Alice O’Brien

  • February 27, 2018
    Guest Post

    by Alice O’Brien, General Counsel, National Education Association

    For the fourth time in six years, the Supreme Court yesterday took up the question of whether a state may require public sector employees to pay for the collective representation a union provides as part of the state’s chosen system of labor management relations. And yet again, at argument, Justice Kennedy came in swinging against a strawman – teacher tenure.

    As the Solicitor General of Illinois explained the interest that state has in a “stable, responsible, independent counterparty” in bargaining, the Justice sarcastically queried whether that interest extended to promoting “teacher tenure.” In raising the issue, Justice Kennedy was returning to a well-trod theme. In all three of the arguments since Knox involving fair share fees, Kennedy has viewed tenure –inexplicably – to be somehow relevant to the constitutionality of fair share fees. 

  • June 12, 2014
    Guest Post

    by Alice O’Brien, NEA General Counsel

    Sixty years ago the U.S. Supreme Court issued its unanimous decision in Brown v. Board of Education overturning Plessy v. Ferguson and uprooting the deep roots of segregation in our society. The victory came after decades of legal work, by a small group of fierce civil rights advocates, paid little and subjected to threats and public denigration. Over the past two years, a team of corporate lawyers, retained and paid by multi-millionaires, have sought to cloak themselves in that rich legacy. 

    Their case, styled Vergara v. California, challenges the statutes that provide California teachers with their most basic employment protections – 1) the right to notice and an opportunity for a hearing before an impartial panel before an experienced teacher is terminated; and 2) the rule that layoffs for budget reasons proceed in qualification (credential) and seniority order unless the district has a special need to depart from that order. None of the challenged statutes determine a teacher’s class assignment or classify teachers or students in any respect; rather they each apply to all teachers in California across the board.

    As an initial matter, the two month trial demonstrated that none of the nine student plaintiffs in the case had been harmed in any way, much less denied their fundamental right to an education under the California Constitution. Two of the plaintiffs go to charter schools, which are not subject to the challenged statutes and two more attend Los Angeles pilot schools in which teachers may be released at the end of each school year without regard to the challenged statutes. The remaining plaintiffs failed to prove that they had ever been assigned to a “grossly ineffective” teacher due to the challenged statutes, which is the term plaintiffs coined to describe the type of teachers whose assignment to a classroom could implicate students’ fundamental rights. In fact, many of their teachers that they sought to tar as grossly ineffective had stellar evaluations and one was recently selected as a teacher of the year.  

    Despite this basic failure of proof, the trial judge struck down all of the employment protections for all teachers in California. The judge applied strict scrutiny to the statutes, finding that some small fraction of teachers—on the order of 1-3 percent—are “grossly ineffective,” and that those teachers’ students have been deprived of their fundamental right to an education. Because, in the judge’s view, each statute could be improved in some respect (by extending teachers’ probationary period, stripping down dismissal rights, and reconfiguring layoff criteria), the judge concluded that none could survive strict scrutiny.