Vergara v. California: unions aren't happy

Great Debates
41

Absolutely untrue, at least if your implication is that they are ONLY relevant in privacy debates. And that would seem to be the implication, since otherwise, what’s the relevance of disabusing me about the applicability of the term?

Antitrust: “…(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness…” FTC v. Sperry and Hutchinson Co., 405 US 233 at FN 5 (1972)

Patent infringement: “The doctrine of equivalence casts around a claim a penumbra which also must be avoided if there is to be no infringement.” Autogiro Company of America v. U.S., 384 F. 2d 391, 400, Court of Claims (1967)

Due Process/Privileges and Immunities: “The notion that the Constitution, through some penumbra emanating from the Privileges and Immunities Clause and the Commerce Clause, establishes this Court as a Platonic check upon the society’s greedy adherence to its traditions can only be described as imperious.” Burnham v. Superior Court, 495 US 604 (1990), Stevens, J., concurring at FN 5.

Labor Management Relations: “The Labor Management Relations Act expressly furnishes some substantive law. It points out what the parties may or may not do in certain situations. Other problems will lie in the penumbra of express statutory mandates. Some will lack express statutory sanction but will be solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy. The range of judicial inventiveness will be determined by the nature of the problem.” Complete Auto Transit, Inc. v. Reis, 451 US 401, 407 (1981), quoting Textile Workers v. Lincoln Mills of Alabama, 353 US 448, 458 (1957).

42

Bar associations will go after malfeasant lawyers. Associations of CPAs will go after accountants that fail to adhere to appropriate standards. I don’t think it’s an impossible task to ask that some organization serve a similar role with teachers.

43

Well, yes, but you’re begging the very question that i was asking: how should unions actually go about doing this?

Because bar associations are NOT unions. While they can regulate important aspects of the profession, their purpose is not to act as bargaining units in the employment process, and nor do they generally (if my understanding is correct) serve as an advocate for members in cases of internal discipline or dismissal.

That is, if you violate the ethics of the legal profession, the bar association might decide that you can no longer practice law, but if your law firm fires you for not putting in 80-hour weeks, or for screwing up a crucial deposition, the bar association does not step in to evaluate whether or not the termination was fair and in accordance with your contract.

Also, there is a large grey area between “bad enough to be fired from this particular job” and “so bad that you need to be kicked out of the profession altogether.” I could imagine a situation where a lawyer might not have the skills (or drive, or whatever) to keep a job at a high-profile, high-pressure corporate firm, but might do perfectly well in a smaller firm, or in private practice. The fact that she couldn’t handle the pace at Superlawyer and Associates doesn’t mean she’s incompetent or unethical and needs to have her bar membership yanked. Similarly, a teacher might be a poor fit for one school, and an excellent fit for another. This is not simply about being “malfeasant.”

The problem is that unions seem to serve both as professional organizations, and also as workplace relations advocates. They are often primarily concerned with pay and conditions, and with negotiating workplace contracts or agreements on behalf of their members. Groups like bar associations or accountancy associations don’t perform this task. And because unions do this stuff, they are also expected to act as advocates for their members when those members run into problems in the area of employment conditions, discipline, etc., etc.

But while they’re supposed to be advocates, we as a society also like to think that they will uphold certain professional standards, in the manner of a professional organization. We like to think that they will, in fact, be willing to boot out the incompetent and the malfeasant. But their role as advocates gets in the way of this.

Maybe what we need is a clearer separation between the employment and advocacy function of unions, and the professional standards functions that they often also perform. Maybe we even need two different organizations: a teachers’ equivalent of a bar association, that makes evaluations based purely on issues of competence and ethics, and a union that deals only in more narrowly-defined areas of employment negotiations. That way, the teaching profession could still distance itself from certain practices and particular individuals, and teachers who wanted help with employment issues would still have a union to act as their advocate, like a defense attorney does, without regard for whether or not they’re “guilty.”

