Educator Rights Decimated
NEA fights back as the battle moves from statehouses to courthouses.
By Michael Simpson, NEA Office of General Counsel
Never, in the 154-year history of NEA, have we witnessed the wholesale assault on teachers and other school employees that is now underway nationwide. In a host of states, tenure has been abolished, seniority no longer exists, collective bargaining has been gutted, employee organizations have been gagged, payroll deduction has been banned, and just cause and due process have been tossed on the dump heap of history.
What prompted this wholesale mugging? Its genesis can be traced back to the 2010 elections when a number of states experienced what pundits call the red trifecta: Republicans gained control of both legislative houses and the governorship. While not every Republican is anti-public education, the battles in the statehouses this last year generally were fought along party lines. And the outnumbered Democrats lost.
But the battle is far from over. While disputes continue in statehouses, the battlefield has shifted in many ways from statehouses to courthouses. Here, in a streamlined version, are some of the most offensive state laws to be enacted this year, as well as some of the lawsuits NEA and its state affiliates have filed to stop them.
The Wisconsin Law (Act 10) is among the worst. It virtually abolishes the decades-old rights of public school employees to engage in collective bargaining by limiting bargaining only to “base wages” and nothing else. The purpose and effect of this provision is to ban “just cause” and due process protections. Because school employees previously had negotiated such protections in collective bargaining agreements (CBAs), Wisconsin is one of the few states in the nation never to have passed a tenure law. So now a 25-year veteran educator can be nonrenewed for no reason and without a hearing.
But Act 10 has an interesting—and potentially illegal—quirk: In his rush to reward his friends and punish his enemies, Gov. Scott Walker carved out an exception from the law for five public sector unions. It just so happens that they were the only public unions to endorse Walker in his run for governor. Hmmmm...coincidence? We don’t think so. So, with NEA’s assistance, the Wisconsin Education Association Council (WEAC) and other unions sued the governor in federal court last June. One of the chief arguments in the lawsuit is that abolishing bargaining rights for his political foes, but not his political supporters, violates the Equal Protection Clause under the federal constitution. WEAC is also arguing that the Act violates free speech rights because it bans payroll deduction
for the class of disfavored unions. The case is pending.
Last March, the Alabama Education Association, with legal help from NEA, won an injunction blocking implementation of a new law that prohibits school employees from making contributions, through payroll deduction or otherwise, to membership organizations that engage in political activities. The case is now up on appeal.
The Idaho Education Association last April filed a legal challenge to a new law that bans tenure for all new teachers, abrogates vested early retirement rights, nullifies existing CBAs, and requires that 50 percent of teacher evaluations be based on “objective measures” of student growth. The case, which is being supported by NEA, is pending. A new Ohio law also has banned tenure for new hires.
A new Arizona law aims to gag employee organizations and to suppress their political activities. Like Wisconsin’s Act 10, the law exempts certain public safety unions that are political friends of Republican lawmakers. Last May, with legal help from NEA, the Arizona Education Association joined a lawsuit challenging the law on First Amendment grounds, and in July sought to enjoin implementation of the law. The case is pending.
On July 19, 2011, Michigan Gov. Rick Snyder signed one of the worst “education reform” laws, which abolishes tenure and prohibits negotiating just cause protection for employee discipline or discharge. Now a veteran educator can be fired for any reason that is not “arbitrary and capricious.” The Michigan law also bars the use of seniority to make reduction-in-force decisions, as have recent enactments in Nevada, Ohio, and Utah.
The biggest change, enacted in almost half the states, requires that teacher evaluations be based, in large part, on measures of student growth, usually tied to so-called “value-added models” (VAM). Such VAM-based evaluations, in turn, are to be used in making a host of decisions about school personnel, including probation, tenure, retention, and lay-off. Many of the statutes require that student growth be counted as a specific percentage of the teacher’s evaluation. Because these VAM-based evaluation systems have yet to be implemented, NEA and its state affiliates have not filed any legal challenges. We do not know whether courts will invalidate VAM-based teacher evaluation systems because they are scientifically unsound. But…game on!