After Janus, The Country’s Largest Public-Sector Union Takes Stock of Its Movement

Originally published in The Intercept on July 5, 2018.
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The annual meeting of the National Education Association, the country’s largest public-sector union, held in Minnesota this week was much more high stakes than in years past. Typically, the convention is a chance for educators to vote on bread-and-butter issues like budget priorities and advocacy target areas. But the 8,000 or so students, retired teachers, and NEA delegates who descended on the Minneapolis Convention Center had more existential questions on their minds. In the wake of a U.S. Supreme Court ruling that dealt a crippling blow to public-sector unions, they debated strategies to expand their membership, keep union members apprised of their rights, and recover from the impending financial loss that is sure to happen in a post-Janus world.

In Janus v. American Federation of State, County, and Municipal Employees, a 5-4 Supreme Court majority ruled last week that despite laws requiring public-sector unions to represent all workers in a workplace, fees charged to non-members to support the costs of collective bargaining violate the First Amendment. For more than four decades, the Court has held it constitutional for unions to collect money from non-members to support the costs of negotiating contracts on their behalf. Janus overturned that precedent, meaning that employees can now enjoy the benefits of collective bargaining without having to pay for it. Labor unions are bracing for substantial revenue loss.

Now, the choice before teachers is paying either hundreds of dollars in annual membership dues, or nothing at all. The NEA, which represents a little over 3 million members, is forecasting a loss of 370,000 members over the next two years. Approximately 88,000 educators have been non-members paying NEA agency fees, and the union anticipates at least several hundred thousand current members will also rescind their union cards.

“Janus was nothing more than a pretext for the Koch brothers and all their funded-friends to push for union members to drop out,” NEA President Lily Eskelsen García told The Intercept. “With Janus, they don’t care about the [agency] fee payers, they care about reducing our resources and our actual members.” She pointed to the multi-million dollar effort recently launched by a Koch-backed group to persuade dues-paying members to opt-out.

In light of these realities, the NEA approved a two-year budget at its convention that scales back union expenditures by $50 million. Union leadership maintains that this scaleback will not impact the organization’s political activities. “We’re looking at getting economies of scale as best we can,” explained Jim Testerman, the senior director at the NEA’s Center for Organizing. “How many more meetings can we do digitally, can we cut back on food, travel, are there different ways to approach the work. We also didn’t replace 40 staff who retired in January.”

While some states where NEA wields the most influence, like California, New York, and New Jersey, have required non-members to pay agency fees, the recent wave of teacher strikes that exploded across the nation in states like West Virginia, Arizona, and Oklahoma occurred in right-to-work states — which purport to protect workers from being required to join unions, but make collective bargaining more challenging and don’t require agency fees. Conservatives point to the walkouts as proof that agency fees aren’t really necessary. But workers in right-to-work states say they understand their efforts are aided by the national unions, which will certainly take a financial hit from Janus.

Back in the 1980s, when Eskelsen García was a 6th grade teacher, she served as bargaining chair for her union in Utah, a non-collective bargaining state. “There’s still a lot you can do without anyone’s permission,” she said. Just as superintendents and school board members largely supported the teachers who went on strike in red states this year, Eskelsen García said many administrators have shown willingness to bargain with unions even when not compelled to by state statute.

Indeed, at the NEA convention, despite the looming financial threats, the thousands of attendees were palpably emboldened by the teacher walkouts, collective actions that gave them a renewed and clearer sense of their own power. Though the protests were not union-initiated — beginning spontaneously with the grassroots — Testerman, of the NEA’s Center for Organizing, said his union is working to marry “the organic and the organized” as actions erupt. “It’s something we got better with over time, and Arizona was a good example,” he told The Intercept. “You don’t want the union to take it over, but having some organized entity who can get you permits and porta-potties and things like that can help you get even more done.” According to Testerman, Arizona’s NEA affiliate has seen an 8 percent increase in its membership since last year. “I don’t think the walkouts are over,” he added, noting that the future of the movement will depend on what happens in upcoming legislative sessions.

Delegates Reject Proposal to Open Union Membership to Supporters

One of the most contentious items considered at the NEA convention was a proposed constitutional amendment to create a new category of union membership, open to “any person who demonstrates support in advancing the cause of public education” and “advocates for the mission, vision and core values of the Association.”

