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  • Aug 07 2018

Legal Updates with Leslie: Janus, Florida and Puerto Rico

Learn the latest on three key cases and how they could affect families’ educational choices

In today’s episode of EdChoice Chats, Vice President of Communications Jennifer Wagner chats with Vice President of Legal Affairs Leslie Hiner about several court cases, including the U.S. Supreme Court Janus v. ASFCME case and an ongoing case about Florida’s school choice programs.

Click to listen to the full podcast, or read the transcript below.

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Our Podcast Transcribed

Jen Wagner: Hello and welcome to another episode of EdChoice Chats. I’m Jen Wagner our vice president of communications here at EdChoice. And I am joined here today by Leslie Hiner our vice president of legal affairs and the Head of the LDEC. The Legal Defense and Education Center which is a new wing of EdChoice that focuses solely on legal defense and education. So thank you for joining me Leslie.

Leslie Hiner: Thank you.

Jen Wagner: Well we’ve got a lot to talk about today. A lot’s being going on in the courts in the last few months since we last did a podcast like this. I think probably we need to start with the Janus case. Obviously big, big news and set up for this, the last decision, one of the last decisions for the supreme court for this term was huge. You had lots of people saying, Oh my goodness the sky is going to fall if this case comes out a certain way. You’ve got other people saying it’s not really that big of a deal. So tell us what happened and what you make of it.

Leslie Hiner: Well the Janus case changed a major part of standing law in the country for many years so very simply if you are a public employee and you decided that for any reason you didn’t really want to join the public employees union, you nonetheless, had to pay some pretty hefty to the union whether you wanted to be a member or not. And over time people objected to that, as you can imagine. So you don’t want to be part of a group, but you have to pay them anyhow. That’s pretty offensive.

So the teachers won this case at the U.S. Supreme Court and teachers and other public employees, and so now the U.S. Supreme Court said, if you don’t want to be part of a union, you don’t have to pay them anything. You do not have to participate in everything else that they do and support everything else that they do. So that was the ruling. It was a pretty big ruling.

Now here’s the most important part today about that ruling. So that ruling became the new law as of the date of the ruling. So that was the end of June. June the 26th I believe. Which means that the next day there should have been no money taken from any public employee who was not a member of the union and didn’t want to contribute. But that didn’t exactly happen.

To give you some historical perspective on this. Back in the 50s when the Brown v. Board of Education case—the big landmark case that said you can’t have segregated public schools. When that happened school boards across the country were directed to fix the problem. Do not have the segregated schools. But there were a lot of school boards across the country who either, they didn’t really know what to do, to be quite honest about it. Or they really had no intention of ever doing that, it’s also being rather honest about it, it’s just the truth. So there was a lot of follow up litigation afterwards just to tell people, “No, really, what the Supreme Court said is what they actually meant.”

The same thing is happening in the Janus Case. Now there has been follow up litigation because just like the status quo, the system in the public schools that was in place at that time, in the 50s, they didn’t want to let go their status quo. They didn’t want to let go of how they were always doing things. The same thing is happening today. The teachers union in particular. They are dominant in education in every state, and they do not want to get rid of that money. They won’t let go of it. So as a result there’s been considerable follow-up litigation just so that these teachers and other public employees can enforce their rights that have been determined by the U.S. Supreme Court.

Jen Wagner: Excellent, so this is a long way from being over is what I’m hearing and one of the most important things, and I want to reiterate this because you said, out of this case, not only did they rule on the issue of having to pay for something that you are not going to be a part of but also that everyone was basically automatically opted out as of the day of this ruling.

And so in addition to these other laws that we’re seeing kind of popping up, or potential laws that are ways of working around the ruling, do you anticipate that we’re going to see, you know, litigation about basically starting from zero. That, you know, you’re going to have courts in certain states that are going to order these union and these members to be done and that they are really truly going to require them to opt back in.

Leslie Hiner: I think that what we’re going to see with the litigation, and maybe not right away, but I think at some point rational minds will prevail and people will understand now the ruling from the U.S. Supreme Court was about as crystal clear as a legal ruling can be. I’d encourage anybody to read the Janus decision because it’s written in a very direct way. Don’t worry if you’re nervous about reading the law or if you’re not connected with legal matters in any way you can read this decision and understand it clearly.

So at some point I think some of these lawsuits will go away. The states, the local school boards will simply act as they should which is to stop automatically taking money away from teacher’s paychecks and establish a system that would allow those who want to participate in the union to be able to and those who don’t want to participate to not be in any way harassed by the union, but the school boards, by anyone.

