Stuck in My Craw

So here comes what may the boringest blog post ever. Bear with me or not, I need to get this off my chest. I promise, you will be disappointed.

Michelle Rhee, the Chancellor of the D.C. public school system has gotten a lot of press lately over her proposal to create a two-tier compensation system in the District. See, for example, Time Magazine. She proposes to pay teachers up to $130,000 a year (salary and merit bonuses) if they will agree to drop tenure. In her system, tenured teachers would make their standard salary (around $65,000) in order to keep their job security, while other teachers would gamble on the higher pay by opting out of the current system. The Washington Teachers' Union has not brought this proposal to a vote, allegedly because they believe a generation gap among current teachers would create an unbreachable division.

Supposedly, Rhee's proposal is being watched with bated breath by most in the education world. She acknowledges that she wants to break the union, and nationwide, school districts are waiting to see if she can pull it off. Supposedly, her efforts are necessary because teachers just cannot be fired, because their unions always fight, and win, to keep them in their positions.

My gut reaction to this, after eight and a half years of being a union-side labor lawyer, is that this is utter and complete bullshit. I willingly acknowledge that unions occasionally (and in some cases, often) champion unpopular employees to vindicate political positions or procedural details. But that doesn't make bad employees un-fire-able. Let's look for a moment at the Washington Teachers' contract as it pertains to discipline.

3. Suspensions or discharge

In the case of suspensions, or discharge, the official taking the action shall provide the employee with advance written notice of the charge[s], which shall include a specific statement of the evidence supporting such charge[s], no later than ten (10) school days prior to the effective date of the discipline. At the option of DCPS, an employee shall either remain on the job or in pay status for the entire ten (10) day period. Within five (5) days of the receipt of the notice, the employee has the right to review all documents related to the charges and to provide a written reply along with supporting documents against the charges. The decision shall go into effect as stated unless upon consideration of all relevant facts by the official taking the action, the action is to be modified, at which time the employee and the union shall be so notified in writing of the modification. The disciplinary action or discharge shall not take effect until the requirements of this article are satisfied. All suspensions shall be administered in a manner which causes the teacher to lose no more pay than the actual days of suspension.

C. The initiation of the disciplinary action
shall be taken no later than thirty (30) school days after the supervisor’s knowledge of the alleged infraction. In cases requiring an investigation, any investigation conducted by or on behalf of DCPS into the alleged infraction shall be completed, with any investigation report provided to the employee involved and to the WTU within thirty (30) days after the supervisor’s knowledge of the alleged infraction. This time limit may be extended by mutual consent, but if not so extended, must be strictly adhered to.

There are a number of procedural hurdles described in these two sections, but I want to say two things about them: (1) they are pretty standard, although more favorable to employees than many collective bargaining agreements; (2) much of what is included is based on U.S. Constitutional law. 14th Amendment due process requires notice of intent to discipline and a hearing of the reasons for the decision (public employees have a property interest in continued employment).

The timelines are strict, but intended to prevent the employer from pissing around; if you want to take action, take action. Shit or get off the pot. It means the employer bears the burden of doing their job. And that's the rub. Much of what is described as a problem with the teachers is actually a problem with the supervisors, the district and even the precious new chancellor. If Michelle Rhee wants to know how to get rid of bad teachers, she would be well-advised to read her contract with the union. It's all spelled out there in black and white. Step one, step two, step three. The reason that the steps are particular is that the things teachers are accused of doing are highly subjective. For every complete idiot of a teacher that I have had, I can guarantee that there are 25 students who thought that teacher was brilliant. Should Ms. Mancini have gotten fired because I thought she was an utter imbecile? Maybe. But probably I was a 14-15-16 year old asshole (I had her three years in a row), and, gosh golly, here I am an educated person, and she's either retired or still teaching somewhere.

If you look at that contract, the careful steps do not apply in cases of corporal punishment, sexual harassment or abuse of a student. Mediation and respect are called for in cases involving complaints. These are appropriate. If that District doesn't want to exercise its own rights - by telling teachers that they must be in their classroom before class starts rather than at the bell, and disciplining people who fail to follow the rules - why should individual employees suffer?

This is one of the topics that kept me up late. In my disturbed half-sleep, I thought of many prescriptions for Ms. Rhee and the WTU. But now that I have read the contract, I see its all laid out for her. That Time article strongly suggests that she's only recently bothered to read her contract. If she understood it, she'd learn that employees must file their grievances within 10 days of the discipline (harder than it sounds for many people), that arbitrators are not bound by the formal rules of evidence in hearing each case, and that individual employees have no personal right to arbitration. She'd also understand that basic principles of fairness and respect underpin that relationship. It's all in there, if she only knew where to look.

Various and Sundry

Having little in the way of wit or surplus charm today, herewith is today's blog post:

1. The formal structure of the previous phrasing arises from the fact that I spent this evening writing a, what was it called, First and Final Account and Report and Petition for Final Distribution and For Statutory Compensation. I would say, "Just shoot me" but then some other luckless chap will have to write one for me. It's a probate case.

2. For a good preview of what its like to debate Sarah Palin. I love the phrase "glittering generalities." I think I need to learn to speak in those too.

3. I changed the look of my blog because I was bored with the way it was before. I don't know how to write html so I have to use the blogger templates. A buddy recently recommended typepad (another software "platform" I think is what its called), but I fear change, so I will impotently toggle templates til my brain re-engages with the actual content of this blog, and then the color scheme won't matter again.