The idea was formed last year in the wake of Betsy DeVos’s nomination to lead the Department of Education, Eskelsen García explained, when parents and community members flooded the NEA with questions on how they could speak out in opposition to DeVos and better support public education. Then, in the midst of the teacher strikes, the NEA president said, the outpouring support from non-educators proved crucial in building a broad political coalition for the walkouts. Under the proposal, so-called “community ally” members would pay minimal union dues but would be ineligible to vote on union matters or hold governance positions. The biggest opportunity this membership category would create, supporters explained, would be to make it possible for community allies to contribute to the NEA’s political action committee; only NEA members can legally contribute to the PAC, and given the expected decline in membership, this change would have given the PAC an additional stream of funds. The proposal also would have enabled the union to contact supportive members of the public directly. “We’re organizers in our bones,” Eskelsen García told The Intercept. “Why not organize them?”

The proposal triggered heated debate on Tuesday afternoon. Some members voiced concerns about opening up the union to outside political influence. “Selling stockholder shares in our union is a dangerous one,” warned a delegate from Michigan. “When you purchase stock, you expect a return on your investment.” Marshall Thompson, a delegate from Minnesota, called the idea half-baked. “Does my union card mean something or not?” he asked. “Bill Gates should not be able to buy one.”

NEA leadership defended the proposal, explaining that four other major unions, including AFCSME, have a similar membership category for the public, and all but 14 of the NEA’s state affiliates do too. For example, the Pennsylvania NEA affiliate has a “Partners for Public Education” membership category. Plus, NEA leaders added, community allies would have the same $5,000 political contribution limits to the PAC as do regular members. Tripp Jeffers, a delegate from North Carolina, spoke in favor of the amendment, saying a version of it already works well in his state. “We get by with a little help from our friends,” he quipped. Joe Thomas, the president of the Arizona Education Association, also defended the amendment, reminding the audience that the parents and community members who walked alongside educators during Arizona’s six-day teacher strike were instrumental in helping the union rebut the political narrative that their action was solely about teacher wages.

That was not enough to convince the 8,000 delegates, though. The measure was narrowly defeated on Wednesday, with just over 60 percent of delegates voting in favor. Constitutional amendments require a two-thirds majority to pass.

Reauthorization and Affirmative Consent

Janus has also sparked a legal and political debate over whether dues-paying members need to proactively reauthorize their union membership. The majority opinion, authored by Justice Samuel Alito, states that “neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” Conservatives have latched onto this “affirmative consent” idea to say that all those represented by a union, members and agency-fee payers alike, should have to affirmatively opt-in.

But labor groups have taken an alternative reading. At the NEA convention, the union’s general counsel Alice O’Brien told the crowd of delegates that Janus “does not mean that unions have to re-sign existing members. Janus is about fee payers,” she said. “Nothing in Janus supports an employer [who] insists a union must submit new proof that existing voluntary members want to remain members.”

Eskelsen García told The Intercept that the NEA has already received reports of school districts and school boards asking unions to submit new proof of membership. “But Janus doesn’t require that, and part of our mission right now is we have to make sure that our folks across the country understand that Janus was very specific in saying you can’t require a non-member to pay fees,” she said. “It doesn’t require re-signing up members, but we anticipated there would be a lot of misinformation from the Koch brothers and others. We’ll get this straightened out.”

The question over re-commitments first arose three years ago, when the Supreme Court heard the case of Friedrichs v. California Teachers Association, an anti-public sector union case considered to be the predecessor of Janus. (Friedrichs also challenged public-sector agency fees, but Justice Antonin Scalia’s unexpected death in 2016 resulted in a 4-4 decision that left the fees alive until Janus was brought before the court.) Despite the teacher union’s position that re-commitments are not legally necessary, both the NEA and the American Federation of Teachers have been working since then on getting re-commitments from all their members. The AFT reports that out of 800,000 members in 18 states with agency fees, more than 500,000 members have pledged membership renewals since January.

“The re-commit campaigns have really been an organizing strategy to go out and talk to our members about what these Supreme Court cases mean, and the value of belonging and acting collectively,” Testerman told The Intercept. “If members don’t know who the union is and what the union stands for, they are not likely to remain a member and we’re not taking anything for granted.” He said the NEA has seen a growth in membership for the last three years in a row, at an average of 0.5 percent per year.

