J-Day: Supreme Court Hears Oral Arguments in Janus v. AFSCME

This morning, the United States Supreme Court heard oral arguments in Janus v. AFSCME, a case that could have a major impact on the the nation’s public sector unions, including the American Federation of Teachers and National Education Association.

The core question in the case is whether public employees covered by collective bargaining agreements can be required to pay “agency fees” to a union that they refuse to join. The petitioners argue that mandatory agency fee laws, currently on the books in 21 states, violate the First Amendment rights of non-member public employees who are compelled to support unions even though they disagree with their political positions.

Screenshot from Education Next

It’s a nearly identical argument to the one made by plaintiffs in Friedrichs v. California Teachers Association, a case heard by the Supreme Court in 2016, which resulted in a rare 4-4 split decision following the sudden death of Justice Antonin Scalia halfway through the term. The split decision meant that a lower court’s ruling against Friedrichs was upheld, mandatory agency fee laws survived, and public sector unions dodged a bullet.

But court observers believe that the unions won’t be as lucky this time around. It is widely expected that Justice Neil Gorsuch, who was appointed to replace Scalia on the bench last year, will join the court’s conservative majority to strike down mandatory agency laws in the current case.

Justice Neil Gorsuch will likely provide the crucial fifth vote needed to strike down mandatory agency fee laws in Janus v. AFSCME.

Nevertheless, Gorsuch gave little indication of where he stood on the issues when the Supreme Court heard oral arguments in Janus v. AFSCME this morning. He remained silent throughout the hearing, even as his colleagues aggressively questioned attorneys on both sides of the case.

The court’s liberal members, particularly Justices Ginsberg and Sotomayor, questioned how mandatory agency fees were different from compulsory bar association payments or student activities fees at colleges. Meanwhile, Justice Alito, one of the most conservative voices on the court, hammered attorneys for the respondents with questions on First Amendment protections.

“When I read your brief I saw something I thought I would never see in a brief filed by public employee union, and that is the argument that the original meaning of the Constitution is that public employees have no free speech rights,” Alito said to David C. Frederick, who represents AFSCME in the case. “Where do you want us to go with that?”

Justice Anthony Kennedy, who has often emerged as the swing vote on the court, made it clear he sided with Janus.

But perhaps the most eye-opening comments this morning came from Justice Kennedy, who has emerged as the crucial swing vote in several high-profile Supreme Court cases over the past decade. Kennedy made it clear he believed mandatory agency fee laws were unconstitutional and at one point brusquely told Illinois Solicitor General David L. Franklin, lead attorney for the respondents: “It seems to me that your argument doesn’t have much weight.”

We’ll have to wait to see how where the other Justices land, as the court won’t issue its decision until later this spring. In the meantime, you can read the transcript from from today’s arguments below, or read my previous piece on Janus v. AFSCME, which includes more background on the case, by clicking HERE.

Read the official Supreme Court transcript of the oral arguments in Janus v. AFSCME:

Janus v AFSCME Oral Argument (Text)


NJEA Shows Phil Murphy Who’s Boss: The Short Tenureship of Paula White

Editor’s Note: This is a guest post from my friend and colleague, Laura Waters. It originally appeared on her blog, NJ Left Behind, where she writes about education reform policy and politics in the Garden State and New York. You can follow her on Twitter at @njleftbehind.

Late yesterday Star-Ledger editor Tom Moran had a scoop: Governor Phil Murphy abruptly rescinded the appointment of Assistant Commissioner of Education Paula White a week after the State Board of Education had unanimously confirmed her as Acting Commissioner of Education Lamont Repollet’s right-hand woman.

The question is “why.” Moran’s answer is that, while White’s credentials are impeccable — an M.A. from Columbia Teachers College in Educational Leadership, eight years teaching  low-income students of color in Atlanta, Chief Turnaround Officer for the New Jersey Department of Education, a board member of Programs for Parents, a member of the New Jersey Council for Young Children — she has an Achilles’ heel, a fatal flaw.

What could that be?

Here’s Moran:

“White’s offense is that she worked for 18 months as state director of Democrats for Education Reform, an advocacy group that clashes with the NJEA. The group’s views line up almost precisely with President Obama’s — in support of strong tenure reform, a careful expansion of good charter schools in struggling districts, and national standards linked to tests. The NJEA opposes all of that.

“So, ask yourself: Is Obama’s education agenda so toxic, so extreme, that White’s 18 months advocating it should be a disqualifier? In effect, that is what Murphy is saying.

“Dig deeper, and this goes way beyond the disgraceful treatment of Paula White. Murphy’s allegiance to the NJEA is his blind spot and could cripple his governorship.”

