Originally published on ALTERNET
While conservatives take aim at teachers unions via the Supreme Courts, weakening them via “impact litigation” has become a bipartisan cause.
By Sarah Lahm
With Neil Gorsuch now seated on the United States Supreme Court, the right-wing seems poised to realize its forever goal of dismantling labor unions. But conservatives aren’t the only ones anticipating the last days of public sector unions. Challenging teachers’ job protections via “impact litigation” is an increasingly mainstream cause, drawing Democratic super lawyer David Boies, and high-profile Obama alums like Robert Gibbs and Ben Labolt. Now an education reform organization led by prominent Democratic party fundraiser Jonathan Sackler is stepping up efforts to reign in unions via the courts.
Anatomy of a court case
This fall, the long game for education reform groups hoping to dismantle teacher tenure and seniority laws got a little longer. In early September, the Minnesota Court of Appeals ruled—for the second time—against plaintiffs in a high-profile case targeting the state’s tenure and seniority guidelines for teachers. The case, Forslund v. Minnesota, was originally brought forward in 2016 as part of a “disruptive” wave of billionaire-backed attacks on teachers and their union-based job protections. Forslund v. Minnesota originated with the Partnership for Educational Justice, a group connected to conservative anti-union crusader and former CNN anchor, Campbell Brown, and a cadre of wealthy supporters. The Minnesota case, like previous Partnership lawsuits in New York and New Jersey, builds on the nearly successful Vergara v. California challenge to that state’s tenure laws. At the root of all the cases is a singular claim: tenure and layoff rules protect “ineffective” teachers and deny students equal access to an education.
Brown’s group has not had much success in court. The New York case has stalled, although it seems to have spurred reform-minded changes to the state’s tenure laws. Earlier this year, a judge in New Jersey dismissed the Partnership-backed lawsuit against tenure, describing any alleged link between the state’s hiring and firing practices and the quality of a student’s education as “speculation and conjecture.” In Minnesota, too, judges have dismissed the idea that there is a “strong enough connection between poor student achievement and the due process required by teacher tenure laws.” The lawsuits, though, have generated news coverage that pushes that connection—between student achievement and teacher tenure—to the top of the soundbite heap.
Here’s where the long game comes in. Just after the Partnership’s Minnesota lawsuit faced its third defeat, the group announced it was joining forces with 50CAN, a self-styled progressive education reform outfit based in Washington, D.C. Rather than turn away from its unsuccessful, litigious path, PEJ and 50CAN will now work together to “drive change in state education policies” through the courts. While the Partnership has always been hinged to Campbell Brown’s more public (and controversial) presence, 50CAN has largely operated out of the spotlight, focusing on policy goals and attempting to create “citizen activists” in outposts around the country. (“Locally led, nationally supported” is a 50CAN slogan.) Its Board includes prominent Democratic party fundraiser Jonathan Sackler, heir to the Purdue Pharma fortune.
There is nothing random about PEJ and 50CAN joining forces to fight for state-level change, even though the tenure lawsuits have stalled thus far. The online watchdog group, Media Matters, has pegged both PEJ and 50CAN as part of an education reform “echo chamber,” propped up by a “handful of conservative billionaires.” In a 2016 look at the tightly knit world of philanthropist-funded education reform interests, Media Matters found much overlap between 50CAN and PEJ, including the fact that the head of 50CAN’s New York outlet, Derrell Bradford, sits on the Partnership’s board of directors. Both groups, Media Matters alleges, belong to a movement pushing for “conservative-backed policies” that “weaken labor unions” and promote school privatization schemes.
Evidence for that can be seen by taking a deeper look at the groups’ funders—and the policy priorities that follow. The Partnership for Educational Justice in particular received $200,000 from Wisconsin’s notoriously anti-union Bradley Foundation in 2014 and 2015, so that it could ramp up its “impact legislation” efforts. The Bradley Foundation’s overall goal, according to PR Watch, is to “defund and dismantle unions in states, at the federal level, and in the U.S. Supreme Court”–largely because unions are so aligned with the Democratic party. 50CAN’s coffers are filled by a range of individuals and foundations, including the Walton Family Foundation—whose largesse was fueled by the decidedly anti-union practices of Wal Mart. 50CAN’s policy and lobbying actions have centered (like so much of today’s reform movement) on creating change outside of the gridlocked world of Washington, D.C.
Using state courts as a vehicle for change in education policy makes sense in this political climate. With the anti-regulation, anti-accountability specter of Betsy DeVos leading the Department of Education, the once-popular claim that education reform is the “civil rights issue of our time” has become tarnished. Suddenly, being associated with federal education policy is less advantageous. Pushing for (and funding) local change (using a national framework) is undoubtedly a safer, more politically correct approach for image-conscious reformers and their powerful, persistent funders.
The Partnership for Educational Justice’s (and now 50CAN’s) attempts to marry “impact legislation” around tenure laws with an emphasis on “bad teachers”—a detested villain in popular American culture and a defining leitmotifof the billionaire-backed reform movement—also makes sense. (Brown began her tenure reform advocacy by sharing heinous and often trumped up stories of teachers who commit sexual assault but get to keep their jobs, thanks to union policies.) Even with no legal victories to speak of yet, a continual stoking of the image of the bad teacher wielding unchallenged, oppressive power–thanks to “status quo” unions–packs a powerful PR punch. (Think “Reefer Madness” redone, with teachers–instead of reefer–as the frightening monster.)
Zeroing in on teachers-as-villains is a legal strategy that average taxpayers might more easily overlook, too. In a 2012 edition of the Emory University Law Journal, then-editor Jared Buszin took a look at court cases focused on inequality in America’s schools. For forty years, Buszin argued, education reformers have had an “almost single-minded focus in their litigation”: school funding. Though somewhat successful, these “dogged efforts” to get more money to schools have “failed to achieve equity and adequacy” for marginalized students. It was time for reformers to move “Beyond School Finance,”Buszin argued, challenging “last-in, first-out” and other policies that “cause an inequitable or inadequate distribution of skill-based education inputs, such as teachers.” More money for schools won’t work, but undercutting seniority just might.
In other words, don’t hit taxpayers (especially wealthy ones) where it hurts. “Taxpayers are particularly sensitive to government action that reaches into their pockets and redistributes locally raised funds,” Buszin writes, whereas agitation around teacher performance and job protection is likely to be seen as less personal and more “restricted in scope.” Fanning the perpetual flame of distrust in public school teachers and their effectiveness is also a skillful way to promote many reformers’ preferred policies, including support for charter schools staffed (mostly) by non-unionized employees that can be fired at-will–especially when student test scores don’t rise quickly enough.
In the Minnesota case against tenure, the plaintiff’s claims were not especially robust. Many no longer have students in the districts that were mentioned in the lawsuit. Still, there is a kernel of truth that sticks: marginalized children of color tend to get placed with the most temporary, least experienced teachers. The Court of Appeals addressed thisin its decision, but backed away from placing blame on union-based protections: “Ineffective teaching demands a solution, but presuming that eliminating tenure through constitutional litigation is a solution, much less the best among many competing possibilities, is dangerous.”
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