But the tactics some union affiliates have taken to secure member re-commitments have stirred controversy, and they may be legally vulnerable in the post-Janus world.

In Minnesota, for example, the 86,000-member statewide teachers union asked educators to fill out membership renewal forms for the 2017-18 school year, authorizing the union to deduct dues. The forms included a fine-print disclosure that said “this authorization shall remain in effect and shall be automatically renewed from year to year, irrespective of my membership in the union, unless I revoke it by submitting written notice to both my employer and the local union during the seven-day period that begins on September 24 and ends on September 30. (emphasis added)”

The general counsel for the Center of the American Experiment, a conservative think tank, said the Minnesota teachers union was “betting that most teachers will just sign the card without reading it, or understanding what it means—and just keep paying.”

Los Angeles teachers took a similar approach. In its recommitment campaign, the United Teachers of Los Angeles asked members to sign membership forms with fine print that said, “This agreement shall be automatically renewed from year to year unless I revoke it in writing during the window period, irrespective of my membership in UTLA.” The legal language was first reported by Mike Antonucci, who runs the Education Intelligence Agency, a union watchdog site. “So a teacher who takes an administrative position, or leaves teaching altogether, and is then ineligible to be a UTLA member, will still be on the hook for dues payments until the next window comes around,” Antonucci surmised.

Both the Minnesota and Los Angeles re-commitment forms are constitutional under Janus’s “opt-in” requirement, said Charlotte Garden, a professor at Seattle University Law School. She added that she “also expect[s] the National Right to Work Foundation or other anti-union groups to challenge them in court, arguing they aren’t solicitous enough of objectors.” Garden said those types of challenges will “bring into conflict” two beliefs held by conservative members of the Supreme Court: that unions “must take various affirmative steps to facilitate the rights of objectors they represent” and that “employees should be held to the contracts they sign.”

Some conservative-backed litigation is already coming down the pipe.

Eight NEA state affiliates, including some in New York, Maryland, California, and Washington, are currently targets of class action lawsuits seeking to recover agency fees previously paid to the teacher unions before Janus. “The lawsuit we filed is a refund of the fees that were illegally retracted,” said John Bursch, the lawyer who filed the class action on behalf of California teachers. Alice O’Brien, the NEA’s general counsel, reminded delegates at the convention that whomever replaces Justice Anthony Kennedy, who announced his retirement just hours after siding with the majority in Janus, could help decide whether unions must pay back agency fees or not.

Another case, filed in February 2017, takes square aim at union opt-out rules. In Yohn v. California Teachers AssociationRyan Yohn and seven other California educators objected not only to paying agency fees but also to bureaucratic hurdles employees must go through if they want to opt-out of union membership. The teachers argue workers should have to affirmatively opt-in to a union, not opt-out. “We’re not free-riders, we’re forced riders,”one plaintiff told Education Week in February. The case is being brought by the Center for Individual Rights, the same libertarian law firm that brought the Friedrichs suit.

Sharon Block, the executive director of the Labor and Worklife Program at Harvard Law School, told The Intercept that she has no doubt that conservative groups will aim to push the limits of the Supreme Court’s holding in Janus for cases like Yohn. “I’m afraid that Janus has opened up additional fronts in the war these groups are waging on public-sector unions and the labor movement more generally,” she said. “We will see litigation for years.”

Union-Friendly Legislation in the Wake of Janus

In anticipation of a Supreme Court decision striking down agency fees, unions have been lobbying state legislators for the last few years to support new bills that could help labor strengthen its position. Specifically, labor organizations have pushed for new measures that would more easily allow union representatives to make the case for membership to new public-sector employees and to limit the services unions have to provide to non-members.

Last year in California, the legislature passed two such bills: one that allows public-sector unions to give presentations to new employees during their job orientations, and another that restricts what government employers can say to their staff about the pros and cons of joining a union. Two bills are pending now that would give labor groups an opportunity to weigh in on a worker’s intent to cancel their union dues.

Maryland legislators passed a bill this spring requiring new teachers to meet with a union representative within 30 days of their hiring or by their first pay period. It became law in April without the signature of Gov. Larry Hogan, a Republican.

