Volume 19

TEACHERS EVALUATING TEACHERS: THE UNION STAKE IN PEER REVIEW by Myron Lieberman, Ph.D.

This article is excerpted from Dr. Lieberman's recent book, titled, TEACHERS EVALUATING TEACHERS: Peer Review and the New Unionism.* Chapter 8 is included in its entirety, along with brief excerpts from other chapters.

Only in recent years has public opinion seriously considered the possibility that the National Education Association (NEA) and the American Federation of Teachers (AFT) are obstacles to reform. In response, the NEA and AFT claim to be forging a "new union," partly as a response to criticisms of their excessive zeal in defending incompetent teachers (to include those guilty of egregious moral conduct). The "new union" (or "new unionism") is not a clearly defined program or change in the NEA/AFT governance structure. Instead, it is supposedly a change in the role of the teacher unions, especially with respect to teachers who are performing poorly.

"Peer review" is the most prominent feature of the new unionism. At a National Press Club address in February 1997, Robert F. Chase, president of the NEA, asserted that educational quality would now be the highest NEA priority. The primary means for effectuating this new priority was to be "peer review."

Although it has not been defined precisely, "peer review" is widely understood to encompass various procedures by which teachers and their unions would exercise more responsibility for improving teacher performance as well as for terminating the services of teachers who do not perform adequately after receiving assistance.

Peer review is thus utilized for three different purposes:

  • First, it is a procedure culminating in decisions to renew or not renew the contracts of first-year teachers (i.e., interns). 
  • Second, it is a procedure leading up to decisions about tenured teachers who are not performing adequately. 
  • Third, it is to provide assistance to teachers without any implication of adverse action; a teacher wants help and peer review is the process used to provide it.

 

 

Unions Use Collective Bargaining to Create Peer Review Programs

The new unionism proposes to utilize collective bargaining as the vehicle for initiating and implementing educational reforms such as peer review. For this reason, it is essential to understand the relationships between peer review and collective bargaining. The issue is not whether collective bargaining does or does not affect educational reform, but how it does so and what are the limits, if any, to collective bargaining as the vehicle of reform.

Peer review has not emerged outside of states and school districts in which teachers bargain collectively. One reason is that peer review has been a union initiative, and NEA/AFT affiliates have more leverage in states and districts that have authorized teachers to bargain collectively. Another reason is that school management must assume certain contractual obligations as part of a peer review plan. It is very difficult if not practically impossible to require management to fulfill these obligations outside of collective bargaining situations.

Although collective bargaining makes peer review possible, it also poses some major legal and practical problems in implementing peer review. For example, the teacher unions, like other unions, bargain over "terms and conditions of employment." Despite some legal uncertainties about what this covers, and variations in the state bargaining laws, some features of peer review ostensibly conflict with collective bargaining statutes.

Setting up the Peer Review Process

To begin the peer review process in a school district, the school district and the union usually establish a Board of Review comprised of several teachers appointed by the union and several school administrators. This Board chooses and monitors the work of the "consulting teachers" (i.e., the teachers who visit classrooms to observe and evaluate teachers subject to peer review), and gives to the Superintendent of Schools its recommendation regarding the future employment status of interns. The Board also recommends what action is to be taken with respect to tenured teachers who are subject to intervention. Although the Superintendent then makes his own recommendations to the board of education, no superintendent in the Toledo, Ohio school district--the most highly publicized peer review school district--had rejected a recommendation of the Board of Review as of the fall of 1997.1

The consulting teachers who directly evaluate the teachers are recruited from the regular teaching staff. Typically, applicants must complete an application form and submit recommendations attesting to the quality of their teaching from:

 

1. their building representative (that is, a teacher who acts as a union representative for a particular school); 
2. their principal; and
3. three other teachers in their school.

 

Obviously, this requirement raises some important issues, such as the prospects for outstanding teachers who are not union members or are opposed to the union leadership.

The consulting teachers are appointed by the co-chairs of the Board of Review for a three-year nonrenewable term. In effect, this means that the administration and the union each have a veto power over candidates. Other peer review districts have similar but not identical provisions.

Consulting teachers are usually relieved of their regular teaching duties so they can devote their time to assisting interns. The average load of consulting teachers may vary considerably. For example, in the peer review program in Toledo, Ohio, the average load of consulting teachers is nine interns--fewer if the teacher is also responsible for a teacher in the intervention program. In contrast, the consulting teacher workload in the Columbus, Ohio peer review program is eighteen interns, or fifteen in addition to one intervention case.

Virtually every phase of peer review is affected by whether probationary or tenured teachers are involved. When probationary teachers are involved, the requirements for nonrenewal are typically not as rigorous; the criteria for not hiring a teacher are not as demanding as the criteria for terminating an experienced one.

The implications of peer review for tenured teachers should not be overlooked. In Toledo, more than 1,100 tenured teachers out of a total staff of about 2,500 are never evaluated, unless some complaint is made. In 1997, some had not been evaluated since 1970.

Clearly, most of the resources in the peer review plans are devoted to assisting and evaluating first-year teachers. The most important question would seem to be: What difference, if any, does peer review make in the proportion and quality of first-year teachers offered reemployment? Thus far, the data reveal no significant difference between conventional and peer review procedures.

Principals vs. Consulting Teachers
(or Conventional vs. Peer Review Procedures)

The conventional procedure for teacher review is for the principal to review the performance of the teachers in his or her school. Any decision made on the basis of the review is viewed as a management decision.

The teacher unions, in contrast, support peer review on the grounds that they have the responsibility to help incompetent teachers or guide them into another field. The unions seek to implement their newly discovered responsibility by union co-determination of what were formerly regarded as management decisions. Such co-determination is likely to erode, not raise, the standards for teaching positions. The reason is that teachers are not likely to impose high standards that could boomerang against themselves. We can see this in the fact that tenured teachers are seldom evaluated in the leading peer review districts.

The underlying issue is whether the teacher unions should exercise managerial functions, or whether they can drop their excessive obstruction of managerial performance of managerial functions without compromising their role as protector of employee interests.

 

Peer review raises several issues with respect to principals.

 

· Are consulting teachers more qualified than principals to evaluate new teachers? 
· To what extent do the recommendations of principals differ from those of consulting teachers, and how are such differences resolved?
· What is the impact of peer review on the principal's authority and leadership position?

 

In conventional evaluation by principals, the absence of accountability is not due to a deficiency in the administrative structure. When a principal evaluates teachers poorly, but without any adverse consequences to the principal, the solution may be a change in personnel, or a change in union programs that make it difficult to impose disciplinary action. The lack of accountability under peer review, however, is built into the structure.

Theoretically, consulting teachers are accountable to the Board of Review (by whatever title), but the Board has no way of monitoring the work of consulting teachers. It can transfer a consulting teacher back to the classroom, but this means only that the worst thing that can happen to a consulting teacher is to get his or her job back at the regular salary.

Union and Teacher Self-Interest

In peer review, people find it easy to convert their interests into principles. Assume that a district is spending $100,000 annually to evaluate and assist new teachers. Assume also that this amount must be drastically increased to provide adequate time for observation, assistance, and evaluation. What plan would most teachers prefer?

 

· A plan in which the district increases its budget for administration evaluators, resulting in more administrators in more teachers' classrooms? Or, 
· A plan whereby a large number of teachers who must be approved by a union will receive a substantial stipend for three years while evaluating new teachers--work that is more attractive than classroom teaching for most teachers.

 

On the record, the literature on peer review ignores the self-interest of consulting teachers and their unions. These senior teachers are usually a dominant force, if not the controlling one, in the teacher unions, just as the senior members of unions in other fields. If the literature on peer review had confronted this issue in a realistic way, one might have more confidence in the case for peer review. As matters stand, however, the unions indignantly decry the efforts to portray teachers as money-hungry pedagogues who care only about their paychecks. As erroneous as this would be, it is not more so than the portrayal of teachers as totally unaffected by the compensation issues in peer review. We must also consider the union stake in peer review. As will be evident, the union stake overlaps with the teacher stake, but is far from identical with it.

Union Control over Peer Review

A realistic evaluation of peer review plans must recognize that they greatly strengthen a union's control over its members, especially potential dissidents. First, the union exercises a veto power over the selection of consulting teachers. Overt opposition to the union is reduced because such opposition may jeopardize one's prospects for tenure or for the appointment as a consulting teacher. Even if the union members of the Board of Review evaluate candidates solely on the basis of their professional performance, the candidates themselves will often fear that the union members of the Board will evaluate nonunion or antiunion candidates more harshly.

Indeed, the fact that the consulting teachers must be recommended by their building union representative is another troubling feature of the most prominent peer review plans. The building representatives are not appointed or elected because of superior insight into teaching. Their functions are to hold union meetings at the schools, receive and process grievances, keep members informed about union activities, and convey teacher views to the leadership echelons of the union. Again, regardless of the purity of individual motives, there is a coercive element in the situation. Furthermore, the potential dissident lacks the resources to oppose the union in these situations.

Interestingly enough, the teacher unions have opposed merit pay on the grounds that it would be utilized to reward antiunion teachers. Can we assume that a plan controlled in large part by the union, or, minimally, subject to its veto power, will show no animus against antiunion teachers? The assumption that school administrators are biased against union activists, but union activists are not biased against antiunion teachers, may appeal to union members, but it is hardly persuasive.

It is easy to visualize National Education Association (NEA) and American Federation of Teachers (AFT) reactions to these criticisms. Since they have invested a great deal in portraying peer review as a major step toward educational improvement, a new role for unions, and union assumptions of professional status, it is very unlikely that the unions will publicly acknowledge any merit in the foregoing criticisms. Privately, some will; some already have. The official line, though, is likely to be as follows: First, we were criticized for being overly protective of incompetent teachers. Now, we are being criticized for union efforts to help beginning teachers or guide them out of the profession. No matter what we do, we can't satisfy right-wing extremists who are determined to destroy public education.

NEA Retains Influence by Avoiding "Union" Label

Although such a response does not address the specific criticisms set forth here, consider this paradox: Most citizens have a negative view of unions. At the same time, most have a favorable attitude toward the NEA. The explanation is not that the NEA is considered to be "a good union." It is that the NEA is not perceived as a union at all. If it were, its prestige would experience a substantial decline. One can argue about the proportion of citizens who have a negative view of unions, but there is no doubt that the NEA enjoys a much higher favorable rating than unions generally because the association is not widely perceived as a union.

The "new union" must, therefore, be understood in this context. When the United Auto Workers (UAW) or Teamsters strike, no one doubts that the intended beneficiaries are auto workers and teamsters. When teachers strike, it is allegedly for the benefit of children. Teacher union success in promoting teacher welfare as pupil welfare is phenomenal. The taxpayer dilemma that arises is similar to the one that arises in efforts to discourage welfare mothers from bearing additional children. How can we encourage responsible adult behavior without hurting innocent children?

For a time, the NEA took pride in a kind of in-your-face unionism to persuade teachers that the association was a tough union, not a weak imitation of the AFT. Here and there, one sees a residual of this pose, but the word is out: Down with any language that connotes "union"; up with anything that connotes pupil welfare or "profession." This is the strategic environment in which the new union was conceived and has emerged. If significant changes had really taken place, the fact that various pressures triggered them would not be important. The question is: What are the changes in NEA/AFT personnel, budget and policies that are the result of the "new union" initiative? Whatever they are, they clearly do not involve significant changes in union personnel or budgets, or in the unions' program. Failure to raise this issue is a major deficiency in the media's treatment of the "new union."

Reviewing Public School District Contracts: Some Observations

Authorities on collective bargaining emphasize the importance of evaluating contractual provisions in the light of the entire contract. This caveat applies in two ways. First, the implications of any contractual provision may be crucially affected by other provisions. For example, a broad definition of "grievance" will be less troublesome if the grievance procedure does not culminate in binding arbitration; a narrower definition of grievance may be very troublesome in a contract with binding arbitration and brief time limits for management to respond.

A review of contractual provisions in the context of the entire contract is essential for another reason. Frequently, we want to know the philosophical or strategic orientation of the contract as a whole. Is it based on a strong management rights perspective? Or co-management by the union? Or clearly defined tradeoffs between these extremes? The entire contract often provides a context that affects evaluation of specific provisions.

The Toledo Federation of Teachers Contract: Some Observations

What light, if any, is shed upon peer review by a review of the entire contract in peer review districts? Before responding to this question by reviewing peer review in Toledo, Ohio--a leading peer review district--some data on the Toledo school district will be helpful. In 1995, the Toledo school district:

 

· Served approximately 38,500 students, down from a high of 60,000 in the 1960s and 1970s.
· Operated 48 elementary, eight junior high (grades 7-8), and eight high schools (grades 9-12).
· Employed 4,400 employees.
· Negotiated with unions representing nine different bargaining units. The Toledo Federation of Teachers (TFT) represents 2,500 in the teacher unit, 360 in the substitute teacher unit, and 370 in the paraprofessional unit. The Toledo Association of Administrative Personnel (TAAP) represents 320 employees. There were five separate American Federation of State, County, and Municipal Employees (AFSCME) locals as follows:

 

AFSCME Members # of Employees
Local 249 custodians and hall monitors 235
Local 2174clerical and technical employees 375
Local 272 building operations, skilled trades 170
Local 840 food service employees 280-300
Local 2853 transportation employees 180-200

· Only 14 district employees were not represented by a union in 1995.
· The total budget for the district was $220 million.

One issue raised by these data relates to the number of teachers required to operate a peer review program. Ideally, the consulting teachers teach the same grade level and subject as the interns. When teachers evaluate the subject matter competence of teachers in different subjects and grade levels, there can be major problems, especially since subject-matter competence is an important criterion in the peer review process. Nevertheless, even in a district as large as Toledo, consulting teachers cannot always be recruited from the same grade level or subject being taught by the teachers subject to peer review.

Obviously, the smaller the district in terms of personnel, the more difficult it is to recruit consulting teachers with an appropriate background. For instance, suppose a district employs only one physics teacher who is about to retire. Even if the teacher met the criteria to be a consulting teacher, it would be prohibitively expensive for the teacher to mentor his or her replacement. The lack of mentoring experience and opportunity to work with other mentors is a negative factor that can lead to conflict. We cannot say that a district must employ a specified number of teachers to conduct a peer review program; we can say, however, that as the number of teachers employed by the district is reduced, more negatives emerge. At some point, which may differ from district to district, the negatives simply become prohibitive.

The upshot is to undermine further the claim that peer review is the way for teachers to raise standards for entry to teaching. The doctors, lawyers, and dentists who practice in small school districts have passed a state examination applicable to all parties in the state seeking to practice these professions. Even in the most optimistic scenario, peer review cannot function to prevent large numbers of teachers from being certified as regular teachers outside the peer review process.

For purposes of discussion, however, let us assume that there is no size-of-district problem in Toledo. Nonetheless, the union/school district contracts in peer review districts strongly suggest that peer review emerges only in districts that allow the union to co-manage the district. In Toledo, the union exercises a de facto veto power over most educational policies as well as personnel functions.

These are not only my conclusions, based on a study of the 224-page Toledo Federation of Teachers (TFT) contract; they are also the conclusions of knowledgeable authorities who conducted an intensive review of the TFT contract, in conjunction with extensive interviews with school board members, administrators, and officers of the seven unions representing district employees. The study compared the TFT contract with the teacher contracts in Akron, Canton, Cincinnati, Cleveland, Columbus, Dayton and Youngstown, all urban Ohio districts to which Toledo is often compared. The study director was R. Theodore Clark, Jr., one of the country's leading authorities on public-sector bargaining and a past president of the National Public Employer Labor Relations Association (NPELRA)--the national organization of public employer representatives in labor negotiations.

The study, which Clark co-authored with Robert C. Long, included the following comments, quoted in part, under the heading of "Reasons for Optimism":

 

Talented and Experienced Union Leadership -- Presently, the school system appears to have union leaders with many years of experience, considerable credibility and strength, and the depth of vision and understanding to know that "business as usual" will not serve the long-term interests of their members nor is it the direction in which labor needs to move if labor wants to continue to play a significant role in the school system.

 

Successful Examples of Labor Management Cooperation in the Toledo Public Schools -- Among the initiatives that labor and management both point to with some pride are the Intern and Intervention programs begun in 1981 with the TFT, a number of similar mentoring, evaluation, and management training programs initiated by TAAP, and the recent initiatives with site-based management schools.2

 

Despite these positive comments, the Long/Clark report is a devastating analysis of the collective bargaining agreements in the Toledo school district. Long and Clark summarized the "highlights" of their study, included in part below, that "have the greatest impact on student achievement and better use of taxpayer resources":

 

1. Restrictive Management Rights Provisions -- The typical collective bargaining agreement with the Toledo Public School (TPS) system has:

 

· No management rights clause or one of little value;
· Broad provisions freezing all past practices and policies not referenced in the contract;
· An extremely broad definition of the term "grievance" such that issues going well beyond the scope of the collective bargaining agreement can be submitted to the grievance and arbitration procedure;
· Provisions restricting the right to subcontract, including a successors and assigns clause in the AFSCME contract;
· Vague or limiting provisions regarding management's right to lay off employees;
· No provision terminating management's duty to bargain with the union during the term of the collective bargaining agreement (a so-called "zipper clause").

2.  Restrictions On Outside Recruitment -- The TFT agreements are structured so that it is virtually impossible to obtain a regular full-time teaching position with the school district without first serving a period of time as a substitute teacher, thus effectively excluding from serious consideration applicants for teaching positions who are coming straight out of college or who are thinking of transferring from another school district, unless such applicants are willing to "wait their turn" in the substitute teacher apprenticeship route....This shuts out most teachers who do not presently live in the Toledo area.

3.  Job Assignments and Transfers Are Overly Dependent On Seniority -- Job assignments and transfers are dependent almost entirely on seniority considerations .... For example, the seniority-driven system creates a situation where it is possible that a high school may not be able to have a male physical education teacher. Similarly, it is often not possible to match up the particular schools' combined needs for teaching assignments and talents necessary for extracurricular programs of importance, whether they be debate, drama, athletics, or the like .... Similarly, when new innovative programs are devised, there is no way to ensure that the enthusiasts will be assigned to those programs, as they may not have the seniority to bid into those new opportunities. In addition, school principals have virtually no say in who the building secretary will be, as those placements are driven by a seniority-based bidding system.

Even where the seniority-based assignment and transfer system places qualified candidates in logical positions, it does so often at the extraordinary expense of causing a domino reshuffling effect that includes a series of job bumping, vacancy and bidding cycles that can continue for months .... Based upon enrollment changes that may trigger a change in staffing levels, a whole series of job displacements can be unleashed, creating enormous inefficiency for a considerable period of time while employees exercise bumping rights to switch to new assignments at different schools for different supervisors. An example of this is the so-called "Bump Day" under the AFSCME secretarial contract unit where, during the first week of August each year, anywhere from 85 to 150 of the 375 members of that bargaining unit are reshuffled to new assignments.

4. [Overly Generous and Counterproductive Benefits] -- (I)t is our sense that the Toledo Public Schools (TPS) pay unusually generous benefits to both full-time and part-time employees outside of the base wage schedule. Illustrative of these fringe benefits and off-schedule payments are the following:

· Excessive time off provisions and loose controls on the use of many paid leaves, with the result of significant absenteeism problems in certain bargaining units. 
· An extraordinary array of fringe benefits for part-time employees, including full benefits for those working 20 hours or more a week in many instances and partial benefits for those working fewer hours. 
· The second highest workers' compensation claims rates of any school district in the state. 
· Generous severance pay plan through the buyout of sick leave benefits upon termination of employment. 
· Full compensation to all employees who do not work on "calamity" or "inclement weather" days, with the requirement that management pay twice for employees who work on such days. Moreover, if more than five such days are missed in a year, the school district is not only required to pay the employees to stay at home for those five days, but also to pay employees extra to make up a day to meet state attendance day requirements. Such an additional make-up day would cost the district approximately $1 million per day.

6. Inadequate Control Over Staffing Levels And Job Descriptions -- While it is common for unions to have the right to negotiate over the effects of significant changes in the scope of job functions, the TPS agreements appear to give unions a virtual veto over any proposed change in job functions and assignments.

7.  Principals Have Inadequate Authority And Responsibility -- The principal's job has been demeaned and trivialized by the collective bargaining agreements that govern innumerable management functions and decisions. Principals have minimal power and authority to direct the work of AFSCME employees at their buildings, and have little or no say about who works at their particular school, whether they be teachers, AFSCME employees or even their own secretary .... Principals have a minimal role in evaluating and mentoring teachers, and have little or no say in selecting the teachers who will work at their schools, except in the few site-based management schools where this entire situation is being changed.

8. Inadequate Means To Motivate and Reward Exceptional Performance -- There are inadequate means in the existing collective bargaining agreements to motivate and reward exceptional performance.

9. Collective Bargaining Agreements Are Unnecessarily Laden With Day-to-Day Trivia -- It is unnecessary to have provisions in collective bargaining agreements stating that the coffee pots in teacher lounges will have automatic shut-off switches, yet innumerable day-to-day matters like this have become the subject of collective bargaining and have been memorialized in contractual provisions. When day-to-day administrative details become common place in collective bargaining agreements, it invites individuals who would normally be held accountable for performance to throw up their hands and disclaim responsibility for what the system is producing or how it works, with the argument (often well-founded, unfortunately) that they simply don't have enough control. This process ... also creates anomalous and probably unintended situations that are extremely frustrating to the individuals involved, such as an arrangement whereby a principal's work schedule is different than the work schedule of his or her secretary.

10. The School Day Is Too Short -- Many interviewees commented that the school day for students, teachers, principals and staff at the schools is too short and should be lengthened. This point was certainly borne out by our research, which reveals that Toledo has by far the shortest workday of any of the school systems we studied.

11. The AFSCME Contract Is Burdened With Too Many Job Classifications -- The AFSCME contract has numerous job classifications that are now outdated and extinct, and the job classifications that are still relevant are almost certainly stratified into far too many gradations.... At times, for example, building principles are unable to find an AFSCME maintenance employee who has authority, within the scope of their job description, to perform such simple maintenance tasks as throwing salt on the parking lot during an ice storm.

13. There Is Inadequate Long-Term Consistent Strategic Planning For Collective Bargaining By Management -- (T)here are only 14 management employees of the school district who are not represented for purposes of collective bargaining. To make matters worse, their own compensation and benefit packages historically have been tied by the Board of Education to the outcome of collective bargaining agreements with the employee unions, thus creating an unnecessary conflict of interest.

14. The Labor Contracts Discourage Flexibility and Innovation-- The labor agreements as a whole are replete with obstacles to innovation and experimentation. There are few incentives for change and innovation -- just barriers standing in the way....

 

The foregoing is by no means an exhaustive discussion of significant observations, but rather it represents some of the more salient issues that cut across many of the concerns we have identified with regard to the group of collective bargaining agreements and labor management relations as a whole.3

The foregoing conclusions about the union contracts in the Toledo school district underscore an important consideration. The Toledo peer review program was established and is maintained in an extremely pro-union environment. Beyond a reasonable doubt, the Toledo district has tolerated a substantial number of highly inefficient personnel policies and practices. Praise for its peer review program must be assessed in this context. As the items from the Long/Clark report on the TFT contract illustrate, the Toledo peer review program exists in a district that has subordinated student achievement and taxpayer interests to union interests to an unprecedented extent. It does not necessarily follow that the Toledo peer review program is undesirable, but the contractual environment justifies a cautious attitude toward district support for peer review programs.

Other Teacher Union Contracts

The same point applies at least to some of the other highly publicized peer review districts, especially Columbus, Ohio and Rochester, New York. Like the Toledo, Ohio contract, the Columbus contract is a long, detailed document that restricts managerial discretion in a myriad of ways; even when the district retains discretion, the requirement that it consult with the union before acting is bound to result in co-management by the Columbus Education Association (CEA).

A three year contract reached in Columbus in October 1997 continued the pattern of generous settlements. For example, although Columbus schools are open for only 180 days, the teachers are paid for 196 days, including holidays, professional meetings, parent conferences, and record-keeping. Nevertheless, Columbus teachers are eligible for 15 days of sick leave annually, available for either the teacher or the illness of a member of the teacher's family. Although the district estimated that Columbus teachers used an average of nine days of sick leave a year (one for every 20 days school was in session), the contractual resolution was to require a doctor's certificate after a teacher missed 10 days in the school year, or after a teacher missed two or more days in a row. In addition, the payments for unused sick leave were increased so that a teacher with an M.A. degree plus 30 credits and 27 years experience, who retired with 406 days of unused sick leave, would be entitled to approximately $40,000 for accumulated sick leave.

By 1997, CEA president John Grossman had outlasted nine Columbus superintendents; it is hardly surprising that he is widely regarded as the most powerful leader in the district.

In Rochester, the site of another highly publicized peer review program, community disenchantment with extremely generous union contracts led to sweeping changes in school board membership and in the superintendency.* Such facts suggest that union power, not the merits of peer review, is the main factor in its emergence.

Conclusion

Peer review should not be rejected because it is a union initiative and is operative only in districts characterized by an extremely strong union presence. Nonetheless, the record to date indicates that peer review has yet to take hold in other districts. This fact suggests that peer review's appeal to teachers and teacher unions does not and will not necessarily translate into an attractive initiative for school boards.

If peer review is desirable on the basis of its educational merits, we should expect that school districts would accept it even in the absence of pressure from teacher unions. Clearly, however, the "model" peer review plans are in districts with extremely powerful teacher unions. Media and professional treatment of peer review has overlooked this point, but the contracts in peer review districts confirm the fact that peer review plans are associated with highly expensive concessions to teachers and severe limitations on school management. Anyone who doubts this should review copies of the contracts in the leading peer review districts.

In the example of the Columbus, Ohio school district, the data (discussed in much further detail in the book) render it difficult to see how peer review could have made a significant difference in the quality of the teaching staff. In view of the small percentage of teachers who resigned or were denied renewal under peer review, it is highly unlikely that peer review was more effective than conventional procedures in weeding out unqualified teachers.

In the overwhelming majority of cases, the renewal recommendations that result from peer review are probably the same as those that would have resulted under conventional procedures.

For all we know, peer review keeps incompetent teachers in the classroom longer than conventional procedures did or would. It is simply assumed that the recommendations under peer review are more reliable, but that assumption is not necessarily fact. In view of the costs, which are considerable, peer review would have to display a significant margin of superiority to be justified.

In some respects, the basic issue in peer review appears to be whether it is possible to reconcile the concept of a union, legally and practically responsible for promoting the interests of its members, with the concept of a professional organization. If a professional organization is defined as one designed to protect the public, as NEA publications imply, we must bear in mind that "professional" organizations eventually become as self-serving as unions. At some points, the interests of occupational organizations conflict with the public interest; the proposition that what is good for teachers is good for the country is as absurd in education as it is in every other field.

The ultimate criterion for evaluating peer review should be its effects on student achievement related to its costs. This criterion is extremely difficult to apply. Not even the most ardent supporters of peer review have been able to cite any improvement in student achievement clearly attributable to peer review that justifies the expenditures.

* Dr. Lieberman's book is available through the Education Policy Institute, 4401-A Connecticut Avenue, NW, PMB 294, Washington, DC 20008-2322. Telephone: 202-244-7535; fax: 202-248-1581.

1Intern Intervention Evaluation, a joint publication of the Toledo School District and the Toledo Federation of Teachers (May 1996).

2 Robert C. Long and R. Theodore Clark, Jr., Evaluation of the Collective Bargaining Agreements of the Toledo Public Schools (Toledo, OH: Toledo Chamber of Commerce Community Coalition for Effective Education, September 30, 1995).

3 Ibid.

Travesty, Tragedy and Treason: Abood v. Detroit Board of Education and the Supreme Court's Betrayal of the Constitution in Public-Sector Labor Relations by Edwin Vieira, Jr.

I. Introduction

The major problems besetting contemporary public education are anything but accidental. Rather, in large measure they can be traced to four interrelated sources, nesting together in the manner of a Russian matrioshka:

First, militant teachers' unions--primarily, the National Education Association ("NEA") and the American Federation of Teachers ("AFT")--which have organized themselves and operate as politically powerful special-interest groups intent on using public education to further their own economic, political, and ideological agendas.1

Second, compulsory public-sector collective-bargaining statutes throughout the country that grant the unions' local affiliates the monopolistic privilege of exclusive representation of all teachers in government schools.

Third, judicial decisions all the way to, and especially from, the Supreme Court of the United States that have apologized for, confirmed, protected, and even extended the unions' powers as exclusive representatives to:

· negotiate and administer collective-bargaining agreements;
· speak purportedly for all teachers even outside the collective-bargaining process;
· collect "agency fees" from nonunion teachers; and
· engage in wide-ranging activities supposedly "germane to collective bargaining."

Fourth, the ignorance of the general public as to what is going on, and the adverse consequences to society as a whole if this situation continues and (as seems likely) intensifies.

