Law & the Courts

The High Court Takes on Teacher Freedom

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Performance-based pay is a vital part of improving education, but it does not fit the agenda of teachers’ unions

In the past 40 years, labor unions have taken their place among the biggest power brokers on all social-policy issues concerning the education of our youth. While the unions’ involvement was once intricately linked to teacher professionalism and school success, today they are focused almost entirely on protecting collective-bargaining rights and ensuring that tenure, seniority, and uniform pay scales remain inviolate.

Indeed, these issues were at the heart of today’s oral arguments at the U.S. Supreme Court. In Friedrichs v. California Teachers Association et al., ten public-school teachers are asking the Court to strike down Abood v. Detroit Board of Education, a 1977 case that sanctioned agency-shop rules permitting unions to dock a teacher’s pay regardless of whether the teacher wants to be a member of a union. Laws in 23 states require workers who decline to join a union to pay certain fees anyway. Today’s plaintiffs and other teachers around the country believe that this legal structure is anathema to teacher freedom and a violation of First Amendment rights

Because the evidence demonstrates that issues covered by collective bargaining have nothing to do with the quality of teaching, it is mind-boggling to consider the unions’ intransigence on this and other issues regarding educational productivity and educational success. According to researchers, next to the family, the most important factor in whether students succeed is their teacher. As Harvard scholar Thomas J. Kane puts it, “A teacher’s track record of producing student achievement gains does one thing better than any other measure (even if it does so imperfectly): it signals whether a teacher is likely to achieve similar success with another group of students.” Citing Raj Chetty, John Friedman, and Jonah Rockoff, he also shares evidence about the impact of great teaching, arguing, “Being assigned to a teacher with a track record of student achievement gains is associated with higher earnings and rates of college going.”

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With so much evidence, it’s difficult to understand why this case had to go to the U.S. Supreme Court for the public to recognize that labor unions, which create and defend laws that treat all teachers the same, are at odds with sound social science and what it takes to effectively teach kids. One reason is because policymakers in many states will not consider changes to collective-bargaining laws, largely because teachers’ unions are their largest contributors. Just consider how much political clout the American Federation of Teachers alone, the smaller of the two national teachers’ unions, has committed to elections in this cycle alone — $20 million. 

Policymakers in many states will not consider changes to collective-bargaining laws, largely because teachers’ unions are their largest contributors.

But this case itself, while the unions are fighting it, has little to do with the union. It really is about whether teachers have the right to opt in or out, because even those states that allow teachers to opt out of unions still require teachers to pay “agency fees” to unions — supposedly to cover the costs of collective bargaining, from which all teachers supposedly benefit. The problem with this is that collective bargaining is inherently political — government unions devote more resources to their political agenda than just the small portion of dues that goes directly to support their political causes. 

What’s worse is that many teachers have experienced the frustration of unclear, hidden, or moving deadlines of when to file paperwork for opting out, and have even felt intimidated and coerced by their very own union.

“We’re asking that teachers be able to decide for ourselves, without fear or coercion, whether or not to join or fund a union,” says Rebecca Friedrichs, a veteran public-school teacher in Buena Park, Calif. “It’s that simple.” 

#share#Between 2008 and 2012, the teaching profession grew by 48 percent, while student enrollment saw only 19 percent growth. Despite little evidence that class size correlates with better education, fully 21 percent of the growth of the teaching profession is a result of various class-size mandates. The rest may be related to the rise in special education and specialty teachers. Regardless of the reason, teacher quality is directly correlated with student outcomes, and for that reason and that reason alone, teachers and schools should be free not only to make employment agreements, but also to earn rewards for work well done.

I have witnessed firsthand the impact of hiring and rewarding teachers based substantially (though not entirely) on outcomes.

Performance-pay programs, which provide hope that individuals could enter teaching and increase their pay at much higher scales correlated to their outcomes, have the potential to recapture some of the higher-quality women who otherwise find more personal and intellectual satisfaction in other fields. Men would also probably be more likely to enter the profession, given the improved status and pay potential that would result. Yet despite growing acceptance of such efforts and the prominence of these issues in the public eye today, as well as the evidence that performance pay as a policy option has worked, there is still much confusion and misinformation, and enormous political pressure to maintain fixed pay scales based on experience, seniority, and other input-related factors.

I have witnessed firsthand the impact of hiring and rewarding teachers based substantially (though not entirely) on outcomes. From districts such as Washington, D.C., to most charter schools, human-capital management based on the quality of the individual’s capabilities, knowledge, and aptitude for the profession does result in better objective measures of school success.

#related#There are many indicators of this. First, there are comparisons of schools in Washington, D.C., before and after teacher-quality reforms employing performance-pay measures. Second, there is the comparison of teacher competency in traditional and charter-sector schools (which are more than 91 percent non-union and have operational autonomy). According to Stanford University economist Caroline Hoxby, “Charter school teachers have higher aptitude, took more math and science courses, work longer hours, and take on more extra duties.”

Regardless of the data, however, this week’s chapter in the evolution of teachers’ unions’ collective-bargaining power may expose more of the public to these issues, and that is a good thing. More than 50 percent of the general public do not know how teachers are paid, how they are hired and retained, or that unions are even part of influencing mandates about all aspects of education’s human-capital supply.

Whether or not one agrees with the premise at the heart of the Friedrichs case, education is central to our personal productivity and our global success. For that reason, we should welcome the controversy and the debate as a pathway to progress.

— Jeanne Allen is founder and president emeritus of the Center for Education Reform.

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