New Jersey Gov. Phil Murphy, a Democrat, signed a more expansive bill in May that gives unions a number of new protections, including the right to meet with new employees for at least a half hour within 30 days of being hired and a guarantee that public employers will provide the union with exclusive representation contact information for all new employees.

In New York, Democratic Gov. Andrew Cuomo in April signed what he called “the Janus bill,” which in addition to providing unions with contact information for all new public-sector workers, also makes clear that unions are not required to provide non-members with the full range of union services. For example, non-members facing disciplinary charges will now have to obtain their own attorneys, whereas the union covers legal representation for dues-paying members. Last week, immediately following the Janus decision, Cuomo issued an executive order to protect public employee contact information from those who may try to target them in union opt-out campaigns. It was mostly a symbolic gesture, since the state already has similar privacy protections on the books.

Aside from these bills, Sharon Block of the Labor and Worklife Program at Harvard Law School and Benjamin Sachs, a Harvard Law School professor and editor-in-chief of the On Labor blog, put forth another legislative proposal to help unions cope after Janus. “The simplest, and the most effective, move would be for states to change, quite subtly, the accounting system for union dues,” they wrote last week in Vox. While unionized public-sector workers currently earn about 17 percent more than their non-unionized counterparts on average, the now-unconstitutional agency fees have comprised about 2 percent of that wage premium. Under the system reviewed by the Supreme Court, employers paid this 2 percent to workers, and workers then had to pay that money back to the union as an agency fee. “But if public employers simply paid the 2 percent directly to the unions — giving the same 15 percent raise to employees but not channeling the extra 2 percent through employee paychecks,” Block and Sachs wrote, “then there would be no possible claim that employees were being compelled to do anything, and thus no constitutional problem.”

“We’re up against something pretty scary,” Lily Eskelsen García said this week in Minneapolis, speaking before thousands of delegates. “Janus is the latest attack on our union, but this ain’t our first rodeo… We don’t get scared, we get ready.”

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Public Education under Trump

Originally published in The American Prospect winter 2017 issue.
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On November 8, 2016, the man who vowed to be “the nation’s biggest cheerleader for school choice” won the presidential contest. About two weeks later he announced that Betsy DeVos, a billionaire Republican donor who has aggressively lobbied for private-school vouchers, online education, and for-profit charter schools, would serve as his education secretary. In early December, Jeb Bush told an audience of more than 1,000 education reformers in Washington, D.C., that he hoped “there’s an earthquake” in the next few years with respect to education funding and policy. “Be big, be bold, or go home,” he urged the crowd.

To say education conservatives are ecstatic about their new political opportunities would be an understatement. With Republicans controlling the House and Senate, a politically savvy conservative ideologue leading the federal education department, a vice president who earned notoriety in his home state for expanding vouchers, charters, and battling teacher unions, not to mention a president-elect who initially asked creationist Jerry Falwell Jr. to head up his Department of Education, the stars have aligned for market-driven education advocates.

Donald Trump neither prioritized education on the campaign trail, nor unveiled detailed policy proposals, but the ideas he did put forth, in addition to his selection of Betsy DeVos, make clear where public education may be headed on his watch. And with a GOP Congress freed from a Democratic presidential veto, conservative lawmakers have already begun eyeing new legislation that just a few months ago seemed like political pipedreams.

Many aspects of education policy are handled at the state and local level, of course, but Republicans will govern in 33 states, and Trump will have substantial latitude to influence their agenda. The next few years may well bring about radical change to education.

School Choice

“President-elect Trump is going to be the best thing that ever happened for school choice and the charter school movement,” former New York Mayor Rudy Giuliani has proclaimed. “Donald is going to create incentives that promote and open more charter schools. It’s a priority.”

Giuliani’s comments reflect the enthusiasm that Trump expressed about choice and charters while campaigning for president. During a March primary debate, Trump said charters were “terrific” and affirmed they “work and they work very well.” A few months later he traveled to a low-performing for-profit charter school in Cleveland to say he’d invest $20 billion in federal money to expand charters and private-school vouchers as president. His campaign has not outlined where the money would come from, but suggests it will be accomplished by “reprioritizing existing federal dollars.”