Jen Wagner: That all makes very good logical sense. One of the things that we did here in the months leading up to this decision specifically from the unions, specifically from the AFT and the NEA. Well it was actually, it was interesting, there’s two messages. The one message was this is going to kill us. But the other message was, we’re really prepared for this and we understand we’re going to have to go back to the basics of grassroots organizing. Which was interesting because again two definitely very different outcomes there that they were promising. Which one do you think is closer to the truth?

Leslie Hiner: I think actually, I think both are actually true. I think that they will lose a lot of money from people who don’t want to support them. And let me say this. The reason for this is that those teachers who were nonmembers and who objected to paying any money to the union, the primary objection was because the union, although they could opt out of paying anything toward political initiatives, both the NEA and the AFT, they are big, big, big political donors. But in addition to that, though, they also do some non-profit type activity that is nonetheless extremely political, extremely ideological, and the teachers’ dues were going to support that.

So it came down to this, if you were a teacher, not a member of the union but paying these dues, either you supported the causes that the teachers union supports but you didn’t want to have to be forced through your profession as a teacher to support all kinds of extraneous issues that have nothing to do with teaching, or you completely disagreed with the union in their support of those ideological issues, yet found yourself giving money to people that you don’t agree with.

So either way, either way I think that there will be a significant number of teachers who will no longer choose to support the union financially or in any other way. So I think that they will lose some money. Will they increase their grassroots activity? I think that’s true and we’ve seen some of that, but mostly in political organizing. There really hasn’t been that kind of significant outreach to teachers that I think you and I would expect.

Okay if you’re a kindergarten teacher someplace, you need some help with whatever it is in your professional career, you really don’t give a hoot about any of the political stuff. You just need some help in the classroom so that you can reach that child who’s sitting there every day looking to you for your help and guidance.

So from that perspective I think we’ll see more organizing but not necessarily to the benefit of teachers, but that’s yet to be seen.

Jen Wagner: Okay and I think a couple more questions on Janus. One of the things that has often been said about the teachers union is that it does operate more like a trade union and less like a professional services based union. You and I are both lawyers, both admitted to the bar. The bar provides a lot of services, the Bar Association, any membership organization provides a lot of services like you’re talking about could be provided to teachers. So in a best case scenario maybe, the teachers unions go more that direction and they actually do start providing those kind of services to teachers in the classroom.

It’s worth noting too that this is not an insignificant amount of money that’s coming out of teacher paychecks. Or, was coming out involuntarily. And as we talk more about teacher pay, teacher salaries, we see Red for Ed, we see these movements across the country. Do you think this, I mean this is an empowering move for teachers to keep some of that money in their own pockets and that maybe that will help them stay in the profession?

Leslie Hiner: Oh, I think so, for sure. Let’s face it, if you’re a person, you’re a young person, you’re in college and you make the decision that you want to be a teacher and you go through student teaching etc., and you fall in love with this career of being a teacher, well for those individuals that’s all they really care about. They really do care about the learning that goes into a classroom and to be that person who can help bring the joy of learning to some child. And so any service that helps a teacher to reach a child, to reach a student in the classroom, that is going to be welcomed by teachers in a very, very big way.

But as soon as the union start straying from that which they did over 20 years ago now. There’s a long track record of straying far away from that. Then it’s just not so relevant. I have to believe, well I just have to trust teachers on this one. That when we are supporting them that our support should be in a very professional way and supporting their responsibilities as the person in the classroom with our children. That’s the priority, nothing else really matters.

Jen Wagner: That makes total sense and I guess the last question on Janus would be. We’ve talked a lot about the effect on teachers, the effect on unions. Do you think this will have a notable effect on educational choice, on school choice, or are those issues really disconnected?

Leslie Hiner: We see a connection here and this is why we’ve been so interested in this case. Because we do meet a lot of teachers as we’re advocating for school choice because there are an awful lot of teachers who believe what we believe which is that a child should be able to be in a classroom, any classroom, where that child can learn. We often see the case where teachers in public schools and private schools and in charter schools will collaborate on behalf of kids. So that if a child needs to go to a different environment—maybe the child’s in a really big public school and is just overwhelmed by the experience of being with so many kids and so much activity and just can’t connect to the learning—but the teacher can see that and knows that the child being in a small school where’s there’s less commotion, less people that that could open up an opportunity for that child to really learn, well teachers know this. So they will collaborate with each other to the benefit of these kids.

So in that they’re supportive of school choice. They’re supportive of the mechanism being in place that will allow a parent to make different choices for their children depending in what they need at the time. So yes, I think that this is a very positive move. Not to mention the fact too that teachers are so often quiet in the education debate. If they disagree with the union that’s not, well that’s not a good position to be in. But at this point teachers will be empowered to speak their own minds and we welcome that.

