Chicago Teachers Might Strike. A Group of Parents, Backed by a Right-Wing Law Firm, Stands to Sue.

Originally published in The Intercept on February 3, 2021.
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THIS WEEK IN Chicago, as the local teachers union considers whether to strike over the safety of the city’s school reopening plan during the pandemic, a group of at least nine parents represented by the Liberty Justice Center, a conservative public interest law firm, say they’re ready to sue if educators vote for a work stoppage.

Lawyers with the Liberty Justice Center — the same legal organization which brought the landmark Janus v. AFSCME lawsuit in 2018 to the U.S Supreme Court — argue a Chicago Teachers Union strike would be in violation of Illinois law and the union’s current collective bargaining agreement. The CTU contract commits to avoiding strikes or pickets while the agreement is in effect. “That doesn’t change even if [Chicago Public Schools] engages in an unfair labor practice or allegedly requires teachers to work in an unsafe environment,” attorney Jeffrey Schwab wrote recently in the Chicago Tribune. “It has become clear that kids are collateral damage for the union’s political and financial leverage.”

Chicago is not the only city where the anti-union law firm is seizing on parents’ frustration with virtual learning to help bring challenges against one of their long-standing political targets. The Liberty Justice Center is also representing parents in Chandler, Arizona, and Fairfax County, Virginia, where educators have organized sick-outs to protest school reopening plans. The group is an affiliate of the right-wing State Policy Network and has ties to the Bradley Foundation and the Koch network. Kristen Williamson, a spokesperson for the Liberty Justice Center, told The Intercept their lawyers stand ready to sue if teachers “use the illegal tactic again” and that they represent parents free of charge.

In late October, the Fairfax Education Association, which represents about 4,000 teachers and staff, urged its members to call out sick for a mental health day, as the union determined proposals to resume in-person learning. The vast majority of students in Fairfax County, the 10th largest school district in the country, have been learning from home since the coronavirus pandemic began last March. (A district spokesperson said the impact on instruction from the sick-out was minimal.) In December, the Liberty Justice Center sent a demand letter to the union and the school district warning them that the sick-out had been an illegal strike under Virginia law. The attorneys promised to sue if teachers take that step again.

Nellie Rhodes, a Fairfax County parent, is one of a handful of plaintiffs who have been working with the Liberty Justice Center. Her son, a freshman in high school, has been struggling with remote learning. “We heard about their work and reached out,” Rhodes told The Intercept. “They’re helping us in an effort, and we need their help. They’re putting the unions on notice that if they do something illegal, go on protest, have a sick day, we’re going to sue.”

In Fairfax County, the school board voted Tuesday to bring all students back for hybrid learning next month, beginning on March 16. The teachers union has indicated it wants to wait until all staff have received their second dose of a Covid-19 vaccine; 65 percent of staff have so far received their first dose. In Chicago, the school district has been trying to bring back K-8 students to the classroom, though currently has no plan or timeline for high schoolers.

Different parent groups have different goals for what reopening schools would look like, and multiple parent groups sometimes exist within the same city. Cristy Hudson, a mother of three in Fairfax who helped launch a grassroots group, Open Fairfax County Public Schools, over the summer, told The Intercept while they’re glad the school board is moving forward with reopenings, they’d like to see “a pretty quick expansion to kids back in school five days a week.” Another parent group, the Open FCPS Coalition, is currently focused on recall efforts of school board members they believe have delayed in-person learning too long. A new parent group that formed in January, the Chicago Parents Collective, says it’s pushing for clarity and commitments on reopening. “Let’s take baby steps, none of this is going to be perfect, we recognize that,” Ryan Griffin, a parent member, said in a local radio interview. “But we cannot let this pursuit of perfect get in the way of making some incremental progress on the education of our children.”

Other conservative organizations are capitalizing on parent frustrations with school closures to further political goals around weakening labor unions and public education. Since March, the Heritage Foundation, a right-wing think tank in D.C., has been urging state and federal lawmakers to push private school vouchers and new subsidies for homeschooling in light of the pandemic. And this year, a wave of new private school voucher bills have been introduced in over 15 states across the country, with lawmakers hoping to advance the policies with less public resistance than they might typically face.

