A month ago, I examined the SCOTUS case of Friedrichs v. CTA, and forecast that Friedrichs had a 65% probability of winning. However, Justice Scalia’s sudden death has completed shifted the prospects for this case. I now believe that it is unlikely that Friedrichs can win. If I had to pin a probability on it, I’d move closer to 40% now.
“If Justice Scalia was part of a five-Justice majority in a case – for example, the Friedrichs case, in which the Court was expected to limit mandatory union contributions – the Court is now divided four to four. In those cases, there is no majority for a decision and the lower court’s ruling stands, as if the Supreme Court had never heard the case. Because it is very unlikely that a replacement will be appointed this Term, we should expect to see a number of such cases in which the lower court’s decision is “affirmed by an equally divided Court.”
The most immediate and important implications involve that union case. A conservative ruling in that case is now unlikely to issue.” [Bold added]
Well, looks like I’ll need to readjust that probability back up based on some new information from SCOTUSblog. I’m readjusting up to 50% now. It looks like it’s possible that rather than allowing the lower court’s ruling to stand, which in the case of Friedrichs, would be for CTA, the court may wait to rule until a new justice is in place. If that is indeed the case, then it’s essentially a 50/50 probability, since whether Obama can get a justice nominated who is remotely liberal before the presidential election is up in the air.
The practice of holding reargument is important for three kinds of cases that are now pending. First, in cases in which the more liberal side won in the court of appeals (for example, the Friedrichs union fees case), that side will be deprived of an affirmance by an equally divided Court. It could well lose if Justice Scalia is succeeded by another conservative.”
So, as you know, I’m pessimistic about the outlook of the pending Friedrich’s case (what probability would you assign to Friedrich winning the case? Vote here!) It’s not the outcome I want–but I’m afraid that it’s likely the outcome we will get. Meaning that teacher’s unions will lose a large source of funding and thus, power.
If you pay any attention to the history of US public education, or of labor in general, then you most likely have some understanding of why unions matter. Unfortunately, however, there are a newer generation of workers and teachers who may not see this.
Increasing disengagement presents a large problem for unions, especially as our economy and workforce undergoes increasingly volatile shifts. And let’s be honest–most unions haven’t demonstrated the greatest sense of urgency in trying to adapt to changing conditions. My local union, the UFT, for example, has more than half of its voting during elections come from retirees. And the union leadership seems to think that simply asking teachers to promote or comment on policies and proposals they’ve already created is somehow democratically elevating teacher voice.
Speaking personally, I rarely engage with my union because I’ve found other avenues to have my skills and voice applied in ways that can further my profession. But I at least understand the need for professional solidarity when it comes to collective bargaining for decent wages and working conditions. Without solidarity and collective bargaining, individual workers have little sway in gaining concessions from either governments (such as the mayor or superintendent) nor private interests. I am therefore supportive of my union, at the very least, for providing a necessary counterbalance to government and private financial interests.*
But maybe losing the Friedrichs case might prove to be the tough medicine that will force unions to adapt to the rapidly changing conditions of our times, like Peter Cunningham suggests.
Or perhaps there may come a day of reckoning, when the future labor force has been Uberized completely, and all jobs made temporary and contracted-by-the-hour, that a few teachers will awaken to discover their previous rights have been sundered, that they are working (even more) inhumane hours, in inhumane conditions, with few protections. And they may then gather together to hold a discussion about how they might leverage their collective power to gain concessions from those who hold the cards. And they thus may relearn the meaning behind the word “solidarity.”
We will see. In the meantime, if my state, NY, the birthplace of collective bargaining and Al Shanker, becomes a “right-to-work” state, I will choose to continue to give my “agency fees” to my union.
*It seems to me like both unions and government have increasingly ceded power to private interests. But to be clear, I’m not anti-privatization. I believe in public-private partnerships.
But here’s the thing. You’re going to hear a lot of ed folks declaiming on the potential outcome of the Friedrichs v California Teachers Association SCOTUS case over the next few days. For good reason, as this is a case that may well prove to be more determinative of the future of public education in this country than ESSA.*
I’ve been reading Daniel Kahneman’s excellent Thinking, Fast and Slow lately**. Kahneman’s book is all about ideas we’ve touched on before here, such as cognitive bias and uncertainty. We’ve also looked at how “probabilistic thinking” could be used to overcome bias. So when I fortuitously came across this article on how “superforecasters” use probabilistic thinking, as well as a “base rate,” or “reference class” in order to make more accurate predictions, it jibed well with my understanding, and I think there’s useful lessons to heed as Friedrichs case is heard over the course of this week.
Rather than ideologically proclaiming sweeping predictions, as the experts are wont to do, “superforecasters” are less certain about their predictions, which ironically makes them better predictors. Professor Philip Tetlock delineates between “hedgehogs” and “foxes,” and notes that superforecasters are more akin to foxes:***
According to Tetlock, foxes are more pragmatic and open-minded, aggregating information from a wide variety of sources. They talk in terms of probability and possibility, rather than certainty, and they tend to use words like “however,” “but,” “although” and “on the other hand” when speaking. . .
Unfortunately, most of the predictions you see in the media lack the specificity necessary to test them, like a specific time frame or probability, Tetlock says. . .
Instead, Tetlock advocates for something he calls “adverserial collaboration” — getting people with opposing opinions in an argument to make very specific predictions about the future in a public setting, so onlookers can measure which side was more correct.
What does this have to do with Friedrichs? Well, I would suggest asking education “experts,” who will write about their ideas on the case, to assign a probability to their predicted outcome.
Based on my own, extremely limited understanding of the case, I think there’s a 65% chance that Friedrichs will win. I could well be completely wrong. But you’ve got my prediction here, in writing, with a timestamp on it, so you can hold me accountable to this.
I’ll write more on my thoughts on the case soon, but in the meantime, my thinking on Friedrichs v. CTA in a nutshell:
I think public sector unions need to change and adapt much more rapidly to a changing workforce and economy, but I believe strongly in the necessity for unions to present a necessary counterbalance to government and private financial interests. If Friedrichs wins, as I’m afraid she might, then we will witness a drastic further decline in the power of unions in our country. I believe this will be to the detriment of the long-term interests of our nation.
The only commentator I’ve seen thus far who’s beginning to think ahead to this outcome is Dan Weisberg of TNTP. He doesn’t assign a probability to the outcome, but implies it when he says the following:
Unfortunately for the unions, at least five Supreme Court justices appear to be more sympathetic to the teachers’ arguments than I am. The Court practically invited this challenge when it stopped just short of striking down agency fees in a similar case a few years ago.
I’m hoping our unions are already preparing for the worst, because no amount of impassioned op-eds can influence the outcome at this point.
*my apologies to all non-US residents for the US-specific jargon in this post.
**thanks to Deputy Chancellor Josh Wallack, who recently bestowed the book on educators at a dinner hosted by the NYC DOE Office of Leadership.
***We’ve looked at hedgehogs and foxes here before:
Interestingly, Jim Collins, in his book Good to Great advocates that businesses think more like hedgehogs: The Traits of Achievement
Justice Scalia has just died, so that completely changes the odds. While I had first assigned a 65% probability to Fredrichs winning this case, my forecast has shifted closed to 40%. Read more on SCOTUSBlog: “The most immediate and important implications involve that union case. A conservative ruling in that case is now unlikely to issue.”