Jen Wagner: Yes, if you’re just tuning in the short version of that is teacher freedom is good for kids and teachers now have more freedom. Excellent, so let’s switch gears a little bit more into what EdChoice has been doing in the last two weeks, since you’ve been awfully busy. I think this is the first time I’ve seen you in person in two weeks.

So we’ve been involved, you in your capacity as the head of the Legal Defense and Education Center, have been involved in writing two amicus briefs for cases in Florida and Puerto Rico. So let’s start with Florida if you can tell us a little bit about what’s been going down there. They have a long standing tax credit scholarship program that’s been basically under attack since the day it was passed but serves 100,000 kids. What’s the latest assault on that program?

Leslie Hiner: In Florida, what you said is right, is these programs have been under constant assault for many years. In this particular case where we filed an amicus brief it’s the Citizens for Strong Schools vs. the Department of Education. That case began in 2009. Yes, this case is nine years old. It’s still going and the people who brought this case, which is the teachers union in Florida, they want to prolong it even more. What they’re asking for from the courts is to take the case, send it back down to the lower courts and do some more investigation of how the money is being used for education in the state of Florida.

Now, it’s important also to note at this point that they lost at the trial court level and in fact in went through a couple different trial court iterations, lost every time, lost at the appellate level. At the trial court level there was a four week trial. It was massive. There was so much information that was delivered to the court at that time and the conclusion was simply that they didn’t have standing to bring the challenge to the text of the scholarship program, very simply there’s no injury and the tax credit scholarship is privately funded, not publicly funded, the McKay voucher program, that’s constitutional as well. And not only that, but it also is a decided benefit to both children and the state of Florida as well as public schools. And then additionally with regard to whether or not there should be more money spent on schools in Florida.

The conclusion by the trial courts and also the appellate courts was that if education in Florida was going off the rails. Going in a really bad direction, really if it were collapsing, then there might be some merit to the teacher’s unions request. However, the opposite is true, in fact, ever since the days when Jeb Bush became governor of that state, Florida instituted a whole series of education reforms. Not just school choice, but so many other reforms. And those reforms now, they’re really starting to see some strong results from that. So education in Florida is actually going way up in their rise in academic achievement and performance in Florida is outpacing literally every other state.

So why is there any need for more money? Why is there a need to stop some of these reforms that have been helpful? Well there isn’t, and there is nothing unconstitutional about them. Nonetheless, the teachers union is persisting with this case at the Supreme Court.

So we wrote an amicus brief, and one of the high points of this brief is that we partnered with the Florida State Hispanic Chamber of Commerce, an outstanding group in Florida. They’ve been around for a long time. They’re a group of Hispanic business people but they also have this tremendous outreach in the Hispanic community where they help lift up entrepreneurs. They help people create their own jobs in Florida. They’ve been tremendously successful.

Now they have a particular interest in this case because in the Florida Tax Scholarship Program the largest percentage of children who access the tax credit scholarship are Hispanic children. And it’s been this way consistently for the last seven, eight years now. So it’s clear that the Hispanic community has embraced this, and they’ve realized that this is an opportunity for them to access education that will then prepare those kids to be the entrepreneurs that the Florida State Hispanic Chamber of Commerce support so beautifully. I was a real joy working with them.

Jen Wagner: Outstanding, and I know that a lot of your work is actually partnering with groups in the states or other national groups to make sure that we’ve got the right voices at the table and it’s kind of hard to imagine, if for some reason, this challenge was successful, that we’d have to send 100,000 kids back to public schools in Florida and could they even handle them but that’s probably an issue for another day and another member of our team.

What is the timeline on the Florida case and when do you expect to hear back on this latest challenge?

Leslie Hiner: The next step will be oral arguments and so we expect the Supreme Court of Florida will schedule oral arguments for sometime this fall. We also expect that there may be a ruling in this case actually before the end of the year. At this time there are four justices of the Florida Supreme Court that are term limited. They have age limitation on their courts and they are going to age out here at the end of the year. So we’re expecting that those four justices that are currently on the court will want to have a say in this case.

Jen Wagner: Excellent, well we’ll be back later this year probably for an update on that one. And then last but not least, let’s talk about Puerto Rico, where obviously a natural disaster earlier this year has caused a lot of reforms to be happening there that probably otherwise wouldn’t have and if you could talk a little bit about the education reforms that happened and then now the legal challenge to those also happening almost immediately after those reforms took effect.

Leslie Hiner: Yes, Puerto Rico has recognized that as they are going through this tremendous rebuilding process that they lack certain things. We’ve all heard in the news that the utilities it’s been a great issue. There are still a lot of people in Puerto Rico who have no power for example. But in the process of evaluating what they need to be able to fully rebuild Puerto Rico, education came to the top of the list. They have been not only at the bottom of educational achievement, but they’ve struggled to have any kind of educational achievement not just since the hurricane, but for many, many years now. Education has just not received the attention that it needs in Puerto Rico.