Why the NLRB Should Be Abolished

In case you doubt that being a union lawyer has been an almost totally futile exercise during the Bush administration, I thought I would share this story with you. An employee is talking to her co-workers during their lunch break in the hospital cafeteria about her support for the union. A manager tells her to leave, as she cannot be on the hospital premises on her day off. The worker refuses to leave, and security is called. The security officer arrives with a German Shepherd by his side and orders her to leave. The union filed a charge against the Employer for threatening, intimidating and harassing the worker for engaging in union activities. The NLRB dismisses the charge:

The Region has authorized dismissal, absent withdrawal on this allegation. The investigation failed to reveal that the guard made any threats (or statements for that matter) to the employee. There is no evidence that the dog made any motion or threatening gesture toward the employee. Finally, there is no evidence supporting a Section 8(a)(3) violation.

That's the way it works these days. The only advice we can give is, next time, put your hand in the dog's mouth so it bites you. Now excuse me, I need to return to banging my head on the table, since this brief respite to blog has permitted the blood on my forehead to clot.

Oh, And

I managed to write something over at The Union Lawyer today, in case you are catatonically bored and in need of some digression.

Nino, Dios Mio, and Opus Dei

I cut my teeth on the Supreme Court nomination of John Roberts when I was a wee blogger, so it gives me some pleasure to return to my roots. I just finished reading The Nine: Inside the Secret World of the Supreme Court by Jeffrey Toobin. I highly recommend it, even to non-lawyers. Although there are gaping holes in Toobin's coverage (he seems to have missed Roberts enthusiasm for dancing), he manages to bring up Lil Jack's performance at the nomination press conference. But I didn't mention The Nine just so I can talk about Jack Roberts again.

I won't bother you with the "salacious" details (there aren't any, unless you are a SCOTUS nerd). Toobin does make a few interesting observations about conservatives that caused me to reflect on that species. Toobin notes that there are now five Catholics on the Court. He mentions it in the context of the idea that there is no longer a category of individuals who cannot get on the Court (Women, Jews, Blacks, Catholics - no reason to believe that a Hispanic couldn't get on board). But what interested me more was the fact that some of these Catholics are absolutely beloved by conservative, evangelical Christians. Scalia, Alito, Roberts, and Thomas are Catholic. Kennedy is Catholic too, but since he's proven to be such a disappointment to conservatives, with his Lawrence v. Texas and his foreign law "proclivities", he doesn't really help my point.

And that point is, the Catholic Church I grew up in neither loved, nor was beloved by, evangelical Christians. Recall my years at PTL. Although we were Catholic, people (okay, kids) I met there were pretty unabashed in their accusations that Catholics worshipped false idols (the saints), and engaged in Mariolatry, both of which were akin to paganism. Transubstantiation did not go over well either. "You mean, you actually think that you EAT Jesus? And drink his BLOOD?? That's so stupid!" My mother was, at times, involved in Pentacostal Catholic prayer groups, but I don't recall a particular political fervor, even around abortion. My Mom was, in fact, more of a social justice/Catholic Worker-type Catholic, and consequently so was/am I.

I know that the personal is not actually political, and that I cannot generalize from my childhood interactions with evangelical Christian children in 1985 to questions about the Supreme Court's realization as a conservative outpost in the federal government. But I am curious how a nearly rabid right-wing got into bed with Catholics, particularly in light of Toobin's other information, which is that the conservative movement's vetting of Supreme Court nominees is as awful and dark as the self-criticism exercises of Communist cells, or the Stasi. Nearly anything can brand someone as "not conservative enough". For example, Harriet Miers and Dick Cheney were skeptical of John Roberts! They thought he might not be conservative enough. And then conservatives turned on Miers like wolves. The fact that she had made explicit references to opposing Roe v. Wade during her political career in Dallas did nothing to assuage conservative fears that she was "squishy". Alito and Roberts, meanwhile, refused to address Roe v. Wade during their confirmation hearings. These two are the golden boys of the conservative revolution, the fruition of Federalist Society longings for 25 years.

Fight for Your Right to Birdie, Part II

BD points out that there have been other civil rights' victories on the golf course, including Casey Martin's victory* over the PGA Tour for an accommodation to use a golf cart during tournament play. I thought about it some last night (I know, lame) and I think there are a few reasons why golf courses are the loci of civil rights litigation:

1. Golf courses/country clubs have many stupid rules, many of which, when challenged, illustrate how unnecessarily self-regulated golf courses and country clubs are.

2. "Golf course" and "country club" are two of the only phrases that evoke a certain class meaning without additional description. They are "white", "old money", "straight", "healthy" and most of all "rich". Thus, in civil rights discourse and litigation, they are an easy stereotypical "villain". Which does not entirely explain why they get sued more.

3. Except it does. Obviously, in litigation, "rich" = "deep pockets", so that might make them even more attractive. But more importantly, the plaintiffs in these suits are golfers, which like "country club" and "golf course" means that they are "white" and "rich". This means they have the means (financial) to litigate, and the sense of entitlement to dream that they should have access to any golf course in America.

Which I guess is why I have a hard time having my heart strings tugged by these folks, notwithstanding the fact that there victories open the door to so many good outcomes.

*Scalia's dissent discusses "Platonic golf", which, although funny to imagine, demonstrates how far afield of reality Scalia will sometimes go to avoid joining an opinion that acknowledges a statutory or Constitutional right.

Fight for Your Right to Birdie

Okay, I am totally down with the recent Cal Supremes ruling that domestic partners are entitled to the same discounts afforded to married couples, but since when is golfing a "human right"? Sooth the plaintiff in the recent suit that permits her partner to golf for free just like a married spouse at their country club: "We aren't activists, we aren't politically charged. We just wanted to play golf together and we just really felt we had every human right to do that."

ARGH!! Along with the whole Masters battle about women playing at Augusta (Michelle Wei will walk in next year, which is so third - or is it fourth? - wave feminist), this idea that our human rights battles occur on the golf course makes me sick. I recognize that this is not the most cutting commentary ever, but could we get a friggin' injustice up in here, please?