Trump’s ambitions will likely be aided by his vice president-elect, Mike Pence, who worked vigorously to expand charter schools and vouchers while serving as Indiana’s governor. Pence loosened the eligibility requirements for students to obtain vouchers, and eliminated the cap on voucher recipients. Today, more than 30,000 Indiana students—including middle-class students—attend private and parochial schools with public funds, making it the largest single voucher program in the country. Pence also helped double the number of charter schools in his state; he increased their funding and gave charter operators access to low-interest state loans for facilities.

In the House and Senate, Republicans are eager to expand Washington, D.C.’s private-school voucher program, which has paid for about 6,500 students to attend mostly religious schools since the program launched in 2004. “I think [the Republican Congress and new administration] could eventually turn D.C. into an all-choice district like we see in New Orleans,” says Lindsey Burke, an education policy analyst at the right-leaning Heritage Foundation.

Congress also allocates $333 million per year to the federal charter school program, and groups like the National Alliance for Public Charter Schools are calling for that number to rise to $1 billion annually. Martin West, an education policy professor at Harvard’s Graduate School of Education, noted that to the extent the federal charter school program is well funded, states will continue to feel pressure to position themselves competitively for those dollars.

Conservative leaders at the state level are also looking to expand private-school vouchers and so-called education savings accounts, which are voucher-esque subsidies that can go toward expenses like tutoring and homeschooling, in addition to private-school tuition. At the Washington conference where Jeb Bush keynoted, panelists spoke enthusiastically about setting up vouchers or education savings accounts in all 50 states. On the campaign trail, Trump called for expanding private-school vouchers for low-income students, but his vice president-elect and his nominee for education secretary both support giving vouchers to middle-class families, too.

Congressional Republicans may also try to establish federal tax-savings accounts for K–12, which are similar to the 529 plans that already exist for higher education, and which mainly benefit well-off families. They also may push for federal tax credit scholarships, which would provide tax relief to individuals and businesses that help low-income children pay for private school.

In a sense, the George W. Bush and Barack Obama administrations softened the ground for a federally incentivized expansion of vouchers and other forms of privatization. In the bipartisan deal that led to the enactment of No Child Left Behind in 2002, Bush and Democrats led by Senator Edward Kennedy traded federal standards for more federal funding. The subtext was the Republican narrative that public schools were failing. This in turn led to the era of standardized testing and punitive measures against “failing” schools. Later, by appointing former Chicago Public Schools Superintendent Arne Duncan to lead the Education Department, and passing over such progressive reformers as Linda Darling-Hammond, Obama sided with those who sought measures like the nationalization of academic standards. The new backlash from conservatives against testing and the Common Core should not be interpreted as a rejection of a federal role. The right loves it when Washington intervenes—if it serves the right’s purposes.

The Department of Education

Trump has boasted that he would reduce the size of the federal government, and his DeVos-led Department of Education is one likely place he’ll start. Though threatening to dismantle that federal agency is a long-standing Republican tradition, surrogates say it is more likely that Trump will try and “starve” the department, and downsize its responsibilities, rather than kill it outright.

In October, Carl P. Paladino, a New York real-estate developer who was briefly considered for education secretary, took to the stage on Trump’s behalf at a national urban education conference and said the department’s Office for Civil Rights—which oversees initiatives like tackling college sexual assault and reforming school discipline—was spewing “absolute nonsense.”

Obama’s Education Department has given unprecedented attention to reducing racial disparities in school discipline, issuing the first set of national guidelines in 2014 and making clear that it would hold districts accountable for discriminatory practices. Policy experts think these efforts will fall quickly by the wayside in the coming years.

In a press conference following Trump’s victory, David Cleary, the chief of staff for Republican Senator Lamar Alexander, who chairs the Senate Committee on Health, Education, Labor and Pensions, said his boss believes the Office for Civil Rights should be reined in. “There will be aggressive oversight from Congress to make sure it shrinks back to its statutory authority and responsibilities,” Cleary said.

Another major threat to the Education Department is a significant loss of institutional knowledge. Politico reported that the agency is already experiencing a loss of morale since the election, and bracing for a serious brain drain: Many veteran employees who have served for decades, in addition to younger staff who entered government under Obama, are considering leaving because they don’t want to work for a President Trump.