Jennifer Berkshire, a journalist who monitors education privatization efforts, says the school reopening debates have fascinated her, as they’ve activated a group of parents that school choice groups have historically struggled to mobilize.

“Many of these upset parents are in elite suburban districts who paid a lot of money to move specifically to those communities for those public schools,” she said. “They’re not the families who have historically embraced school choice and defunding schools.” Berkshire notes that State Policy Network affiliates have “seen the anger of those parents as something that can be weaponized” and have stepped in to offer themselves as a resource.

“It’s not a coincidence that you’re seeing these huge proposed voucher expansions now in all these different states,” Berkshire added. “And I think their hope is to basically mobilize parents who’ve never been interested before, or at least there will be less opposition.”

Charles Siler, a former lobbyist for the libertarian think tank Goldwater Institute, says conservative groups have been looking for new ways during the pandemic to drive a wedge between parents and their individual schools. Parents typically give their own schools high marks in public opinion surveys, even if they have broader critiques about the public education system writ large. A 2019 national survey by the educator professional association Phi Delta Kappa found 76 percent of parents gave their own child’s school an A or B grade. A Gallup poll released in August found K-12 parents’ satisfaction with their child’s education fell 10 percentage points from a year earlier, though it still stood at 72 percent.

While it might seem counterintuitive to have conservative organizations fighting to get students back into the very traditional public schools they typically rail against, Siler says, hastening teacher returns can also help advance conservative movement goals of accelerating staff departures from the public school system altogether.

“If you force teachers to return to work in an unsafe environment, especially when safe alternatives exist, a lot of teachers will retire early or choose to not renew their contracts,” he said. “Fewer people will also want to become teachers because they see what’s happening, the lack of funding and respect. This exploitative assault could cripple public education for decades.”

An American Federation of Teachers national survey conducted in August and September found one-third of educators say the pandemic has made them more likely to leave teaching earlier than they planned.

Berkshire, the education journalist, says while making the teaching profession less attractive is certainly part of the “long game” of the conservative movement, another objective is to use the pandemic and the associated teacher shortages to advance bills that remove teacher licensing requirements. Ending or easing occupational licensing is something long-sought by education reformers and opposed by teacher unions.

In July, a fellow at the American Enterprise Institute, a conservative think tank in D.C., urged states to waive their teacher licensing requirements to more quickly facilitate in-person learning. “These regulatory barriers and other concerns could hinder efforts to reopen schools,” he argued. A few months later, a fellow with the Empire Center for Public Policy, a right-wing think tank in New York, proposed “relaxing or abolishing teacher preparation program requirements” as well as easing certification rules to “invite more competition for teaching jobs.”

Shaun Richman, the program director of the Harry Van Arsdale Jr. School of Labor Studies at SUNY Empire State College, says the current distrust undergirding battles to get reluctant teachers back into the classroom is the result of years of hostile treatment from policymakers and administrators.

“Decades of union-busting attacks on teachers unions, under the guise of ‘education reform’ with the cynical manipulation of ‘civil rights’ and ‘student success’ rhetoric, have utterly destroyed the trust necessary to get school districts like Chicago to return to any form of face-to-face instruction during this actual crisis,” he said. “Anyone who’s serious about getting the buy-in from teachers that’s necessary [for reopening] needs to shun and denounce the [former Trump Education Secretary Betsy] DeVos and Janus crowd.”

State Workers Seek to Protect Labor Rights As Coronavirus Spreads

Originally published in The Intercept on March 21, 2020.

On Tuesday, a week after declaring a state of emergency due to the spread of Covid-19, Minnesota’s Democratic Gov. Tim Walz signed an executive order pertaining to his state’s 50,000 executive branch employees. The order extended paid leave to all state employees for absences like caring for children due to school closures, and authorized agency heads to waive parts of collective bargaining agreements so as to more easily deploy workers where and when needed. Minnesota law grants the governor such powers during such emergencies.

