PUBLISHED: 9/22/2012 11:28 PM |  Print |   E-mail | Viewed: times

COLUMN: Teachers, unions and S.C. education

Parents and non-parents alike have looked on in horror as Chicago teachers shut down the schools for more than a week, depriving 350,000 kids of an education and sending parents scrambling to make emergency arrangements for their children or stay home from work to care for them.

With the main sticking points over whether teachers can be graded on how good a job they do and whether even the worst of them can keep their jobs if their schools have to close because parents abandon them, it's hard not to see the teacher strike as evidence that public-employee unions are selfish and unreasonable protectors of the incompetent.

Still, S.C. teachers might well look on with a bit of envy, considering that their counterparts in the nation's third-largest school district already are among the best paid in the nation, pulling down an average salary of $76,000, and were fighting for bigger raises and the right for laid-off teachers to claim a job at another school, even if the principal doesn't want them.

After all, teachers in South Carolina, whose pay averages $47,000, are just getting their first raise in five years, there's never any guarantee of another one next year, and when the schools have laid off teachers, they've just been out of luck.

What S.C. teachers won't do is start their own picket lines. Because, by law, they can't.

Public school critics love to complain about how much damage the "teachers' unions" do to our schools. But the fact is that the only schools in South Carolina that could possibly have to deal with a teachers' union are those private schools that our most anti-union lawmakers want us to subsidize.

Some S.C. teachers do belong to the S.C. Education Association, which is an affiliate of the National Education Association, a union. But the S.C. organization is not a union. It's a lobbying group. No more powerful (and, by all indications, a lot less powerful) than the state Chamber of Commerce or the trial lawyers or the S.C. Medical Association or any of the scores of other trade associations that send their lobbyists to the State House to try to influence legislation.

The S.C. Education Association, along with the Palmetto State Teachers Association (which likes to refer to the other organization as a union), can try to influence school boards and the Legislature through letter-writing campaigns, and encouraging their members to show up for public meetings, and giving out campaign donations.

But they can't demand anything. They can't engage in collective bargaining, and they can't go on strike.

Although South Carolina does more than just about any other state to limit workers' ability to organize and engage in collective bargaining, teachers and other government employees don't have even those limited rights, according to the state Supreme Court.

In a unanimous 2000 order written by then-associate now-Chief Justice Jean Toal, the court explained that although there is no state law that specifically prohibits public employees from joining unions, they can't, because government is not an "employer" covered under the right-to-work law that gives employees limited organizing and collective-bargaining rights.

In reversing an Appeals Court ruling that had found otherwise, the court explained that South Carolina's right-to-work law was written at a time when state and federal labor-relations statutes did not apply to public employment "unless coverage was specifically required by the statute's language," and so the meaning of the statute had to be interpreted in that context.

A 1969 lower court order explained the thinking behind excluding government from state and federal labor laws: "At common law, public employees have no right to strike. Chief among the reasons behind the rule precluding public employees' strikes are: 'The sovereignty of the public employer; the fact that the government is established by and run for all of the people and not for the benefit of any person or group; that the profit system is missing in public employment; that public employees owe undivided allegiance to the public employer; and that the continued operation of public employment is indispensible in the public interest.'?"

The 2000 opinion did note that since the time South Carolina's collective-bargaining law was first written, courts have "moved away from this policy of excluding public employment because they disfavor supporting governmental immunity against an individual who would have been able to recover against a private entity in a similar situation."

Our Supreme Court is anything but activist, so the idea that it would reinterpret longstanding public policy in that way is far-fetched at best. But our lower courts are a bit dicier, as are the federal courts. Beyond that, it's never smart (much less appropriate) to rely on court precedents to control public policy. These are things that should be written into the statutes, so they can be changed only by an act of the Legislature, not by the whims of a court.

The funny thing about this is that the Legislature made a huge production this past season of strengthening our right-to-work statute, adding all sorts of bells and whistles that might increase the difficulty of forming a union from, oh, 9.7 to 9.8 on a 10-point scale. Meantime, we have a prohibition on public-employee unions that is not written into our statutes but that is based on a judicial approach that has been falling out of favor nationally for more than a decade.

You'd think that if our lawmakers wanted to demonstrate that they won't tolerate unions, they might want to address that situation, perhaps even consider affirmatively prohibiting public-employee unions.

But then, that would require them to examine the laws in our state, and think through potential problems that might actually occur, rather than just taking their marching orders from business lobbyists and fixating on the talking heads who stay busy dreaming up cookie-cutter problems and solutions to nationalize state politics.

Cindi Ross Scoppe is an associate editor with The State newspaper in Columbia.