If Gov. Murphy fired Paula White because NJEA leaders told him to — when asked, the Governor’s office “would neither confirm nor deny” —  then New Jersey has problems that go beyond the ousting of an eminently-qualified educational leader hand-selected by Repollet. (She worked with him in Asbury Park). What else will Murphy’s allegiance to NJEA provoke him to do? After all, he may feels like he owes them big-time.

Why? During the campaign he promised the union that he’d get rid of PARCC on “Day One”; he promised he’d fully fund pensions; he promised he’d fully fund a broken school funding formula.

But the truth is that he can’t keep those promises. (See here.) And so, perhaps, when NJEA leaders objected to the selection of Paula White because of her association with DFER, Murphy, who had breached his contract with them, made a promise he could keep, even though that decision makes Repollet look far removed from the loop of state educational leadership, makes Murphy look like Pavlov’s dog when confronted with a whiff of dissension from his patron, and makes NJEA look like Pavlov himself, a metamorphosis it may welcome after a humiliating defeat of the $5 million campaign to unseat Senate President Steve Sweeney by replacing him with a Trump-supporting climate-change-denying immigration-foe.

“The whole thing is strange,” says Sen. Teresa Ruiz (D-Essex), chairwoman of the Education Committee. “You offer a highly qualified individual a position, she gets the unanimous support of the state board, is introduced to her staff, and later the same day she gets the job rescinded. From the outside, it looks suspect.”

Strange, indeed. On the other hand, we know who’s wearing the pants in N.J.’s public education arena. And it’s not the Governor or the Commissioner. It’s a special interest group created and managed to protect adult jobs. Murphy’s subservience to lobbyists bodes poorly for New Jersey schoolchildren. I hope he gets his pants back.


Students: 1, SPLC: 0

A judge has rejected a lawsuit filed by the Southern Poverty Law Center claiming that Mississippi’s charter school law violates the state’s constitution.

In his ruling, Hinds County Chancery Judge Dewayne Thomas wrote, “This court cannot find that plaintiffs herein have proven unconstitutionality beyond a reasonable doubt.”

The suit, which SPLC filed on behalf of seven Jackson Public School District parents in 2016, would have cut off state and local funding to charter schools, effectively shutting them down. There are currently three charter schools in the state serving more than 1000 students and two more charters are scheduled to open this fall.

Reimagine Prep in Jackson is one of three charters currently operating in Mississippi.

Charter schools provide much-needed educational options to families in Mississippi, which consistently ranks among the poorest states in the country. Overall educational attainment in the Magnolia State is depressingly low. Mississippi has nearly as many high school dropouts as it does college graduates. For African-Americans, the statistics are particularly disturbing. In 2015, only 14% of black fourth-graders and 8% of black eighth graders were proficient in reading, according to the National Assessment of Educational Progress.

That’s why SPLC’s legal assault on charters have left many people scratching their heads. It’s hard to understand why an organization with a long history of fighting white supremacists and protecting the civil rights of marginalized groups is trying to shut down schools that primarily serve low-income, African-American students.

Yet as I’ve noted previously, SPLC has embraced an anti-charter strategy in recent years, particularly in New Orleans, where the local SPLC office launched an aggressive effort to undermine and discredit the city’s charter-driven reforms.

Unfortunately, their attack on Mississippi’s charter schools is far from over. Shortly after Judge Thomas issued his decision on Tuesday, SPLC attorney Will Bardwell filed a notice of appeal to the Mississippi Supreme Court.

“This case was always going to be decided by the Mississippi Supreme Court,” Bardwell said in a statement to the Associated Press. “We are happy to have a chance to present our argument to them.”

Hopefully Mississippi’s highest court will end up rejecting that argument. Meanwhile, the battle continues.


Portland Teachers Union Wants To Restrict Access To Public Records

Over the past few years, a series of troubling scandals have shaken Portlanders’ trust in their public school system.

In 2016, it was revealed that district officials had withheld lab test results showing that most of the city’s public schools had elevated levels of lead in their drinking water. Last year, in-depth investigations by The Oregonian found that the district had helped conceal allegations of sexual misconduct against two teachers – Mitch Whitehurst and Norm Scott – who later went on to assault at least a dozen female students. A subsequent investigation in the Portland Tribune uncovered that Andrew Oshea, a special education teacher who had been placed on administrative leave in 2015 after he was charged with drunk driving and assault, was still on the district’s payroll. In fact, Oshea continued to collect paychecks while serving time in jail for a violating a restraining order filed by his ex-girlfriend.