Publicly, unions representing these workers praised Walz for his action on paid leave, and offered only muted concerns about the collective bargaining measures — stressing they will monitor the situation to ensure employers do not abuse their new authorities.

Privately, though, unions were taken off guard by the governor’s actions, and were unable to get the state to agree to establishing guardrails in the order itself around preventing employer abuse.

Workers are concerned that other states, especially less labor-friendly ones, may follow Minnesota’s lead, and use the pandemic as a pretext to weaken unions in the long term. In California, some employers have been lobbying for a similar executive order, to free themselves of public-sector bargaining restraints. While state employees have made clear they’re committed to flexibly responding to the crisis, unions understand anti-labor managers have wielded emergencies to their benefit in the past.

On Thursday March 12, state union representatives had an in-person meeting with the Minnesota Management and Budget — an agency that governs personnel and finance issues — to check in about the novel coronavirus. In that meeting, which was described as “friendly and nonproductive” by an individual involved who was not authorized to speak about the discussions, union reps talked primarily about paid leave, and also raised concerns around telework, and safety equipment for health and correctional workers.  There was no discussion then of potentially waiving aspects of collective bargaining, and they all planned to meet again on Tuesday, March 17.

But on Monday, March 16, with less than an hour’s notice, the MMB emailed the unions an invitation for a conference call. It was on that call that state officials announced the draft of their forthcoming order, though they did not provide anyone on the call with a written copy of the text.

“It was received as a great surprise,” said one of the participants on the call. “A lot of questions were thrown out, and because we did not have the physical document in front of us, a lot of the questions were just like, ‘What did you say? What’s that phrase?’”

A few hours later union senior staff organized another call among themselves to discuss how to respond. They were less concerned about Walz and far more worried about how agency heads below him might interpret their new broad authorities. Many leaders of individual state agencies have been in charge since Republican Gov. Tim Pawlenty’s tenure, and are not supportive of unions. Under the new order, employers can change schedules, work locations, or work assignments without notice, whereas in the past employees were given a notice period to rearrange their lives.

On Monday evening, union leaders emailed MMB officials and Walz’s chiefs of staff to request the administration publicly commit to “working with union representatives to swiftly and fairly address issues that may come up as a result” of this proposed order. The unions specifically requested a sentence be added to this effect, and that the administration commit to saying this in a press conference.

But all they were able to win was the addition of a vague line saying, “When circumstances allow, Minnesota Management and Budget will work in partnership with the labor unions affected by any adjustments to the provisions of collective bargaining agreements or memoranda of understanding.”

When the executive order was signed on Tuesday, union leaders largely bit their tongues. “We are thankful for the Governor’s action in authorizing this new policy specifically to address COVID-19 leave,” stated the Inter Faculty Organization, which represents employees at Minnesota’s seven state universities. Walz was elected in 2018 with strong union support, and the IFO praised the paid leave measure for “setting the standard for the rest of the nation.”

The executive directors of American Federation of State, County and Municipal Employees Council 5 and the Minnesota Association of Professional Employees also issued a joint statement that recognized the “magnitude” of the executive order. “We won’t stand in the way of the state’s powerful response to the crisis, but we won’t idly sit by if that power is abused,” they said. The unions emphasized they had “worked with the State” to ensure the changes would be only limited to dealing with Covid-19.

In an emailed statement MMB Commissioner Myron Frans said his agency “is working in strong partnership with our union partners during this rapidly evolving emergency situation. We continue to work together with the shared goals of preventing the spread of COVID-19, keeping employees healthy, and providing critical services to the people of Minnesota.”

So far, rank-and-file members have not reacted negatively to the order — and have been focused more on the new expansive rights around paid leave, which they are happy with. Union leaders suspect the rubber will hit the road if and when cases of coronavirus ramp up in Minnesota, and working conditions start to change.

“We’re particularly concerned about things like conditions in prisons, where workers already deal with severe understaffing,” said the union source. And while their grievance procedures are technically unaffected by the executive order, the reality is the standard grievance process doesn’t move quickly enough during emergencies, meaning workers could be left without recourse in the event of employer abuse.

Some unionized state workers in California were recently threatened that their collective bargaining rights were soon to be waived too.