So recognizing that, the legislature, actually very quickly, probably faster than I’ve ever seen it happen, they adopted a series of reforms for education. There are three things in particular. The one is that the reform allowed for the closure of a significant number of public schools. Secondly they created charter schools, and thirdly they created a program of vouchers.

Now the teachers union, the AFT the national and also their local chapter there in Puerto Rico, they’re the ones who brought the litigation. First thing that they did was segregate out the closure of public schools piece. And the courts went along with that. It said, “Yes, we’ll litigate that separately.” And the court ruled very quickly on that and said, “It’s constitutional and, by the way, it’s also extremely necessary.”

As it turns out, and again not just since the hurricane, but for several years now, people have been leaving Puerto Rico, and of course that’s understandable. If you’re a family and there’s nowhere that your child can get a good education, you might leave where you’re living to see educational options elsewhere. In fact, I think it’s interesting to note that there have been thousands of families literally that have left Puerto Rico for Florida where they have so many educational options and where education is improving.

So they have a lot of public schools that they were supporting but no kids in the schools, it didn’t make any sense. So that was taken care of pretty quickly. But the case that where we filed our brief was with respect to the charter schools and vouchers. It was the typical story of a constitutional prohibition against funding any nonpublic schools. It comes down to that. But it was less of an establishment clause freedom of religion case, and more a case about the money. That there can’t be any public money that goes to support private schools.

So in this challenge, it was really challenging for the lawyers too. Need to take just a minute to explain to everyone how intense it is in Puerto Rico. When the court accepted, the Supreme Court of Puerto Rico, when they accepted this case they also said that all of the parties involved in the case would have five business days to submit their briefs. Now for any lawyers who were listening you’re probably having heart palpitations right now. This is extremely unusual to prepare a brief it normally takes a good 30 days, at least, to do that. But we didn’t have that. We just had a few days to put this brief together.

What’s significant to know is that in the order from the Supreme Court they were very deliberate in saying that there is a great sense of urgency in education in Puerto Rico—that it’s an emergency in Puerto Rico. And that was their basis for why they told the lawyers, “Okay get busy right away because we can’t wait.”

So in this case we’re also we’re also expecting to get a ruling from the court. It could be today, but for sure they said they would rule in this case before school starts.

Jen Wagner: Wow, so sometime in the next 30 days for sure.

Leslie Hiner: That’s right, and they stated this, they want the Secretary of Education to have enough time to put some of these reforms in place, to get things going right away. If they find that these programs are constitutional.

Jen Wagner: Go it, so if you’re listening to this you know check our website because I’m sure our blog post on Puerto Rico will be updated as soon as we have a ruling in that case.

Leslie is there anything else? We’ve covered a lot today and it’s, my goodness it’s August, it’s not usually our busy season, but is there anything else on the horizon that you can see on the legal front or are we kind of waiting mode until we get to legislative sessions in January.

Leslie Hiner: We are in a little bit of a waiting mode right now, however I will also note there is a case that was filed in Connecticut by our friends at Pacific Legal regarding a quota system that exists in their charter and magnet school system in Connecticut which very simply means that they are allowing seats to go empty in some of these charter schools and magnet schools, and kids who really need to get in to those schools and are begging to get into those schools are disallowed. It’s an unfortunate circumstance in Connecticut so we’re looking to help them in that case.

And the bottom line is that anyplace where we see that we can lend our support on the legal side of things for cases where children and families are being discriminated against, they’re being denied a proper education or in cases where these programs like the Florida programs that have done so much good for so many years and serving so many families. In fact with all of their school choice programs now their education savings accounts, the voucher, the tax-credit scholarship program. They’re approaching 150,000 students who today have the education that fits for them. We’re going to support that. We will lend our support to those families and to those children.

Jen Wagner: So if you out there and you’re listening and you have something in your state that seems like it’s coming up on the horizon make sure that you get in touch with us. That is Leslie’s entire purpose here is to make sure we’re providing those support services, those legal support services. So we’ll keep an eye on Connecticut, Puerto Rico, Florida. Probably the next time we’re in the studio we’ll talk about the Supreme Court hearings and of potential Justice Cavanaugh, what that might mean for Blaine amendments and for school choice at the Supreme Court level.

And obviously we’ll be keeping our eye on Arizona which has a referendum in a few months not necessarily a legal issue in the courts but certainly one that we’re going to keep an eye on where they might or might not wind up rolling back a part of their ESA voucher program. So lots to talk about.

Leslie thank you as always for joining us and I’m sure we’ll be right back here soon.

Leslie Hiner: Thank you Jen. It’s a pleasure.

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