44

I am all for treating teachers as professionals in the same way we treat lawyers and CPAs: that is, we require high training of them, pay them extremely well, give them wide latitude in the exercise of their professional judgment, and don’t hold them accountable for the actions of their clients, especially when they don’t choose their clients (e.g., a public defender whose clients are often found guilty compared to the clients of a high-price private defense attorney shouldn’t be accused of being a poor lawyer). A teacher’s association should be given great deference when setting the rules of the workplace, in the same way that the bar association sets the standards for attorneys.

We ain’t there.

Instead we live in a time when teachers in many areas are paid poorly (I’m seven years in the classroom, have National Board certification, and my own children are on Medicaid), when there’s increasing pressure from the Gates Foundation and others to industrialize the workplace, standardizing curriculum down to the use of scripted programs where teachers do little more than read a script and require students to complete their part of the script, and where teachers are treated as though they’re bad teachers because their impoverished students don’t perform as well as someone else’s middle-class students. Teacher’s associations are treated by the Republican Party [edit: and even by many Democrats] as the major enemy of education, as if they haven’t been working for years to improve education (pick up any copy of the NEA’s monthly magazine to see its various pro-education initiatives).

In pivotal respects we’re not treated as professionals. Until we are, we need a union.

45

Teachers need a union because there’s frequently only dominant employer in any given area.

Nonetheless, once you have a union there are excesses in the other direction.

Hard to strike a balance, but on the whole ISTM that right now the pendulum is too far in favor of union power.

46

Really? Upper middle class immigrant students from Africa do worse on tests than working class white students from the US? I’d like to see your citation for this.

If you intend to say that kids whose parents or granparents lived through Jim Crow or its northern equivalent and who suffered under redlining policies that kept black families from accumulating generational wealth for many, many decades, and who suffered employment and educational and other forms of discrimination on a daily basis that hindered their professional careers–if you intend to say that these kids perform poorly when compared to working class white kids whose parents did not suffer these injustices–well then, I don’t need to see your cites, because I believe it.

47

I am not a lawyer and I know nothing about the legal details of this case. My guess is that this ruling will eventually be overturned, because most things that liberals don’t like in California end up getting overturned. However, even if it does get overturned, it’s good news for those of us who want to see a better education for poor students, particularly blacks. The reasons being:

  1. It draws attention to the fact that these students get a lousy education in most big cities, and the role that rules regrading tenure, job retention, and seniority rules among public school teachers plays in harming these students by virtually guaranteeing them a subpar education.

  2. It makes Democrats squirm, because the Democratic Party in California (and many other states) is basically run by public-sector unions, of which Teachers Unions are the biggest. The more people are aware of how those unions fight against a decent education for poor black kids, the more absurd it becomes for that same Democratic Party to pretend that it supports the poor and blacks.

  3. Even if this particular case does not end up in a victory for the poor students who started it, it might inspire others across the country to take on the educational establishment, and some of them might win.

The bottom line is this. For decades our public school system has delivered an absurdly bad education to many students, with the poor and racial minorities getting the worst of it. For most of that time, the people in charge have not cared about whether these students got a decent education, and the status quo remained, for the most part. Now, things are changing. All across the country, measures are being implemented that will actually have a positive impact. In some places, this means vouchers. In some places, it means charter schools. In some places, it means teachers get paid based on performance, rather than merely for showing up. In some places, it means parents get options within the public school system. In some places including California, it means the “parent trigger” law. Bit by bit and far too slowly, a decent education is coming for all students. (Teachers unions will, of course, fight against it every step of the way.)

48

Exactly.

It too often seems that the general public wants teachers to have all the responsibilities and the restrictions that come with professionalism, but none of the benefits.

A few years back, the California legislature added sexuality (gays, lesbians, bisexuals, trans-sexuals, etc.) as one of the categories to be addressed in the school curriculum. The idea was that teachers would note, where appropriate, the contributions of GLBT people to the development and the culture of the state.

There were, of course, predictable cries of anguish from conservatives, worried that their kids might catch The Gay if homosexuality were actually acknowledged in the school curriculum. Among all of the bleating, however, perhaps the funniest comments came from a Republican legislator, who argued that mandating such things was not the job of the legislature:

Emphasis mine.