 

Of these, the judicial decisions have constituted the key, decisive, and indispensable events, above and beyond the lobbying that prompted the legislation establishing compulsory public-sector collective bargaining through exclusive representation. For, in numerous cases, all of which involved the teachers' unions--including Abood v. Detroit Board of Education ("Abood");2 Perry Education Association v. Perry Local Educators? Association ("Perry");3 Knight v. Minnesota Community College Faculty Association ("Knight I");4 Minnesota State Board for Community Colleges v. Knight ("Knight II");5 Chicago Teachers Union, Local No. 1 v. Hudson ("Hudson");6 and Lehnert v. Ferris Faculty Association ("Lehnert")7--the Supreme Court could and should have made serious inroads into, if not eliminated entirely, the most abusive and dangerous elements of compulsory bargaining, if not the entire practice itself.

In all those cases, the legal issues were properly presented; the necessary factual records were fully developed; and convincing (yea, by all measures compelling) constitutional arguments were put forward. In no instance did the Supreme Court ever rule that an issue central to the litigation was not adequately raised, that the case was not ripe for adjudication because of some evidentiary defect in the record, or that the complaining parties' arguments were simply frivolous or foreclosed by a truly applicable precedent. Nevertheless--or, perhaps, because the cases were so carefully prepared, and struck at the heart of the problem of compulsory public-sector collective bargaining--the Court knowingly and intentionally chose to avoid the issues,8 to turn a blind eye to the facts,9 or to reject the complainants' arguments on the bases of transparent evasions10 and misuse of precedent.11

Instead, in Abood the Court upheld the constitutionality of the "agency shop" in public-sector employment against a challenge under the First Amendment, pretending to be bound by two prior private-sector cases--Railway Employes' Department v. Hanson ("Hanson")12 and International Association of Machinists v. Street ("Street")13--that (as described below) had decided no First-Amendment issues at all. In Perry, the Court allowed an exclusive representative to enjoy special privileges outside of collective bargaining that undermined a rival employee organization.14 In Knight Iand Knight II, the Court upheld exclusive representation through the back door of a summary affirmance in Knight I, and then used the shoddy device of relying on that bare affirmance as a precedent in Knight II to extend exclusive representation beyond the bounds of reason--all of this a coldly calculated tactic that apparently had been plotted and prepared long before Knight I and Knight II arrived at the Court, and that was continued thereafter.15

In Hudson, the Court refused to apply traditional requirements of procedural due process to unions' collection of agency fees, but instead created a bastard theory of "First-Amendment due process" that mires nonunion employees in litigation over the unions' assessments of agency fees, without coming to grips with many of the most important issues of proof.16 And in Lehnert, the Court licensed the collection of nonunion teachers' agency fees to support the activities of unions in bargaining units other than those in which the teachers actually worked; and also held that unions may charge nonunion teachers for supposed "collective-bargaining" activities not only outside the definitions of such activities in State laws but even illegal!17 Of no small moment, all of these pathbreaking cases involved the NEA or the AFT.

Thus, the major problems from which contemporary public education suffers fundamentally reflect not acts of God or Nature for which no one is responsible, or even someone's mere negligence, but instead the willful--and, one must presume, purposeful--refusal of Justices of the Supreme Court to apply the Constitution so as to protect nonunion teachers, students, and the general public. Instead, the Justices have effectively empowered the unions and their political and bureaucratic allies to ride roughshod over public education with virtual immunity from constitutional control in the most important particulars.

A previous article in this journal traced the evolution of the fraudulent "labor-peace" apology for compulsory collective bargaining from the private-sector cases of the 1930s through the public-sector cases of the present day.18 This article focuses on another fundamental aspect of that evolution: the essential deceitfulness of Abood--perhaps the main prop by which the Supreme Court has shored up exclusive representation in public-sector employment, without ever facing up to the serious constitutional issues that scheme raises.

II. A Critical Analysis of Abood v. Detroit Board of Education

To understand the centrality of Abood19 to the Supreme Court's twisted trail of duplicity through the forest of public-sector collective bargaining requires review of the leading private-sector compulsory-unionism cases preceding Abood, and on which Abood purported to rely: Hanson20 and Street.21 For, prior to Abood, the Court had never heard a case involving any aspect of public-sector bargaining.

Hanson, Street and Other Decisions Preceding Abood

At issue in Hanson was the constitutionality of the "union-shop" provision of the private-sector Railway Labor Act.22 The complaining employees argued that the Act's requirement that they pay "periodic dues, initiation fees, and assessments" to unions violated the Due Process Clause of the Fifth Amendment. As the Court (per Justice Douglas) described their claim, "[i]t is said that the right to work, which the Court has frequently included in the concept of 'liberty' within the meaning of the Due Process Clause ... may not be denied by the Congress."23 To this, the Court responded that Congress has the power "[t]o require, rather than to induce, the beneficiaries of trade unionism to contribute to its costs," because "Congress might well believe that it would help insure the right to work in and along the arteries of interstate commerce."24

The "liberty" under the Due Process Clause to which Justice Douglas referred--the only constitutional right mentioned in the portion of Hansonupholding the payment of compulsory dues for collective bargaining--was not then, and is not now, always synonymous with First-Amendment freedoms; and when referred specifically to the "right to work" had never, prior to Hanson, been thought (let alone held) to come within the ambit of, or to implicate, those freedoms. Moreover, Hanson's speculative language "Congress might well believe" was typical of the type of loose "rational-basis" reasoning that the Court had traditionally employed (and still uses) in cases not involving such so-called "fundamental" rights as those the First Amendment protects.25 So, beyond question is that the Court did notdecide that the requirement of financial support for collective bargaining itself does not violate the First Amendment.

The Court then noted that, although "[w]ide-ranged problems are tendered under the First Amendment" with respect to employees' freedoms of association, conscience, and thought,

[o]n the present record, there is no more an infringement or impairment of First Amendment rights than there would be in the case of a lawyer who by state law is required to be a member of an integrated bar. It is argued that compulsory [union] membership will be used to impair freedom of expression. But that problem is not presented by this record. ... If ... the exaction of dues, initiation fees, or assessments is used as a cover for forcing ideological conformity or other action in contravention of the First Amendment, this judgment will not prejudice the decision in that case. 26

Of course, later on in Lathrop v. Donohue,27 when squarely faced with the question of the constitutionality of compulsory membership in "an integrated bar," Justice Douglas professed to see things through a different glass: "In the Hanson case we said, to be sure, that if a lawyer could be required to join an integrated bar, an employee could be compelled to join a union shop. But on reflection the analogy fails."28 Too bad that Douglas had not engaged in more "reflection" when he wrote Hanson. Nevertheless, in Lathrop he did dimly envision the future consequences of his own past handiwork in Hanson:

Once we approve this measure [i.e., the integrated bar], we sanction a device where men and women in almost any profession or calling can be at least partially regimented behind causes which they oppose. I look on the Hanson case as a narrow exception to be closely confined. Unless we so treat it, we practically give carte blanche to any legislature to put at least professional people into goose-stepping brigades.29

That is, to dragoon tens of millions of mere employees "into goose-stepping brigades" was a "narrow," albeit to Douglas quite acceptable, "exception" to the First Amendment. But to force lawyers and other "professional people" to march in ideological lockstep was beyond the pale! The crass elitism of this attitude hardly needs emphasis.

Justice Douglas's tardy confession of misjudgment is but another, if telling, example of the old adage that "we grow too soon old and too late smart." As his belated mea culpa in Lathrop showed, Douglas was a myopic jurist if ever there was one, forgetting what the Court had previously observed: "A wrong decision does not end with itself; it is a precedent, and, with the swing of sentiment, its bad influence may run from one extremity of the arc to the other."30

[O]nce a judicial opinion rationalizes [a governmental act] to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an [act], the Court for all time has validated the principle ... The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds the principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with ... 'the tendency of a principle to expand itself to the limit of its logic.' ... [I]f we review and approve, [a] passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image.31

Unfortunately, Justice Douglas's gloomy prediction came to its poisonous fruition for "professional people" (college faculty) in Knight II through this sequence: Hanson, then Abood (which deceitfully relied on Hanson), Knight I (which deceitfully relied on Abood), and Knight II (which deceitfully relied on Knight I). This is proof positive that the floors of the Judiciary's no-doubt expansive corner of Hell are paved with all those "narrow exception[s]" that some judges foolishly hoped would be "closely confined," but then, like dragons' teeth, turned out to have monstrous lives of their own.

Regarding the First Amendment, clearly the Hanson Court was talking about unions spending money primarily for political and ideological activities, not for collective bargaining. The employees before the Court in that case never argued that they had a First-Amendment right to speak to or associate with their employer as an aspect of their employment relationship, or that their First-Amendment rights were abridged because the statute required them not to speak to their employer, but instead to pay an exclusive representative to speak "for" them, in the course of that relationship.

So, when Hanson ultimately concluded that "[w]e hold only that the requirement for financial support of the collective bargaining agency by all who receive the benefit of its work is within the power of Congress under the Commerce Clause and does not violate either the First or the Fifth Amendments,"32 it was combining in one phrase two entirely separate parts of its opinion: the first, that "[t]o require, rather than to induce, the beneficiaries of trade unionism to contribute to its cost" did not violate the Fifth Amendment's Due Process Clause with respect to the "right to work" subsumed within the concept of "liberty" (the issue squarely presented in the record);33 the second, that, although "[i]t is argued that compulsory membership will be used to impair freedom of expression [outside of collective bargaining]," "that problem is not presented by this record," and the statute on its face does not violate the First Amendment in that respect.34

Of course, even Hanson's holding that "[t]o require, rather than to induce, the beneficiaries of trade unionism to contribute to its cost" did not violate the Fifth Amendment was grounded in the rankest speculation, rather than proven facts. For Justice Douglas's notion that "[o]ne would have to be blind to history to assert that trade unionism did not enhance and strengthen the right to work"35 was itself a controversial question that the litigation had not settled as a matter of legally admissible evidence--with respect to either the employees before the Court or anyone else.

Notwithstanding Douglas's assertion, even the best economic analysis of that time clearly demonstrated that if unions achieve economic gains for the workers they represent, they do so generally at the expense of other workers, not of entrepreneurs and investors.36 That is, to the extent it is economically successful at all, compulsory collective bargaining merely redistributes wealth among workers themselves, not between the false Marxian abstractions "labor" and "capital." Moreover, even within a group of workers a union represents, material gains for some may come only at the expense of others--disproving for its own partisans the myth of "union solidarity" that "trade unionism ... enhance[s] and strengthen[s] the right to work" for everyone. And finally, even for an employee who could be shown to gain materially from forced union representation, the "union-benefit" question ultimately reduces to a matter of philosophy or ideology, not economics. For such an economically fortunate employee could nonetheless oppose union representation on noneconomic grounds, and be willing to give up any material gains for the psychic benefit of being free from union control of his employment.

On what theory can Congress's determination under the Commerce Clause that such an employee should be forced to accept mere material gain at the cost of philosophical freedom run roughshod over the First-Amendment's guarantee that the government will not "make any person pay out one single penny against his will to be used in any way to advocate doctrines or views he is against, whether economic ... or any other"?37 And how much less plausible and constitutionally acceptable is Congress's determination on that score, where it has not been shown that the affected employee does, in fact, obtain any material gain at the cost of his philosophical freedom; or where it might be shown that he actually suffers a material loss in addition to the loss of that freedom?

To be sure, the argument might have been made in Hanson, that to require employees to accept and finance a union as their exclusive representative for the purpose of speaking to their employerunconstitutionally imposes upon them conformity to the ideology of trade unionism, which would have raised a First-Amendment issue. Perhaps that argument might not have succeeded. For clearly the Court in Hanson was wedded to the unionist ideology, which it took for some kind of indisputable fact: "One would have to be blind to history to assert that trade unionism did not enhance and strengthen the right to work."38 And that ideology was just as clearly at the heart of the kind of exclusive representation the Court had belatedly read into the National Labor Relations and Railway Labor Acts in J.I. Case Co. v. NLRB,39 and Order of Railroad Telegraphers v. Railway Express Agency, Inc.40 For example, in applying exclusive representation to strike down individual contracts between employees and their employers, the Court, in J.I. Case, rationalized its decision on the theory that "[t]he practice and philosophy of collective bargaining looks [sic] with suspicion on ... individual advantages."41 Moreover, when Hansonwas decided, whether the Supreme Court would have held private-sector business-related communications between employees and their employers to be "free speech" subject to all the protections of the First Amendment was questionable.

On the other hand, the reasoning in Justice Black's later dissent in Streetwould have supported the employees' claim:

[T]he First Amendment bars use of dues extorted from an employee by law for the promotion of causes, doctrines and laws that unions generally favor to help the unions, as well as any other political purposes. ... [W]orkers have as much right to their own views about matters affecting unions as they have to views about matters in the fields of politics and economics. Indeed, some of their most strongly held views are apt to be precisely on the subject of unions ....42

The italicized language obviously would apply to compulsory collective bargaining through exclusive representation as: "causes" or "doctrines ... that unions generally favor to help the unions"; "matters affecting unions"; "matters ... in the field[ ] of ... economics"; and a subject on which employees have "strongly held views." Black might not have wanted to apply his own reasoning to compulsory fees used for collective bargaining, because he too believed that Congress could "constitutionally authorize ... a worker to pay dues to a union for the sole purpose of defraying the cost of acting as his bargaining agent."43 But, had the argument been made, he would at least have been confronted with the glaring anomaly in his own thinking.

In any event, the employees before the Court in Hanson did not contend that the "union shop" was unconstitutional under the First Amendment because it infringed upon their freedom to speak with their employer. For that reason, Hanson did not address, and could not have addressed, that question. And, therefore, as Hanson purported to promise, "[i]f ... the exaction of dues, initiation fees, or assessments is used as a cover for forcing ideological conformity or other action in contravention of the First Amendment, this judgment will not prejudice the decision in that case."44That is, Hanson left open the question of whether a "union-shop," "agency-shop," or "fair-share" scheme that compelled employees to remain silent and to finance speech on such matters (via statutorily imposed payments to exclusive representatives through the employer) was unconstitutional. Thus, the decision was not a constitutional precedent, one way or the other.

At issue in Street, too, was the legality of private-sector unions' expenditures of "union-shop" fees for activities (again, primarily political and ideological) other than collective bargaining. Rather than deciding a constitutional question, though, the Court ruled solely as a matter of statutory construction that the Railway Labor Act did not allow unions to spend compulsory fees on political and ideological causes to which employees objected.45 Thus, even more so than did Hanson, Street left open the question of whether--where dissenting employees had a clear-cut First-Amendment right to speak to their employers about matters related to their employment--a "union-shop," "agency-shop," or "fair-share" scheme that compelled those employees to finance speech on such matters to the employer by the employees' exclusive representatives was unconstitutional vel non.

The Abood Decision

Abood then set Hanson and Street on their heads. Squarely at issue in Abood was the constitutionality of the "agency-fee" provision of Michigan's public-employment labor-relations law. Thus, central to Abood was an unavoidable First-Amendment question turning on two undeniable distinctions between private and public employment: namely, (i) that in government employment any interference in the relationship between employer and employee arguably impacting speech, association, and (derivatively) petition necessarily raises a First-Amendment issue; and (ii) that because governmental employment is part and parcel of the political process, therefore public-sector collective bargaining itself is inherently political in nature. Moreover, by the time of Abood, the Court had settled on its "compelling-state-interest" and "least-restrictive-alternative" tests for deciding First-Amendment questions--strict standards that went far beyond the jurisprudence of Hanson's era.46

Rather than addressing these issues on their own merits, the Abood Court (per Justice Stewart) fell back on Hanson and Street, which he described as "two cases ... that on their face go far toward resolving the issue."47Inasmuch as Street decided no constitutional issue at all, it can be disregarded--except to observe that Justice Stewart used that non-constitutional precedent in a case squarely raising constitutional issues, which is darkly suspicious. However, Justice Stewart treated Hanson as a true precedent, saying that "the [Hanson] Court squarely held that 'the requirement for financial support of the collective-bargaining agency by all who receive the benefits of its work ... does not violate ... the First ... Amendmen[t].'"48

The patent deceit in this statement, of course, lies within the carefully crafted emptiness of the ellipses. For, as explained above, Hanson never held that compulsory "financial support of the collective-bargaining agency" itself did not violate the First Amendment. Hanson held only that such compulsory financial support did not violate the "right to work" included within the "liberty" protected by the Due Process Clause. And Hanson constructed that holding on mere "rational-basis" grounds, not on grounds justifying abridgment of First-Amendment rights even under the cloudy and lax judicial tests in vogue when Hanson was decided, let alone the far more rigorous tests the courts applied by the time Abood came up for review. Moreover, Hanson addressed only the issue of "financial support of the collective-bargaining agency," not the constitutionality vel non of the union's status as exclusive representative that rationalized coercion of any "financial support" from dissenting employees.

Revealingly, Justice Stewart admitted that the nonunion teachers in Aboodhad

advance[d] two reasons why [Hanson and Street] should not control decision of [Abood]. First ... that governmentemployment ... is involved in [Abood], thus directly implicating constitutional guarantees, in contrast to the private employment that was the subject of the Hanson and Street decisions. Second ... that in the public sector collective bargaining itself is inherently "political," and that to require the [teachers] to give financial support to [the union] is to require the "ideological conformity" that the Court expressly found absent in the Hanson case.49

Justice Stewart, however, rejected these arguments. To the first, he responded that,

the union shop, as authorized by the Railway Labor Act, also was found to result from governmental action in Hanson,. The plaintiffs' claims in Hanson failed, not because there was no governmental action, but because there was no First Amendment violation.50

This purported explanation of Hanson is exceptionally thin hogwash. That there was "governmental action" in Hanson went to the question of whether the "union shop" abridged the "right to work" included in the "liberty" protected by the Due Process Clause. Had there been no "governmental action," there could have been no arguable violation of the Due Process Clause--and no reason for the Hanson Court to opine on that issue at all. But that there was "governmental action" did not mean that a specific First-Amendment issue was necessarily litigated. Indeed, one can read the portion of Hanson dealing with "liberty," the "right to work," and due process without once finding the words "First Amendment," "freedom of speech," or (more importantly in Abood, where the government is the employer) "freedom of petition," or any reference or even allusion to those concepts.51

This is hardly surprising, though, inasmuch as the Hanson Court found "governmental action" in the Railway Labor Act's preemption of State laws--that is, under a Commerce-Clause, not a First-Amendment, theory.52Thus, the employees' "claims in Hanson failed," not because the Court ruled that the "union shop" did not violate the First Amendment as to monies paid for collective bargaining, but because the Court ruled that the "union shop" did not violate the Due Process Clause, and said nothing whatsoever about the First Amendment on that score.

Rejecting the Abood teachers' second argument, Justice Stewart catalogued some of what he called "the important and oft-noted differences in the nature of collective bargaining in the public and private sectors."53 Most of these were economic in character, and in any event did not relate to the teachers' specific constitutional contentions. The important point, which Justice Stewart acknowledged, was that

decisionmaking by a public employer is above all a political process. ... [P]ermitting public employees to unionize and a union to bargain as their exclusive representative gives the employees more influence in the decisionmaking process than is possessed by employees similarly situated in the private sector.54

That insight should have led Justice Stewart to conclude that compulsory public-sector bargaining--which, as part of the process of "decisionmaking by a public employer," must also be part of the "political process"--imposes political conformity on nonunion employees (who must accept the political decisions their exclusive representative make in collective bargaining). Moreover, it imparts a disproportionate amount of political influence to union members (or, more realistically, to their leaders)--not only as against "employees similarly situated in the private sector," but also as against nonunion public employees, taxpayers, voters, and everyone else among the general public.

Then Justice Stewart should have asked the question: On what possible theories of political equality and free speech could one group of employees (nonunion teachers) be required to subsidize the political activity of another group (union members), even if the first group arguably received from that subsidization some economic benefit for which they had never asked, which they were willing to forego, and which resulted from a political detriment imposed on them?

Rather than answering (or even admitting the existence of) this pregnant question, which lays out the basic and unavoidable conflict between compulsory public-sector collective bargaining and representative government,55 Justice Stewart artfully shifted his ground, opining that,

public employees are not basically different from private employees; on the whole, they have the same sort of skills, the same needs, and seek the same advantages. "The uniqueness of public employment is not in the employees nor in the work performed; the uniqueness is in the special character of the employer." The very real differences between exclusive-agent collective bargaining in the public and private sectors are not such as to work any greater infringement upon the First Amendment interests of public employees. 56

On its face, this passage contradicted the passage in which Justice Stewart admitted that "decisionmaking by a public employer is above all a political process." No collective bargaining in the private sector is political--and, therefore, compulsory collective bargaining in that arena can never impose political conformity or political inequality. Whereas, all collective bargaining in the public sector is political--and, for that reason, allcompulsory collective bargaining there imposes such conformity and inequality as a necessary consequence of its normal operation.57 (And even voluntary public-sector collective bargaining would result in political inequality between union members, on the one side, and everyone else in society, on the other.) Perhaps one can argue that imposed political conformity and inequality ought to be deemed constitutional in public employment to achieve some "greater good"--but one cannot gainsay that such conformity and inequality are present in public-sector bargaining in a way they can never be in the private sector.

Justice Stewart conceded that

(t)here can be no quarrel with the truism that because public employee unions attempt to influence governmental policymaking, their activities--and the views of members who disagree with them--may be properly termed political. But that characterization does not raise the ideas and beliefs of public employees onto a higher plane than the ideas and beliefs of private employees.58

That, however, was neither the issue in Abood, nor a bridge spanning the gulf that separates Hanson from Abood. The Abood teachers did not argue (or even intimate) that "the ideas and beliefs of public employees [occupy] a higher plane than the ideas and beliefs of private employees." Rather, the Abood teachers contended that "the ideas and beliefs of public employees" (that is, themselves) were being infringed by compulsory public-sector bargaining in a way that "the ideas and beliefs of private employees" had not been and could not be (and were not argued in Hanson to have been) infringed by compulsory private-sector bargaining.

Contrary to Justice Stewart's notions, public employees do enjoy rights quite different from private employees. For instance, in the absence of a statute outlawing discrimination, a private employer could refuse to hire practitioners of one religion, or members of one political party; but, even without such a statute, the Constitution prohibits a public employer from doing so. This does not signify that the religious or political beliefs of public employees are "raise[d] ... onto a higher plane than the ... beliefs of private employees," but instead reflects that, absent a statute, public employers,enjoy less power than private employers to control the terms and conditions of their employees' hire and tenure. And less power for one group of employers necessarily entails more (or enlarged) rights for their employees.

Had Hanson ruled that private-sector trade unionism constitutes an ideology, that private-sector compulsory collective bargaining imposes ideological beliefs on nonunion employees, and that nevertheless such bargaining is constitutional under the First Amendment, then, substituting "political" for "ideological," Hanson would have been a precedent relevant to, although not necessarily controlling in, Abood. Even so, Hanson would not have been controlling because public-sector bargaining also imposes political inequality on nonunion public employees, taxpayers, voters, and others, and undermines democratic institutions, which private-sector bargaining does not and can not do.

Nevertheless, Hanson said none of this. And even if it could be read to imply that trade unionism constitutes an ideology, it cannot possibly be read to have employed the constitutional tests appropriate where First-Amendment freedoms from ideological compulsion are concerned (i.e., compelling state interest and least-restrictive alternative). Therefore, it could not be a precedent in a later true First-Amendment case where those tests (not Hanson's vague verbiage) were controlling.

As Justice Stewart argued, compulsory public-sector collective bargaining does not prevent a nonunion public employee from "voting"; from "express[ing] his views, in public or in private orally or in writing"; or from "participating in the full range of political activities open to other citizens."59But the constitutional question is not what other First-Amendment political freedoms nonunion employees can exercise equally elsewhere or in other manners, but what political conformity and inequality they must suffer in, through, and because of the collective-bargaining process.

Thus, Justice Stewart was disingenuous to conclude that "Hanson and Street [are] controlling in [Abood] insofar as the service charges are applied to collective-bargaining, contract administration, and grievance-adjustment purposes."60 It would have been one thing for Justice Stewart to admit that Hanson was not "controlling" because it was a private-sector case that did not adjudicate any First-Amendment rights, and that therefore Abood was a case of first impression, and then to rule on the basis of some cockamamie theory that compulsory political conformity and inequality are constitutional in public employment. (That he did not is fairly convincing evidence that even he could not jury rig such a theory.) But it was deceptive at best to say that Abood was "controll[ed]" by Hanson, let alone by Street. Indeed, it was simply Justice Stewart's way of shifting responsibility to a previous Court for whatever ill might come out of a judicial whitewashing of compulsory public-sector collective bargaining--a variant of "The Devil made me do it!" apology for wrongdoing, with Justice Douglas implicitly cast as Lucifer.

As Justice Powell noted wryly in Abood,

(o)ne would think that acceptance of th[e] principle [that the State infringes interests protected by the First Amendment when it compels an individual to support the political activities of others as a condition of employment] would require a careful inquiry into the constitutional interests at stake in a case of this importance. But the Court avoids such an inquiry on the ground that it is foreclosed by this Court's decisions in ... Hanson ... and ... Street....61

But, he concluded rightly,

(b)ecause neither Hanson nor Street confronted the kind of governmental participation in the agency shop that is involved [in Abood], those cases provide little or no guidance for the constitutional issues presented in this case.62

* * * * *

Under First Amendment principles that have become settled since Hanson and Street were decided, it is now clear, first, that any withholding of financial support for a public-sector union is within the protection of the First Amendment; and, second, that the State should bear the burden of proving that any union dues or fees that it requires of nonunion employees are needed to serve paramount governmental interests.63

Justice Powell might have added that there was no showing in Abood that the "agency shop" was the least-restrictive alternative to whatever "paramount governmental interests" compulsory collective bargaining supposedly served. But when the Abood teachers, in their petition for rehearing, pointed out this demerit in the Court's opinion, neither Justice Powell nor any other Justice bothered to do anything about it.64 So here one confronts another clear-cut example of the judicial pot calling the judicial kettle black.

Observe that what Justice Powell rightly accused Justice Stewart of doing--that is, avoiding adjudication under strict First-Amendment standards through the use of inapposite "precedent" and double-talk--is exactly what the Court (including Justice Powell himself) did sub silentio in Abood, on the teachers' petition for rehearing. And what the Court (again, including Justice Powell) did sub silentio in Knight I, as interpreted by Knight II. And what Justice Brennan openly did in City of Madison, Perry, and Knight II to rationalize (rather than adjudicate) the constitutionality of exclusive representation. And what Justice Stevens (for the Court) did even more brazenly in Hudson to cover up what had been done in Knight I by falsely stating that Abood had upheld the constitutionality of exclusive representation in public-sector employment.65

So, from Hanson, through Abood and Knight I, to Hudson the chain of deceit became complete, and completely absurd. Abood falsely relied on Hanson and Street to uphold the "agency shop" in the public sector against a First-Amendment challenge, when Hanson and Street had not even upheld the "agency shop" in the private sector against such a challenge. Then Knight I (as interpreted by Knight II) falsely relied on Abood to uphold exclusive representation, when exclusive representation had not even been at issue in Abood. Then Hudson falsely characterized Abood as having upheld exclusive representation, leading logically to the false, if not utterly idiotic, conclusion that the precedents which Justice Stewart said "controll[ed]" Abood--Hanson and Street--had actually decided the constitutionality of exclusive representation!66

III. Conclusion

In sum, the foregoing analysis of Abood provides further evidence that the Supreme Court has knowingly and intentionally twisted the Constitution, and even its own decisions, out of all recognizable shape in order to uphold and extend the primary abuses of compulsory public-sector unionism:

· assessment of agency fees--Abood;
· collection of agency fees without the normal protections of procedural due process applicable to all other forms of property--Hudson;
· exclusive representation in general--Knight I,;
· exclusive representation by a militant, nationwide political-action organization--Knight I;
· union monopoly privileges beyond the exclusive right to bargain collectively--Perry and Knight II;
· nationwide collection of agency fees--Lehnert;
· expansion of the definition of "collective bargaining" and of the powers of exclusive representatives under that rubric beyond what State statutes actually allow--Lehnert.

In each of these cases (and others preceding them in private-sector employment67), the Court could have (on perfectly sound constitutional grounds) and should have (on prudential grounds) severely limited, if not altogether eliminated, these abuses. In every instance, however, a majority chose the opposite course--and in Knight I, their course was transparent in its trickery.68

But duplicity was at work both before and after Knight I--and not simply in the Court's floating of the childishly false myth in Hudson that Abood had upheld exclusive representation in public-sector employment.69 True enough, on its (de)merits, Hudson itself was an exercise in studied duplicity, with the Court's creation from whole cloth of the theory of "First-Amendment due process" that apparently applies only to labor unions collecting agency fees, and in practice denies nonunion employees the full panoply of due-process protections available to everyone else.70 Abood, though, defined the agenda, set the stage, refined the technique, and provided the precedent for all subsequent judicial deceits in public-sector labor relations--and, as Knight I and Hudson show, should therefore be condemned as the fons errorum of, or at least the Court's ever-ready excuse for, everything that followed it.