These scandals make clear that Portland Public Schools has a serious transparency problem. Yet the Portland Association of Teachers is now trying to limit access to public records in the district and they’re using their new collective bargaining agreement to do it.

The union’s collective bargaining agreement, which the Portland Public Schools Board of Education is expected to ratify this evening, includes a clause that would not only prohibit the district from disclosing any information about teachers placed on administrative leave, but would even prevent them from acknowledging whether or not a teacher was on leave. The proposed contract would also allow PAT to bargain on issues related to the school board’s public records policies, meaning that those policies could be revised in closed-door negotiations in the future.

The union’s bid to limit access to public records is particularly concerning given the fact that they actively tried to block the release of information about Andrew Oshea, the former special education teacher who was placed on administrative leave for nearly two years. Earlier this week, it was revealed that the union threatened to sue the district after they released public records about Oshea to a local journalist.

The public has a right to know about allegations of misconduct by teachers. The Portland Association of Teachers’ effort to conceal that information shows that they believe that the interests of their members should come first, even at the expense of the safety and well-being of the students they serve.

That may be the biggest scandal of all.

Read the Portland Association of Teachers’ proposed contract with Portland Public Schools:


Astroturf Group Calls Families For Excellent Schools An Astroturf Group

On Monday, Politico’s Eliza Shapiro broke the news that Families for Excellent Schools, the high-profile charter school advocacy group in New York, will close in the coming months.

The revelation comes on the heels of last week’s announcement that Families for Excellent Schools CEO Jeremiah Kittredge was fired after he was accused of sexual harassment. Although it has been suggested that the closure is tied to Kittredge’s termination, rumors of FES’ impending demise have been circulating in education reform circles for months. The organization’s reputation has suffered in recent years as a result of several setbacks, including the defeat of its $20 million effort to lift the charter school cap in Massachusetts in 2016. After officials in Massachusetts slapped FES with a $426,000 fine for violating campaign finance laws last fall, the group’s fate was all but sealed.

The New York-based charter advocacy group, Families for Excellent Schools, will shut its doors in the coming months.

Needless to say, charter school opponents have responded to news of the organization’s closure with unabashed glee. The Alliance for Quality Education, a group that has led the fight against school choice in New York State, even issued a press release (in an act of supreme pettiness) aimed at rubbing salt in FES’ wounds.  

“FES is the latest of the astroturf charter school advocates to sputter into irrelevance in New York State, just another group that tried and failed to do any real grassroots parent organizing,” Zakiyah Ansari, Advocacy Director for AQE, said in the statement. “Keep your eyes open because it will not be shocking if the billionaire hedge fund crowd that backed FES moves their money into a new organization.”

AQE advocacy director Zakiyah Ansari speaks at an anti-testing rally, while one of her patrons, UFT president Michael Mulgrew, stares off into space.

Ironically, while the Alliance for Quality Education takes great pains to present itself as a grassroots organization, the bulk of its financial support comes from the American Federation of Teachers. According to Department of Labor filings, AFT and the New York State United Teachers have together directly contributed over $582,000 to AQE since 2013. 

But that figure alone misses the full scope of the teachers unions’ support for the Alliance for Quality Education’s work. It just so happens that AQE shares offices with another union-backed organization, Citizen Action of New York, along with its 501(c)(3) arm, the Public Policy and Education Fund. In fact, Citizen Action’s executive director, Karen Scharff, is chair of AQE’s board of directors (as well as the co-chair of Working Families Party of New York).

Karen Scharff is executive director of Citizen Action of New York, chair of the board of the Alliance for Quality Education, and co-chair of the Working Families Party of New York.

In total, AFT, NYUST, and the United Federation of Teachers have given more than $2.2 million to the Alliance for Quality Education, Citizen Action of New York, and the Public Policy and Education Fund over the past five years

So the next time the Alliance for Quality Education calls Families for Excellent Schools – or any other organization that dares to disagree with the teachers unions – an “astroturf” education group, just remember that AFT is actually the one underwriting the message.


Over At PE+CO: An Open Letter About Einstein

Back in January, I sent a letter to the members of the Arkansas State Board of Education to bring their attention to the troubling revelations about Einstein Charter School, a charter management organization in New Orleans that is planning to open a charter school in Little Rock.

Over the past several months, it has emerged that Einstein’s schools in New Orleans have been failing to provide transportation to students as required by their charter agreement. The CMO has also been accused of enrolling students outside of OneApp, the citywide enrollment system that assigns students to schools. These are serious violations that undermine the systems we have established to ensure that all children have fair and equal access to our public schools.

For some reason, I never received a response from anyone on the board. Therefore, I decided to publish the letter, which you can read here.