Last month, in a historic and unprecedented vote on a cabinet nominee, Betsy DeVos was confirmed as U.S. secretary of education. She had one of the rockier confirmation processes of all of Trump's nominees, and it doesn't look like things are getting any easier.
As the new head of the U.S. Department of Education, DeVos is now tasked with pursuing the president's education policy priorities to advance parental choice in education, including expanding the number of public charter schools. That might be easier said than done.
Regrettably for DeVos, the federal secretary of education cannot directly implement the president's education policies. Education is primarily a state and local responsibility. Even if she were to persuade state education officials to go along with the president's agenda, many states have their hands tied when it comes to school choice. That's because the teachers' unions have strategically negotiated collective bargaining agreements designed to make parental choice difficult to implement.
The latest collective bargaining agreement between the Chicago Board of Education and its teachers' union is a perfect example. In order to avoid a teacher strike, the school board agreed to a cap on the number of charter schools in the city. This concession had nothing to do with the rest of the contract, which concerned wages and benefits paid to public school teachers. It was a transparent effort to advance the political agenda of union leaders.
It's easy to see why the Chicago union is desperate to use its exclusive negotiating authority to make school choice difficult — union leaders want to short-circuit a public debate that they have already lost. Fifty-seven percent of Cook County voters support making it easier for charter schools to open and expand. Furthermore, Chicago families are voting with their feet. One-in-four students in Chicago attend a charter school and there are more than 20,000 names on charter school waiting lists. Until now, no union has so openly tried to inject controversial education policy decisions of this scale and scope into its contract negotiations.
Bargaining agreements like the Chicago contract are going to make DeVos's job very difficult indeed. Even if state and local officials want to expand parental choice, their hands are tied by contracts designed to take it off the table. Making matters worse, in 22 states, dissenting teachers are forced to fund the union's politicized collective bargaining even if they are not members of the union, don't vote on its contracts, and strongly oppose the political agenda the union inserts into collective bargaining agreements. Unions are supposed to use these "agency fees" to advocate for pay and benefits in the interest of all public school teachers, but, as the Chicago example demonstrates, they often don't.
Fortunately, there is a chance to change this unfair system. Shortly after DeVos was confirmed, the Center for Individual Rights filed a case on behalf of eight California teachers and the Association of American Educators, arguing that teachers everywhere should have the freedom to decide for themselves whether to join and fund a union. Giving teachers the ability to dissent if they disagree with the political positions of their union may not change some unions' anti-charter positions, but it would make them more accountable to their teachers and stop forcing disagreeing teachers to pay for these types of policy positions.
In Yohn v. California Teachers Association, lead plaintiff Ryan Yohn is married to a teacher who taught in a start-up charter school. Had Ryan lived and worked as a teacher in Chicago, he would have been forced to fund a political agenda opposed to his own wife's desire to work in a charter school designed to serve children and families in their community.
Duly elected and appointed education officials like DeVos will have little chance of reforming American schools until union officials are made accountable. That accountability has to start with accountability to the front line teachers who are forced to pay dues to unions with which they fundamentally disagree. Ensuring accountability to dues-paying teachers isn't just good policy, it happens to be required by the Constitution's guarantee of free speech. Every time a state deducts dues from unwilling public teachers to support union positions on things like school choice, it coerces those teachers to support speech with which they disagree. The Constitution is very clear about this: Just as the state may not silence unpopular speech, neither may it compel favored speech.
Reasonable people can disagree about the wisdom of charter schools or teacher pay and benefits. But everyone understands that the state cannot force individuals to support a view with which they fundamentally disagree. Ending compulsory public employee union dues, as Yohn v. California Teachers Association hopes to do, isn't just good constitutional law, though. It is a practical necessity if democratically appointed officials like DeVos are going to be able to conduct meaningful debate about issues that many teachers themselves think are critical to making public education work for all students.
Terry Pell is the President of the Center for Individual Rights, a nonprofit public interest law firm that defends individual rights, with particular emphasis on civil rights and free speech.
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