Thus, the problem of compulsory unionism so vexing public education today must be deemed the effect of essentially a single cause: the Supreme Court's bad faith--primarily, its falsehoods in:

· Abood, that Hanson and Street "compelled" the Court to uphold the "agency shop"; and
· Knight II (interpreting Knight I) and then in Hudson, that Abood had upheld exclusive representation.

The proof of the charge of judicial deceit lies in the thick, intellectually indigestible pudding of undeniable (but otherwise inexplicable) facts that the Court itself served up. For example, why was there no oral argument, briefing and opinion in Knight I; but there was in Knight II? Obviously, the Justices wanted it this way, inasmuch as both appeals arose out of the selfsame litigation and touched on intimately interrelated, if not really inextricable, issues; the Court was required to hear both cases on appeal;71 and the Justices chose to dispose of one (Knight I) summarily, but to grant the other (Knight II) a full hearing.

This dichotomy of treatment is totally inexplicable as a mere matter of judicial technique and legal argumentation because: Knight I raised fundamental and novel--indeed, unique--questions concerning the validity of compulsory public-sector collective bargaining through exclusive representation, both in principle and as applied specifically to the NEA; whereas, Knight II raised merely the subsidiary and derivative question of whether exclusive representation could be extended from actual binding negotiations to mere nonbinding conferences between teachers and school administrators (the so-called "meet and confer" process of the Minnesota public-sector labor-relations law). And Knight II explicitly relied on Knight I to uphold the limitation of "meet and confer" sessions to the exclusive representative, saying that,

[i]f it is rational for the State to give the exclusive representative a unique role in the [collective-bargaining] process, as the summary affirmance in [Knight I] presupposes, it is rational for the State to do the same in the 'meet and confer' process.72

Knight II, however, did not explain in what context, or by what chain of reasoning, Knight I "presuppose[d]" the rationality of exclusive representation, or whether that context was realistic and that reasoning defensible. Rather, the opinion left its readers to assume on faith that Knight I was correct, while knowing--and certainly being told--next to nothing about the many serious constitutional issues of first impression raised in that case.

Knight II also said that Knight I "rejected the argument, based on A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), and Carter v. Carter Coal Co., 298 U.S. 238 (1936), that [exclusive representation] unconstitutionally delegated legislative authority to private parties."73 But, again, Knight II did not describe the argument on "delegat[ion of] legislative authority to private parties"; nor how Schechter Poultry Corp.and Carter were material to that argument; nor on what bases in fact and law the Court in Knight I "rejected" the argument; nor why that Court did not bother to respond to Justice Powell's warnings in Abood that a "collective bargaining agreement to which a public agency is a party ... has all the attributes of legislation," and that "voters could complain with force and reason that their voting power and influence on the [governmental] decision making process has been constitutionally diluted" by a statute delegating exclusive power to a union to participate in making the economic laws that affect it.74

Obviously, the Justices wanted the results of Abood and Knight I without having to explain--one can only presume because they were unable or afraid to expose to the light of day--their true rationales for those decisions. Doubtlessly, this is why they falsely attributed Abood to Hanson(throughout Abood itself), and Knight I to Abood (in Hudson).75

And what were the results of all these machinations? Twofold: When the Court disingenuously relied on Abood and Knight I, it:

· upheld compulsory public-sector collective bargaining through exclusive representation, without airing the most serious constitutional questions exclusive representation raises; and
· licensed national public-sector unions to exercise enormous and uncontrollable power through compulsory collective bargaining, to what end the Court could not possibly predict (and apparently did not care)--uncontrollable power because by their disposition of Knight I the Justices demonstrated that they intended not even to inquire into, let alone to control, it.

Therefore, as a consequence of the Supreme Court's decisions from Abood to Knight I and beyond, the direction of public education has in some--and many observers would say in large--measure been surrendered to public-sector unions and their allies among politicians, bureaucrats, and the intelligentsiia, with the adverse consequences that most everyone today recognizes, but without the chain of legal cause and effect being apparent to more than a vanishingly small minority of people who have had the time, expertise, and stomachs to uncover the Court's dirty maneuvers.

Those who dig into this situation can only conclude that it is a travesty of the judicial process, a tragedy for students and teachers locked into government schools, and fundamentally a species of treason against the American people by the branch of government the Founding Fathers assumed was the least dangerous. But, at least in this area, the judiciary has proven itself the most dangerous of all. Perhaps, though, as more people come to realize what has happened, and why, public disgust and outrage will finally compel the judiciary to admit and make amends for its misdeeds. Otherwise, if the past is any harbinger, the future looms dark indeed.

1On the NEA in particular, see Vieira, "Are Public-Sector Unions Special Interest Political Parties?," 27 DePaul Law Review 293 (1978). In the twenty-two years since this article was written, the situation has become decidedly worse.

2431 U.S. 209 (1977)(AFT).

3460 U.S. 37 (1983)(NEA).

4460 U.S. 1048 (1983)(NEA).

5465 U.S. 271 (1984)(NEA).

6475 U.S. 292 (1986)(AFT).

7500 U.S. 507 (1991)(NEA).

8E.g., in Abood, the issue of whether the "agency shop" was the "least-restrictive alternative" for accomplishing a valid governmental objective, as opposed to an overly broad infringement on nonunion teachers' First-Amendment freedoms. See Petition for Rehearing in Abood v. Detroit Board of Education, No. 75-1153 (Sup. Ct., filed 15 June 1977), denied, 433 U.S. 915 (1977).

9E.g., in Knight I, the Court refused to deal with the question of whether public-sector exclusive representation is unconstitutional where the representative is a militant political-action organization, essentially indistinguishable from a political party for all relevant purposes of constitutional law. See Jurisdictional Statement in Knight v. Minnesota Community College Faculty Association, No. 82-901 (Sup. Ct., filed 1 December 1982), Question II.

10See Knight I, discussed in Vieira, "Poltroons on the Bench: The Fraud of the 'Labor-Peace' Argument for Compulsory Public-Sector Collective Bargaining," Government Union Review, Vol. 18, No. 3 (1998).

10See Abood and Knight I (as interpreted by Knight II), discussed in Vieira, "Poltroons on the Bench," ante note 10, at 20-28, 32-40; and Abood, discussed below on pages 40-50.

11See Abood and Knight I (as interpreted by Knight II), discussed in Vieira, "Poltroons on the Bench," ante note 10, at 20-28, 32-40; and Abood, discussed below on pages 40-50.

12351 U.S. 225 (1956).

13367 U.S. 740 (1961).

14Contrast Vieira, "Compulsory Public-Sector Collective Bargaining in the United States Supreme Court: Perry Education Association v. Perry Local Educators' Association, Government Union Review, Vol. 3, No. 2 (1982), at 43, with Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37 (1983).

15See Vieira, "Poltroons on the Bench: The Fraud of the 'Labor-Peace' Argument for Compulsory Public-Sector Collective Bargaining," Government Union Review, Vol. 18, No. 3 (1998).

16Contrast Vieira, "From the Oracles of the Temple of Janus: Chicago Teachers Union v. Hudson," Government Union Review, Vol. 7. No. 3 (1986), at 1, with idem, "Constitutional Limitations on the Assessment of Agency Fees in Public Sector Employment," Government Union Review, Vol. 3, No. 4 (1982), at 31.

17See Vieira, "Lehnert v. Ferris Faculty Association: The U.S. Supreme Court Hands Out Another Stone Instead of a Fish," Government Union Review, Vol. 14, No. 1 (1993), at 1.

18Vieira, "Poltroons on the Bench: The Fraud of the 'Labor-Peace' Argument for Compulsory Public-Sector Collective Bargaining," Government Union Review, Vol. 18, No. 3 (1998).

19Abood v. Detroit Board of Education, 431 U.S. 209 (1977).

20Railway Employees' Department v. Hanson, 351 U.S. 225 (1956).

21International Association of Machinists v. Street, 367 U.S. 740 (1961).

2245 U.S.C. § 152, Eleventh.

23351 U.S. at 234.

24Id. at 235.

25See United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938). Interestingly, even as to run-of-the-mill, non-"fundamental" rights Carolene Products conceded that "a statute would deny due process which precluded the disproof in judicial proceedings of all facts which would show or tend to show a statute depriving the suitor of ... liberty or property had a rational basis." Id. at 152. In Hanson, though, the employees apparently did not attempt to litigate the "rational basis" of the "union-benefit" theory of collective bargaining on which Justice Douglas so naively relied. And the Court did not choose to remand the case in order to afford them an opportunity to make such "disproof," either.

26351 U.S. at 236-38 (emphasis supplied).

27367 U.S. 820 (1961).

28Id. at 879 (dissenting opinion)(emphasis supplied).

29Id. at 884 (footnote omitted).

30Adkins v. Children's Hospital, 261 U.S. 525,561 (1923).

31Korematsu v. United States, 323 U.S. 214, 246 (1944) (Jackson, J., dissenting).

32351 U.S. at 238 (emphasis supplied).

33Id. at 234-35.

34Id. at 238.

35Id. at 235.

36See, e.g., W.H. Hutt, The Strike-Threat System: The Economic Consequences of Collective Bargaining 1973), which was Hutt's expansion of his seminal work, The Theory of Collective Bargaining (1930, republished 1954). The latter work was surely available to the HansonCourt--although it obviously was not consulted by Justice Douglas.

37Street, 367 U.S. at 791 (Black, J., dissenting) (footnote omitted; emphasis supplied).

38351 U.S. at 235.

39321 U.S. 332 (1944).

40321 U.S. 342 (1944).

41321 U.S. at 338 (emphasis supplied).

42367 U.S. at 790-91 (separate opinion) (emphasis supplied).

43Id. at 791.

44 351 U.S. at 238 (emphasis supplied).

45 367 U.S. at 750-69.

46 As the Court's jurisprudence developed after Hanson, in cases involving fundamental First-Amendment rights the burden of proof has come to rest on those defending the alleged abridgment, who are required to establish with facts in the record that the abridgment serves a so-called "compelling" governmental interest by the means "least-restrictive" of the victims' rights. See, e.g., Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986); United States v. O'Brien, 391 U.S. 367, 377 (1968); United States v. Robel, 389 U.S. 258, 267-68 (1967); Aptheker v. Secretary of State, 378 U.S. 500, 514 (1964); DeGregory v. Attorney General, 383 U.S. 825, 829-30 (1966); NAACP v. Button, 371 U.S. 415, 444 (1963). In such litigation, the party defending the abridgment must supply facts, not simply assumptions. See, e.g., New Jersey Citizen Action v. Edison Township, 797 F.2d 1250, 1259 (3d Cir. 1986). See also, e.g., City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 496 (1986); Pickering v. Board of Education, 391 U.S. 563, 578-79 & n.2 (1968). And cf. Crowell v. Benson, 285 U.S. 22, 56-64 (1932); St. Joseph Stockyards Co. v. United States, 298 U.S. 38, 50-54 (1936).

47 431 U.S. at 217.

48 Id. at 219 (ellipses in the original).

49 Id. at 226.

50 Id. (footnotes omitted).

51 See 351 U.S. at 233-35.

52 Id. at 231-32.

53 431 U.S. at 227-29.

54 Id. at 228-29.

55 See generally E. Vieira, Jr., "To Break and Control the Violence of Faction": The Challenge to Representative Government from Compulsory Public-Sector Collective Bargaining(1980).

56 Id. at 229-30.

57 One may, of course, object that compulsory collective bargaining in the private sector imposes at least ideological conformity to the philosophy of trade unionism. A plausible rejoinder is that trade unionism in its purest form is merely an economic doctrine ("taking wages out of competition" by monopolizing the supply of labor). But if this reductionism contains some element of truth in the private sector, surely it is completely false in the public sector, where bargaining is inherently and inescapably political, simply because the employer is a political entity and its employment policies political policies, by definition.

58 431 U.S. at 231.

59 Id. at 230.

60 Id. at 232 (bold-face emphasis supplied).

61 Id. at 245 (opinion concurring in the judgment) (emphasis supplied).

62 Id. at 254 (footnote omitted).

63 Id. at 255.

64 See Petition for Rehearing in Abood v. Detroit Board of Education, No. 75-1153 (Sup. Ct., filed 15 June 1977), denied, 433 U.S. 915 (1977).

65 See Vieira, "Poltroons on the Bench: The Fraud of the 'Labor-Peace' Argument for Compulsory Public-Sector Collective Bargaining," Government Union Review, Vol. 18, No. 3 (1998).

66 Interestingly, that is what District Judge Donald Alsop originally said in dismissing Knight in the trial court, for which he was overruled for abuse of discretion on a petition for mandamus to the Court of Appeals. See Knight v. Alsop, 535 F.2d 466 (8th Cir. 1976). Apparently, rather than an ignoramus, Alsop was a misunderstood prophet.

67 See the tricks the Court performed in defining, then artfully redefining, exclusive representation in the 1930s and 1940s. Vieira, "Poltroons on the Bench: The Fraud of the 'Labor Peace' Argument for Compulsory Public-Sector Collective Bargaining," Government Union Review, Vol. 18, No. 3 (1998), at 9-16.

68 See Id. at 32-40.

69 See Id. at 40-42.

70 See Vieira, "From the Oracles of the Temple of Janus: Chicago Teachers Union v. Hudson," Government Union Review, Vol. 7, No. 3 (1986), at 1, specifically at 16-36.

71 See 28 U.S.C. § 1257 as it existed at that time.

72 465 U.S. at 291.

73 Id. at 279.

74 431 U.S. at 252-53, 262 n.15 (opinion concurring in the judgment).

75 475 U.S. at 301.

Teacher Unions and Educational Reform The View From Inside by David W. Kirkpatrick

As a career educator in many capacities and a member of a teacher union since 1964, I spent more than a dozen years as a top officer or staff member of affiliates of the National Education Association (NEA), the American Federation of Teachers (AFT) and the American Association of University Professors (AAUP). Also, I am a life member of five different union divisions, including the NEA and the Pennsylvania State Education Association (PSEA), of which I am a past president and their retired teacher affiliates.

Particularly as a local association president, I practiced union democracy. Neither the members, nor I as president, sought to negotiate such anti-teacher policies as the agency fee, whereby teachers who don't join the union must still pay a fee, usually an exorbitantly high one; maintenance of membership, whereby if they do join they can only withdraw during the final days of the contract, which may run for five years; or restricting what they may receive in their school mailbox to materials from the union, except for materials from the school district or U.S. Postal Service deliveries.

NEA and AFT Block Education Reforms

The National Education Association (NEA) was established in 1857, and the American Federal of Teachers (AFT) in the beginning of this century, but neither evolved as a traditional labor union until the 1960s. Unfortunately, as that transition took place, they soon began to adopt some of the less attractive features of industrial unionism.

In the ongoing attempt by educators, governments and parents to reform education, the NEA and AFT consistently block or cripple any significant change, such as school choice and charter schools. They, of course, deny this and cite rhetoric stressing the need for change and their wish to bring it about.

Anyone who has spent years within the movement knows that the charge is true and the rhetoric false.

For example, in 1970 the U.S. Government began looking for a school district to try a five-year school choice project, which required the approval of the local teachers. One was found in Alum Rock, California, where most of the teachers belonged to a NEA local and a smaller number belonged to an AFT chapter. Both groups agreed to participate, only to be attacked by their national unions. The project went ahead but the national unions still said their members were wrong, which at the very least raises the question as to who was representing whom.

At the annual conference of the Education Commission of the States in 1997, in Providence, R.I., I asked the top officers of both unions why they did this. NEA President Bob Chase, in effect, excused himself from answering because he wasn't in office at the time and wasn't directly involved. This does not seem to be a good reason to refuse to at least express a view as to why the NEA would attack its own members.

Ed McElroy, AFT's Secretary-Treasure, coincidentally from Rhode Island, said the AFT did so because its members made "a stupid decision." He didn't explain who decided to oppose the teachers, or on what basis. Ironically, the AFT president at the time the Alum Rock project was initiated was David Selden, who had testified before Congress in opposition to vouchers. When he left office shortly thereafter, he wrote an article in which he said the teachers liked vouchers and so did he.

David Darland, then a NEA Assistant Executive Secretary, speaking in Pennsylvania a generation ago, said "If you are a good teacher, you are always undermining the status quo...(6).* Fortunately for teachers that is a standard not generally applied because it is one that very few teachers can meet, or care to. Whatever their individual abilities may be in the classroom, very few of them question the status quo, much less seek to alter it.

* Note: The number in parenthesis refers to the source listed in the Bibliography that follows the text. A second number is the page number within the source.

Elaine Kendall was closer to the truth when she said that "of all professions teaching is the most hostile to nonconformists or agitators" (16, p. 144).

There was a time when this could be recognized and discussed within the ranks of the teacher organizations.

Consider this from the Student NEA News in January of 1967:

 

By and large the teaching profession is the least responsive, the least flexible, and the most afraid. We are plagued by teachers ... without a social conscience, without recognition of the need for adventure and responsiveness in their own lives as well as the lives of their students (31, p. 1).

 

Or, from the same source:

Individual teachers have allowed themselves to accept neutrality as the only expedient to such an extent that they do not realize how successfully they have muzzled the profession.
Can it be called courage when one articulate school board member or one local chapter of some "civic" organization can cause hundreds of teachers to swallow their pride and also their tongues. Is one supposed to be overcome with admiration when teachers limit their political and civic participation to membership in national organizations behind which they may conveniently hide?
The trouble with American education as it continues to exist is that the system forces teachers to prefer conformity for themselves and their students (31, p. 2).

Thus, in their collective roles as represented by their unions, the last thing they are about to do is take on the status quo. On the contrary, the unions do everything possible to maintain it. As Billy Boyton, former Executive Director of the NEA's Nebraska affiliate, and John Lloyd, who held a similar position in Kansas, have said "The NEA has been the single biggest obstacle to educational reform in this country. We know because we worked for the NEA" (8, p. 53).

Because a number of its officials have moved on to NEA positions (including president and executive director of the NEA), the Michigan Education Association (MEA) has been nationally recognized for its influence, even sometimes being referred to as the "Michigan Mafia." Yet some time ago, NEA attorney Erwin Ellman was quoted as saying, "let's face it, there's no intellectual ferment among teachers. Those who are superb teachers are not those who are trying to get ahead in the Association" (2, p. 121).

When the unions talk about the reforms they favor, they include such things as smaller class sizes and beginning education even earlier--such as the "Jump Start" program that former NEA President Keith Geiger called for at the 1990 NEA Representative Assembly in Kansas City. Whatever merits these may have, and for some that's not much, they invariably call for variations of the status quo or more of the same, rather than reforms that mean real changes. Not coincidentally, they also almost uniformly call for the spending of more money and the creation of more teaching positions, which, of course, result in an increase in union membership, union income and union power.

Nor are they above inaccuracies or exaggerations, to be polite about it. In a letter to The Wall Street Journal, Sandra Feldman, former President of the United Federation of Teachers (UFT) in New York City and now the late Al Shanker's successor as president of the national AFT, claimed that a UFT site-based-management model "became the basis of federal legislation governing the use of compensatory education funds in hundreds of thousands of schools around the nation" (12) [emphasis added].

That is an unbelievable success, literally unbelievable, when it is remembered that there are only some 110,000 schools in the nation, 85,000 public and 25,000 private.

During a conference I attended, a speaker made reference to these obstructionist tactics. Without even leaving my seat, in a few minutes I drew up a list of 23 reforms that I have seen unions oppose during my many years of activity within their ranks. Alphabetically, the 23 are:

· alternative certification· part-time staff
· binding arbitration· performance contracting
· career ladders· postsecondary enrollment options
· decertification(early college admission)
· deregulation· private practice
· differentiated staffing· privatization
· distance learning· renewable certification
· home schooling· school choice
· master teachers· technology
· merit pay· tuition tax credits
· multiple salary schedules· vouchers
· nongraded K-12· year-round schools

Union officials will argue that this isn't correct, that they have supported some of these, such as distance learning. But an example of how they do this was a low-tech distance learning program in rural Pennsylvania some years ago, primarily based upon using speakerphones. It worked so well that the teacher originally assigned to it, who at first resisted the assignment because he planned to retire after that year, became so enthused that he postponed his retirement for several years.

The teachers union only supported the program on the condition that the number of students at the other end of the various phone lines could not exceed 35, as if it were a class within a typical schoolroom.

A demonstration of that as an artificial number, other than conforming to an on-site classroom maximum, occurred when it was discovered that students at remote locations where there was no teacher or other adult present often outscored those who were not alone. This surprising result became less so when the students were asked how they could explain this. Their explanation made eminent sense. They said that since there was no one to assist them, or help them with review when the phone was hung up, they had to pay more attention to what was being said online, and to take better notes.

Teacher unions often do not stand alone in their opposition to reform--or to deregulation. Unions generally oppose reforms and deregulation outright, while school board associations may say they are for it. Closer examination, however, reveals that school board associations are for reform or deregulation at the state and/or national level, which, of course, would increase their local options and power. But when it comes to local deregulation, such as allowing the creation of charter schools, school board members' enthusiasm disappears.

As for the unions, Robert Braun noted many years ago,

 

a strong teacher union in an urban center must oppose decentralization. The power of the organization lies in its own strict centralization with authority concentrated at the highest levels... (A) union... is not structured to be responsive to the public; it is hardly structured to be responsive to its own membership (4, pp. 223, 226).

 

Which is one reason the unions oppose charter schools. Despite other reforms they ostensibly favor--such as site-based management and teacher autonomy--the last thing they really want is for teachers to be individually autonomous. They don't want teachers to be "professional" and work directly with those they serve, as do professionals in other fields.

Unions Prevent Teacher Participation and Influence

A leading example of this came during my years as a union activist. An ad hoc group of about fifteen of us started meeting to consider teacher pre-service and in-service training. Among the participants were staff of all three major teacher unions, plus college presidents, and deans of schools of education. Even though the group had no official standing or authority, it was agreed at the outset that all decisions had to be unanimous. During one of the meetings it was noted that the state had just announced the winner of the Teacher of the Year Award, and someone suggested that he be invited to a meeting to share his views on teacher training. As the vote went around the room everyone agreed, including the Executive Director of the state Federation of Teachers, until it reached a staff member of the state education association, the union to which the teacher actually belonged.

He voted no, the only one to do so.

While that startled most of those in the room, it didn't surprise me, having once served as the state president of that Association and having worked with that staff member. The only surprising thing was that he told everyone why he voted no, which was that "if you are going to hear from any of our members we will decide which ones it will be."

In other words, only the party line will be permitted. So much for teacher autonomy, or representing the interests of this teacher, who was paying hundreds of dollars a year in dues for the union to represent him while it blackballed him from having any influence at the state level. Because of the inside-the-room advance agreement to keep our discussions confidential, to this day that teacher doesn't know his participation was vetoed, much less how and why.

Education Unions Not Like Professional Associations

Professional autonomous teachers, whether in private practice or running their own charter school, will need an organization to serve their needs, just as doctors, lawyers and other professionals do. But the American Medical Association, the American Bar Association, and other professional groups perform only those functions that professionals need, such as holding conferences, publishing newsletters and other communications, including lobbying in state capitols and in Washington, D.C., etc. What they don't do is negotiate contracts for their members, handle grievance procedures, and the like.

These latter duties are precisely what most union staff do, thousands of whom receive salary and benefits in excess of $100,000 a year. While NEA's Keith Geiger has spoken against vouchers because it might let students "escape," union staff are perhaps even more concerned about having their members "escape," or convert the unions to professional groups that wouldn't need the present bureaucracy.

Aside from hiding from their members the number of staff, and the fact that their salaries and benefits exceed the wildest dreams of most classroom teachers, a major purpose of union staff (as with any membership organization) is to keep the members as dependent as possible upon them.

Of all the rhetorical hypocrisy about favoring reform, the one regarding teacher autonomy and professionalism is perhaps the most harmful; it is the one almost totally overlooked, even by union critics or opponents. Union officials will bitterly oppose any steps that will lead to teachers being truly autonomous professionals. That is not in the interest of the union, its staff or, in some instances, even of local or state elected officers, many of whom subsequently become union staff members themselves at the state and national levels. It is clearly in the interests of the teachers however--at least the good ones.

This reveals why Clarence Faust's comment decades ago is still true:

 

The teaching profession is the only profession that has not participated in the revolution of the past fifty years, in which technicians and aides relieve the professionally competent person of non-professional chores so as to enable him to concentrate his time and professional activities and to make his competence available to larger numbers (11, p. 212).

 

If this transition did take place, it could mean fewer teachers and thus fewer union members, or at least fewer on teacher salary schedules.

Compare this with other professions. Lawyers adapt to court decisions or new laws very quickly, as do accountants to IRS rulings, and doctors to new medical discoveries. "In education, however, the lags between discovery and practice are scandalous" (6, pp. 332-333).

Worse than scandalous, they are often permanent. Research findings decades or generations ago are ignored to this day. Not only that, educators, who claim to "teach critical thinking and problem solving," are unaware of most research, and frequently ignore, belittle and disrespect it. As a result, much of what is done in schooling, public or independent, isn't based on research, and may go directly contrary to such findings.

Where is the research that says students learn best in age-based classes or in rooms where the teacher talks 75-80 percent of the time (three to four times as much as all of the students combined); and that huge schools with thousands of students are better than small schools, or that huge schools are effective learning environments at all; etc., etc., etc.?

It doesn't exist!

Serious Research Only Used To Block Change

About the only time research is seriously raised is to block change. "When an innovation is suggested, there is a sudden interest in what research ... has to say about it ... when the system is threatened, the ceremonial rain dances pick up speed" (13, pp. 244-245).

The union position was perhaps classically stated by Bernard H. McKenna of the NEA. He was speaking about competency based teacher education (CBTE), which would apply competency measures to teachers as well as students, but his words have general application to any real change:

 

(T)he organized profession does object to mandating implementation which is based on little or no research. ... When CBTE has been carefully researched, developed, tested and tried, found valid and reliable, and capable of being implemented constructively and justly, the organized profession will stand ready to support it (23, p.38).

 

If that is so, why does "the organized profession" object to pilot projects with vouchers, charter schools, privatization, and reform after reform. At the same time they claim they will support change if research proves it correct, they oppose conducting the actual research.

What makes this laughable, assuming for the moment that it is funny, is that if it was a seriously held position the NEA would have to oppose virtually everything schooling presently does because almost none of it "has been carefully researched, developed, tested and tried, found valid and reliable" and is "capable of being implemented constructively and justly." The hypocrisy here is so great that they should be ashamed to have made the remark, and the former National Institute of Education should have declined to print it.

Much current practice doesn't need research to demonstrate its ineffectiveness, inefficiency, or otherwise lack of common sense. Does it make sense for the public to pay certified teachers to proctor homerooms, cafeterias or study halls, help young children get their coats on and off, and other such mundane duties?

Certification and Decertification

Michigan recently decertified school administrators. They no longer have to be credentialed educators. This has not won the approval of the establishment, including teacher unions and higher education schools of education (surprise!), who face a lessened need for their services. School board members generally approve. It is, to them, an acceptable form of deregulation.

Why not decertify? Opponents like to speak rhetorically about certification and quality education as if they are interchangeable terms. They are not!

After all, hospital administrators are not doctors. Court administrators are not lawyers. They are what they need to be: administrators. Even in the field of education, college administrators do not have to be certified or even have been a faculty member. While many or most do come from the professorial ranks, given the collegial system of governance they have neither the authority nor the expectation of being the educational leader for all the fields contained within their institutions.

Some of the problems of the public school system have been caused by certification requirements. It is often said that a school superintendent should be the educational leader of the district, or that at least the principals should be the educational leaders of their schools. Yet how can one person be the expert in math, English, science, history, physical education, guidance counseling, foreign languages, and on and on? If school administrators were just administrators, as in other fields, there would be no need for either the assumption or pretense of universal expertise--a human impossibility.

No other field has as many certification specialties as public education. The growing nitpicking in this area may be a contributing factor explaining why, "Since World War II, attempts at improving public education have produced more negative than positive results" (9, p. 21).

Unions Force Maintenance of Status Quo

Higher education has been no help. As Martin Haberman wrote in an article titled, "Twenty-Three Reasons Universities Can't Educate Teachers":

 

(T)here isn't a single example of school change which university faculty have researched and advocated that is now accepted practice.... Any status survey will reveal that the proverbial third grade in Peoria grinds on pretty much as it did in 1910 (14, 136).

 

This has had at least the acquiescence of teacher unions, if not their outright approval, or they would try to change it.

Further proof of unions as the major obstacle to reform came in Colorado when a series of proposed reforms were introduced in the state legislature. These included alternative teacher certification, a pilot voucher program, privatization, special contracts and merit pay. The state education association termed them "so-called" reforms and announced that it would oppose every one of them (17).

Similarly in Florida, Educational Freedom reported that:

 

(T)he teacher unions' leaders' preconceived and fixed notions that both master teacher and merit pay plans would be detrimental to the unions' strength and structure created such an ambivalence that they were unable to actually advance the financial interests of their own teacher constituencies (1, p. 167).

 

In California, teachers were pressured to not sign charter school petitions and shown how to block charters, and districts granting charters even faced lawsuits (27).

In New Jersey, an NEA affiliate, apparently drawing upon NEA material to oppose privatization, warned its members:

 

to look out for such warning signs as site-based-management initiatives, school restructuring to allow two teachers per classroom, and efforts to provide teachers with computers or telephones (27).