And said with an absolutely straight face. Hilarious. Leaving aside that there are plenty of “facts” about gay history that can be usefully incorporated in the curriculum, since when have politicians or the general public been content to leave education to the educators? Never happened; never will. And while education continues to be as much about politics and money as about actual education, teachers need an organization that will defend their interests both as teachers and as employees.

49

I’m not sure that an “on the whole” discussion makes sense. Here in NC it’s almost laughable how far it is in the opposite direction.

Some recent doozies from our state legislature:
-A program that offered $500 (the exact form was unclear, whether it was a one-time bonus, a one-time raise, or a raise each year for four years) to exactly 25% of the “tenured” (not real tenure) teachers in each district; teachers who accepted the money would give up tenure.
-When school boards sued, and a judge found it unconstitutional, the new proposal is to give all teachers an 11% raise, pretty good except that it still puts me and others 10% below where we would have been if the step increases from 2007 had gone forward. Any teacher who accepted the raise would lose tenure permanently; any teacher who wanted to keep tenure would receive no raise. The kicker is the provision that if the law is successfully challenged in court, the default position is nobody gets a raise.
-Common Core, which we’ve been renovating all our lessons for two years to comply with, will be replaced with a homebrew system, despite the objections of most teachers.
-What I said before about Medicaid wages for highly qualified teachers.
-Fewer and fewer support staff such as teacher assistants, coupled with greater and greater demands for gathering data via testing, means less and less meaningful teacher/student time.

I really can’t speak to the experience of teachers in California; but teachers in NC desperately need an effective union. Unfortunately teacher unions are illegal in our state (oh, another doozy: when the non-union teacher association NCAE opposed some of the more draconian measures, the legislature removed teachers’ ability to have NCAE dues deducted from paychecks, a measure that was entirely voluntary to begin with).

50

Testimony at trial said it costs between $50K and $450K to comply with the mandated firing steps.

And that testimony was from the defense.

51

Did any of the testimony break that figure down? I’m thinking they must be doing stuff like including legal fees and pro-rating the salaried time of hearing officers, etc.

52

I can’t tell where Bricker got that it was defense tesimony. If it was broken down, it wasn’t in the opinion; all the court says is:

53

Can you C&P that information? Obviously it should cost less than a year’s salary to fire someone, but I’d like to see how they figured that.

Edit: Given RNATB’s quote, Bricker’s summary looks inaccurate. The word “could” is key: are they saying this is what it would take in the average case if administrators put on their big girl pants and did their job instead of whining about how haaaaaard it was to fire bad teachers, or are they saying that this is what it could take in the most extreme, confusing, and litigious cases? Because those are two different animals entirely.

54

It sounds like those are the upper and lower bounds, not just the top range. I find that figure highly implausible, though. California government attorneys earn a maximum of $8,000 a month. So if you paid a state attorney to do nothing other than litigate a teacher firing for two years you’d pay him less than $200,000.

55

To their credit, it doesn’t look like the lawsuit was funded by the Republican lackeys I thought it’d be funded by: here’s the advisory board of Students Matter, and at first glance they look legit.

This pdf, in favor of overhauling the process, shows all the steps. Frankly I’m not seeing the step at which “several years” enters the door, if administrators have their act together; this article talks about an administrator who’s stepped up firings and says the same thing:

The steps may be cumbersome, sure, and maybe they need to be simplified. But if administrators are refusing to do this vital part of their job, let’s not let them off the hook. An administrator that lets a bad teacher remain in the classroom because they’re too lazy to initiate dismissal proceedings ought to have dismissal proceedings initiated against her.

56

I’m working on getting the trial transcript.

For the moment, I withdraw the claim.

57

Interesting article about the decision. Looks like the judge in at least one place misinterpreted what one of the defendants’ witnesses said.

58

From my experience as a California teacher - and as a union rep that saved a teacher’s job - the only bar to firing a teacher is an administration that does not do their job. If they did do what is proscribed by law including observations and giving the teacher a written improvement plan the teacher can easily be fired.

So don’t blame teacher unions, blame lazy administrators.

59

Prescribed, surely?

60

Yeah, I see that’s what the trial court is saying. I just think the argument is pretty thin, and to overturn a statute requires an iron-clad argument. I guess I’ll have to wait for the final ruling.