Right vs. Privilege

I have a lot of teachers who are friends. A lot. People who I love dearly. People whose opinion I respect and seek very often on matters relating to the development and education of my children. People who it is not my intention to personally hurt when I publish this post regarding the misinformation surrounding what we are seeing at the state level regarding teachers' and public employees unions right now. I write this out of love because the fact is that I cringe when I hear the inaccuracies that some of my friends are spouting regarding the current "plight" of teachers' "rights". I write this only to clarify some of these misconceptions so that other people can be more informed about what the law actually says and we can have a better discussion.

Collective Bargaining "Rights"

This is a most unfortunate misnomer. The "right" of a public employee to collectively bargain is not really an inherent right, but rather it is a privilege that was given and codified by only about half of the states in this country to its employees. It is an artificial "right" that became law by state legislators and governors who pandered to teachers' unions for campaign funds.

If this were a true right, then every jurisdiction in the United States, to include that of the federal government, would be forced to allow its employees to collectively bargain. At present, thirty-five of the fifty states have pro-collective bargaining statutes for public employees on the books, five states prohibit collective bargaining of public employees, and eleven have no laws regarding collective bargaining of public employees on its books. The federal government does not allow its employees to collectively bargain.

I find this concept akin to that of sovereign immunity which bars the states and federal governments from civil and criminal prosecution unless they allow for it. The manner by which governments allow for such suits are statutes like the Federal Tort Claims Act and the Tucker Act. This is just like this. Here, the government must give special codified permission as an exception to the rule. I consider such statutes to be governmental privileges rather than rights. Privileges that can be undone if the government is in a state of crisis, perhaps fiscal crisis, or even at the change of its citizens' opinion.

When a government employee strikes, it does so not against a corporation, but against the taxpayers. FDR, a proponent of public employees' rights to associate and assemble even warned that "meticulous attention should be paid to the special relationships and obligations of public servants to the public itself and to the Government."

Supporters of public employees' collective bargaining "rights" try to conveniently separate the notion of collective bargaining from an employee's ability to strike. That is a canard. The ability to strike is inherent to the ability to collectively bargain. It is impossible to separate the two because the primary source for a union's bargaining capital is the management's ability or inability to survive a strike. [Steven Abraham, Routledge Encyclopedia of International Political Economy, Volume 1 page 73]

Even for inarguably pro-union FDR, the idea of public employees striking was "unthinkable and intolerable".


Teachers' Due Process Rights Will Be Violated

There is NO SUCH THING as a right of due process in matters of employment. None. The right to due process guaranteed by our constitution ONLY applies to citizens accused of a CRIME. The end. There is no caveat or condition that alters this fact. There are lawyers who get this basic first year constitutional law concept wrong all the time. I've heard them. They should have their licenses to practice revoked.

In the private sector, if you feel you have been wrongfully terminated from employment, you file a discrimination grievance with the state EEOC and have your case settled by a third party. It is actually a decent system. I think public employees should have to use this same system instead of getting their own special procedures that costs us taxpayers even more out of pocket.

I have been told by a friend that she knows several teachers who have been dismissed. These people must have done something pretty terrible for the state or school district to go through the pain of removing them! Or maybe she lives in a state where collective bargaining is prohibited and people can be fired more easily for cause. Even the superintendent of Indiana Public Schools, Dr. Eugene White acknowledges how costly and difficult it is. He blames the administrators for failing to do their jobs, not the unions who pressured to put these procedures in place.

My question: Aren't administrators part of the teachers' unions? Isn't this a distinction without a difference?

In the private sector, management is not part of the union. Part of the reason collective bargaining works is because we have two competing interests coming together in good faith to advance each interest mutually. If the administrators, who are essentially management are on the same side as teachers, where is the competing interest? Where is the adversarial nature needed to keep cost down and bad teachers out of the classroom? There is none.

*I am embarrassed to admit that I must emend my earlier statement regarding right of due process being an exclusively criminal construct. It also applies to government takings like eminent domain. Regardless, it still does not apply to employment.