 

It would be difficult to act much dumber than that.

Teachers Isolated, Silent and Compliant

Two teachers in a classroom? With computers or telephones? Outrageous. We can't have that. But where was the teacher reaction?

Teachers in their self-contaminated classrooms are the only professionals who consistently work in such isolation.

 

[Even] (t)eam teaching was seen immediately as threatening to the stated goals of established groups. The idea of hierarchy of personnel runs counter to the monolithic character of the teaching profession and was attacked by both the NEA and the AFT ... who support the strange notion that children need two adults at home but can stand only one at a time in a school (13, p. 229).

 

Ironically, the more pressure there is on the system to change, the more the unions are criticized, and the more teachers take such criticism personally--a tendency the unions are happy to exploit.

In What's Best For The Children?, Mario Fantini observed,

 

(R)ank-and-file teachers, afraid of the external forces that are converging on them, turn increasingly to their professional organizations for protection. In return for this protection, the teachers give up their individuality and their authority. This is delegated to a small group who will wage the protective war. All the rank and file need to do is to co-operate, to follow faithfully the suggestions of the central leadership group (10, pp. 96-97).

 

While the term "professional organizations" is not the best use of the term in this context, the statement is correct but, sadly, it need not be so.

Voucher Opposition: Example of Union Tyranny

The NEA first condemned vouchers at its 1970 convention in San Francisco when they became concerned about the findings of a study done by Christopher Jencks and others for the Office of Economic Opportunity. The study was done during President Richard Nixon's Administration, and led to the Alum Rock project mentioned earlier.

As President of the Pennsylvania State Education Association (PSEA) at the time, and chairman of the delegation to the 1970 convention, where I also gave a nominating speech for the successful candidate for the NEA presidency, I thought that was a mistake, as I do to this day.

Upon returning to Pennsylvania, I put this in writing in the Journal which the Association published at that time. Also, in travelling around the state, I spoke frequently in favor of trying vouchers. The idea was well ahead of its time, and it would be overstating the case to say there was a rallying to the cause. Even so, it is accurate to note that not one of the more than 100,000 members of the PSEA at the time, or members of the Board of Directors, or staff, ever criticized my stand, either to me personally or in any public forum of which I am aware. To the contrary, there were a considerable number of teachers who said they agreed with me.

In other words, given frank discussion of issues, and encouragement from the top, teachers can demonstrate a willingness to discuss even the most challenging of ideas.

But now, after years of condemnation by virtually all of the educational establishment, hearing only one side of the story, being told the system will be destroyed and their jobs lost, the majority of teachers have bought the party line--even though they personally have never studied, and have no knowledge of, that which they oppose.

Most of those who feel otherwise can be kept quiet by peer pressure and other threats.

In my own case, as the author of Choice in Schooling, a history of the idea, and an outspoken proponent of its implementation, I have been officially "condemned" by a PSEA convention--in my absence, it might be noted. I was notified nearly three weeks later by mail.

So much for academic freedom, due process, and other good things which the union says it not only supports but which it will defend as every member's right. Besides being a past state president, I am a Life Member of the PSEA and NEA. It would seem that member rights don't matter very much where the union's interests are concerned.

The same happened to Kevin Irvine, Colorado's Teacher of the Year in 1991, when he publicly came out in favor of the voucher initiative which appeared on that state's ballot. He was criticized and threatened for speaking up for what he believed in.

Union Control of Teachers, Administrators and School Boards

Another instance was the teacher in the Midwest who appeared at a school board meeting and, during the period of public comments, said he objected to the district initiating a policy of payroll deductions of payments to the union. The union said that he had no right to speak and that the board was wrong in permitting him to do so because the union was the exclusive bargaining agent. The issue went to court and had to go all the way to the U.S. Supreme Court, which in effect declared that the union was trying to violate the teacher's constitutional right to free speech.

In one major city, the AFT contract specifies the required school hours for teachers. They have criticized their own members who stayed in school after those hours, charging them with embarrassing their colleagues and engaging in the educational equivalent of a speedup.

In that same city, the school district received millions of foundation dollars to help develop mini-teams in the large high schools whereby 4-5 teachers could work with 100 or so students. Some teachers requested that they be able to agree among themselves who would constitute such a team. The foundation had no problem; the district had no problem; but the union did have a problem and refused to allow their members to form their own teams. This is an indication of union opposition to "teacher autonomy?"

Jaime Escalante, then a calculus teacher at Garfield High School in East Los Angeles, who became famous for his success with mostly poor and Latino students, and was the subject of a 1987 movie, "Stand and Deliver," was harassed by his union.

One of his "sins" was accepting all students who wanted to be in his classes. As a result he had classes of more than 70 students, more than three times the number stipulated in the contract. Union representatives helped persuade teachers to vote him out as the math department chairman. Escalante wrote his union president, saying, "If you looked into what is going on in this school in the name of the union, I think you ... would be appalled." He obviously thought wrong.

Escalante has also said he "thought the union was going to focus on how to improve our skills. But they're more interested in politics than kids." On that, unfortunately, he seems to be right.

In Bethlehem, Pennsylvania, high school teachers and administrators developed a plan which would have used aides to free teachers from nonteaching duties, increasing by 450 minutes a year the time teachers would actually spend with students while at the same time reducing the teaching staff at the high school by 12 positions. It might be added that this district and high school are large enough that any staff reductions could be achieved by attrition, avoiding the necessity to actually cause anyone to lose their job. Nonetheless, the union president and a union staffer promptly opposed the idea, the staffer bluntly saying, "They seem to have put this together thinking they were doing what's best for education ... But this is business." As an aside, if it is a business, why do they oppose for-profit firms engaging in it?

In Minnesota, the teachers union itself annually recognizes a Teacher of the Year. In recent years, at least three of those teachers were later laid off because more senior teachers have a priority claim to employment when reductions occur, a requirement of the contracts negotiated by the same union that praised them.

In San Francisco, the union filed a grievance against a charter school because it paid its teachers $2,800-$3,600 more than they would have received in the regular schools and, a key point, did so without first negotiating the pay increase with the union.

In Richmond, Virginia, the superintendent wanted to give new teachers a $5,000 signing bonus. The union objected. In Washington, DC, Superintendent Arlene Ackerman wanted to raise starting teacher salaries to $30,000, an 11 percent increase. The union objected.

Speaking to the 1995 convention of his union, C.T. Purdom, president of the Washington (State) Education Association, told his members they should stop trying to "control" the Association so the hired staff could do its work. He added that those members would be responsible for the WEA's death, and that "We have met the enemy and it is us." The union officers and staff regard their own members as their "enemies?" Again, who is supposed to be representing whom here?

In another publicized case, a former teacher wishing to return to the classroom was offered a job by a school district, but without full recognition on the salary schedule of all her prior years of teaching. She willingly accepted but the union said the board could not hire her unless they paid her an additional $9,000. The teacher said that the salary offered was fair and that she wanted the job. The union held firm, and the teacher was not hired. So she not only didn't get the $9,000, she didn't get anything at all, thanks to the union.

Union Violations of Teachers' Rights

Perhaps the most notorious violation of teachers' rights, and an ongoing battle, derives from what dues, if any, nonmembers must pay the union.

In 1988, in the Beck decision, the U.S. Supreme Court said workers can only be required to pay dues or fees for costs directly related to collective bargaining. The decision awarded a dues reduction of 79 percent to Harry Beck, who had been an active union member and who launched the appeal. Neither unions, including teacher unions, nor government agencies such as the National Labor Relations Board, make any effort to notify workers, including teachers, of this right.

Unions have been so successful at keeping workers unaware of their rights that one poll found 78 percent of them didn't know they need not pay for union activities unrelated to bargaining. Under former President George Bush, the Labor Department required unions to publicly reveal what portion of their dues workers could keep, and Bush ordered federal contractors to post notices telling workers of their rights. One of President Bill Clinton's first actions upon taking office was to rescind both orders. So much for "feeling your pain."

A final note on this issue. Unions deny agency fee payers the right to vote, arguing they are not members. However, since they are paying a full share of the costs of negotiations, and generally more, why should they not at least be allowed to vote on the contract? Where possible, the union insists on being able to take their money, yet it strenuously objects to their having any say about the contract resulting from the expenditure of that money. Is this fair?

A book, and a very lengthy one at that, obviously could be written with such examples, and not exhaust them.

Union Critics May Not Be Anti-Union

In brief, despite claims that any critic of union procedures is anti-union and out to destroy them, the problem, for many of us, is not the existence of unions but the lack of existence of union democracy, a lack that is virtually universal throughout the labor movement. As Mario Fantini said,

 

the issue is not participation but control.... To insist that the bargaining agent represent teachers on all matters forecloses any alternative route to teacher involvement.... There is a basic difference between teachers and teacher unions (11, p. 125).

 

Indeed! Fantini also observed that, "An inverse relationship seems to exist between teacher militancy and the quality of the schools" (11, pp. 126-127).

In short, the truism of Irving Kristol's first law of education reform should be evident: "Any reform that is acceptable to the educational establishment, and that can gain a majority in a legislature, federal or state, is bound to be worse than nothing" (19).

Unions Seek to Scuttle Reform Efforts

A change doesn't even have to be demonstrably threatening. Anything different seems to be incomprehensible or unacceptable to union leaders, and they oppose it. If opposition begins to fail, as it has been doing with the passage of charter school laws, for example, they then begin to accept it rhetorically while in actuality trying to have "killer" amendments put in place so the new law will be ineffective. The AFT, for example, has indicated its support of the Rhode Island charter school law, rated by some as the most ineffective in the nation.

Failing that, as with privatization efforts in Baltimore, Maryland, and Hartford and Wilkinsburg, Pennsylvania, they will do their best to scuttle the project. If the project fails, they say: "See. We told you. It doesn't work."

On Education, Unions Inept

The pity is that they really don't know what to do themselves. I sat in a union meeting a few years ago where the presiding officer said, "Our schools are in trouble and we don't know what to do about it." That was such a rare and honest statement that I wrote it down and then waited for the official proceedings to be printed, since they are allegedly a verbatim account of what was said. His remarks appeared, but this statement wasn't among them.

If the unions know what to do, why don't they each operate a school, or better yet two, one in an inner-city poverty area and one in a poor remote rural community, and show us how it is done? If they can raise $15 million or more in California alone to oppose a voucher initiative, a few million to show us how a real school should function ought to be no problem.

The NEA already has an educational foundation. They could draw upon that rather than scatter small grants around the country. Microsoft's Bill Gates reportedly gave $3 million to that foundation, to an organization with a budget in the hundreds of millions of dollars. How much has he given to education reformers? Or democratic unionists?

It wouldn't take much of the NEA's money, maybe none at all, to demonstrate that they can create more effective education models, assuming they can do so at all. They could sign a contract with a school district, with or without a charter school law, to operate a school using district dollars.

But, of course, they won't. Because they don't know what to do.

What Robert Braun said of the AFT applies to the NEA (and the AAUP at the college level) as well:

 

[They lack the] imagination to offer any real alternative. If [they] were to assume full control of all aspects of public education ... nothing much would change--except perhaps that you would have even less, perhaps nothing, to say about the direction of the school to which you send your children and your tax dollar. Politically, intellectually, socially and educationally, [they are] bankrupt (4, p. 252).

 

Unions Attack Reformers

Major institutions do not change internally without external ideas and extreme pressure, whether those institutions are car manufacturers or public schools.

But that won't stop them from attacking anyone who tries.

Jackie DuCote has spent years seeking to reform education in Louisiana, including gaining passage of more than 50 major education reform laws from 1977-1987, to no avail. The reforms were "watered down, ignored, not implemented properly, taken to court by the teacher unions and others, mired down in political turf battles, or not funded" (7, pp. 83-84)--often not because the money wasn't there, but because that was just another way to scuttle an unwanted program.

She also learned that during the political process necessary to bring about educational change, "at one time or another you can expect:

1. To be cast as an adversary.
2. To have your credibility questioned and even your right to have an opinion about education or to be involved in changing it challenged.
3. To have roadblocks thrown in your way at every turn, particularly in the form of delaying tactics.
4. To be outnumbered at most forums at which you will propose change.
5. To spend endless hours in meetings.
6. To become increasingly frustrated.
7. And to be involved in a long-term effort" (7).

And, it might be added, to lose more times than you win.

Why Try to Reform Education

So why try?

 

First and foremost because the educational future of millions of youngsters depends on reform; and

 

Second, because, in each instance, reformers only have to win once. School choice, once established, is not subsequently abolished. Charter school laws which led to good schools, of which there are now many, give impetus for the movement to spread.

 

Former NEA President Keith Geiger once told his troops they must win everywhere; they can't afford to lose anywhere. He's right. And while he meant that as a goad to action on their part, it is, in fact, an admission of ultimate failure because no one wins everywhere everytime, and union tactics won't either.

Even among their own ranks they are recognizing a growing interest among their members, especially the younger ones, in educational issues.

And their loss of credibility is leaving them out of the equation of change even where they might have something to offer.

Kentucky State Senator Michael Moloney, explaining how that legislature was able to speedily pass major educational reform to meet a court mandate, said it was achieved by leaving out not only all educational lobbyists but even members of the legislative education committees except for their chairs (24). In essence, you can't count upon those who are part of the problem to be part of the solution.

The Demise of Teacher Unions

The teacher unions are following a classic pattern of destructive obstruction. There was a time, 50 years ago, when John L. Lewis and the United Mine Workers could almost shut this nation down. Certainly they had legitimate grievances. Mining is dirty dangerous work. But where are they today?

Even the Steelworkers and United Auto Workers are but shadows of their former selves.

Teacher unions are headed in the same direction.

In the late 1970s, the NEA, and Cesar Chavez' United Farm Workers, were the most respected unions in the nation--favored 2-1 by the general public. With the passing of Chavez, the UFW is rarely heard from today. The NEA should be so lucky. Although the NEA and the AFT are mentioned often, it is rarely (except from their own ranks) with any fondness and appreciation.

As Thomas Hopkins said in The Overlooked Factor,

 

History shows that in crises the people in power tend to refine and intensify the status quo system which eventually destroys them. This is the present movement in education? (15, p 697).

 

Written a generation ago, the establishment is just that much further down the road today.

 

Bibliography

 

1. Alexander, Kern, "Executive Leadership and Educational Reform in Florida," pp. 145-168. In The Fiscal, Legal and Political Aspects of State Reform of Elementary and Secondary Education, edited by Van D. Mueller & Mary P. McKeown (Cambridge, MA: Ballinger Pub. Co., 1986).

 

2. Bendiner, Robert, The Politics of Schools, A Crisis in Self-Government(NY: Harper & Row, 1969).

3. Bennett, William J., The De-Valuing of America (NY: Summit Books, 1992).

4. Braun, Robert J., Teachers and Power, The Story of the American Federation of Teachers (NY: Simon & Schuster, 1972).

5. Crow, Mary Lynn, and Merl E. Bonney, PHI DELTA KAPPAN (September 1975).

6. Darland, David, Pennsylvania State Education Association (PSEA) Symposium, Dec. 1, 1969.

7. DuCote, Jackie, "What One 'Parent Volunteer' Did to Bring Change to Inner City Schools" (Harrisburg, PA: The Commonwealth Foundation, 1990), pp. 79-88.

8. Educational Freedom, Spring-Summer 1994.

9. English, Raymond, "Research and Improvement in The Social Studies: Reflections of a Private Sector Practitioner," Private Sector Initiatives in Educational Reform. Proceedings of a National Advisory Council on Educational Research and Improvement conference, April 2, 1987.

10. Fantini, Mario, What's Best For The Children? (Garden City, NY: Anchor Press/Doubleday, 1974).

11. Faust, Clarence H., Student, School & Society, edited by John A. Dahl (San Francisco Chandler Pub. Co., 1964).

12. Feldman, Sandra, Letter to the Editor, The Wall Street Journal, November 15, 1995.

13. Goodlad, John I., Facing The Future,, edited by Judith S. Golub (NY: McGraw-Hill, 1976).

14. Haberman, Martin, "Twenty-Three Reasons Universities Can't Educate Teachers." In The Journal of Teacher Education, Summer 1971, pp. 133-140.

15. Hopkins, L. Thomas, "The Overlooked Factor," PHI DELTA KAPPAN, June 1974, pp. 694-697.

16. Kendall, Elaine, Peculiar Institutions (NY: G.P. Putnam's Sons, 1975), 1976.

17. Knight, Al, "If money's the solution, then that's the problem," The Denver Post, Sept. 29, 1991.

18. Kolderie, Ted, "A Guide to Charter Activity," Public Services Redesign Project (Saint Paul, MN: Center for Policy Studies, August 1996).

19. Kristol, Irving, "The Inevitable Outcome of 'Outcomes," The Wall Street Journal, April 18, 1994.

20. Lieberman, Myron, John A. Dahl, et al. Student, School & Society (San Francisco Chandler Pub. Co., 1964).

21. Lieberman, Myron, "Why Reform Was 'Dead on Arrival," Education Week, Jan. 29, 1986.

22. Mayer, Martin, Social Studies in American Schools (NY: Harper Colophon Books. 1964).

23. Merrow, John G. II, et al. Politics of Competence: A Review of Competency-Based Teacher Education (Washington, DC: U.S. Department of Health, Education and Welfare, National Institute of Education. 1975).

24. Moloney, Michael, Kentucky Senator. Testimony before the Pennsylvania State House Education Committee, March 11, 1993.

25. Moore, Thomas, "The Blooding of Chris Whittle," U. S. News & World, Report, Nov. 6, 1989, pp. 442+.

26. Nathan, Joe, "Activist School Reform," Education Week, Feb. 21, 1996, pp. 40 & 43.

27. Riley, Pamela A., Letter to the Editor, The Wall Street Journal, Feb. 20, 1996.

28. Schmidt, Peter, "Private Enterprise," Education Week, May 25, 1994.

29. Sewall, Gilbert T., Necessary Lessons (NY: The Free Press, 1983).

30. Shanker, Al, AFT "Lessons For Life" Resource Packet, AFT Online, 1995.

31. Student NEA News, January 1967.

32. TEACHER Magazine, "Republican Revolution Postponed" (Current Events in Brief).

33. Waugh, William J., "School Vouchers Would Give Parent Dollar Power," The Express (Easton, PA, April 10, 1971), p. 2.

34. West, E. G., "The Perils of Public Education," The Freeman, November 1977, pp. 681-699.

Government-Mandated Project Labor Agreements in Construction, The Institutional Facts and Issues and Key Litigation: Moving Toward Union Monopoly on Federal and State Financed Projects Northrup

The authors skillfully pull back the political, legal and legislative covers that have hidden the union's agenda to gain a monopoly of large construction projects financed by Federal, State and local governments. They show how unions are using project labor agreements (PLAs) and the courts to manipulate political and administrative processes, override government cost-saving measures, and prevent lower-cost open shop contractors from gaining public works contracts. The result: unions are able to secure for themselves massive contracts.

Unions have declined in membership since World War II, a trend that Northrup addresses in Section II. He also reveals two strategies unions are using to regain their power, influence and more money: infiltrating public sector employment; and using PLAs to gain public works projects, most of which are multi-million or multi-billion dollar projects.

In Sections III and IV, Northrup examines many aspects of project labor agreements: extent, impact, terms, conditions, local labor use, impact on prevailing wage legislation, and rationale for imposing. Throughout, he compares unions to open shops on issues such as safety, wages, benefits, ease of deployment, training, flexibility, local labor use, and ability to do the work even on the largest public works projects. In the final analysis, after exposing the fallacies of union arguments--including many accepted by courts and public officials, such as labor peace, local labor use, safety and non-delay of work--he shows that there is no good economic or sound public policy reason to give unions a monopoly of public works projects.

Alario collaborated with Northrup in Section V to examine numerous legal issues and court cases at the State and Federal levels, most of which have favored the union monopoly. Justices and judges may have made pro-union decisions because open shop contractors and their attorneys have not had or presented evidence such as that compiled by the authors in this article.

Section V closes with a discussion of President Bill Clinton's executive order agains "law breaking" companies that could further help unions secure a monopoly over government construction contracts. Don't forget to read Clinton's new definition of "satisfactory compliance"--an alarming reinvention of the phrase and the purpose of government regulations

TEACHERS' UNIONS: ROADBLOCKS TO REFORM by Cassandra Chrones Moore, Ph.D.*

The sorry state of public education in the United States is the subject of endless debate. Newspaper editors and media pundits bemoan the inability of supposedly educated high school graduates to read, construct grammatical sentences, or balance a checking account. Disappointing scores on standardized tests, particularly in math and science, have led to dire predictions about America's future.

Who or what is to blame? The teachers' unions claim that additional funding and just a little more time will solve all problems. They maintain that the schools need more and better teachers, more computers, more and larger buildings--in short, an infusion of cash, preferably from the federal government, although the states will do in a pinch.

The Clinton Administration was well aware of popular support for public schools and did its best to earmark more federal funds for education, thus enlarging the federal sphere of control in an area traditionally the province of states and localities. The last Clinton budget, which called for recruiting 100,000 new teachers, insured that the educational establishment would continue looking to the federal government for support and increases in the still small percentage of monies coming from Washington. Predictably, Al Gore, who was strongly supported by the National Education Association during his pursuit of the presidency, proposed to spend $115 billion over ten years to hire more teachers and decrease class size. George W. Bush proposed an infusion of $15 billion over five years.

As the charts below indicate, however, money is not the problem. In inflation-adjusted dollars, overall spending on elementary and secondary education in U.S. public schools rose from $71.8 billion (1998 dollars) in 1960 to $324 billion in 1998 (1998 dollars)--over a four-fold rise in real terms.

Over the same period (1960 to 1998), the number of teachers entering the classroom nearly doubled1 and salaries began to increase. Over the decade of the 70s, salaries rose sharply (31% in real dollars); and during the 80s continued to inch up, although they remained stagnant during the 90s. From 1970 to 1998, per pupil spending (in 1998 dollars) more than doubled ($3,194 to $6,360).

 

With or without the 100,000 new teachers, class sizes have been declining and dropout rates falling. In 1960, the pupil-teacher ratio stood at 26.4; in 1998, the projected ratio was 16.9, a decrease of nearly ten points. From 1990 to 1997, high school dropout rates fell from 10.8 to 8.8 for whites, from 22.2 to 11.2 for blacks, and from 29.5 (1980) to 21.0 for Hispanics.2

 

The high level of input makes the low level of output even more disturbing. Many college freshmen now spend time in remedial courses, learning what was previously learned in high school. College professors complain routinely that their students, even their graduate students, are unable to write a coherent exposition. There is widespread discontent among students, parents and teachers--a feeling that "something" which eludes them has gone wrong.

Roadblocks to Competition

Contemporary analyses and commentaries tend to step delicately around the essential obstacle to reform: teachers' unions, which exercise a virtual monopoly and do their best to stamp out competition. In a recent paper, Caroline Minter Hoxby illustrated the effects of teacher unionization after 1960. Statistical analyses based on groups schooled before that date often find that "school quality 'matters,'" while estimates based on post-1960 cohorts show results of similar significance "only occasionally." Teachers' unionization, she suggests, may explain how "a lack of competition among public schools translates into more generous inputs and worse student performance."3

In other words, 1960 marks a watershed: the National Education Association (NEA) and the American Federation of Teachers (AFT) began their rise to power in the 1960s. The NEA now numbers almost 2.5 million members; the AFT, close to one million. In 1998-999, the NEA collected $220.5 million in obligatory dues.4 Many teachers in Los Angeles, San Francisco, Wichita, and the entire state of Minnesota belong to both unions and contribute to each. Florida, New Mexico, and Montana are likely to merge over the next two years, so double counting is likely to swell the total.5 Total AFT revenues for 1996-97 have been estimated at more than $350 million. The disparity stems in part from the higher proportion of AFT teachers in urban districts that charge relatively high fees.6

Fed by the forced contributions of their membership, both unions have gained enormous political power, becoming a force to be reckoned with in the Democratic Party. The bias is evident in PAC contributions from the NEA and the AFT over the last two election cycles. In 1997-1998, NEA-PAC contributions to federal candidates went 95% to Democrats and 5% to Republicans. In 1999-2000, the figures were slightly more lopsided, 97% to Democrats and 3% to Republicans. The PAC of the AFT stood even more solidly behind Democrats: in 1997-1998, AFT-PAC's contributions to federal candidates went 98% to Democrats and 2% to Republicans; in 1999-2000, the Republicans lost an additional percent as contributions to Democrats climbed to 99%.7 The partisan nature of union support has led one commentator to assert: "For most practical purposes...the NEA (and AFT) are adjuncts of the Democratic Party."8

The NEA and NEA-PAC contributed substantially in money and effort in support of the 1996 Clinton-Gore campaign. At the Democratic National Convention in 1996, the unions claimed 400 of the over four thousand delegates, or roughly one in ten.9 Four years later, the pattern repeated itself. Of the 4,368 delegates to the Democratic National Convention in August 2000, 1500 were union members. Of these, 350 plus fifteen alternates, or 8%, were members of the NEA.10 Another 150 were members of the AFT.11 Prior to the convention, on May 24, 2000, the Democratic National Committee's fundraiser in Washington, D.C. netted a record $21.3 million. The National Education Association was one of the groups honored for having donated upwards of $500,000 to the party for that event.12 The political muscle wielded by its large number of members and its substantial contributions has enabled the NEA to derail school-choice initiatives from California to the District of Columbia.13 When the NEA endorsed Al Gore, they expected him to continue opposing vouchers and support "business as usual" if he were elected.

Those who doubt the political traction of the unions should note the appointment of Roy Romer, former chairman of the Democratic National Committee, as head of the Los Angeles school system. Following announcement of the appointment, Romer promised to resign as chairman of the Democratic National Convention Committee, a meaningless gesture. He already knew that Los Angeles would host the convention that would nominate Al Gore and produce substantial revenues.14 As governor of Colorado, Romer was pivotal in the defeat of school voucher initiatives. The troubled Los Angeles system has little to fear in the way of reform.

Ascendancy

The unprecedented legislative and regulatory authority of the teachers' unions, principally the NEA and the AFT, has grown dramatically over the past forty years at the national level. The union star began rising during the liberal decades that followed the Eisenhower presidency. By signing Executive Order 10988 in 1962, President John F. Kennedy legalized collective bargaining for federal employees.15 The teachers' unions expanded on the opportunity, pressuring teachers to accept unionism and monopoly representation, thus undermining the independence of classroom teachers and local school boards. The NEA-sponsored Elementary and Secondary Education Act of 1965 became, at $1.5 billion, the single largest federal aid to education program enacted to that date by Congress; it, too, worked to centralize power. In 1979, in large measure as recompense for backing by labor, President Jimmy Carter established the Department of Education. The educational bureaucracy applauded its stalwart supporter. 16

Collective bargaining, however, constitutes the core of union power. Private sector bargaining is governed by federal statutes and court decisions that apply universally; in contrast, state laws govern bargaining for teacher unions, and they often differ. Only nine states prohibit collective bargaining in public education; seven have no collective bargaining law but permit it as a school board option; the remaining 34 and the District of Columbia have enacted bargaining laws. Nominally, the National Labor Relations Act (1935) applies only to private sector unions, not to unions of state and local government employees. States that have enacted collective bargaining laws applicable to teachers, however, have managed to define collective bargaining in ways similar to the definition set forth in the NLRA.17 Thus, in the majority of states, legislation makes it possible for union officials to impose monopoly bargaining on all teachers in the public schools. In 20 of those states, the unions can also force teachers to pay union dues as a condition of employment.

A series of Supreme Court decisions in cases litigated mainly by the National Right to Work Legal Defense Foundation have established the right of nonmembers to refuse payment of full dues and assessments. They are obligated to pay only "agency fees"--fees that cover contract negotiation, grievance procedure, and administration. By objecting they can obtain a refund of "non-chargeable" expenses--non-chargeable being those funds used for political activities. Objecting, however, is an onerous process. The unions are under no obligation to tell employees of their right to pay only "agency fees," so many are unaware of the possibility.18Moreover, peer pressure is strong; and teachers often fear that "making waves" will jeopardize their positions.

"Exclusive representation" sets the seal on union power: the union winning a representation election for a local affiliate of the NEA or the AFT becomes the "exclusive representative" of the teachers in the bargaining unit, for members and nonmembers alike. Individual teachers can no longer negotiate their terms and conditions of employment and must pay at least "agency fees."19 Through the enforced collection of union dues, and, in addition, the unionization of support personnel, the unions have contrived to create a political machine of awesome power intent on protecting and enlarging its turf.

The NEA Agenda

If "Message is everything," what is the message? The proceedings of the NEA Representative Assembly in 1995 indicate the ultraliberal, federally oriented bent of the organization. Of the myriad resolutions adopted at that meeting, the following are worthy of note:

Opposition to English as the Official Language. The Association declared that efforts to legislate English as the official language disregarded cultural pluralism, and must be challenged. The NEA (which generally disregards parental preferences) must have been shocked in June 1998 when a large number of Hispanic parents in California, believing that command of English was the key to success for their children, voted for Proposition 227, the Anti-Bilingual Education Initiative. The union will find even more disturbing a recent report showing that insistence on English in the classroom has met with great success.