Common Core

One crowd-pleasing element of candidate Trump’s stump speech was his promise to “kill” Common Core—the standards launched in 2009 that lay out what all K–12 students are expected to learn in English and math. The standards, which were created by a coalition of state governors, and incentivized by the Obama administration through the federal Race to the Top program, have been a flashpoint for conservatives, who see them as a threat to “local control.” Trump vowed to eliminate Common Core through the so-called School Choice and Education Opportunity Act—part of the legislative agenda he says he’ll focus on during his first 100 days. DeVos now stresses that she does not support Common Core, although an organization she founded—the Great Lakes Education Project, which she also funded and served as a board member for—strongly backed the standards in 2013.

While there are limits to what Trump and DeVos could do to end the Common Core standards (they are state standards, after all), Trump’s executive bully pulpit could certainly help embolden Common Core opponents on the local level.

Still, Catherine Brown, vice president of education policy at the Center for American Progress, is not so worried about the future of the national education standards. “I don’t even think Donald Trump knows what the Common Core is,” she says. And despite candidate Trump’s demagoguery, Brown points out that states haven’t really abandoned them, even in more conservative parts of the country. “To the extent that states have changed their standards, they basically renamed them and kept the basic content,” she says.

Teachers Unions

This past year, public-sector unions faced an existential threat from Friedrichs v. California Teachers Association, a Supreme Court case seeking to overturn a 40-year-old ruling that required public employees represented by a union to pay fees to cover the union’s bargaining and representation costs, even if they do not pay full membership dues. Five of the nine justices were clearly primed to rule against the so-called “agency fees” and upend decades of legal precedent, but Justice Antonin Scalia unexpectedly died in February, before the Court could rule. The case ended up in a 4–4 tie, leaving the law, and collective bargaining, in place.

Now that the Republican Senate has refused to hold a vote on Obama’s appointment of Judge Merrick Garland, Trump will nominate a conservative Scalia successor to the Court. With a number of Friedrichs look-alike cases headed to the Supreme Court, it’s a near certainty that a reconstituted majority of five conservative justices will strike down agency fees, which could considerably reduce the resources available to the American Federation of Teachers and the National Education Association—two of the nation’s largest unions. Were that not trouble enough, the massive support that the AFT and NEA gave to Hillary Clinton’s campaign is not likely to endear them to a president with a well-known penchant for revenge.

Every Student Succeeds Act

At the end of 2015, Congress passed the Every Student Succeeds Act (ESSA), the successor to the controversial Bush-era No Child Left Behind Act, which tied federal funding to school performance. The new law is set to take full effect during the 2017–2018 school year. While there was broad recognition that ESSA marked a positive step forward from the test-and-punish regime that had reigned for 13 years under No Child Left Behind, a diverse coalition of civil-rights groups has worried that its replacement, which substantially reduced the federal government’s role in public education, will not do enough to hold states accountable for the success of racial minorities, students with disabilities, and English language–learners. “The hard-learned lesson of the civil rights community over decades has shown that a strong federal role is crucial to protecting the interests of educationally underserved students,” wrote the Leadership Conference on Civil and Human Rights in a letter to Capitol Hill during the ESSA negotiations.

For the past year, the Obama administration worked to draft regulations that would help maintain some level of federal accountability for student learning and funding equity, particularly for disadvantaged students. These executive-level regulations, which have been controversial among congressional Republicans, are likely to be abandoned, or weakened, under President Trump.

One policy that congressional Republicans might push for under a President Trump is known as “Title I portability,” which would allow states to use federal dollars earmarked for low-income students to follow students to the public or private school of their choice. While still a candidate, Trump brought in Rob Goad, a senior adviser to Representative Luke Messer, an Indiana Republican, to help him flesh out some school-choice ideas. Messer co-sponsored a bill during the ESSA negotiations that would have launched Title I portability, but Obama threatened to veto any version of the law that contained it. A White House report issued in 2015 said that Title I portability would direct significant amounts of federal aid away from high-poverty districts toward low-poverty ones, impacting such districts as Chicago, Detroit, Los Angeles, and Philadelphia particularly hard. Conservatives may see a more politically viable route to push this policy under Trump.

