
that require districts to get rid of staff and school leaders,
extend the school day, or experiment with merit pay.
The new language:
Allows rural schools that continue to use one of the four
original turnaround models to modify one element of the
plan. For instance, rural schools that choose the most
popular model, known as transformation, could opt out
of a requirement to extend the school day.
EDUCATION WEEK | January 29, 2014 | www.edweek.org | 19
Permits schools to use a "whole school reform," model
in which they partner with an organization that has a
"moderate" track record of success in improving student
outcomes. The program must be able to present at least
one "well designed" experimental or quasi-experimental
study to back up its claims.
http://www.edweek.org
Education Week - January 29, 2014

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