Federal Financial Support for Education. As would be expected, the NEA urges "general federal support for the whole of public elementary, secondary, and post-secondary education."

Voucher Plans. The NEA is stolidly opposed to "voucher plans or funding formulas ... under which education is financed by federal, state, or local grants to parents, schools, or school systems--could lead (sic) to racial, economic, and social isolation of students and weaken or destroy public education."

Labor Movement Education. This resolution contains virtually the only mention of curriculum. It should be "an integral part of the curriculum of our schools" to show "the influence of the labor movement and unionism on the growth of the United States."

 

The resolutions cited are notable for their insistence on federal controls, whether of finances or guns, and for the almost total absence of interest in teaching. The one exception, "labor movement education," confirms the leftward leaning perspective of the association.20

The NEA Convention of 2000, held in Chicago over the Fourth of July weekend, reinforced the anti-competitive stance of the union. To the detriment of the curriculum, union affairs held center stage. One critic noted:

with few exceptions, there was an absence of any attention to the educational problems of widespread public concern ... no programs or discussions of widespread reading deficiencies, and low mathematics and science achievement.

 

The low educational achievement of minorities did spark concern; but the problem was to be solved by spending more on the remedial programs that have not been effective for thirty-five years.21

The delegates refused to endorse a proposal linking bonus pay to teacher performance. The union also opposed the use of extra pay for "hard-to-recruit" positions, such as math and science teachers.22 Ironically, given the NEA's political role, Bob Chase, union president, decried the overly hasty implementation of standards and high-stakes testing, claiming that "politicians in many states, in their rush to jack up student test scores, have botched standards." 23

The resolutions of 2000 underlined the positions adopted in earlier conventions. Once more the political agenda trumped the curriculum.

Vouchers: According to Lieberman and his associate, Charlene Haar: "The evils of vouchers were by far the preeminent topic: Neither of us heard as much as one sentence that portrayed vouchers as anything but a right-wing scheme to destroy public education, or a snare and a delusion for the unwary."24 To make clear their opposition, delegates voted to support a $5 per member annual dues increase, $3 of which would be earmarked for opposing ballot measures in the coming elections that would establish vouchers in such states as Michigan and California.25

Regulation: To restrict competition, the NEA proposed that "all schools must be accredited by the appropriate agencies in collaboration with the NEA and its affiliates." In other words, the NEA should be empowered to regulate private schools.

Home Schooling: Going one step farther, the convention resolved to promote regulations to forbid parents from teaching their children unless they are "licensed by the appropriate state education licensure agency" and pursue "a curriculum approved by the state department of education."26

Early Education: The NEA sought to extend its monopoly by demanding "mandatory kindergarten with compulsory attendance." In fact, it supports "early childhood education programs in the public schools for children from birth through age eight." 27

The NEA may be disinclined to discuss methods and content for math and science, but it emphasizes its belief in an "environment of freely available information and knowledge about sexuality."28 It is, moreover, in favor of gun control, reversing the ban on affirmative action in the University of California system and a range of other liberal policies. 29

The American Federation of Teachers also held its convention over the
July 4 weekend, this time in Philadelphia. Palliatives rather than self-criticism were the order of the day. President Sandra Feldman proposed a fifth year of high school to help students improve their basic skills.30 A disgruntled critic responded by suggesting that the "Public high schools need to make far better use of the four years they already have." 31

Like the NEA's Bob Chase, Ms. Feldman claimed to support the drive to create higher standards for all students; but she too worried about the "backlash" against "high-stakes standardized tests." Pointing to the lack of curricula as a weakness while acknowledging that the federal government is prohibited by law from writing curriculum, she proposed that the Department of Education "invite states into a consortium that would solicit plans to develop and evaluate curriculum and educational software."32

Ms. Feldman, who promotes the AFT's cause frequently in the media, made testing a central concern in a commentary broadcast shortly after the convention. In an effort to appease all sides, she declared:

Good testing programs help show whether schools and students are meeting high standards, and thus make educators and school officials more accountable as well. Parents and teachers strongly support testing. But many of us are also concerned that there may be too many tests, and some are being misused or abused.

Tests must be linked to an agreed-upon curriculum ... Standardized tests ... should not be the sole measurement of a child's or a school's performance.... Where problems exist, let's fix them. But let's not abandon testing. That would give us no way to gauge the very real progress our schools are now making. 33

 

Considering the rising tide of complaints about the public schools, the remarks seem disingenuous at best.

At their conventions, the NEA and the AFT endorsed Al Gore. Members of both unions appeared ready to work for the Democratic ticket. The NEA decided to spend $6 million on 25 contested congressional races; the AFT also supported a number of those races. 34

Uniserve

How do the unions accomplish their goals? The NEA's Uniserve operatives--the shock troops of the union's liberal agenda--swing into motion. Standing midway between the NEA's national officers and its supporters at the school board level, they constitute a potent political force. The NEA created the program in 1970 to provide full-time salaried professional personnel as a resource for local affiliates. In 1972 there were 600 Uniserve workers; seven years later, the figure had more than doubled to 1,500. The AFT has established a similar squadron of staffers, mainly in the Northeast, to coordinate union-related activities. 34

Their pay is far from negligible. With benefits of about 35%, the typical representatives makes between $60,000 and $100,000 annually,37 far more than the average classroom teacher. The National Institute for Labor Relations Research estimates the average salary of a staff member at $72,000 per year. The Institute also notes that, in 1991, 22% of the $92 NEA annual national dues went to Uniserve. Per state that 22% snowballs into millions. Uniserve staffers operate out of six regional NEA offices and have their own union, the Association of Field Staff Employees, to negotiate on their behalf. The NEA is closemouthed about the salaries and fringe benefits attributable to those positions, but it is clear that they are well paid. 39

Primarily they are political players. They can develop and execute the political action plan of the local affiliates and advise on or even handle contract negotiations and grievances for the affiliates. Working with the local union, the Uniserve directors coordinate and activate national and state association programs and priorities.40 To achieve their goals, they have been known to resort to vandalism and threats of violence.41 Fear is a major weapon. The operatives have succeeded in frightening school board members, principals and superintendents, teachers, and parents. Given the shield afforded by the Supreme Court's 1973 decision in Emmons, they conduct business in an atmosphere all too reminiscent of "On the Waterfront." 42

Radical Activism

How has this liberal program developed? The NEA is far from anxious to publicize the source. Its program and the tactics and strategy to implement it through the Uniserve program stem from the philosophy of Saul Alinsky, a radical activist of the seventies who established the Industrial Areas Foundation--a training institute for community organizers. In January, 1972, Alinsky and his associates, Edward Chambers and Richard Harmon, conducted a training program for Kentucky Uniserve personnel and, in February, a similar program for Uniserve personnel in Illinois. The "Principles of Organizing" material drawn from those programs became the basis for "Alinsky for Teacher Organizers"--a broadside drafted by J. Michael Arisman, Midwest Training Consultant for the National Education Association. 43

The approach is resolutely confrontational. Alinsky believes that power lies not with teachers, but with the community. Organizers must find local leaders to organize the community to put pressure on the superintendent or the school board on issues relating to education. Teachers are vital to the operation, since they have access to the community through children and their parents. "Alinsky's approach to organizing people is to appeal to their self-interest. He does not believe people can be organized around altruistic motives such as the welfare of children or the good of education." Only by appealing to self-interest can people be organized for change. NEA organizing is built around that central principle. The organization is to be served; helping children is optional extra.

The building of a power base through the cultivation of key leaders to organize and galvanize the community is all important. The dedicated few will enlist others. Conflict is critical, for "The real training does not take place with words, but only actions, which means that in order to train leaders the organization must set enough brush fires to keep them active and to keep the action going." It is vital to seize the moment: "If your job is to train leaders, you must be lucky enough to have your people insulted or assaulted (verbally) by the other side. This helps to accomplish your training task."

Class hatred underlies the entire manual. Alinsky notes: "Action is critical, especially with the white middle class." The manual continues: "How do you develop the rage to change things in the middle class? Analyze your own life and see what it was that got you into organizing."

The section on "Organizing Tactics" again emphasizes the importance of action, of stoking the "brush fires" to keep up the energy. Mediated reform is far from Alinsky's mind. As Arisman, notes: "Certainly Alinsky would not recommend exchanges of letters or private discussions with the superintendent as a way of building the organization." Communication might solve the problem but would fail to "provide the kind of action that is exciting and what makes your people want to get involved with the organization." Such pronouncements make it clear that the 'us v. them' strategy is alive and well.

Indeed, Arisman said,

the Alinsky advice on tactics is guerilla war advice. To win: know the enemy ... and personalize the conflict. ... You should not let your people fraternize with the enemy. Distance helps you to polarize the issue--to make it an us-them affair.

 

The successful organizer will start small, moving on to big issues only after he has won consistently in the minor leagues. Harmony and accord are far from the goal: "The organizer must not resolve issues even though he might be able to." Resolution might undermine the confidence of his followers.

Under "Treatment of Issues," one phrase bears emphasis: "You must not enter into any fights you are not sure of winning." To win the organizer must polarize the issue "by creating an us-them situation" while personalizing it so that "you are fighting a person rather than the system (the school board)."

Alinsky's principles clearly underlie the tactics and strategy of the NEA and, arguably, of the AFT as well. Class warfare and confrontation are basic to the union approach. Small wonder that so many parents--sensing the argumentative and socialistic approach as antithetical, not only to educational principle but to their beliefs--are trying to pull their children out of the public schools; or at least to find alternatives. In the unions, however, they face a formidable opponent.

The Kamber Report

Alinsky's political philosophy permeates the unions. However, there have been setbacks to their otherwise steady advance. The Reagan years, in particular, posed a threat. In 1983, the publication of A Nation at Riskshowcased the failures of public education, leaving the unions scrambling for cover. The NEA made every effort to blunt the criticism, pleading for more time and more money. Finally, in 1996, NEA's president, Bob Chase, commissioned an outside review by the Kamber Group, a media consulting organization known to be favorable to liberal causes. By February, 1997, it had completed An Institution at Risk: An External Communications Review of the National Education Association, commonly known at "the Kamber Report."44 It was never intended for release to the public, but it was leaked to the popular press. Eventually the National Right to Work Legal Defense Foundation, a right-to-work advocacy group, obtained a copy and publicized the contents.

The "Preface" makes clear the ideology underlying the study:

For the past 13 years ... the NEA and our public education system has come under increasing and unrelenting attack. The assault has been led by anti-government ideologues who believe the private sector does everything better, by anti-labor zealots who jump on every opportunity to bash unions, by CEOs who seek profits from educating our children, and by religious extremists who equate public education with Satan. 45

 

The report goes so far as to note that "the NEA is now painted as the number one obstacle to better public education," even by "one of America's most influential columnists (and hardly a conservative), David Broder."46

Endlessly combative and thoroughly tendentious, the report sketched an outline of the NEA as it currently operated while suggesting a strategy to improve the image of a union under attack. Through interviews with leaders and staff of the NEA and its state affiliates, analyses of NEA video, advertising and other print material, the study noted, "What we found is an organization that wants dramatic change and has made some important steps in that direction, but has not yet found the key to going all the way." 47

Concern with image, rather than substance, dominates the study. The section on "Findings" emphasizes "Political Orientation," observing that the NEA is viewed as a "powerful arm" of the Democratic Party. The characterization is admittedly accurate, "But from a message standpoint, it contributes to the notion of the Association as a gargantuan interest group--and this is not consistent with the objective of portraying the NEA as concerned first and foremost with our children." The association would benefit if it were seen as more evenhanded "but one cannot wave a magic wand and suddenly make dozens of Republicans decide to stop supporting vouchers and start improving public education." The study does admit the possibility of placing "greater external communications emphasis on the few members of the GOP it [the NEA] does find worthy of support."48 As noted earlier, those members are very few indeed.

The report outlines a strategy to fight vouchers, but never addresses the substantive arguments underlying the voucher movement. The union's opposition becomes simply a matter of "turning the organization's image around" on the question of educational reform. If the NEA can be viewed as "a supporter and creator of education reform ... then the Association will be much more effective in making vouchers go away." One person interviewed summarized the NEA's viewpoint: "Vouchers are just a battle, the war is over public education."49

The vocabulary of combat and crisis runs through the report, which speaks of "the NEA's legal battle against Milwaukee's vouchers for sectarian schools, the fight against vouchers in California, and the fight against parental rights in Colorado." The press is viewed as the enemy. Charter schools constitute "a tricky issue": there are bad ones as well as good ones. The NEA is unable to give charters unqualified support; as a result, its position has been "misunderstood by less-informed mainstream reporters and mischaracterized by critics."50 In dealing with teacher tenure and merit pay, the report criticizes "sensationalized stories" about teachers who are unfit.51 Nowhere is there a measured discussion of merit pay and tenure; the report focuses exclusively on the face the NEA presents or should present to the world.

The summary concludes that teachers constitute "an amazing, unused weapon in the NEA arsenal," one that remains "potent and untarnished." The Kamber report fails to define exactly how to use this weapon. It can only reiterate "the analogy that was found in the executive summary. There is a war going on over public education...as serious as any threat, domestic or foreign."52 In keeping with this finding, "the NEA must adopt a crisis mode of operations," if it is "to save and improve public education, and ... enhance the lives and livelihoods of NEA members." To achieve this goal, the NEA must become a chameleon, spending "less time attacking its opponents and more co-opting them--taking some of their positions, molding them to be beneficial to NEA members, and becoming the creator ... of education reforms."53

The report's concluding "Recommendations" sketch the plan of battle. "The vehicle for mobilizing the NEA nationally, its state affiliates and local Associations should be a campaign to redefine the NEA as not only the defender but also the improver of public education." The concluding pages continue to hammer home the importance of "Image-Redefining NEA to the World," while sketching the campaign for "Better Teachers, Better Students, Better Public Schools." Research is simply a matter of "finding the right approach," for "Message is everything."54 Marshall MacLuhan could scarcely have been more eloquent.

REFORM BUILDS MOMENTUM

Disturbed by the acknowledged failure of public education to produce capable young adults (despite the infusion of massive amounts of cash), frustrated parents, as well as a number of equally frustrated teachers and educational reformers, have combined to establish alternatives. Charter schools, public and private vouchers, independently funded scholarships, and for-profit schools have as their common denominator the drive to introduce competition and freedom of choice. Each of these stresses output in the form of competent students, rather than input in the form of more and greater subsidies. The unions have bitterly opposed such initiatives, or, if defeat seems certain, moved to co-opt or modify them. "Payroll protection"--measures designed to strike at the heart of union power by prohibiting the use of dues for political purposes--have run aground on the shoals of bitterly fought campaigns and protracted struggles in the courts.

CHARTER SCHOOLS

In the effort to bring about change, charter schools have played a leading role. Charter schools are still public schools, financed generally by the traditional tax mechanisms that fund each school district. They differ in their emphasis on accountability and flexibility. They receive waivers from the state exempting them from many of the rules and restrictions generated by the unions that characterize traditional public schools. In return, they must demonstrate significant progress, generally through the standardized tests decried by Ms. Feldman. Since the schools must apply for renewal of their charters, usually within three to five years, the prospect of evaluation is ever present. Individual charter schools supply a laboratory for the viability of competition and choice. More than 1,700 are now operating across the country,55 an explosive growth in the brief space of eight years. Thirty-six states and the District of Colombia have enacted legislation allowing such schools; and the federal government is providing $145 million this fiscal year for expansion. 56

The road to success, however, has been far from smooth with opposition coming not only from the teachers' union, but also from the NAACP and the Urban League. The educational establishment believes, correctly perhaps, that the charters will open the door to vouchers. The NAACP and the Urban League see them as a means of reintroducing segregation. The public, particularly in well-to-do suburban areas, often fears that the charters will undermine financing for the public schools which, in their districts, are seen as functioning effectively.

Lessons in Conflict

After three years of opposition from the Minnesota Education Association and the Minnesota Teachers Association, Minnesota passed the first law allowing choice in public education in 1991. It was also the first in the nation to institute a statewide open-enrollment policy, an important signal of flexibility. Legislation enabling charters followed, in part owing to pressure from parents who found the system lacking in opportunities. The first charter, City Academy, opened in St. Paul in 1992. Working with students aged thirteen through twenty-one, the academy quickly acquired a reputation for dealing successfully with youth from a low-income, racially diverse area. It now has a substantial waiting list but prefers to remain small, in order to focus on developing individual skills. Violence has not been a problem; there are no metal detectors. Given its record of success, the St. Paul Board of Education voted 7 to 0 in 1995 to renew its charter for another three years. 57

On May 4, 2000, to celebrate its seven-year existence and to promote his education agenda, former President Bill Clinton paid the school a visit. He noted that in 1992, when he was first elected, City Academy was the nation's only charter school. By 2000, there were 53 in Minnesota alone. He also announced the release of $16 million in new grants for charter schools as well as the continuation of $121 million in previously awarded grants. Although the charters, which operate generally on minimal budgets, may welcome the federal largess, many supporters fear that federal support will mean unwelcome federal involvement.58

Arizona boasts the largest number of charter schools nationwide: 348, or 26 percent of the state's schools.59 A supportive superintendent, Lisa Keegan, has smoothed the way for the charters, which have mushroomed, even though statewide public school choice is available. Since Arizona is a Right to Work state, the unions have been less of a problem there than elsewhere. Michigan, with 125 charters constituting 4.5 percent of the public school system, is a strong second despite union opposition.

Legislation facilitating charter schools runs the gamut from strong to weak. The strongest state laws establish the charters as independent entities and give them full control over staff and budget, although many do limit the number of charters.60 The weakest laws do the reverse: they require the charters to remain part of the local school district, giving them no control over staff and staff salaries. Massachusetts, with relatively strong legislation, has managed to establish 39 charters, covering 4.5 percent of public schools; and Ohio has created 48 charter schools in the second year of its program. In New Mexico, the legislation is feeble, and the state has only three charters. The law in Virginia is also weak; charter advocates are struggling to establish schools under restrictive legislation passed in 1998. The number of charters is limited to two per school division and they must be nonsectarian.61 In Washington State the legislature has refused to pass a charter school law. In a bitterly fought contest in 1996, the teachers' unions managed to defeat an initiative to make charters possible.62 In the same election, the unions also defeated an initiative that would have instituted vouchers.

New York

The obstacles created are many and varied. In North Carolina, despite a relatively strong law, the attorney general issued a preliminary ruling stating that charter teachers would be unable to take advantage of the state retirement system unless the schools agreed to surrender their independence and function as part of the local district. In Illinois, hostile districts derailed several proposals.63 However, no state better illustrates the bitter fight by union leaders to undercut charter school legislation than the battle fought in New York State over Governor George E. Pataki's proposal. Sandra Feldman, president of the 90,000 member strong United Federation of Teachers, was particularly troubled that the individual school, rather than the union contract, would handle hiring and firing. That the original Pataki proposal would not require teachers to attain state certification constituted another ground for opposition.64

The battle raged for more than a year during which New York City's United Federation of Teachers joined forces with the Chancellor of the city's schools to oppose the measure.65 Finally, the governor threatened to veto a legislative pay raise if the lawmakers refused to pass the bill. Governor Pataki was able to sign, on December 18, the "New York Charter Schools Act of 1998." The provisions--more properly, the restrictions--give some idea of the union demands and the compromises necessary for passage. The legislation permits up to 100 new charter schools, but an unlimited number of conversions from public to charter schools; that is, provided that the conversion be authorized by the Board of Education of the local school board or, in New York City, by the Chancellor. Classes are to be small; except during the first year, a charter school must serve at least 50 students and employ at least three teachers.

The Act grinds on in "legalese," but it clearly sketches the battle waged to win passage. Existing private schools, for example, are not eligible for conversion--meaning that the wolf of sectarian, probably Catholic schools, seeking to convert is being held at bay. The section on school personnel makes clear the extent of union involvement. Uncertified teachers may comprise no more than 30% of the teaching staff, or five teachers, whichever is less. They must also jump over a number of hurdles. They must possess at least three years of elementary, middle or secondary classroom teaching experience, be tenured or tenure-track college faculty, have two years of experience with the Teach for America Program, or possess exceptional business, professional, artistic, athletic, or military experience. How those two years of experience are to be gained in a universe hostile to uncertified personnel is left unaddressed.66

The details on school personnel provide the key to the basic demand of the unions: unionization. Employees of a charter school converted from an existing public school become automatically subject to the district's collective bargaining agreement. There are, however, distinctions.Instructional employees of a charter school which has not been converted from an existing public school, and which has more than 250 studentsduring the first year of instruction, will be represented in a separatenegotiating unit at the charter school by the same employee organization representing similar employees in the local school district. In other words, they are to be unionized. Only the truly small fish escape the net: instructional employees of a new charter school whose enrollment does not exceed 250 students are not required to be represented by a negotiating unit.67 The dues to be garnered from the restricted number of such schools are clearly too small to be worth considering.

The legislation constitutes a Faustian bargain. Only schools with less than 250 students can operate free of the straitjacket of unionization. Successful schools, however, are likely to be under pressure to expand from parents who would like to enroll their children. Either the parents and the children are to be frustrated or the teachers are to surrender their independence to the unions, thereby undermining the innovation and flexibility that led to the success of the schools.

California

With 234 charters, roughly 3% of the public schools, the state stands at an arithmetical midpoint. Given its size, however, the total number might have been higher had the opposition been less fierce.68 In the early 1990s, the California Teachers Association (CTA) led the fight against the establishment of charter schools. State Senator Gary Hart, the author of the bill, had hoped for union support but was forced to combat vigorously union attempts to control charters under the proposed legislation. As a sop to the unions, the bill finally required that, to gain approval, the charter petition had to be signed either by 10% of the teachers in the district or by fifty percent of the teachers at any particular school in the district. Signing the petition would simply indicate that the signer supported the creation of the charter, not that he or she was to teach at the charter school.

Passed in 1992, the Charter Schools Act originally permitted up to 100 charter schools. As a result of a waiver from the State Board of Education, however, 130 charters were operating by 1997-1998. Effective in January 1999, the legislature authorized the operation of 250 charters for the 1998-1999 school year, and eased financing by letting the charters get funding directly from the state rather than filtering it through the local school district.69 The expected additional 100 charter schools were to be established in each succeeding school year. To evaluate the effectiveness of the schools, the Legislative Analyst is to prepare a report by July, 2003.

Although generally positive, the record has been mixed: from the success of the San Carlos Learning Center, which has enjoyed unqualified support not only from parents and teachers but also from its superintendent, to the trench warfare that greeted the proposal for a charter high school in San Jose--the Downtown College Prep. That charter contained an extended school day and school year, general characteristics of charter schools, plus a summer bridge program to serve the disadvantaged youth of San Jose. It also had a merit pay provision for teachers.

Those proposals were anathema to Kathy Burkhard, president of the San Jose Teachers Association. At one point during the discussions, she simply placed the collective bargaining contract on the table, indicating that nothing remained to be negotiated. The virulent opposition was familiar to all who have crossed swords with the monopoly controlling public education in this country. Like hibernating bears, union officials have found a cozy niche and are reluctant to allow teachers to venture out into the cold competitive world outside.

A public hearing in November again roused union opposition. Although a dozen Latino children and parents spoke strongly in support of the proposal, Burkhard declared that San Jose's teachers were already delivering a quality education. "Your dream is our reality;" she asserted.70Considering the high dropout rate and low test scores, that reality seemed an illusion. Whether Downtown College Prep will ever acquire the funding to become a force in the lives of the Latino children it hopes to serve remains in doubt.

Attacking Success: the Unions in Action

Ms. Burkhard and her fellow union members, to say nothing of the bureaucratic union hierarchy, have reason to feel nervous. The movement for school choice, competition, and accountability--of which charter schools are very much a part--is gathering momentum across the country. During the fall of 2000, there were 350,000 students in 1,684 charter schools spread across 32 states and the District of Columbia.71 The teachers' unions are battening down the hatches. In 1999, California Assemblywoman Carole Migden (Democrat, San Francisco) introduced a bill sponsored by the California State Teachers Association that would have forced unionization on charter schools, supposedly to assure competitive pay and sound working conditions. Teachers would have been required to join or pay dues to the unions in their own districts and accept the terms of contracts resulting from collective bargaining. Unable to start their own unions or to negotiate individually on their own behalf, they would have been absorbed into whichever union represented the district, becoming the only public school employees in California required to be represented by a union.72

It's doubtful that teachers in charter schools will benefit from forced union "representation," a misleading term since the unions often ignore the wishes of their members. About half of California's converted charter schools--those that result from turning an existing public school into a charter--have kept their ties to the district union. In turn, the unions have often given waivers to the charters on issues such as longer school days; but the union tie has meant that those schools have less control over their operations. The brand new "start-up" charters, like San Carlos, typically shun unionization73 and have greater freedom to innovate in curricular matters and greater control over salaries. They can, for example, institute merit pay.74

Nevertheless, Democratic supporters on the Assembly Education Committee, predisposed to follow the lead of union lobbyists, strongly supported Migden. To the dismay of charter school advocates, the bill reached the floor of the legislature. Yvonne Chan, principal of Vaughan Next Century Learning Center, one of the state's top charters, lamented, "If [Forced Unionization] passes it will be the districts and the unions that run charter schools."75

Since California Governor Gray Davis had union support during his campaign, passage of Migden's bill seemed assured, even though Gary Hart--author of the original charter bill and now Secretary of Education--was known to be opposed to union encroachments. A wild card appeared in the person of Jerry Brown, now mayor of Oakland and a charter champion, who organized a busload of students to lobby the legislature in Sacramento.76 He had reason to be concerned: the Oakland public schools are of such poor quality that roughly one-fifth of school-aged children attend private schools.

As a result of Brown's efforts and anger at the highhandedness of the legislature, hundreds of parents, children, and teachers from charter schools statewide converged on Sacramento in May, 1999, to protest Migden's bill outside the state Capitol; they forced a retrenchment. According to Migden, an amended bill, AB 631, which did pass, would simply grant union officials the power to unionize if some teachers and support staff supported unionization. Critics noted that the bill was in fact unnecessary since union officials already had that privilege under existing law.77 The debate highlighted the hostility of Migden and her union supporters to the charter concept. Migden claimed that allowing public funds to flow to schools without collective bargaining agreements "rankled" her. Given that the California Teachers Association contributed heavily to her first election campaign in 1996, and to her re-election in 1998, it seems more likely that she was concerned first and foremost with "rankling" her supporters.

Although the May demonstration may have afforded the charters a narrow escape, California's budget creates a further obstacle. As of January, 2000, to obtain state funding, charters must prove that their students spend the same number of minutes in class as those in regular schools. Senate Bill 434, an obscure provision of the state's new budget, will knock out the schools heavily dependent on the Internet, computers and distance learning. Unless administrators can account for "seat time," they may no longer have a school.78 Once again legislators, abetted by the unions, are attempting to constrict the scope of the charters.

 

The Union Strikes Back: Legislation

Shrugging off the setback inflicted by Jerry Brown and allied protesters, the unions surged back strongly. Senate Bill 1960, introduced by State Senate President John Burton (D-San Francisco) in February, 2000, revised dramatically the 1975 Rodda Act, under which public school employees could elect to have a union represent them in collective bargaining negotiations. The Rodda Act had stipulated that an agency-shop fee could be imposed on non-union employees only as part of the negotiated contract, and only after an agency-fee election had been conducted under state supervision. Also, a majority of employees had to vote to compel collection of the fees.

The Burton legislation provided instead that agency-shop fees would no longer be part of collective bargaining contracts that have to receive majority approval by employees, but would be imposed automatically through pay-check deductions on all non-union employees as a condition of continued employment. As an alternative, they could choose to join the recognized employee organization; but, in either case, they would have to pay the organization a fair share service fee called an "organizational security" fee. Supporters--Carole Migden among them--argued that non-union employees receive the benefits of union representation at the bargaining table and should be required to bear part of the costs.79

To trigger an election designed to rescind the fee system would require a petition backed by 30 percent of bargaining unit members, a costly and difficult process. Furthermore, pro-union forces were not anxious to acknowledge that math and science teachers, who are much in demand, might command higher salaries if they could bargain individually with districts. The conflicts with basic principles of freedom of association and individual rights of free choice were, of course, ignored.

Without significant opposition, the bill passed the state legislature in August, 2000. Faithful to his union backers, Governor Gray Davis signed the bill on September 28, 2000. The California Teachers Association was thereby assured of a windfall estimated at $20 million by one source; the California School Employees Association could collect $10.5 million. The forced fees could be and were used in the fall election campaign to support Democrats. Despite Ralph Nader, Al Gore won California by a significant margin.80

The Union Strikes Back: Co-Opting

Faced with growing numbers of charter schools and increased support among parents, the unions have attempted to co-opt the charters by establishing their own. In 1996, leaders of the NEA said that they would help to establish five projected schools, together with state and local affiliates. They could then step back and study them. To support the project, the NEA pledged $1.5 million over five years.81 Ironically, the charter schools begun in Connecticut and Colorado were to operate under the flexible labor agreements that the Migden bill sought to ban.81

Generally, however, the schools are slated to operate under tight controls, to function very much like the average public school. In states with collective bargaining, teachers would receive the same benefits and contract provisions as their public school counterparts. How will the charters differ? The NEA has hired a team of researchers to document and evaluate the schools. The NEA is also taking part in a federally financed study to examine the links between the charters and other public schools.83 If all goes well, the union will be able to co-opt the winning strategies and emerge unscathed.