Brown of the Center for American Progress doesn’t think Congress will likely pursue Title I portability, however, in part because it has a lot of other legislative priorities to attend to. “The ink is barely dry on ESSA; states haven’t yet submitted their plans. I think [portability] is probably dead on arrival, but maybe six years from now,” she says. Even then, Brown thinks the policy will never be all that popular, since huge swaths of the country lack many school options, making them poor candidates for private-school vouchers.

But other education experts say that the lack of brick-and-mortar schools in rural communities just means that the door could open more widely for for-profit virtual schools, which DeVos has strongly supported. In 2006, Richard DeVos, her husband, disclosed that he was an investor in K12 Inc., a national for-profit virtual charter school company that has since gone public. As of mid-December, Betsy DeVos had not clarified whether her family still holds a financial stake in the for-profit education sector.

Higher Education

Trump, who founded the now defunct for-profit college Trump University, recently agreed to pay $25 million to settle a series of lawsuits alleging fraud. Sara Goldrick-Rab, a sociologist at Temple University who studies college affordability, predicts America will be “open for business” under President Trump when it comes to promoting for-profit colleges. “This means cutting regulation and oversight, and defunding public higher education so that students view for-profits as a good deal,” she wrote on her blog following the election. The Higher Education Act, which governs the administration of federal student aid programs, is also up for reauthorization in 2017.

Trump didn’t devote much time while campaigning to talking about colleges and universities, but he did say in an October speech that he’d look to address college affordability by supporting income-based repayment plans, going against many Republicans who say such initiatives are fiscally reckless and create incentives to acquire too much higher education. Conservatives have also proposed rolling back Obama administration reforms that federalized all new student loans and applied stricter regulations, particularly to for-profit institutions. If President Trump does ultimately re-privatize student loans, consumer protections would likely disappear, and the cost of borrowing would rise.

University leaders are also worrying about what a Trump administration could mean for research funding. The government is likely to cut back on investments on budgetary grounds, but also on ideological grounds, since universities tend to be seen as liberal enclaves. Experts say that non-ideological scientific research is particularly vulnerable. House Republicans, led by Representative Lamar Smith, who chairs the House Science, Space and Technology Committee, have tried before to cut federal funding for social sciences and climate and energy research, and having a president who refers to global warming as a hoax “created by and for the Chinese” doesn’t augur well for federal research investments.

Moreover, as the president-elect frequently rails about political correctness, higher education leaders worry that a Trump administration will not look kindly on student free speech and protest. Ben Carson, who was briefly considered for Trump’s education secretary, said that if he were in control he would repurpose the department to monitor colleges and universities for “extreme bias” and deny federal funding to those judged to have it. Decrying alleged campus bias is a staple of “alt-right” (read: white nationalist) media outlets like Breitbart, whose chief, Steve Bannon, will be Trump’s strategic adviser and senior counselor.

The Path Forward for Progressives

For a week following the election, it wasn’t clear how exactly the liberal groups that backed Obama’s education reform agenda—Common Core standards, test-based accountability, and charter schools—would respond to their new choice-friendly president. The fact that the school reform agenda has long had bipartisan backing has always been one of its strongest political assets.

As pundits tried to guess whom Trump would pick for various cabinet-level positions, rumors started to float that Trump might be eyeing Michelle Rhee, the controversial former D.C. Public Schools chancellor, or Eva Moskowitz, the founder and CEO of Success Academy Charter Schools in New York City, for education secretary. Both women back the Common Core standards, and are broadly revered among Democratic school reformers.

But on November 17, just over a week after the election, the president of Democrats for Education Reform, Shavar Jeffries, issued a strongly worded statement urging Democrats to refuse to accept an appointment to be Trump’s secretary of education. “In so doing, that individual would become an agent for an agenda that both contradicts progressive values and threatens grave harm to our nation’s most vulnerable kids,” Jeffries said. He condemned Trump for his plans to eliminate accountability standards, to cut Title I funding, to reduce support for social services, and for giving “tacit and express endorsement” to racial, ethnic, religious, and gender stereotypes, and he called on the president-elect to disavow his past statements.

