Contemplating the Friedrichs Case

Yesterday’s troubling oral argument in the U.S. Supreme Court in the case of Friedrichs v. California Teachers Association has prompted a flurry of doom-and-gloom stories in the media about the potentially devastating consequences for the union movement of a decision by the high court to overturn 40 years of precedent and outlaw “agency fee” payments in the public sector.  To be sure, there is much of concern here and one can only hope that common sense and reason might prevail over blind ideology and crass political interest with at least one member of the court’s conservative majority.  And there is no shortage of good arguments as to why this decision is not in the public interest or even, as John Wilson argued on this blog yesterday, consistent with the principles of the First Amendment that the plaintiffs allege they are protecting.

Another such argument appeared today on the op-ed page of the New York Times, in a piece by Richard Kahlenberg, a senior fellow at the Century Foundation, under the title “Strong Unions, Strong Democracy.”  The piece is worth reading in full, but here are a few choice excerpts:

By stripping these unions of key financial resources — their fair share of fees provided by nonmembers — the court would upend a longstanding precedent. A decision in favor of the plaintiff would effectively slam the door on an era in which some conservatives joined liberals in recognizing that vibrant unions help make our democracy work. This is radicalism, not conservatism. . . .

Conservatives are fond of citing Alexis de Tocqueville, who was famously struck by the thriving civic associations that keep American democracy vitalized; for the past century, unions have been a critical part of that framework. In 1980, Ronald Reagan, then the Republican Party’s presidential candidate, championed the role of Polish unions in challenging dictatorial rule by the Communist Party. In a Labor Day speech that year, Reagan declared, “where free unions and collective bargaining are forbidden, freedom is lost.” . . .

Teachers unions are strong champions of American public schooling, which undergirds our democracy. The 19th-century educator Horace Mann, who advocated fiercely for the common school system that became America’s experiment with public education, made this point metaphorically: “A republican form of government, without intelligence in the people, must be, on a vast scale, what a mad-house, without superintendent or keepers, would be on a small one.” While some critics claim teachers unions have a detrimental effect on academic achievement, careful studies actually find higher achievement in states with strong teachers unions.

But to simply bemoan this latest of a long series of attacks on educators, public employees and working people more broadly, would be a huge mistake.  As AAUP General Counsel Risa Lieberwitz pointed out in her response yesterday,

If the Supreme Court does overrule Abood, it’s likely that many union supporters will be reminding us of Joe Hill’s words: “Don’t waste time mourning, organize!” And they are right. If the Supreme Court upholds Abood, the advice to organize is still right. Strong organizing makes strong unions. In the face of adversity, workers can and do organize. They organize and build union membership in the face of state laws seeking to harm public sector unions and in the face of weak federal labor laws in the private sector. And unions will continue to organize and build strong membership whatever the Supreme Court decides in the Friedrichs case. As we look toward the national holiday honoring Dr. Martin Luther King, Jr., we should think of his reminder that “the arc of the moral universe is long, but it bends toward justice.” That’s what unionizing is about – and we can fight for justice with or without support from the courts.

Howard Bunsis, chair of the AAUP-Collective Bargaining Congress, said, “The Friedrichs case is an attack on workers’ rights to bargain collectively, an attack on workplace democracy, and an attack on the middle class. It is also a call to organize; attempts to divide us will not work.”

In the current climate it is also important to thoughtfully reconsider the nature of our organizing.  In a sense moves like the Friedrichs suit compel unions to focus more on organizing and mobilizing their members and not merely on providing them with services.  And how to do that may be changing.  Indeed, the AAUP itself may have something to offer.  As I concluded in an article on “Professionalism and Unionism” in last year’s Journal of Academic Freedom,

AAUP’s distinctive combination of union organization and professional association may provide the most effective method of defending professional principles today. Unfortunately, many faculty members at US institutions of higher learning are by law presently unable to engage in collective bargaining. There is, of course, the Yeshiva decision. Moreover, in many states, the lack of appropriate enabling legislation leaves employees at public colleges and universities, including faculty, without the right to bargain collectively. And in an increasing number of states—recent events in Wisconsin; Michigan; and, most recently, Illinois come immediately to mind—restrictions on union activity, including so-called right-to-work laws, hamstring organizing efforts. Such restrictions limit not only academic unionism but also the union movement as a whole, which now represents a much-diminished portion of the US labor force.

In this environment the AAUP’s continuing commitment to represent not only its own unionized membership but also its thousands of nonunionized “advocacy” members and, indeed, the profession as a whole; to organize and recruit for both union and nonunion chapters; and to continue developing and defending meaningful professional standards in support of “the common good,” has become more essential—and arguably more practical—than ever. If unions are to remain viable defenders of those who work, be their labor physical or mental, they will need to organize and act in new ways. They will need to organize and act across workplaces and across industries, locally and regionally, in both traditional union structures and in new forms—some akin to associations like the AAUP—employing new strategies and tactics capable of mobilizing public support and exerting political pressure and moral suasion beyond the workplace. If this be true, AAUP’s creative blending of professionalism and unionism, developed slowly and fitfully over the past century, may provide a model not only for other professions but also for the union movement as a whole in the century to come.

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