The Bottom Line

Lest an observer of the unions should believe that the NEA was softening its stance, a glance at the NEA/NY press release on "Education Policy" should clarify the union's basic policy. In June, 2000, the "Advocate" published the following under "Resolutions, A. Education Policy."

CHARTER SCHOOLS:

NEA/NY is opposed to the creation of charter schools and other publicly funded non-traditional school programs that: 1) do not require all affected public school employees to be directly involved in the design, implementation, and governance of such schools; 2) have a negative impact on the regular school program; 3) are not fully accountable to the local board of education; 4) are not staffed with certified personnel who are members of the local bargaining unit or who are not accorded full union and collective bargaining rights; 5) violate the terms and conditions of the local collective bargaining agreement; 6) fund schools or activities that are pervasively sectarians in nature... 11) diminish current or future funding levels for the regular school program in the district.84

 

It was carefully noted that "THIS IS AN AMENDMENT BY SUBSTITUTION OF CURRENT RESOLUTION A-52 IN WHERE WE STAND," the last being a reference to the NEA manifesto.85

The report of the NEA Committee on Privatization, approved at the NEA convention in July, 2000, confirms this stance. The committee recommended that a similar special committee be established to produce a report on charter schools for the coming year, and President Bob Chase indicated that he would follow the recommendation. Given the manifesto issued in New York, there can be little doubt concerning the nature of that report when it emerges.86

Strengthening the Charters: Expanding the District

Recognizing the power of the unions demonstrated above, charters have sought to bolster their position in the educational community. Chartering across school district lines is one option. It would create economies of scale and might boost staffing autonomy--an important criterion in the Fordham report, The Quest for Better Teachers: Grading the States.87

A negotiation in Sarasota County, Florida, however, illustrates the difficulty of implementing such an approach. During the winter of 1999, Superintendent David Bennett suggested chartering the whole district, allowing principals and school advisory councils to run individual schools while contracting out such operations as food, transportation, and maintenance now delivered by district workers. The Sarasota Classified Teachers Association refused to grant principals broader powers and opposed contracting out. District employees were unionized, but vendors under the contract proposed would, in all probability, be non-union. Vendors could deliver services more cheaply, but would not be paying union dues. Opposition to "contracting out" is a primary tenet of the National Education Association. The Sarasota CTA was simply reading from the standard script.

In presenting its contract to district administrators, the union also proposed that the new charter district plan include a 5 percent pay raise for all Sarasota County school employees, provided that the goals of the School Board were met each year. That may sound like merit pay, but the politics of school boards suggests a different reality. Many members are likely to have received union support in their campaigns, so would be reluctant to establish goals difficult to meet. Negotiations between union members and a group from the school district proceeded while district administrators sought to gain community support for a charter district. Once approved by Bennett and the School Board, a plan would have to be submitted to Governor Jeb Bush and his cabinet for consideration.88 Given the Governor's support for greater freedom from governmental intervention, the outcome would likely be favorable.

VOUCHERS

Queried about his supposed opposition to charter schools, Nobel Laureate Milton Friedman, a voucher proponent since 1955, noted that he was not, in fact, against charter schools but saw them as a stepping stone to vouchers. Ironically he voiced the principal fear of the unions. The difficulties encountered by charter schools do suggest that vouchers may provide a simpler and more direct approach, affording choice to millions of minority parents and their children trapped in the failing schools of the ghettos. The well-to-do already have a choice: once wedded and with children, they can move to the suburbs which are famous for better schools. The poor of the inner cities have no such option.

Vouchers are actually a form of scholarship and may be either public or private: the latter come from privately organized foundations, individuals or corporate donors to enable children to attend schools better suited to their needs. Public vouchers are government grants to parents who want to send their children to particular public or private schools. Often the private schools are parochial, that is, run by the Catholic Church, whose schools are well known for producing capable, literate students. Vouchers funneled to parochial schools, however, have ignited controversy. As voucher opponents raise the specter of separation of church and state, they voice their fears about religious influence on children and on the political process.

Wisconsin: the First Stepping Stone

Although the private voucher movement may be growing more rapidly than the public, it was a voucher experiment in the public sector that first attracted widespread attention. In the late 1980s in Milwaukee, Wisconsin, Polly Williams, a Democratic state legislator, spearheaded the initiative. Appalled by the sorry state of the Milwaukee schools but opposed to busing, she championed vouchers to remedy the high drop out rate and dismal academic performance of the Milwaukee system. 89

Milwaukee parents supported her enthusiastically and prevailed, even though the Wisconsin Teachers Association, the National Association for the Advancement of Colored People (NAACP), and the State Department of Public Instruction, as well as Democratic politicians, opposed the idea on the grounds that it would undermine the public schools. Republican Governor Tommy Thompson and other conservatives were more receptive. Determined campaigning finally led to the nation's first public voucher system, the Milwaukee Parental Choice Program, implemented by the state legislature in 1990-1991.90 It was a pilot program limited to 1,000 low-income students and to a small number of participating private schools.

Legal hurdles surfaced almost immediately. Opponents, including the State Department of Public Instruction, challenged the legality of the program, pursuing the case to the Wisconsin Supreme Court, which upheld the vouchers. With Thompson's support, in 1995 the Wisconsin legislature approved extending the program to religious schools. Opponents again challenged its constitutionality and obtained a temporary injunction, evidently hoping that the case would reach the U.S. Supreme Court. However, the Wisconsin State Supreme Court upheld the program in June, 1998, and the U.S. Supreme Court in November declined to hear the challenge. Opponents continue to hope that the controversy over the separation of church and state may eventually force the U.S. Supreme Court to take up the issue.91

The establishment has tried to hamstring the Milwaukee Public Choice Program by restricting the number of schools in the program. That restriction limits choice and competition. Constraining the numbers who may participate makes evaluation difficult because the sample size is too small. Also, the program has been in operation for too short a time. Slowly, however, the numbers are growing. Moreover, impressed by the enthusiastic parental and student response in Milwaukee, two strong public voucher programs have sprung up: one in Ohio, the second in Florida.

Ohio: Blocking Competition and Choice

In 1995, the Ohio legislature set aside a small amount of scholarship money to allow children from poor families to receive $2,500 each toward tuition at a private school chosen by the family. Almost immediately the program was over-subscribed: there were 17,000 applicants for the vouchers, more than four times the number of vouchers available. Most families did use the vouchers to send their children to parochial schools, whose tuition was closer to the amount allotted. In June 1999, as the program was to begin its fourth year, state legislators expanded the voucher program so that it would reach children in higher grades.

The program also survived a legal challenge. In May 1999, the Ohio Supreme Court struck down the voucher program, not on the grounds that it violated the separation of church and state, but on the grounds that it violated state law in establishing and funding the program as part of the state budget, rather than as a separate measure. The legislature immediately passed a new statute that allowed the program to continue.

Enter U.S. District Court Judge Solomon Oliver, Jr., a Clinton appointee. Supported by the teacher's union, Judge Oliver blocked Cleveland's voucher program for new students one day before the beginning of school, thereby frustrating the aspirations of 4,000 children. Noting that the participating schools were overwhelmingly sectarian, the judge asserted that "the Cleveland program has the primary effect of advancing religion." Judge Oliver postponed a final decision on the constitutionality of the program, but indicated that there was "a very substantial chance" that he would find for the plaintiffs, who included members of the teacher's union.92

The judge's ruling touched off a furor. Frantic parents insisted that they would continue to send their voucher-holding children to private and parochial schools, whatever the financial sacrifice. The Catholic Diocese of Cleveland told parents that their children would be welcome. Ted Forstmann and John Walton, co-chairmen of the Children's Scholarship Fund, offered funds to insure the continuation of the program. The Cleveland Plain Dealer lambasted the decision in an editorial entitled, "Voucher Vulture."93 Critics pointed out that federal law had never settled the question of whether vouchers violated the separation of church and state; only a few state courts had dealt with the issue.94

The unions were, predictably, jubilant. Michael Billirakis, president of the Ohio Education Association, claimed that the ruling is "good for public education" and that "our primary concern is that vouchers take away [money] from public schools." Considering the vast amounts of cash funneled to a public school system from which parents and children were fleeing, the comment seemed the height of hypocrisy. It was also factually untrue. In 1997, Ohio included 1300 scholarship students in Cleveland's public school enrollment count, even though they were enrolled in private schools. As a result, Cleveland schools were subsidized for students they no longer taught, a net surplus of $118,473, according to a study published by the Buckeye Institute for Public Policy Solutions.95 The vouchers were, in other words, a net financial asset to the system.

Daunted at least slightly by the outcry, Judge Oliver first stayed his order, allowing the program to continue. Ohio officials asked the Sixth Circuit Court of Appeals to postpone the effect of Oliver's order. When the court failed to act, Ohio Attorney General Betty Montgomery appealed to U.S. Supreme Court Justice John Paul Stevens, who handles emergency matters from Ohio. Stevens referred the matter to the full Court. On December 3, 1999, splitting along ideological lines, the Court, by a vote of 5 to 4, postponed the effect of Oliver's order until the Sixth Circuit could hear the case.96 There was much speculation that the Supreme Court would consent to hear a case involving vouchers and rule on the quarrel concerning the separation between church and state, but once again it avoided the issue.

On Monday, December 20, 1999, Judge Oliver made his earlier temporary order permanent, although he did say that the program could continue running pending an appeal to the Sixth Circuit. The governor and attorney general immediately vowed to file the appeal. Meanwhile an opponent spoke scathingly of "this voucher gimmick that's leaving children, parents and taxpayers high and dry." More to the point was the remark of one parent who called Oliver "the Grinch who stole Christmas."97

Ironically, a state-commissioned study conducted by the Indiana Center for Evaluation at Indiana University reported in September, 1999, that the experimental program was beginning to meet its objectives, including improved academic achievement for low-income inner city children now able to attend private schools. Cleveland's 73,000 public school students, in contrast, failed all 18 state proficiency tests.98

Parents, children and voucher supporters were doomed to be disappointed. On December 11, 2000, the 6th U.S. Circuit Court of Appeals, in a 2-1 decision, sustained the December ruling of the previous year. The court's panel held that the voucher program was unconstitutional because it had the "impressible effect" of benefiting sectarian schools. Although the decision came shortly after the defeat of voucher initiatives in Michigan and California, supporters insisted that the ruling could put the issue before the Supreme Court.99

Michigan: Union Blockade

The clash was closely watched in neighboring Michigan. Although a recent poll found that 57 percent favored state-funded vouchers to pay for private school tuition, the union stood squarely in their way and could find much to gloat over in Judge Oliver's final order. A 1970 amendment to the state constitution, supported strongly by the Michigan teacher's union, blocks choice scholarships. The initiative that appeared on the November 2000 ballot, sponsored by "Kids First! Yes!," would have amended that constitution to legalize tuition vouchers for private schools.

Governor John Engler, who sends his own children to a private school, was staunchly opposed to the proposal, claiming that it would undermine efforts to improve public education.100 The Michigan Education Association, helped by the NEA, contributed sizably to defeat the measure and enlisted teachers in the campaign. Michigan was a key state in the November 2000 general election, and the vote was seen as representing, in part, a referendum on Al Gore's well-publicized opposition to vouchers.101

Despite a carefully orchestrated campaign that drew support from the Catholic Church and from the African-American community, Proposal "1" (School Vouchers) failed. The margin was discouragingly large, 30.2 to 69.8,102 and will make further reform attempts difficult.

Florida: Competition Succeeds

When Jeb Bush campaigned for the governorship of Florida, he made school reform a major issue. In 1999, once he had been elected, the state enacted the first statewide school voucher plan--a program to give tax money to students at the worst public schools so that they could attend a private school.103

Predictably teachers' unions and school administrators criticized the measure sharply. Pat Tornillo, president of the Florida Education Association/United, one of the state's largest teachers' unions, moaned that voucher schools would be able to hire uncertified teachers.104 Fearful of change and the loss of funds from the state, administrators joined the chorus. Opposition, however, coalesced (as elsewhere) around the issue of the separation of church and state. No matter that the scholarship checks would go to parents, not to children; no matter that the sectarian schools receiving vouchers could not compel students to adopt a particular religious belief or to pray; allegedly the voucher program would doom the public schools and undermine the First Amendment.

The day after Governor Bush signed the bill, opponents filed a lawsuit challenging the program. Organized as the Florida Coalition for Public Schools,105 opponents included People for the American Way, the National Education Association, the National Association for the Advancement of Colored People, and the American Civil Liberties Union of Florida. The NAACP may seem an odd partner, but members have argued that vouchers are a way to reintroduce segregation.

The ACLU's opposition is more difficult to understand. Pushed to its logical limit, opposition to such programs as statewide vouchers entails opposition to the GI Bill, Pell grants, and daycare vouchers, to say nothing of tax exemptions for religious institutions.106 Nevertheless, the ACLU continues to campaign against the vouchers that can provide a tool for measurable improvement in a failing system, insisting that indoctrination into a faith is a greater danger than lack of skills in an increasingly competitive world.

At first the unions triumphed. In March, 1999, Judge L. Ralph Smith, Jr. of the Circuit Court of Florida ruled that vouchers contradicted the Florida constitution which it mandates the provision of a "uniform, efficient, safe, secure, and high-quality system of free public schools." Using the voucher system to provide the services offered by public schools "supplants the system of free public schools." As one commentator pointed out, similar provisions exist in nearly all state constitutions. Smith interpreted Florida's constitution in the narrowest manner possible. He was also far from unbiased. When evidence surfaced that his son was engaged to a high-ranking official of the Florida Education Association, he refused to recuse himself.107

Once again, the unions gloated. "This ruling puts a stake in the heart of the voucher movement," intoned Bob Chase, president of the NEA. Despite the enthusiasm with which parents in poor communities greeted the voucher program, he touted the decision as a "tremendous victory for families and children."

In a unanimous opinion recently released, however, a three-judge panel of Florida's First District Court of Appeals overturned the trial court, finding this time that "Opportunity Scholarships"--the vouchers created by Florida's Bush administration--were indeed constitutional. The Florida constitution, Judge Charles Kahn, Jr. declared, "does not unalterably hitch the requirement to make adequate provision for education to ... the public school system." Meanwhile, faced with the threat of scholarships after receiving their first "F's," 78 schools improved this year to the point of being moved off the failing list. Competition proved effective in raising performance within the system.108

The ruling will reverberate throughout the union community. More than 25 state legislatures have voucher bills pending, and Florida will set an important precedent. It seems likely that a challenge will soon make its way to the highest court.109

District of Columbia: Political Wrangling and Hypocrisy

In Congress, the unions wield enormous though less obvious influence. Legislators want to be re-elected, and re-election depends in many cases on endorsements and support from the NEA and the AFT. As a result, representatives and senators have been reluctant to back school choice. However, in 1997 Representatives Richard Armey (R-TX) and Floyd Flake (D-NY), together with Senators Joseph Lieberman (D-CT) and Dan Coats (R-IN), introduced the D.C. Student Opportunity Scholarship Act. The legislation would have provided up to $3,200 in aid for approximately 1,800 of the District's low-income elementary students, who could have attended the public, private, or religious school of their choice in the D.C. metropolitan area. The Act was originally part of the D.C. appropriations package. The Senate, after much wrangling, made the Coats-Lieberman bill a stand-alone bill, and by voice vote approved it on November 9, 1997. Then the House passed it on April 30 of the following year. President Clinton, however, vetoed the measure.110 He sent his own daughter to a prestigious private school but was unwilling to grant the same freedom of choice to those less fortunate.

The unions have been less adamant in their opposition to charter schools than to vouchers, so the charters have had more success in the District. Congress passed a strong charter school law in 1995, and amended it in 1997, adjusting upward the annual payment to include funding facilities and other capital costs. The D.C. Public Charter School Board approved ten applications for charters in the 1999-2000 school year, bringing the total to 29, or 10% of D.C. public school students--a group large enough to provide a meaningful sample for evaluation of the effects of the charters on educational attainment. The D.C. Board of Education, the second chartering authority, approved five schools for the fall of 1999. Despite well-publicized hopes, however, the success of the charters is problematic. The District has long had difficulty in hiring effective teachers and the pervasive curricular emphasis on self-esteem rather than on achievement continues--a combination unlikely to produce encouraging results.111

The CONTINUING BATTLE in the STATES

The overriding concern of the teachers' unions is to keep their monopoly, to say nothing of the money and political power that go with it. Therefore, despite the limited successes noted above, they continue to challenge every move to enlarge the competitive scope of the charter schools, and continue to oppose the freedom to choose represented by vouchers.

Colorado

In November, 1998, Colorado voters rejected Amendment 17, a tax credit ballot initiative, by a substantial margin. The amount of the credit would have been at least 50% of the state's per pupil expenditure, but no more than 80% of the actual cost of private school tuition.112 An NEA press release noted gleefully that the vote marked "the fifth consecutive rejection of a statewide initiative to provide public tax dollars to private schools."113

Why did it fail? In a brilliantly ironic analysis, David McGroarty suggests that the anti-voucher side had the superior game plan of a winning football team. With misleading ads, a focus on class warfare, and simplistic rhetoric, the anti-voucher forces flipped the initial margin from 67% support in July to a 60-to-40 defeat in November. The Colorado experience thus validated the observation that "Every voucher initiative leads early, and fades fast."114

Six years earlier, the first Colorado voucher initiative had met a similar fate. In August, 1992, it led by 67% to 33%; but the 34-point lead became a steep loss in November. Ironically the 1998 version was closer to being revenue-neutral; it also did a better job of extending vouchers first to whose most in need.115 Such advantages faded under the well-financed union attack.

California

A year after the first Colorado initiative, in 1993, California's ballot measure also went down to defeat. Voucher supporters were able to place Proposition 174 on the November ballot as an initiative entitled "Parental Choice." However, the California Secretary of State must approve the heading of each initiative as reflective of its contents. The California Teachers Association had endorsed the candidacy of March Fong Eu for that post and could count on Eu's support. It initiated legal action to require changes in the heading and Eu ordered the heading changed from "Parental Choice" to "Education Vouchers." Support for the proposition dropped by ten points.116

To defeat the initiative, the California Teachers Association assessed each of its members a $57.80 surcharge, raising over $14 million for its campaign.117 Together, the NEA, CTA and SCTA's PACs, raised an estimated $18 million.118 The initiative's proponents raised only $2.7 million and the proposition failed. The vast sums at their disposal had enabled the teachers' union to outmaneuver the opposition, virtually drowning supporters in an avalanche of radio and television ads, plus the ubiquitous support of teachers who lobbied parents and manned phone banks.

Nothing daunted, the Friends of Vouchers 2000 gathered more than 1.2 million signatures across the state, guaranteeing a place on the November 2000 ballot. Supporters claimed that they would "give every child in California the quality education they deserve!"119

Unfortunately, the initiative was defeated once again by a sizable margin: 69.1% "No" to 30.9% "Yes."120 Although means testing has its drawbacks, the initiative--designed to help "every child" by giving each a voucher for $4,000--wound up helping none. The well-financed CTA had only to repeat the mantra that vouchers for everyone help only the well-to-do. Failing to examine the rhetoric and vaguely guilty about the options they enjoy, suburbanites voted against what they saw as a handout for the wealthy. As a result, minority children will continue to be trapped in the ghettos.

Washington State: Good Intentions Crushed

Voucher and charter school initiatives on the ballot in Washington State in 1996--Numbers 173 (vouchers) and 177 (charters)--raised high hopes for that state's dismal public school system. It was thought that the passage of Initiative 134 with more than 70% of the vote in 1992 had curbed the power of the unions by prohibiting the use of union dues for political purposes.121 The Washington Education Association challenged that initiative immediately; over a decade later, the Evergreen Freedom Foundation (a small independent policy institute) is still battling in the courts to support paycheck protection.

The history of that struggle sheds light on the extent of union power. By 1996, the year of the two initiatives designed to promote freedom of choice in education, the union forces had regrouped. The two union programs established in the wake of the initiative--WEA-PAC and the WEA's Community Outreach Program (COP)--were able to provide the WEA with over $900,000 annually. In its drive for political power, the WEA--which had budgeted $1.5 million to influence the election--contributed $700,000 of that amount to the "No to 173 and 177 Committee," set up to defeat the initiatives; it also "laundered" $410,000 from the National Education Association. Its treasury overflowing, the WEA's political team swung into action. With a dozen political action team members, 22 full-time regional directors, and more than 300 local representatives who could be released from teaching to campaign, it overwhelmed voucher and charter school supporters. The two pro-choice initiatives went down to defeat in the November 1996 elections. Curiously they lost by the same margin: "Yea," 36%; "Nay," 64%.122

Ron Taber, who was also running for state Superintendent of Public Instruction, spearheaded 173, the voucher initiative, which would have given each child $3400 the following year. His pronouncement must have sent chills down the spines of teacher union supporters. If children are not learning in a poor school, he declared, then

if parents had the choice they would pull their children out of that school and if they pulled enough of their children out eventually everyone in that building would lose their job. This of course will wonderfully concentrate the minds of our teachers to make sure they do offer a product which meets the needs of the consumers, the parents.123

 

In response, the WEA chose to ignore widespread criticism and parental discontent. Its spokesman simply asserted that 173 would transfer taxpayer money to under-supervised private schools.124

The initiative on charters was the brainchild of Jim and Fawn Spady, co-founders of the Education Excellence Coalition in Seattle. The measure would have enabled school districts to license any nonprofit organization to establish an independent public school, free from most regulations; government spending would follow each student to the school; and a public school could convert to an independent school.125 The unions killed it.

The most recent developments in the case strain credulity. The WEA on September 20, 2000, sought to prevent the Evergreen Freedom Foundation from suing the officials--union officials who have used money collected from non-members as political contributions without their permission--by signing a stipulation admitting guilt of multiple violations of the statute. Accordingly, in October, the Attorney General filed the lawsuit. Now, two months before the trial, the WEA wants to deny the guilt stipulated and argue that the law is vague and unconstitutional. (The statute declares that a labor organization may not use agency shop fees paid by an individual not a member of the organization to make contributions or expenditures to influence an election or to operate a political committee unless affirmatively authorized by the individual.) In the earlier court case, they found the law clear.

The shift may be explicable in terms of the $800,000 collected in one year by the WEA, which should have been rebated to the 4,194 non-member teachers referenced in the stipulation. By declaring that the law is "vague" and retracting their original admission of guilt, the union officials hope to avoid the rebate. As the broadcast networks used to say, "Stayed tuned."126

CONCLUSION

The movement for reform in education has stimulated an impressive number of creative efforts: principally, charter schools in 37 states and the District of Columbia, and three voucher programs, most notably the one in Milwaukee. The teachers' unions, however, have managed to restrict the number and thus the scope of charters, and to oppose public vouchers with almost complete success. Their opposition is unlikely to abate as the unions campaign to preserve their monopoly and stifle competition. Democrats are seen as partners in that effort. The NEA and AFT endorsed Al Gore and worked for his election and that of other Democratic candidates. The enormous sums gathered through dues and assessments funded radio and television advertisements trumpeting the candidates' proposed reforms; and teachers stuffed envelopes and manned phone banks. The level of rhetoric will escalate in the future: the unions will to promote themselves as protectors of the future of America. The rhetoric bears little relation to reality and is undercut by the dismal record of educational failures in the public school system. Even so, the image projected by the unions finds ready acceptance by the public.

Suburban parents, secure in the knowledge that their schools and their children are performing well on tests, thus insuring admission to college, see little reason to change. They have choices which are denied to the poor and minority parents of the ghettos. Yet it is those disadvantaged parents and minorities that are making reforms, however limited in scope, possible. As a result of their efforts, the general public has become increasingly aware of the limitations imposed by the public school system. Despite the setbacks of Ohio, Colorado and California, parents may eventually be able to bring pressure to bear on legislators, and even on the judiciary, to open doors to competition which unions oppose.

Unfortunately, union opposition operates behind the closed doors of contract negotiations, shielded by state laws that provide for collective bargaining and mandate union membership. As a result, the self-interest of the unions will prevail for the foreseeable future. A shift in public opinion will be slow in coming, although it may well be the long-term instrument of change. Refusal at the state and local level to accept the nostrums touted by the unions may help to spark meaningful shifts in the universe of state legislatures and judiciaries. For the moment, however, the unions have the funds and the political clout to reign supreme.

* Dr. Moore taught at college and university levels for more than a decade before working in the fields of government and public policy. She is currently Adjunct Scholar at the Cato Institute and the Competitive Enterprise Institute. Dr. Moore has A.B. and A.M. degrees from Harvard University, and a doctorate from the University of Michigan.

1 The number rose from 1,600,000 in 1960 to 3,126,000 (proj.) in 1998. Statistical Abstract of the United States, 119th Edition, 1999, Table 275,
p. 176.

2 For high school dropout rates, see Statistical Abstract of the United States, 119th Edition, 1999, Table 303, p. 191. The figure for Hispanics in 1970 was not available.

3 Caroline Minter Hoxby, "How Teachers' Unions Affect Education Production," Quarterly Journal of Economics, Vol. CXI, no. 3, August 1996, p. 712.

4 "Where Do My NEA Dues Go?," Education Intelligence Agency, Mike Antonucci, Director, P.O. Box 2047, Carmichael, California, March, 2000, n.p. The 1998-1999 refers to the school year. In other words, the union starts counting in September. Telephone conversation with Mr. Antonucci, August 14, 2000.

5 Ibid.

6 Myron Lieberman, The Teacher Unions (New York: The Free Press, 1997), pp. 267-268. Lieberman explains in detail the difficulties of arriving at the estimate, among them the lack of federal filings by 16 state federations in a recent year.

7 The Center for Responsive Politics: Public Sector Unions, PAC Contributions to Federal Candidates, 1997-1998, 1999-2000, http://www.opensecrets.org/pacs/index/00003251.htm & 00028860.htm, October 19, 2000.

8 Op. cit., Lieberman, The Teacher Unions, p. 76.

9 Claude Marx, "Teachers' Unions Flex Muscles," Investor's Business Daily,November 26, 1997, n.p.

10 "Democratic National Convention," Washington Post, August 13, 2000,
p. M4.

11 Catherine Jones, National Right to Work Legal Defense Foundation, Inc., e-mail, August 17, 2000.

12 "Democrats Reward Big Donors," San Jose Mercury, May 24, 2000,
p. 4A.

13 Carol Innerst, "Teachers Unions Seen Sawing At Reform From Bandwagon," The Washington Times, July 2, 1996.

14 "Those Depoliticized Schools," Editorial, Investor's Business Daily,
June 8, 2000, p. A 22.

15 G. Gregory Moo, Power Grab (Washington, D.C.: Regnery Publishing, Inc., 1999), p. 14.

16 Ibid., p. 160.

17 Op. cit., Lieberman, The Teacher Unions, pp. 47-48.

18 Ibid., p. 184.

19 Ibid., p. 20.

20 Op. cit., Moo, Power Grab, pp. 162-163.

21 Myron Lieberman and Charlene K. Haar, "NEA Convention 2000 Report and Commentary," Education Policy Institute, p. 1, http: //www.educationpolicyorg/NEAreport2000.htm.

22 "Teachers Against Reform," editorial, Washington Post, July 7, 2000,
p. A26.

23 Alana Keynes, "NEA President Attacks Role Of Politics in Education," Education Daily, July 6, 2000.

24 Op. cit., Lieberman and Haar, "NEA Convention."

25Andrea Billups, "NEA Raising Dues to Combat Vouchers," The Washington Times, July 7, 2000, n.p. The remaining $2 will fund state and national media campaigns promoting the value of public education.

26 "Regulation," "Home Schooling," Townhall.com, Copley News Service,pp. 4-5. Photocopy: Concerned Educators Against Forced Unionism, July, 2000.

27 Ibid., p. 5.

28 Ibid., p. 5.

29 Ibid., p. 5.

30 Jodi Wilgoren, "Teachers' Union to Weigh Extra Year of High School," The New York Times, July 3, 2000, n.p.

31 "Recipe for Weaker Schools," editorial, The New York Times, July 7, 2000, n.p.

32 Jodi Wilgoren, "Teachers Union Leaders Oppose Push to Testing at the Expense of Curriculum," The New York Times, July 4, 2000, n.p.

33 Transcription provided by Video Monitoring Services of America, L.P. Program: KCBS-AM Radio (CBS), San Francisco, August 10, 2000, Phone: 415-543-3301.

34Kenneth J. Cooper, "Teachers Unions Are Poised to Boost Turnout for Gore," Washington Post, July 6, 2000, n.p.