Shortly thereafter, Moskowitz announced that she would “not be entertaining any prospective opportunities” in the administration, but defended the president-elect, saying there are “many positive signs” that President Trump will be different than candidate Trump. His daughter, Ivanka Trump, took a tour of a Success Academy charter in Harlem later that week. Rhee, following a meeting with Trump a few days later, issued a statement saying she would not pursue a job in Trump’s administration but that “[w]ishing for his failure” would amount to “wanting the failure of our millions of American children who desperately need a better education.”

The equivocating didn’t end there. Democrats for Education Reform soon walked back their original declaration of opposition to Trump. In a statement sent to the group’s supporters, Jeffries wrote that DFER was not saying Democrats should not work with Trump on education, but just that no Democrat should work for him as secretary of education. “[W]e draw a distinction between working with and working for Trump,” Jeffries wrote. “Where appropriate, we will work with the Administration to pursue policies that expand opportunity for kids, and we will vocally oppose rhetoric or policies that undermine those opportunities.”

In a political climate where teachers-union strength may dramatically diminish, opposition to Trump’s agenda from liberals who supported Obama’s education reforms could be an important deterrent to Trump’s rightward march on education. But with DFER already signaling that it’s open to working with Trump, with high-profile reformers like Moskowitz and Rhee also giving him a public nod of approval, and since some of the same billionaires who fund the charter school movement also back the president-elect, the chances aren’t great that Democratic education reformers will staunchly oppose Trump’s school reform agenda.

Randi Weingarten, the president of the American Federation of Teachers, is under no illusions about the enormous challenges that loom for the future of public education. Yet she notes that over the past half-decade, educators and their unions have worked with their communities like never before. “If Donald Trump opts for privatization, destabilization, and austerity over supporting public education and the will of the people,” she says, “well, there will be a huge fight.”

California Teachers Unions Push for Cushion Before Upcoming SCOTUS Case

Originally published in The American Prospect’s Tapped blog on September 8, 2015.
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This fall, the Supreme Court will hear arguments in Friedrichs v. California Teachers Association, a case that could severely weaken the power of public-sector unions. The justices will decide whether such unions can charge “agency fees” (also known as “fair share fees”) to individuals who wish to dissociate with their union’s political lobbying but still benefit from workplace collective bargaining.

These reduced annual dues help stave off “free riders”—those who enjoy the advantages of union membership without financially contributing to the union’s work. The case’s lead plaintiff, Orange County teacher Rebecca Friedrichs, insists her free-speech rights are denied by paying agency fees, and argues that unions won’t actually suffer if she wins in court. “It’s hard for me to describe,” she told The Washington Post. “I just want liberty. I want to stop this silencing of my voice and the silencing of millions of teachers out there.”

As the Prospect’s Justin Miller put it, “the Friedrichs case has the potential to overturn decades of legal precedent [since 1977] that has become intractably embedded in union strategy—and state law.”

In the meantime, The Sacramento Bee reported that teacher unions in California are pushing Governor Jerry Brown to embrace a last-minute measure that would permit unions to address all new teachers during their orientations. Such conversations could help unions recruit new members, and thereby mitigate the negative effects of an unfavorable ruling in Friedrichs. As reporter Christopher Cadelago wrote:

Up against the clock in the Legislature, the labor groups are pushing for a bill that could give unions some time—a half-hour—to meet with employees to voice the benefits of union participation. That, some believe, could prevent workers from fully withdrawing from their ranks if the court rules against fair share fees.

One version of the teacher unions’ bill is “nearly identical” to a California bill that grants unions up to 30 minutes to speak to new home health-care workers during their orientation period. That law was passed shortly after the Supreme Court’s 2014 Harris v. Quinn ruling, which said that Illinois home health-care workers could not be required to pay agency fees. (Harris v. Quinn avoided the free-speech questions that will be considered in Friedrichs.)

Groups like the Association of California School Administrators, the California Association of School Business Officials, and the California Special Districts Association say that bills like the ones proposed by the teacher unions should be considered only after the Supreme Court makes its final decision in Friedrichs, and only when there is more time available for public comment.

I’d guess that if California legislators were planning on supporting a bill like this, they’d wait until after the Friedrichs decision came down, just as the home health-care worker bill passed after the Harris case was decided. Either way, we won’t have to speculate for much longer, because California’s legislative session ends this week.