July 2014
July 03, 2014

Your union, your rights are under attack

Author: By Richard E. Casagrande, NYSUT General Counsel
Source: NYSUT United

Carved into the Supreme Court's marble facade are the words "Equal Justice Under Law." But more and more, justice in America seems to be reserved for the wealthy and powerful.

In 2006, in Garcetti v. Ceballos, the court's five right-wing justices ruled that public employees, when they speak as public employees, have no First Amendment protection. So, if a teacher reports bullying, or a bus mechanic reports defective brakes, or a nurse complains about patient care, their speech is unprotected by the Constitution. Then, in the Citizens United case, these justices OK'd unlimited financial spending by corporations, giving you and billionaires "equal" opportunity for political spending.

In June, in Harris v. Quinn, the justices who, in Garcetti, said public employees who speak as public employees are not protected by the First Amendment, created an exception for employees who don't want to financially support their union. They ruled that, under the First Amendment, Illinois could not force employees to contribute their fair share for the cost of the representation their union must legally provide.

While the Court limited this ruling to "quasi" public employees (home health care providers jointly employed by the state and private citizens), the majority made it clear that it will consider extending this rule to all public sector unions.

Such a result — described by dissenting Justice Elena Kagan as "radical" — would divide and weaken unions, by requiring the union to represent every employee while letting some employees ride along for free.

Of course, that's the point.

Weakening unions is a good thing if you want to reduce employee pay, benefits, job and retirement security. The attack in Harris was sponsored by an anti-union, corporate-supported private foundation. If you're looking for the cause of our growing income inequality and the demise of our middle class, look no further than the attack on unions.

The newest legal attack is on tenure. It is financed by corporate CEOs and hedge funds, and backed by "reformers" like Michelle Rhee and Campbell Brown.

A California lower court just struck down tenure protections for all California teachers, finding, without real proof, that tenure shields bad teachers and interferes with the educational rights of poor and minority students. Now, the same crowd has promised to immediately file a similar lawsuit in New York.

The truth is that tenure — and similar job security protections enjoyed by most public employees, union-represented private sector workers and people with individual employment contracts — is good for teachers and good for students. Tenure simply means that after you have proven yourself on the job during probation you can't be fired arbitrarily or based on false charges. Educators know that tenure protects academic freedom and a teacher's right to stand up for students.

Legally, the issue is pretty simple. Under our Constitution, before you can strip people of their liberty or property, they have a right to due process of law. A teacher's right to practice her profession is protected by the Constitution's guarantee of liberty. After tenure has been earned, a teacher also gains a constitutionally protected property interest in her job. This is well-settled law. None of this means these rights can't be taken away. It just means that before they can be taken away, a teacher is entitled to know the charges against her and to have her defense fairly heard. That's due process of law. You can look it up. It's in the Bill of Rights.

And don't believe the phony statistics about how long it takes to hold a tenure hearing. Most teacher disciplinary cases are resolved without a hearing; those that go to a hearing are, in the vast majority of cases, promptly resolved.

Frankly, I marvel at the smug hypocrisy of the privileged elite who want to strip ordinary working people of this fundamental right. If someone tried to take away their hedge funds or corporate entitlements, they would scream for due process.

Ask yourself this: Where are these wealthy anti-teacher crusaders on the real issues facing our poor and minority students? Where are they on poverty, on underfunding, on the loss of more than 30,000 jobs for teachers and School-Related Professionals in New York during the past five years? Where are they on class size, on the lack of pre-K, on the loss of art, music, sports and after-school programs?

You know where they are — fighting for tax cuts and distracting from these issues by blaming and seeking to punish the very people who fight for these kids every day.

NYSUT will defend your rights in every way the law allows. But we can't win this battle alone, because the battle is not purely legal. In truth, it is a battle for public opinion and for political power.

So, you have a choice. You can stand by while your rights and future are stolen, or you can stand up with your colleagues and your union to defend your profession, public education and the kids you teach. What will you do?