35 Op. cit., Moo, Power Grab, p. 149.

 

36 Op. cit., Lieberman, The Teacher Unions, p. 182.

37 Op. cit., Moo, Power Grab, pp. 149-150.

38 Ibid., p. 150.

39 Ibid., p. 150.

40 Ibid., pp. 150-151.

41 Ibid., pp. 153-154. Moo details five instances of vandalism and unethical procedure from 1978 to 1882.

42 David Kendrick, "Freedom From Union Violence," Cato Policy Analysis No. 316, September 9, 1998. The Executive Summary notes that under the Court's decision, vandalism, assault, and even murder by union officials are exempt from federal anti-extortion law as long as the violence is deemed to be "in furtherance of 'legitimate' union objectives."

43 J. Michael Arisman, "Alinsky for Teacher Organizers," n.d. Photocopy supplied by Concerned Educators Against Forced Unionism, Springfield, Virginia. All references to and quotes from the Alinsky material in the following paragraphs refer to that photocopy.

44 An Institution at Risk, photocopy provided by Concerned Educators Against Forced Unionism, no pub., n.d.

45 Ibid., p. i.

46 Ibid.

47 Ibid.

48 Ibid., p. 18.

49 Ibid., pp. 19, 20.

50 Ibid., pp. 23-24.

51 Ibid., p. 25.

52 Ibid., pp. 31, 32.

53 Ibid., p. 33.

54 Ibid., pp. 33-34, 36.

55 Don Soifer, "The Charter School 'Advantage,'" Investor's Business Daily,February 8, 2000, p. A24.

56 Lynn Olson, "Redefining 'Public' Schools," Education Week, Vol. XIX,
No. 33, April 26, 2000, p. 24.

57 Joe Nathan, Charter Schools (San Francisco: Jossey-Bass Publishers, 1996), p. 28.

58 "Clinton Visits the Twin Cities," Star Tribune, Minneapolis, MN, May 5, 2000, http://www.charterfriends.org/csweek-presvisit.html,pp.1-2.

59Chester E. Finn, Jr., Marci Kanstoruom, Michael J. Petrilli and Sheila Byrd, "Arizona" and "Minnesota," in The Quest for Better Teachers: Grading the States (Washington, D.C.: Thomas B. Fordham Foundation, November, 1999), pp. 18, 28.

60 Carol Innerst, "Charter Schools Get Mixed Reports," The Washington Times, August 4, 1996, n.p. Also, op. cit., Olson, "Redefining 'Public' Schools," p. 25.

61 Pamela Stallsmith, "House Joins Charter School Movement" and "Charter School Bill Clears Hurdle," Richmond Times-Dispatch, February 2, 3, 1998, photocopies, n.p.

62 Op. cit., Finn et al., pp. 28, 27, 32, 34, 40.

63 Gregg Vanourek, Bruno V. Manno and Chester E. Finn, Jr., "The False Friends of Charter Schools," Education Week, April 30, 1997, p. 60.

64 Jacques Steinberg, "School Leaders Cast Doubts About Pataki 'Charter' Plan," The New York Times, January 14, 1997, photocopy, n.p.

65 Bruno V. Manno, Chester E. Finn, Jr. and Gregg Vanourek, "Beyond the Schoolhouse Door," Phi Delta Kappan, June 2000, p. 739.

66http://www.ceiintl.org/The_New_York_Charter_Schools_A.

67 Ibid.

68For a detailed account of events in California, see Joseph Nathan, Charter Schools, pp. 190-191.

69 Anna Bray Duff, "Charter Schools in Choke Hold," Investor's Business Daily, August 13, 1999, p. A20.

70 John Fensterwald, "Is Teacher's Union Already Threatening New Charter School?," San Jose Mercury, November 9, 1999, p. 6B.

71 David Osborne, "The Benefits of Charter Schools: Healthy Competition," The New Republic, October 4, 1999, p. 31.

72 Anna Bray Duff, "Unions Target Charter Schools," Investor's Business Daily, May 11, 1999, p. A1.

73 As a result of a bill authored by Democrat Ted Lempert, AB544, and passed in 1998, "new hires" in charter schools must belong to the union.

74 Op. cit., Duff, "Unions Target Charter Schools," p. A 24.

75 Lance T. Izumi, "Unionization of Charter Schools," Fact Sheet, Pacific Research Institute, 1999, n.p.

76 "Jerry's Kids," Wall Street Journal, May 25, 1999, photocopy, n.p.

77 Patrick Hoge, "Charter School Unionizing Bill Tones Down," The Sacramento Bee, May 27, 1999, A3.

78 Anna Bray Duff, "Charter Schools in Choke Hold," Investor's Business Daily, August 13, 1999, p. A1. See also, Thomas Dawson, "Charter Schools," Fact Sheet, Pacific Research Institute, October 1999, n.p.

79 Bill Number 1960: Chaptered Bill Text, http://www.santarosa.edu/seiu/sb_1960_bill_20000929_chaptered.html.

80Ibid. See also, Lance T. Izumi, "A Windfall for Teacher Unions," Capital Ideas. Vol. 5, no. 19, May 9, 2000, http://www.pacificresearch.org/capital/00-05-09.html.

81 Lynn Schnaiberg, "In Midst of Skepticism and Scrutiny, NEA's 5 Charter Schools Push On," Education Week, Vol. XVII, no. 26, March 11, 1998,
p. 14.

82 Op. cit., "Jerry's Kids," Wall Street Journal.

83 Op. cit., Schnaiberg, "In Midst of Skepticism."

84 Six through 10 deal with unremarkable requirements for health and safety, educational opportunity for all, discrimination, and academic standards.

85 NEA/NY, "Advocate," http:www.neany.org/advocate/10.html.

86 Catherine Jones, reprint of Education Intelligence Agency, "NEA Convention Special Report," July 4, 2000; e-mail: EducIntel@aol.com. Key Leader Clipsheet, July 2000, p. 24.

87 Op. cit., Finn et al., The Quest for Better Teachers. The report enumerates four criteria used in ranking the states: "Multiple Pathways" (to accreditation), "Accountability for Results," "Staffing Autonomy," and "Subject Mastery."

88 Eileen Kelley, Sarasota Herald-Tribune Company, Sarasota Edition, December 3, 1999, http://web.lexis-nexis.com/universe/document?-ansset=GeHauKO.

89 Terry M. Moe, "Private Vouchers," in Private Vouchers, ed. by Terry M. Moe (Stanford, California: Hoover Institution Press, 1995), no. 429, pp. 3-4.

90 Janet R. Beales and Maureen Wahl, "Private Vouchers in Milwaukee," in ibid., Private Vouchers, ed. by Moe, p. 42.

91 Op. cit., Moe, "Private Vouchers." See also, Wall Street Journal, August 25, 1999, p. B2. In a parallel case, the Arizona Supreme Court upheld the constitutionality of a 1997 law allowing tax credits benefiting religious schools; the Supreme Court again denied cert. David McGroarty, Game Plan, Friedman Foundation, p. 5, note 11.

92 Review & Outlook, "Suffer the Children," Wall Street Journal, August 26, 1999, A18.

93 "Finding a Way in Cleveland," National Center for Policy Analysis newsletter. Sources: "Children's Crusade" and "Cleveland Parents Frantic Over Voucher Decision," Wall Street Journal, August 27, 1999; Dirk Johnson, "Many Cleveland Parents Frantic as Voucher Ruling Limits Choice," New York Times, August 26, 1999; Editorial, "Suffer the Children," Wall Street Journal, August 26, 1999. By e-mail transmission, August 30, 1999.

94 "Of Tolerance and School Vouchers," Wall Street Journal, August 30, 1999, p. 26.

95 "How Much Do Cleveland Public Schools Make From Vouchers?," National Center for Policy Analysis newsletter. Source: "Cleveland Schools Profit from Scholarship Program," Policy Note, August 28, 1999, Buckeye Institute for Public Policy Solutions. By e-mail transmission, September 8, 1999.

96 "Justices Allow Cleveland School Vouchers," USA Today, "Supreme Court," November 5, 1999; updated, December 8, 1999, http://www.usatoday.com/news/court/nsco1150.htm.

97 "U.S. Judge Rejects School Vouchers," San Jose Mercury News,December 21, 1999, p. 16A.

98Robert Holland, "Cleveland Vouchers Begin to Pay Dividends," School Reform News, Nov. 1999, http://www.heartland.org/education/nov99cleveland.htm.

99"Cleveland Vouchers Dealt Another Blow By Federal Appeals Court,"
U.S. Newswire, Washington, December 11, 2000, http://www.google.com/search?q=cache:www.usnewswire.com/topnews.

100 Bill Johnson, "Make School Choice Universally Available in Michigan," The Detroit News, June 9, 2000, http:www.detnews.comEDITPAGE/0006/09/johnson/johnson.htm.

101 Kenneth J. Cooper, "Teachers Unions Are Poised to Boost Turnout for Gore," Washington Post, July 6, 2000, n.p.

102 Michigan: Proposal "1": http://people.mw.mediaone.net/ddderek/electionresults.html.

103 "How Florida's Vouchers Work," Heartland Institute, www.heartland.org/education/aug99/how.htm.

104 "Florida Plans Statewide School Vouchers," April 28, 1999, Seattle Times Company, www.seattletimes.com/news/nation-world/htm198/altvouc?19990428,htm.

105 Jackie Hallifax, "Suit Filed Over Florida School Vouchers," The Groovy Café, June 22, 1999; www.groovycafe.com/articles/schools/990622a.htm.

106 Clint Bolick, "The ACLU's Hypocrisy on School Vouchers," Wall Street Journal, August 2, 1999, p. A19.

107 "Florida Teachers' Union Vs. Kids," Investor's Business Daily, March 16, 2000, p. A22.

108 "The Other Bush," Wall Street Journal, October 17, 2000, p. A22. See also "Unions On A Legal Losing Streak," Education Intelligence Agency Communique, October 10, 2000, p. 2.

109 Jodi Silgorenn, "Florida Judge Blocks School-Voucher Plan," San Jose Mercury News, March 15, 2000, p. 17A; and op. cit., "Florida Teachers' Union vs. Kids."

110 The Heritage Foundation, School Choice, 1999, District of Columbia, September 8, 1999, pp. 3-4, http://www.heritage.org/schools/district.html.

111Ibid., p.2.

112 The Heritage Foundation, School Choice, 2000, "Colorado": http://www.heritage.org/schools/colorado.html.

113 David McGroarty, Game Plan, p. 1, note 1, Issues in School Choice,
No. 3, Milton and Rose D. Friedman Foundation, December, 1999.

114 Ibid., p. 9. McGroarty's irony recalls that of C.S. Lewis in The Screwtape Letters. Like Lewis, McGroarty poses as an advocate for the other side: an opponent of vouchers, rather than a supporter. He is thus able to skewer with merciless accuracy the mistakes of the earnest voucher advocates, who were unable to counter the precisely targeted attacks of the voucher opponents.

115Ibid., p.9, note 14; p. 16.

116 Op. cit., Lieberman, The Teacher Unions, p. 99.

117 Op. cit., Moo, Power Grab, p. 86.

118 Ibid., p. xv.

119 "School Vouchers Campaign Update," June 6, 2000; e-mail transmission, campaign@vouchers2000.com.

120 School Vouchers; http://www.ventura.org/election/results.htm#c1180.

121 Lynn Harsh, "Judge Rewards WEA, Punishes Voters," The Settle Times, Sept. 2, 1999, http://www.seattletimes.com/news/editorial/html98/camp_19990902.html.

122Official November 5, 1996 General Election Abstract, Office of Secretary of State, Elections Division, Voter Registration Services, Olympia, WA, fax transmission, December 7, 1999.

123 Guy Nelson, "Initiative 173 - School Vouchers," October 14, 1996, p. 1, http://www.know.org/news/I-173.htm.

124 The report sponsored by the Fordham Foundation gives Washington State an F. Op. cit., Grading the States, p. 40.

125 "Washington," The Blum Center's Educational Freedom Report, No. 28, October 17, 1995, p. 2, http://www.mu.edu/blum/efr28.html#WASHINGTON.

126Evergreen Freedom Foundation, "WEA Seeks to Recant Admitted Guilt," e-mail transmission, March 8, 2001. See also, http://www.defendteachers.org.

DO FEDERAL LABOR LAWS APPLY TO STATE AND LOCAL GOVERNMENTS? RECENT COURT DECISIONS MAKE ENFORCEMENT OF FEDERAL LABOR LAWS AGAINST STATES IMPOSSIBLE by Paul Clark, Ph.D.*

Since the late 1960s, the Federal government has used the "interstate commerce clause" to justify regulating State and local governments in the same way that it regulates private enterprise. Recent Supreme Court decisions regarding the meaning and scope of the Tenth1 and Eleventh2amendments have made clear that this type of regulation is no longer tenable.

In the last few years, the Court has made it abundantly clear that State sovereign immunity overrides any and every attempt to regulate State actions under the "interstate commerce clause"--or indeed under any other power granted to Congress by Article 1 of the U.S. Constitution.

The Court has not decisively ruled on what level of interference Congress can enact under the Fourteenth Amendment. Yet recent decisions in Coeur d'Alene v. Idaho and City of Beorne v. U.S. suggest that the Court is unwilling to grant Congress much power to regulate State and local governments, even under the enforcement powers of the Fourteenth Amendment.

The purpose of this paper is to focus on how recent Supreme Court decisions affect regulations enacted by Congress pursuant to those "enumerated powers" found in Article 1. In particular, the author wishes to focus on a variety of Federal labor laws.

Federal Regulation Under the Interstate Commerce Clause

For more than a century Federal regulation of "Commerce with foreign nations, and among the several States, and with the Indian tribes" (Article 1, Section 8, Clause 3--generally referred to, though inaccurately, as the "interstate commerce clause") was very limited. Although there were significant disputes about tariffs and such, Federal laws made in pursuance of this clause had little or no direct impact on ordinary citizens. It was not until the 1870's that the Federal government asserted any jurisdiction to create criminal statutes under the interstate commerce clause; and that was limited to the transportation of dangerous goods, such as tainted meat, across State lines. In the 1930's, the Federal government began to enact child labor laws, minimum wage laws, and a host of other labor laws.

The 1938 Fair Labor Standards Act prohibited the interstate shipment of goods which were not produced in conformity with various Federal standards of minimum wage, overtime pay and so forth. This provision was challenged as an unconstitutional regulation of the intrastate manufacture of items. The Supreme Court, following President Franklin D. Roosevelt's famous attempt to "pack" it, sided with the Administration. The Court ruled that "the regulation of intrastate transactions, which are so commingled with or related to interstate transactions that all must be regulated if the interstate commerce is to be effectively controlled," was permitted (U.S. v. Darby, 1941).

Over the next 25 years, the definition of what is "commingled with or related to interstate transactions" continued to expand to the extent of being ridiculous. In Lopez v. U.S. (1996), the U.S. Solicitor General3argued that Congress had power to regulate anything in the least bit "affecting interstate commerce." When Justice Thomas asked the Solicitor General to provide one example of something that would not come under this definition, he was unable to provide a single example where Congress could not regulate. Even the Civil Rights Acts of the 1960's were passed under interstate commerce. Because the Fourteenth Amendment applies only to "States," all Federal anti-discrimination laws are based upon the interstate commerce clause.

The important point is this: it is indisputable and undeniable that every Federal labor law was passed under Congress's Article I, Section 8 power to regulate commerce "among the States." The Court in recent years has backed off from such a broad interpretation of interstate commerce. In Lopez, the Court said that an area at least had to "substantially affect" interstate commerce.

Leaving that aside, let us consider how Congressional regulation of "interstate commerce" can affect State and local governments in light of the Court's recent pronouncements on the Tenth and Eleventh Amendments.

Federal Labor Laws Did Not Apply to States

In its original form, the 1938 Fair Labor Standards Act could not affect State or local governments. For the next three decades, every Congressional labor regulation explicitly or implicitly exempted State and local governments. This was based upon the longstanding position that the Federal power extended to individuals, not to the sovereign States.

This understanding was clearly articulated by James Madison in Federalist 39 in which he describes why the American government is a federal one rather than a national one, and what the difference is between a federal government and a national one:

 

The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things . . . all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In [a federal system], the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.

 

Local governments are "no more subject, within their respective sphere" to the power of the Federal government than the Federal government is to them. In other words, the Federal government has no more business telling local governments how much they will pay their employees than a State has to tell the U.S. Army how much it will pay soldiers quartered in the State.

This understanding of the supremacy of each level of government within its own sphere was never seriously challenged for almost two centuries.

Congress Applies Federal Labor Laws to States

In 1966, Congress extended the Fair Labor Standards Act to cover schools, hospitals and such--again under the guise of regulating interstate commerce. For the first time, however, Congress removed the traditional exemption for State and local governments. The distinction was made at that time that for essentially commercial enterprises like operating a school or hospital--as opposed to sovereign functions such as running a court system or a police department--that local governments were acting more like a private business than a sovereign entity.

This distinction between sovereign and commercial functions was not based on anything in the Constitution--as even supporters of Federal regulation admit. Indeed, this fictitious distinction may have been no more than a way to get the camel's nose under the tent. Later the distinction could be waived away, and the Federal government could attempt to bring States entirely under their regulation.

The Eleventh Amendment provides complete protection from suits by individuals in Federal court, as we shall see in a moment. The language of that Amendment admits of no such distinction: "The Judicial power of the United States shall not be construed to extend to any suit in law or in equity, commenced or prosecuted against one of the United States . . . ." The distinction between sovereign and commercial functions is completely arbitrary and based on nothing in the Constitution.

The State of Maryland, soon joined by 28 other States, filed suit demanding that the Supreme Court block the enforcement of these provisions on hospitals and schools operated by State and local governments. The resulting case was Maryland v. Wertz. Among other arguments, the States asserted that such a provision was blatantly unconstitutional because it called for employees to file suit in Federal court for violation of Federal labor standards, but this was clearly prohibited by the Eleventh Amendment. Indeed, since there could be no mechanism for enforcing the claims of employees against a State in Federal court, the entire attempt to regulate State employees must fail.

The logic of this argument seems infallible, but the Court simply refused to address the Eleventh Amendment question at all, even though it was central to the objections of Maryland and the other States. The Court's majority opinion on the sovereign immunity question stated:

 

The constitutionality of applying the substantive requirements of the Act to the States is not, in our view, affected by the possibility that one or more of the remedies the Act provides might not be available when a State is the employer-defendant. Particularly in light of the Act's "separability" provision, 29 U.S.C. 219, we see no reason to strike down otherwise valid portions of the Act simply because other portions might not be constitutional as applied to hypothetical future cases. At the same time, we decline to be drawn into an abstract discussion of the numerous complex issues that might arise in connection with the Act's various remedial provisions. They are almost impossible and most unnecessary to resolve in advance of particular facts, stated claims, and identified plaintiffs and defendants. Questions of State immunity are therefore reserved for appropriate future cases.

 

By claiming that they could not rule on the sovereign immunity question in advance they simply refused to rule on it at all!

Take note of this too: schools and hospitals are almost always operated by local governments, not State governments. Here, as in other cases, there is no question that the privileges of sovereignty extend to all of the political subdivisions of a State, and not simply to the State government alone. We shall see why that is important later.

Emboldened by the Maryland v. Wertz decision, Congress in 1974 moved to subject virtually all State and local government employees to all of the Federal wage laws applicable to private entities. This, however, went far beyond where the Court had been willing to go. The Court ruled that Congress could not regulate State and local governments beyond the exception carved out in Wertz for commercial-type enterprises. The Court's majority opinion in National League of Cities v. Usury, written by Justice Rehnquist, stated that:

 

Insofar as the 1974 amendments operate directly to displace the States' abilities to structure employer-employee relationships in areas of traditional governmental functions, such as fire prevention, police protection, sanitation, public health, and parks and recreation, they are not within the authority granted Congress by the Commerce Clause. In attempting to exercise its Commerce Clause power to prescribe minimum wages and maximum hours to be paid by the States in their sovereign capacities, Congress has sought to wield its power in a fashion that would impair the States' "ability to function effectively in a federal system," Fry v. United States, and this exercise of congressional authority does not comport with the federal system of government embodied in the Constitution.

 

There are a number of important points about this case. First, it is again local governments, or the political subdivisions of States, which were in the forefront of the fight to preserve sovereignty. Second, although it does not repudiate the distinction between "traditional government functions" and more "commercial" ones set forth in Wertz, the decision is in no way based upon this distinction, as some later argued. Because such activities as sanitation and public health are reserved to the States, the Federal government has no business regulating them. Yet this same logic applies equally well to things such as operating schools and hospitals, which are also constitutionally "reserved to the States, respectively, or to the People" (Tenth Amendment).

Third, once again the purported Congressional authority to regulate State and local governments is based entirely on the "interstate commerce" clause and nothing else. Finally, note that the decision was based upon Tenth Amendment, or "reserved powers," considerations, and again the Court simply did not address the sovereign immunity issue.

Despite the Usury ruling, the Labor Department continued to attempt to subject State and local governments to Federal labor laws. This resulted in another Supreme Court challenge, the 1984 case of Garcia v. San Antonio, in which a sharply divided Court completely reversed itself and overturned Usury. The majority argued that Usury and Wertz were based on the fictitious distinction "found nowhere in the Constitution" between "commercial" and traditional functions. This, the majority opinion said, could not be maintained, and therefore Usury had to be overturned.

The Court was right to attack the bogus and fictitious distinction. But the Court should have overturned any Federal regulation of local government based on interstate commerce. In fact, it was not Usury that relied on this distinction, but Wertz--which depended on this distinction to carve out an exception to State sovereignty.

In a strongly worded dissent in Garcia, Justice Powell, joined by Justices Burger, Rehnquist and O'Connor, wrote that,

 

The Court today, in its 5-4 decision, overrules National League of Cities v. Usury, a case in which we held that Congress lacked authority to impose the requirements of the Fair Labor Standards Act on State and local governments. . . . There are, of course, numerous examples over the history of this Court in which prior decisions have been reconsidered and overruled. There have been few cases, however, in which the principle of stare decisis and the rationale of recent decisions were ignored as abruptly as we now witness.

The dissenting opinion went on to complain that,

(I)t does not seem to have occurred to the Court that it--an unelected majority of five Justices--today rejects almost 200 years of the understanding of the constitutional status of federalism. In doing so, there is only a single passing reference to the Tenth Amendment. Nor is so much as a dictum of any court cited in support of the view that the role of the States in the federal system may depend upon the grace of elected Federal officials, rather than on the Constitution as interpreted by this Court.

 

This Garcia case is particularly important since it is still the basic precedent by which Federal labor regulations are applied to State and local governments. We must emphasize again that all such regulations in this case (and in all others) attribute Federal regulation to the "interstate commerce clause" in Article 1, Section 8. Note also in this case that the city of San Antonio did not invoke sovereign immunity, and the Court did not address this issue.

The dissenting opinion is also of great significance for predicting the future direction of the Court. The strongly worded dissent joined in by Justices Rehnquist and O'Connor--who now form a majority with Justices Thomas, Scalia and Kennedy--indicates that these justices are at best unfriendly towards such Federal regulation of States and most likely are looking for a way to overturn it--either directly or indirectly.

This was made plain at recent oral arguments before the Court on April 21 of this year, 1999, in College Savings Bank v. Florida Prepaid. Justices Scalia and O'Connor (and to a lesser degree Rehnquist and Kennedy) were openly critical of attempts by Congress to regulate States' actions in any way, particularly any based upon a distinction of different types of government activities. That case, however, dealt with the sovereign immunity issue. We must turn to that next to understand why any attempt by Congress to regulate States under Article 1 jurisdiction is now impossible.

Eleventh Amendment Sovereign Immunity

The Eleventh Amendment states:

The Judicial power of the United States shall not be construed to extend to ANY suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State (emphasis added).

 

For several decades it was routinely ignored. Every year the Federal courts hear hundreds of cases prosecuted against a State or its political subdivisions by non-citizens.

Recently, however, the Supreme Court returned to the principle of sovereign immunity in two cases: Seminole Tribe of Florida v. Florida and Coeur d'Alene v. Idaho. A vigorous defense of this principle by State and local governments could well be an important weapon in the struggle to devolve power back to States and local communities--a movement the public has said they support.

To understand the Seminole and Coeur d'Alene decisions, and the important potential of the Eleventh Amendment and how it applies to Federal regulation of local governments, it is necessary to briefly examine the convoluted history of what would seem to be a straightforward amendment.

Article 3, Section 2 states that the judicial power of the Federal government shall extend to cases arising under U.S. law in the following eight areas:

--to all Cases affecting Ambassadors, other public Ministers and Consuls; --to all Cases of admiralty and maritime Jurisdiction; --to Controversies to which the United States shall be a Party; --to Controversies between two or more States; --between a State and Citizens of another State; --between Citizens of different States, --between Citizens of the same State claiming Lands under Grants of different States, --and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.4 (emphasis added)

In other words, to preserve the sovereignty of each of the States, the Federal courts would only have jurisdiction in cases which involved interstate or international issues. Cases such as those between two citizens of a State, or a citizen against his own State, were to be adjudicated in State court and were not subject to Federal jurisdiction.

During the process of ratifying the U.S. Constitution, many anti-Federalists were concerned that the clause in the Constitution, stating that Federal courts would have jurisdiction in "suits between a State . . . and foreign States, Citizens or Subjects," would allow suits against States by individuals in Federal court.

Alexander Hamilton and the Federalists argued that this jurisdiction was only one way. States could sue individuals in Federal court, but individuals could not sue States. Hamilton explains this in Federalist 81:

It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. . . . there is no color to pretend that the State governments would, by the adoption of this [constitution], be divested of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. . . . To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident that it could not be done without waging war against the contracting State; and to ascribe to the Federal courts, by mere implication, and in destruction of preexisting right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarranted.

Despite Hamilton's assurances, there was an opening for judicial attack upon State sovereignty. Almost immediately, a case arose (Chisholm v. Georgia [1793]) in which a citizen of another State brought suit against Georgia and the suit was heard in Federal court.

The majority opinion of the court adopted the anti-Federalist reading, however, and said that the text of the Constitution made no such distinction as Hamilton had suggested.

The minority opinion written by Justice Irendell, however, closely followed the analysis of Hamilton arguing that,

A State is altogether exempt from the jurisdiction of the Courts of the United States, or from any other exterior authority, unless in the special instances where the general Government has power derived from the Constitution itself.

A State retains all of its sovereignty unless there is specific and explicit cession of that sovereignty in the Constitution. A suit by individuals against States is not a power that was explicitly ceded by the States. (It should be noted that suits by individuals against their own States were never imagined to be allowable.)

In summarizing the constitutional issue under discussion in the dispute, Irendell noted:

The Constitution, therefore, provides for the jurisdiction wherein a State is a party, in the following instances: 1st. Controversies between two or more States. 2nd. Controversies between a State and citizens of another State. 3rd. Controversies between a State, and foreign States, citizens, or subjects. And it also provides, that in all cases in which a State shall be a party, the Supreme Court shall have original jurisdiction.5

This list of areas of jurisdiction was obviously meant to be inclusive. The question under dispute was whether or not the second category ("Controversies between a State and citizens of another State") gave jurisdiction to Federal courts in all such suits or only to States suing individuals.

After the decision of the Court in Chisholm (which upheld the expansive anti-Federalist reading of the Constitution), some recognized that if this jurisdiction of the Federal courts were allowed it would result in a loss of State sovereignty--and would be a contradiction of the Federalist principle enunciated by Hamilton.

To preserve sovereignty it was necessary that all suits against a State be heard in the State court. As a result Congress quickly passed, and the States ratified, the Eleventh Amendment specifying that nothing in the U.S. Constitution could be construed to allow Federal jurisdiction in suits against a State by citizens of any other State or country.

This effectively closed the loophole in the Constitution, which the Court had interpreted as allowing Federal jurisdiction over States through the suit of a non-citizen.6 It should be obvious that the language of this amendment seems to be extremely clear and not open to much interpretation: if a non-State-citizen files suit against the State such a case is not subject to Federal jurisdiction--not at all.

The Eleventh Amendment embodied the general principle that the power to fine was the power to destroy, and hence the Federal judiciary could not proscribe a financial liability on any State, regardless of whether the plaintive was a citizen of the State or not. Since it closed a loophole allowing suits by individuals, "Eleventh Amendment protection" generally refers to a State's sovereign immunity from prosecution by any individual, citizen or non-citizen.

As the Court correctly stated in Coeur d'Alene v. Idaho:

(T)he dignity and respect afforded a State, which the immunity is designed to protect, are placed in jeopardy whether or not the suit is based on diversity jurisdiction. As a consequence, suits invoking the Federal question of jurisdiction of Article III courts may also be barred by the Amendment.

How the Eleventh Amendment Was Disregarded

The history of how this clear Amendment came to be disregarded is a long and peculiar one that I shall attempt to summarize briefly.

Opponents of sovereign immunity claim that the Eleventh Amendment addresses a very narrow question of whether Federal courts have jurisdiction simply because two or more States are involved (i.e., diversity of States reason). For example, if a citizen of one State wants to sue a citizen of another State over a debt, the Federal courts might have jurisdiction due to diversity of parties. But the Federal courts would not have jurisdiction if both parties were citizens of the same State. In other instances, such as an alleged violation of civil rights, Federal courts would claim jurisdiction regardless of where the parties were located. So if a person in one State sued a person in another for "violation of civil rights," Federal courts might claim jurisdiction on two different grounds.

