Will public unionism’s ‘gravest threat’ materialize?

While education reforms are nearly always won via legislation, rare exceptions do occur—and sometimes they’re significant. The year 2014 has already proven to be a landmark one for education reform thanks to judicial decision. Perhaps the most notable example thus far is Vergara v. California, which struck down tenure and kindred state laws that make it difficult for schools to ensure that their students (especially those living in poverty) have an effective teacher. This week brought word that some New York families are kick starting a similar challenge to equally oppressive laws in the Empire state. Other states could follow.

On Monday, the U.S. Supreme Court is expected to announce its decision in Harris v. Quinn, which could be even more momentous for education reform (and public-sector unionism broadly.) Indeed, some liberals are calling it the “gravest threat today to public-employee unions.”

This case deals with the representation of Illinois’s home health care workers (often family members taking care of loved ones). The issue arose when plaintiff Pam Harris (the mother of a disabled son whom she takes care of) worried that union dues (or “fair share” payments in lieu of dues) would divert money she needs for her son into political speech undertaken by unions with which she does not agree.

Traditionally, such in-home caregivers were not considered public employees, much less members of collective-bargaining units, but actions by former governor Rod Blagojevich and current governor Pat Quinn, designed to benefit large unions (and political megadonors) like the SEIU and AFSCME, changed all that. These powerful public-sector unions are seeing their membership numbers threatened as governments slim down during this protracted and weak recovery, so they’re pressing state governments to bolster their ranks with workers—such as Pam Harris—who previously would not have been union members. Harris and her compatriots are hoping the Court will allow them to continue taking care of sick family members without being forced to subsidize union bargaining activity, which they argue is inherently political.

The Court must decide whether to reverse the lower courts (which sided with the unions) and, thereby, also overturn some or all of Abood v. Detroit Board of Education, a 1977 precedent that focused on education. Decided by a very different court (William Brennan was on the bench, as were Thurgood Marshall, Harry Blackmun, etc.), that ruling affirmed many of the rights that public-sector unions still take for granted today. In essence, unions are required to represent all workers and may compel all workers to pay for that representation (via dues or “fair share” payments), regardless of whether the workers are actual union members or even desire such representation in the first place.

How might Monday’s decision affect education going forward?

Possibly it won’t, as the issue narrowly pertains to a specific subset of health care workers in a single state, not teachers or other long-unionized school employees. So the Court majority might side with Ms. Harris while limiting the scope and impact of their ruling. Or they might rule against her entirely.

But then again, if the Court issues a wide-ranging decision, the role of public sector unions in education (and many of the rules, red tape, and political influence they bring to bear) could be dramatically reduced. As has already happened via legislative action in Wisconsin and Indiana, workers who do not think union representation is worth the money could opt out. Under this scenario, public-sector union membership would likely crater, potentially including the teacher unions. And local school districts would suddenly be free to work with nonrepresented employees to make commonsense reforms that don’t hinge on the union’s assent.

What can we expect from the Court?

During oral arguments, some of the more conservative justices, especially Kennedy and Alito, seemed to show a willingness to take the broad view. According to one summary, Alito “became a sharp questioner of the basic concept of public employee unionism, and left little doubt that he thought the case did involve serious issues of coercion to support public policy that some workers find objectionable.” Many assume that justices Roberts and Thomas will be in the same camp.

That would mean, as many on the Left have noted with trepidation, that the decision may come down to Justice Scalia, who has expressed some support for compulsory payments to public unions in the past and has even shown signs in this case. Where he would draw the line, though, remains uncertain.

The most recent case taken up by this Court that dealt with this issue was Knox v. SEIU in 2012, which—in a 5-4 opinion penned by Justice Alito—made it harder for unions to collect “fair share” payments from nonmembers. In it, he wrote that these payments “constitute a form of compelled speech and association that imposes a significant impingement on First Amendment rights.”

We won't know for sure until Monday morning, but the excellent SCOTUSblog often predicts who will write the last handful of opinions (there are just two remaining this term) based on the Court's practice of usually balancing workload among the justices. Their guess on who will write the opinion in this case: “almost certainly” Alito.