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Litigation Scoreboard Shows Encouraging Results

As the saying goes, "Those who can, teach. Those who cannot, pass laws about teaching."

[section 28] requires schools to ask students and their parents about their immigration status and has the effect of frightening undocumented parents into not sending their children to school.
—Federal ruling over Alabama


Illustration:William Brown

NEA and its state affiliates have filed a flurry of lawsuits challenging a wide range of anti-union and anti-worker state laws enacted recently (See Fall 2011 Rights Watch column, "Educator Rights Decimated"). Some preliminary results are in, and while all of these lawsuits are still pending, NEA’s batting about .660 so far.

ARIZONA — On the plus side of the ledger, the Arizona Education Association last September won a federal court order barring an onerous state law that severely restricts payroll dues deduction for public workers. The statute requires a union that is collecting dues through payroll deduction to specify beforehand the percentage of its budget that will be used the following year for “political purposes” (vaguely defined). If the union underestimates how much it will spend on politics, then it is subject to a $10,000 fine “per occurrence.” Like the Wisconsin law pushed through by Gov. Scott Walker, the Arizona statute specifically exempts public safety unions.

Federal Judge G. Murray Snow, a Republican appointee, ruled that it was wrong for the state to give public safety unions preferential treatment and to allow those unions, but not others, to receive payroll deductions to subsidize their political activities. “By imposing its burdens on the political speech of some unions,” the court said, the law is “not evenhanded” and violates the First Amendment guarantee of freedom of speech.

Based on this finding, Judge Snow ordered Arizona Attorney General Tom Horne not to enforce the statute while the lawsuit is still pending. A final decision in the case is not expected for several months, and an appeal is likely.

ALABAMA — NEA has scored two significant victories in the Heart of Dixie. Last March, in a case brought by the Alabama Education Association (AEA), a federal judge issued an injunction blocking a new law that prohibits school employees from making contributions, through payroll deduction or otherwise, to membership organizations that engage in political activities. That case is now on appeal to the Eleventh Circuit Court of Appeals in Atlanta.

The other big news involves the legal challenge to Alabama’s harsh new anti-immigrant law known as HB 56. In September, a federal judge refused to halt implementation of section 28, one of the law’s most pernicious provisions. That section requires schools to ask students and their parents about their immigration status and has the effect of frightening undocumented parents into not sending their children to school. NEA and AEA filed an amicus brief arguing that section 28 conflicts with a 1982 Supreme Court decision prohibiting states from denying an education to undocumented children.

An emergency appeal was taken to the Eleventh Circuit, and on October 14, 2011, the court issued an extraordinary order enjoining section 28 while the case is on appeal. Unfortunately, the court’s order may have come too late. According to media reports, some 2,200 Hispanic students, about 7 percent of the Hispanic student population, failed to show up for school in late September.

RHODE ISLAND — Last September, a state court judge issued a favorable ruling in a lawsuit brought by NEA Rhode Island and seven other public employee unions seeking to block changes in the public employee retirement system. The new law increases the years of service needed to qualify for retirement, reduces pensions, and limits cost-of-living increases. In a lengthy decision rejecting the state’s request to throw out the case, the judge ruled that there is an implied contract between the Employees Retirement System of Rhode Island and participating employees, which includes the right to cost of living adjustments, as well as base benefits.

IDAHO — On the negative side of the ledger, an Idaho trial court last September rejected the Idaho Education Association’s (IEA) challenge to the recently enacted SB 1108, which, among other things, abolishes tenure, guts bargaining rights, eliminates an early retirement incentive program, and limits bargaining agreements to one year. IEA has appealed the decision to the Idaho Supreme Court. Meanwhile, following the lead of their colleagues in Ohio, IEA members spearheaded a successful campaign to put to the voters the question whether SB 1108 should be repealed. The issue will appear on the November 2012 ballot, along with the proposed repeal of two other anti-public education laws.

COLORADO — Last September, a state court judge denied the Colorado Education Association’s (CEA) request to enjoin a troubling new State Board of Education rule requiring school districts to notify parents within 24 hours of learning that a current or former school employee has been arrested or charged with a felony or other specified offenses. CEA has appealed that denial.

There is a bit of other good news. In a strong rebuke to conservative Gov. John Kasich, the good people of Ohio last November overwhelmingly voted to repeal that state’s harsh anti-union and anti-worker law. It wasn’t close: 61 percent to 39 percent, strong evidence that there’s widespread support for the fundamental values we stand for.

—Michael D. Simpson, NEA Office of General Counsel


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