Opponents of sovereign immunity would have us believe that if we passed an amendment saying,

"The Judicial power of the United States shall not extend to ANY suit commenced or prosecuted by a citizen of one State against a citizen of another State,"

that such an amendment would only remove "diversity of jurisdiction" as a reason for the Federal courts to hear the suit. They would maintain that despite the plain wording of the Amendment that Federal courts could still hear a suit between citizens of different States if there were additional reasons (other than diversity) which could justify Federal court involvement.

The writers of the Eleventh Amendment believed that they were closing out every possibility that a State (or its political subdivisions) could ever be held as a defendant against a private party in Federal court. To understand the Eleventh Amendment in this way, they had to interpret Article 3, Section 2 as not giving Federal courts any possible jurisdiction over an intrastate dispute between a State and its own citizens.

In other words, the founders did not design Article 3, Section 2 to create a court of general jurisdiction, but to create a Federal court system with limited jurisdiction--with powers limited to the types of interstate disputes specifically enumerated.

The obvious meaning of the Constitution, I would argue, is that Federal jurisdiction is limited in this way. The powers of the Federal government, in each of its branches, are delegated; and the Federal government may not assume other powers not so delegated. Just as Article 1, Section 8 specifies and limits the powers of Congress, the same is true of the powers of the judicial branch.

This is precisely what Hamilton said in Federalist 80 where he wrote:

The plan of the convention declares that the power of Congress, or, in other words, of the NATIONAL LEGISLATURE, shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended. In like manner the judicial authority of the Federal judicatures is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits, beyond which the Federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority.

Very clearly then, the Federal courts were not courts of general jurisdiction but of limited delegated jurisdiction.

To what were Federal courts limited? Hamilton seems to say quite clearly that Federal courts are limited to interstate disputes. Again from Federalist 80:

It may be esteemed the basis of the Union, that "the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." And if it be a just principle that every government OUGHT TO POSSESS THE MEANS OF EXECUTING ITS OWN PROVISIONS BY ITS OWN AUTHORITY, it will follow, that in order to [ensure] the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens.

Hamilton, at least, seems to indicate quite clearly that the courts will NOThave jurisdiction in every case involving privileges and immunities of "citizens of the Union" but only in those of an interstate dispute. How does the Eleventh Amendment comport with this, since explicitly a non-State-citizen cannot sue a State? I think that it was the intention of the founders that in such a case of violation of the privileges of a "citizen of the Union" that the individual's own State would intervene and file on his behalf. In this way there is no contradiction between sovereign immunity and upholding the "privileges and immunities to which citizens of the Union are entitled." Thus there is no contradiction between the Eleventh Amendment and Article 4, Section 2--both can be given full force.

The U.S. Supreme Court took up the issue of the extent of Federal court jurisdiction in 1813 when the Court agreed to hear an appeal regarding property ownership in the Commonwealth of Virginia, and issued a writ of error to the Virginia Court of Appeals. Virginia, however, refused to obey this writ of error. The Virginia Court of Appeals declared:

The court is unanimously of opinion that the appellate power of the Supreme Court of the United States does not extend to this court under a sound construction of the Constitution of the United States.

Nevertheless, in Martin v. Hunter's Lessee (1816), Justice Story wrote the majority opinion claiming that the U.S. Supreme Court had general appellate jurisdiction to rule on any "constitutional" question. In essence, Story argued that if internal matters which were thought to touch on matters of Federal law or treaties were allowed to be interpreted differently in different States, then "the public mischiefs which would attend such a state of things would be truly deplorable." Story did not elaborate on what these deplorable mischiefs might be.

It has long been the case that a law or a constitutional issue is interpreted differently in one Federal district than it is in another. Many of these differences are never resolved by the U.S. Supreme Court, whose docket is limited to a few of the most important cases. I see nothing truly deplorable in this, nor if there were fifty different interpretations. Indeed, one could well see it as admirable that each Federal district in some way reflects the traditions and desires of the citizens of the particular area.

According to the majority opinion written by Justice Story, however, when the constitution says that the judicial power shall extend to "all cases arising under Federal law," to "cases involving ambassadors," and so forth, the list of eight specific interstate or international issues expands, rather than limits, Federal power. Federal jurisdiction, if this interpretation be true, is to all cases arising under the Constitution, U.S. law, treaties, plus any suit arising involving one of the eight interstate or international cases. According to this interpretation, the Constitution places no restrictions whatsoever upon the jurisdiction of Federal courts.

So long as a question is generally something "arising under the Constitution" then the courts can claim jurisdiction. Just as when Justice Thomas asked the Solicitor General in Lopez what sort of thing would not fall under "interstate commerce," and he was unable to provide a single example, in the same way, what sort of case would not fall under "the constitution" as a whole? Just as an expansive reading of the "interstate commerce clause" changes the legislative branch to a legislature of general and unlimited jurisdiction, the idea that Federal courts can hear any case "arising under the Constitution" would change the judiciary into a court of general and unlimited jurisdiction.

I believe that the Supreme Court's interpretation that it possesses both general and diversity jurisdiction is implausible because the applicable language of the Constitution has never changed. Yet it is the Eleventh Amendment which makes the reasoning in the Martin decision a lie. The Eleventh Amendment is plainly about limiting the jurisdiction of Federal courts--even Story accepted this and no one challenged that for over a century.

It seems extremely clear that when the Amendment says that Federal jurisdiction shall not extend to any suit prosecuted against a State by citizens of another State, the framers understood themselves to be closing a loophole which allowed for excessive Federal control of State interests.7If Article 3, Section 2 had not been understood to already prohibit Federal jurisdiction in internal matters, as Hamilton clearly believed, then there would have been no loophole to close. And those who amended the Constitution would be seen as having prohibited interference by the Federal government in suits brought by foreign citizens, while allowing a gaping loophole for the Federal government to interfere everywhere else. This should be all the more obvious since legal actions of foreigners against a State, being of international consequence, are more plausibly Federal matters. But when a citizen of a State files suit against his own State government, or there is a dispute between citizens of the same State, these are not interstate or interstate, and so much less plausibly Federal matters.

There is another consideration to be made from the exact wording of the Eleventh Amendment. It is commonly stated that the Eleventh Amendment actually amended Article 3, Section 2. It did not.

What the Eleventh Amendment did was require that Article 3, Section 2 be interpreted in a certain way. The Eleventh Amendment states,

The Judicial power of the United States shall not be construed to extend to any suit . . . commenced or prosecuted against one of the United States . . . .

The Eleventh Amendment is about interpretation. It requires that Article 3, Section 2 be interpreted in such a way that suits by citizens of another State against a State not be permitted in Federal court. The only way to properly interpret Article 3, Section 2, as required by the Eleventh Amendment, is to interpret the list of eight interstate issues as limiting the jurisdiction of the Federal courts, not expanding it; and that Federal jurisdiction of suits "between States and citizens of another State" applies only when States are plaintiffs.

Suppose for a moment that the first clause of Article 3, Section 2 in the unamended Constitution provided that "the judicial power of the United States shall extend to ALL Cases arising under the Constitution" without any further limitation in Article 3, Section 2, as Justice Story argued. However, the Eleventh Amendment requires us to interpret Article 3 as not allowing suits against States by foreign citizens. Thus, after the Eleventh Amendment, it is no longer possible to interpret the first clause as giving Federal courts jurisdiction over "all suits" arising under the Constitution or U.S. law. Further, one cannot honestly argue that the Eleventh Amendment creates an exception. It does not create anything, but requires that Article 3, Section 2 be interpreted as not permitting suits by individuals against States. This interpretation is possible only if we understand that Article 3, Section 2 stipulates that Federal jurisdiction extends to all cases arising under the Constitution which fall under one of the specifically enumerated categories.

This interpretation is also required by Hamilton's comments in Federalist 80 about the circumstances under which a State could be sued in Federal court, which we site again:

It may be esteemed the basis of the Union, that "the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States" . . . in order to [ensure] the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens.

If the Federal courts had general jurisdiction over any case which could arise under the U.S. Constitution this statement would make no sense. Hamilton attributes Federal jurisdiction not to supervision of all cases affecting "privileges and immunities," but only to constitutional cases arising under diversity of jurisdictions. In other words, if the Federal courts had jurisdiction over all "suits arising under the Constitution" then there is no reason for Hamilton to appeal to diversity as a justification for Federal involvement.

This is an important point because in the Seminole case Justice Souter, in his dissenting opinion, advances the same argument made by Justice Story in Martin. Souter takes it a step further, arguing that the Eleventh Amendment places no restrictions whatsoever upon the jurisdiction of the Federal courts.

Souter accepts Story's argument that Federal jurisdiction extends to all cases arising under U.S. law or which involve the eight interstate issues. Souter then argues that the Eleventh Amendment only served to remove diversity as an additional reason for Federal jurisdiction; but Federal courts would still retain jurisdiction in all cases where a court thought the matter touched on the Constitution or U.S. law. So even suits against a State by an alien could be adjudicated in Federal court, according to Souter's reasoning.

Again this reading seems outlandishly implausible, since its effect is that the Eleventh Amendment does not remove from Federal jurisdiction one single suit. On this reading, had the Eleventh Amendment been in effect in 1790, it would not have withdrawn jurisdiction of the court in Chisholm v. Georgia--the case that the Eleventh Amendment was explicitly written to overturn. The court could have ruled that property ownership was one of the privileges of a citizen of the Union and heard the case anyway.

Martin v. Hunter's Lessee greatly expanded the reach of the Federal courts to cover appeals from State courts that involved a constitutional issue.8 While it was possible to twist Article 3, Section 2 of the Constitution to extend judicial power over internal affairs of States and by such means invalidate State laws, the Eleventh Amendment was so clear there was no way of immediately contradicting it. For some time, at least in theory, the courts honored the immunity of States from direct prosecution in Federal court. The immunity of States from suit in Federal court, either by citizens or non-citizens, was upheld in such cases as Clark v. Barnard (1883) Hans v. Louisiana (1890), and Smith v. Reeves (1900).

In 1908, however, the Supreme Court found a way around this clear prohibition, in the case of Ex parte Young. This case alleged that a Minnesota statute violated the due process clause of the Fourteenth Amendment. The court had been using the due process clause to erode State sovereignty, but this case was to destroy States' sovereign immunity from prosecution. The way to get around the clear prohibition against suits brought against a State government by citizens or non-citizens was to issue a court order to the Attorney General of the State of Minnesota, ordering him not to enforce the law which the Supreme Court wished to strike down. The Court reasoned that such an order only restricted the Attorney General to act as an individual citizen and did not recognize a claim against the State:

If the act which the State Attorney General seeks to enforce be a violation of the Federal constitution, the officer in proceeding under such an enactment, comes into conflict with the superior authority of that constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.

This brought the suit into Federal court because it was now a suit against a specific individual and not against the State government--at least that is the argument. Of course, this not only attacked State sovereignty but threatened to undermine all State and local governments since it implied that individuals could be held personally responsible when acting as agents of the State. The question of who could be held liable financially was laid at the larger coffers of the State government.

The State therefore is still liable for the actions of its agent when he is said to violate Federal law. Yet Federal courts have jurisdiction only because the officer is not acting as an agent of the State. At the same time, Congress supposedly has jurisdiction to prohibit the action, only because it is the action of a State for purposes of enforcing the Fourteenth Amendment. So the same local official is and is not an agent of the State--at the very same time and in the very same action. He is an agent of the State for terms of the Fourteenth Amendment but he is not for terms of the Eleventh Amendment. This is a clear contradiction. As Justice Harlan noted in his dissenting opinion:

The suit was, as to the defendant Young, one against him as, and only because he was, Attorney General of Minnesota. No relief was sought against him individually but only in his capacity as Attorney General. And the manifest--indeed, the avowed and admitted--object of seeking such relief was to tie the hands of the [State]. It would therefore seem clear that within the true meaning of the Eleventh Amendment, the suit brought in Federal court was one, in legal effect, against the State.

The majority opinion was so obviously false, and inherently contradictory, that it caused a public outcry. In 1910, Congress restricted, but did not overturn, the reach of the court in such cases. Congress required that no injunction be issued against a State official except by a court of three judges.9 This made it more difficult for Federal judges to violate the constitution, but the violation still stood in principle. In fact, the Eleventh Amendment was nullified so completely that today few people have even heard of the Eleventh Amendment.

The Young fiction has been a handy exception used by the court to simply waive aside sovereign immunity whenever it wished. This has been used more during certain periods than at other periods. In recent years the Supreme Court has refused to invoke the Young case, which seems to be viewed with increasing disfavor.

For the next 60 years, the Court continued this pretence that the Eleventh Amendment was still in effect, although it disregarded it whenever it pleased. Another angle of attack was added in the 1964 case of Parden v. Terminal Railway. The Warren Court, by a 5-to-4 vote, found that a suit directly against a State could be allowed if the State had implicitly consented to the suit by some action. In Parden, the Court found that railroads were interstate businesses, subject to Federal regulation. Alabama, simply by allowing railroads to operate in the State, had implicitly given up its immunity from prosecution in Federal court. The implication was that the courts or Congress could overrule the Eleventh Amendment whenever it was seen as interfering with the Federal regulation of interstate commerce.

In the 1970's, a series of Eleventh Amendment cases arose which presented a confusing array of judicial opinions. Graham v. Richardson(1971) remains an important precedent because the Court, for the first time, found that public benefits could not be denied to non-citizens. Thus the Court created a right of non-citizens to economic benefits and social services previously considered to have been reserved for American citizens. This assumed that non-citizens could bring suit against a State for failure to provide these "constitutionally guaranteed" benefits--an explicit contradiction of the Eleventh Amendment.

The issue was still not resolved. In 1974 in the case of Edelman v. Jordan, the Court, by a 5-to-4 decision, rejected Parden and seemed to repudiate the Young decision. Justice Rehnquist, writing for the majority, said: "[A] suit by private parties seeking to impose liability which must be paid from public funds in the State treasury is barred by the Eleventh Amendment." Opposing the reasoning of the Young decision, Rehnquist noted that the monetary relief "will to a virtual certainty be paid from, State funds, and not from the pocket of the individual official who was the defendant in the action."

While Edelman did not explicitly overturn Parden, it is hard to see how that reasoning could any longer be invoked. Also, the Court has looked on the "implicit consent" argument with increased disfavor. In oral arguments in College Savings Bank, the Solicitor General urged the Court to use the Parden reasoning to dismiss sovereign immunity. The Court was openly critical of this approach, and even Justice Ginsburg called "implicit consent" a "fiction" which seemed hard to justify.

Only two years after Edelman, the Court reversed itself again. Given that the pretense of the Young decision had been exposed and rejected, the Court seems to have been unwilling to appeal to the same sort of reasoning. Instead the Court simply ruled that Congress, under authority of the Fourteenth Amendment to "enforce by appropriate legislation," could overrule the Eleventh Amendment, and hold State governments liable in Federal court (Fitzpatrick v. Bitzer, 1976). Returning to the path suggested by Parden, but shifting from interstate commerce to civil rights, the majority decision concluded,

We think that Congress may, in determining what is 'appropriate legislation' for the purposes of enforcing the provisions of the Fourteenth Amendment, provide for private suits against a State or State officials which are constitutionally impermissible in other contexts.

It is vitally important to recognize that the Court in Fitzpatrick admitted that such suits against States are in opposition to the Eleventh Amendment. Rather than invalidating the Federal laws in conflict with the Amendment, the Court invalidated a part of the Constitution. As David Currie wrote in a critique of Fitzpatrick, this reasoning could just as well be applied to any part of the Constitution. Currie notes:

This reasoning is less than overwhelming. One might have thought that subsec. 5 [of the Fourteenth Amendment], like other plenary grants of power, was subject to explicit and implicit constitutional limitations; one would hardly read it to empower Congress to authorize cruel and unusual punishment [for violators of the Fourteenth Amendment].10

If Congress now has power to overrule other parts of the Constitution in order to protect constitutional rights (which they claim to be protected by the Fourteenth Amendment), then they are able to proscribe cruel and unusual punishment--or anything else they deem "appropriate" for such protection--even though explicitly prohibited by the Constitution.

Whether the Court will completely repudiate this decision remains to be seen, but in the current context what we are interested in is the relation between the Eleventh Amendment and interstate commerce. The Court again addressed this in 1989 in the case of Pennsylvania v. Union Gas. The Court reinstated and extended Pardon, again proclaiming that Congress could overrule the Eleventh Amendment on its power to regulate interstate commerce. This time, notably, the Court made no pretence of "implicit consent."

The Court revisited this issue just a few years later, and in 1996 overturned the Union Gas decision, and said that Congress could not override Eleventh Amendment sovereign immunity under any Article 1 power (Seminole Tribe v. Florida).

Like the labor decisions, the Court has reversed itself so many times that it is difficult to keep track. So let us recap: Seminole Tribe of Florida v. Florida (1996), overturned Pennsylvania (1989), which overturned Edelman (1974), which overturned Pardon (1964) which overturned Hans(1890).

In Seminole the Court concluded:

Congress under the Indian Commerce Clause . . . authorizes a tribe to bring suit in Federal court against a State in order to compel performance of that duty, 2710(d)(7). We hold that notwithstanding Congress' clear intent to abrogate the States' sovereign immunity, the Indian Commerce Clause does not grant Congress that power, and therefore 2710(d)(7) cannot grant jurisdiction over a State that does not consent to be sued. We further hold that the doctrine of Ex parte Young, 209 U.S. 123 (1908), may not be used to enforce 2710(d)(3) against a State official.

Chief Justice Rehnquist, for the majority, affirmed the traditional view of State sovereignty that "the states, although in a union, maintain certain attributes of sovereignty, including sovereign immunity." In other words, they are immune from prosecution in Federal court--either by citizens or non-citizens. In Seminole, the Court threw out the ability of Congress to nullify the Eleventh Amendment on commerce grounds, but did not address its nullification on civil rights grounds.

A year later, in Coeur d'Alene Tribe v. Idaho, the Court did address the Fourteenth Amendment question. Petitioners argued that the State's sovereign immunity could not be invoked because the State had violated their due process rights guaranteed by the Fourteenth Amendment. The Court did uphold the sovereign immunity of Idaho, but the ruling was a plurality decision that did not definitively settle the Fourteenth Amendment question.

Justice Kennedy, writing for the plurality, argued that a Fourteenth Amendment claim does not cancel a State's Eleventh Amendment immunity:

It would be error coupled with irony were we to bypass the Eleventh Amendment, which enacts a scheme solicitous of the States, on the sole rationale that state courts are inadequate to enforce and interpret Federal rights in every case.

Whether or not a true majority on the Court would uphold sovereign immunity in "civil rights" cases, the Court in Coeur d'Alene seemed to accept as an established fact that Congress could not abrogate sovereign immunity under any grant of power found in Article 1. Nor apparently would the Court permit the Young exception to be invoked in support of any Article 1 power.

This fact was brought home even more forcefully in oral arguments for College Savings Bank, argued in April 1999 (a decision is expected during the summer of 1999). That case involved an attempt to sue the State of Florida for patent and copyright infringements (which are covered in Article 1 of the Constitution). Both Chief Justice Rehnquist and Justice Scalia (and Scalia more than once) warned counsels that "Congress cannot abridge sovereign immunity based on any Article 1 power."

Even the U.S. Solicitor General seemed to accept this admonition. The core of his argument was that patent and copyrights, although found in Article 1, should be considered as among the privileges and immunities of the Fourteenth Amendment. The significant fact in this case is that the Court now seems to accept as a basic principle that Congress cannot abrogate sovereign immunity under the interstate commerce clause, or any other clause of Article 1, be it Indian commerce, or copyrights, or something else.

Alden v. Maine

Given these recent decisions, we now come back to the issue which the Court refused to address in Maryland v. Wertz. If State employees are precluded from filing suit in Federal court for violation of Federal labor laws, then they are unenforceable and ipso facto null and void. Indeed, this is precisely the issue which is now before the Court in Alden v. Maine.

On March 31, 1999, the Court heard oral arguments in Alden, which involved an attempt by State employees to force the State of Maine to pay them overtime according to the Fair Labor Standards Act (FLSA). The case had initially been brought in Federal district court, but after the Seminole decision, the case was dropped. The plaintiffs refiled in State court--the only forum open to them. The Supreme Court of Maine ruled that the State did not have to comply with FLSA and dismissed the case. The U.S. Supreme Court, however, agreed to hear the case on appeal from the Maine court.

State immunity from suit in Federal court was not challenged in Alden. All parties, including the Solicitor General and dissenting justices from Seminole, acknowledged that the State could not be sued in Federal court for an alleged violation of FLSA. The issue pertained to the Tenth Amendment, as to whether or not a State court could be required to enforce the FLSA.

In Alden, because a State could NOT be sued for violations of FLSA in Federal court, the plaintiffs wanted the U.S. Supreme Court to compel State courts to enforce the FLSA. Solicitor General Waxman said that Congressional legislation might as well be "written in disappearing ink" if there were not some court to enforce them. That much is true. If Congress attempts to pass a law for which there is no possibility of enforcement, it must be ipso facto null and void. Before we turn to the reasons why a State court cannot be compelled to hear such cases, it is worth emphasizing again that all parties in Alden acknowledge as a legal fact that States could not be sued in Federal court for alleged violations of FLSA.

To briefly address the Tenth Amendment issue and the role of State courts with respect to Federal law, let us look at the Alden case. As a general rule, Federal courts enforce Federal law and State courts enforce State law. State courts are required to follow the U.S. Constitution, but they do not as a rule enforce Federal laws passed by Congress. There have been times that States have voluntarily enforced Federal laws, but long-standing precedents have decreed that such action by States was purely voluntary.

In 1883, in the case of U.S. v. Jones, the issue before the Court was whether it was a violation of Federal sovereignty to have a State enforce Federal laws. The Court in this case said it was not; but the Court clearly stated that such action on the part of the State was purely voluntary. The Court declared:

Yet from the time of its establishment [the Federal] government has been in the habit of using, with the consent of the states, their officers, tribunals, and institutions as its agents. Their use has not been deemed violative of any principle or as in any manner derogating from the sovereign authority of the Federal government; [109 U.S. 513, 520] but as a matter of convenience and as tending to a great saving of expense. . . . And though the jurisdiction thus conferred could not be enforced against the consent of the states, yet, when its exercise was not incompatible with state duties, and the states made no objection to it, the decisions rendered by the state tribunals were upheld.

"The jurisdiction thus conferred could not be enforced against the consent of the states," the Court wrote. It could not have been clearer.

This issue was addressed again most recently in Mack/Printz v. U.S. The issue in this case was whether Congress could require local officials to enforce Federal gun control laws. Again the language of the Court is quite clear, and there exists a long line of precedents. Quoting FERC v. Mississippi (1982), the Court noted that, "This Court has never sanctioned explicitly a Federal command to the States to promulgate and enforce laws and regulations." And quoting New York v. U.S. (1992), the Court noted that, "the commerce clause, for example, authorizes Congress to regulate interstate commerce directly, it does not authorize Congress to regulate state governments' regulation of interstate commerce."

Again quoting from New York, the Court reaffirmed in Printz that, "The Framers explicitly chose a Constitution that confers upon Congress power to regulate individuals, not States." Finally the conclusion from Printz could not be clearer:

The Federal government may neither issue directives requiring the States to address particular problems, nor command the State's officers, or those of their political subdivisions, to administer or enforce a Federal regulatory program . . . such commands are fundamentally incompatible with our constitutional system of dual sovereignty.

These statements make absolutely clear that Congress cannot force States, or any of their branches or subdivisions, to enforce Federal laws and regulations. Arguments that these prohibitions somehow do not apply to State judicial branches are simply preposterous.

After New York v. U.S., Congress tried to do an end run around the prohibition against requiring States to enforce Federal laws, attempting to require individual officers to enforce Federal laws. The Court derided such a distinction as "empty formalistic reasoning of the highest order." Similarly, the claim by the Administration that Congress can force individual State judges to enforce Federal laws (and then have the judges force State officers to enforce those judgements) has perhaps taken "empty formalist reasoning" to even new heights. The Supreme Court will, most likely, continue to view it as such.

Local Sovereign Immunity

The next line of defense for opponents of sovereign immunity will undoubtedly be to argue that sovereign immunity applies only to States, and not to their political subdivisions. Federal supremacists have already used this argument for a generation.

This position, however, as we have seen from our brief review of cases, is untenable. Sovereign immunity cases, and the applicability of labor laws to States, have always been seen as applying identically to State and local governments. The Court, in Printz v. U.S., also made clear that whatever protections are afforded a State under the Tenth Amendment apply with equal force to local governments. The U.S. Constitution never mentions local governments. But historically, whenever the Constitution mentions what a "State" may or may not do, it has also applied to all of a State?s political subdivisions.

Federal supremacists must argue that local governments qualify as a "State" for the purposes of the Fourteenth Amendment, but not for purposes of the Eleventh Amendment--a clear contradiction. Both State and local governments must systematically assert their sovereign immunity in every instance. The doctrine had fallen into disuse because State and local governments themselves stopped invoking it. But when 40 or more States, plus hundreds of local and tribal governments, began demanding respect for their spheres of sovereignty, even the Supreme Court had to take notice.

Conclusion

What is left of Federal labor laws as applied to State and local governments if our analysis is correct? If FLSA and similar measures cannot be enforced in Federal court, and will not be enforced in State court, then indeed they have been written "in disappearing ink" (as Solicitor General Waxman suggested). They are no more than suggestions; they are not laws.

This applies not just to Federal labor laws, but to all laws of general applicability passed by Congress.

It is not necessary for State or local governments to take any action (such as filing a restraining order in Federal court) to prevent Federal labor laws from affecting them. Maine simply refused to comply with these "suggestions" and refused to hear any suit against the State. Other States, of course, should do the same.

It is time to trust our citizens once again. The reduction of State and local sovereignty during the 1960s and 1970s was based upon the premise that the people and their locally elected representatives were not to be trusted. Therefore we supposedly needed a group of unelected elites on the Federal bench to oversee and second-guess every decision of State and local governments. This theory is still around. The American people as a whole, however, have long ago repudiated this theory and asked that more control be returned to local communities. This is the moral and political justification for local sovereignty.

The legal justification is equally compelling. As Madison wrote,

(T)he local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere.

It is as preposterous for the Federal government to determine the pay and qualifications for local police as it is for a local government to determine the pay and qualifications for Federal troops.

As Chief Justice Rehnquist and his fellow dissenting justices noted in their critique of Garcia:

Members of the immense Federal bureaucracy are not elected, know less about the services traditionally rendered by States and localities, and are inevitably less responsive to recipients of such services, than are State legislatures, city councils, boards of supervisors, and State and local commissions, boards, and agencies. It is at these State and local levels--not in Washington as the Court so mistakenly thinks?that "democratic self-government" is best exemplified.

* Paul Clark, the director of the Coalition for Local Sovereignty, an organization working with local governments to resist Federal intrusions, received his Ph.D. in Legal Theory from the Catholic University of America in 1995. He may be contacted at: Paul Clark localsov@bellatlantic.net.

1Tenth Amendment to the Constitution of the United States of America: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

2 Eleventh Amendment to the U.S. Constitution: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."

3The U.S. Solicitor General is the Justice Department official whose responsibility is to defend the constitutionality of U.S. laws challenged in Federal court.

4The italicized parts, clauses 5 and 8, are required by the Eleventh Amendment to be interpreted as permitting such suits only in cases when a State is a plaintiff and not a defendant. This is also suggested by use of the word "all" to apply to "all cases of maritime jurisdiction" but not to allcontroversies "between a State and citizens of another State."

5The Court has also violated the protection afforded States that "in all cases in which a State shall be a party the Supreme Court shall have original jurisdiction." States are totally immune from suits in lower courts, but that is too broad to be addressed here.

6Although a State could be a defendant in Federal court if one State filed suit against another, this is quite rare, and since only another State and not an individual could initiate such action, the danger of Federal intrusion is more remote.

7Indeed Theodore Sedgwick, acting upon instructions from the legislature of Massachusetts, proposed an even more sweeping version that read: "[N]o State shall be liable to be made a party defendant, in any of the judicial courts, established, or which shall be established, whether within or without the United States." This amendment would have granted States absolute immunity from prosecution in any court but its own, but clearly went too far in that it would not have allowed for the Federal court to mediate disputes between two States, which was still considered its proper role.

8The response of Virginia to this unconstitutional power grab was to refuse to enforce the decision. In fact, a similar case arose again in 1821 (Cohens v. Virginia) in which Virginia refused to recognize a writ of error issued by the U.S. Supreme Court. Virginia asserted that the case of Cohens?a resident of the District of Columbia--who was arrested for selling lottery tickets in Virginia, was not a Federal issue and refused to even argue the case on its merits before the Supreme Court.

9Even Congress eliminated this restriction in 1976.

10David Currie, The Constitution in the Supreme Court (Chicago: University of Chicago Press, 1990), 573.