Ashley Payne, a state worker in Contra Costa County, one of the nine counties in the Bay Area, has been increasingly alarmed by the lack of safety protections for workers like herself who have been required to come into the office. She works in her county’s Employment and Human Services division, where she helps administer welfare.

As an elected officer for her union, SEIU Local 1021, Payne has been fielding concerns from colleagues about the lack of hand sanitizer, disinfectant wipes, and masks — including for social workers who have to do home visits.

On Wednesday, Annie Barrett, the division manager for Payne’s department, emailed staffers about working conditions under Covid-19, and said they were “exploring temporary telecommuter opportunities.” Payne forwarded the email to Jeffrey Bailey, her county’s labor relations manager, to say that while her union strongly supports this step, she wants to make it clear in writing that SEIU 1021 does not agree to making this change permanent. “We will not allow the County to exploit this crisis as a pretext for ushering in permanent changes,” she wrote. “We continue to expect timely notice of upcoming changes so we can Meet and Confer over changes to wages, benefits, and working conditions.”

In his emailed response, Bailey agreed the assignment of staff to work from home was temporary, but emphasized that things “are different” under emergency conditions (Emphasis in original).

“Furthermore,” Bailey wrote, “the state of California has informed us that the Governor intends to pass an executive order to temporarily suspend many of the provisions of the MMBA [Meyers-Milias Brown Act, the state law governing public sector collective bargaining] during this emergency period.”

Upon receiving this email, Payne reached out to her local’s leadership, who reached up the chain to the state level. Soon after Rene Bayardo, a lobbyist with SEIU California, emailed to say his team had looked into this threat, and suggested Bailey was wrong. “The indication from the [Newsom] administration is that public employers are asking to suspend MMBA but this is NOT under consideration,” Bayardo wrote.

Payne, who has worked at her job since 2014, said her employer has grown far less responsive to union concerns since the Janus v. AFSCME decision in June 2018. “Knowing what their track record is I’m not surprised they’re trying to bust the union,” she said. Rather than distancing itself from unions during the pandemic, Payne added, local government should lean into “much closer collaboration because we know our work best and we know how best to ensure safety.”

Bailey told The Intercept that he doesn’t have “any direct knowledge” of California Gov. Gavin Newsom’s plans with respect to MMBA. “I heard about it, as we say, ‘through the grapevine,’” he wrote in an email. “This has been discussed widely among public agencies, but I don’t have any specifics or inside information. … We are all assuming that the suspension would apply to things like the meet and confer obligations and notice requirements.”

Crystal Page, a spokesperson with California’s Labor & Workforce Development Agency, said Newsom “has been clear that California needs flexibility to respond” and that he “understands the importance of collective bargaining and the need to ensure workers have a voice on the job.”

Nelson Lichtenstein, a labor historian at University of California, Santa Barbara told The Intercept he hadn’t heard anything about moves to suspend collective bargaining in California, though acknowledged it is certainly not unprecedented for anti-union leaders to try and exploit crises to weaken labor.

Lichtenstein pointed to the aftermath of 9/11, when Congress created the Transportation Security Administration. Using legislative authority, a George W. Bush-appointed TSA administrator denied the 40,000 TSA workers collective bargaining rights, claiming it was necessary for national security. It wasn’t until 2011, under a new Obama appointee, that TSA workers finally won the right to bargain.

Another example was following Hurricane Katrina, when Bush unilaterally suspended federal law governing workers’ pay on federal contracts in areas of Alabama, Florida, Louisiana, and Mississippi. Bush justified his move by calling Katrina a “national emergency” and said ignoring federal rules around construction costs “will result in greater assistance to these devastated communities.”

“People were outraged, it was just so obvious he was using it opportunistically,” said Lichtenstein. About six weeks later, in response to the backlash, the White House reversed course.

Payne said she worries that if labor-friendly California does follow Minnesota’s example, it would quickly motivate many other states to follow, particularly Republican-controlled states. “This is why I feel we have to hold the line,” she said. “If California does it, then everyone else will be like, ‘We should have been doing this a long time ago.’”