Public workers’ unions can harm

Two public schools in Manhattan illustrate the high stakes of a political choice that the nation, and many states and municipalities, must reconsider. In 2019, Success Academy Harlem 2 charter school ranked 37th among New York state’s 2,413 public elementary schools, one of which, PS 30, had only about a third as many pupils as Harlem 2, spent twice as much per pupil and ranked 1,694th. PS 30 and Harlem 2 operate in the same building.

The contract for PS 30’s unionized teachers is 167 pages long, mostly detailing job protections, and what teachers can and cannot be required to do. The contract for Harlem 2’s nonunion teachers is one page long. Those teachers can be fired at will, and are paid 5 to 10 percent more than PS 30 teachers on the other side of the building.

This contrast is presented in Philip K. Howard’s new book “Not Accountable: Rethinking the Constitutionality of Public Employee Unions.” Think first, however, about this:

In the private sector, employee vs. employer bargaining concerns the allocation of profits. A private business facing extortionate union demands can relocate or go out of business. A government can do neither. Collective bargaining presupposes adversarial conflict, but in “negotiations” between government employee unions and government, the unions want government to do what government wants to do: expand, using money from a third party, the citizenry.

Particularly at the state and local levels (e.g., school board elections), public employees wield union power to elect their employers, who reciprocate with contracts containing labyrinthine job protections. A 2011 book reported that over an 18-year period, just about two of Illinois’ 95,000 teachers were dismissed annually for unsatisfactory work. Because California’s 300,000 teachers are unionized, Howard says, two or three a year are terminated for performing poorly.

Burdensome grievance procedures discourage federal executive branch officials from filing negative assessment of employees, 99 percent of whom receive the “fully successful” rating. Public sector unions exist to make the world safe for mediocrity by opposing, as Howard says, any reform aimed at introducing merit or other forms of accountability.

Of the approximately 2,600 complaints the Minneapolis Police Department received in the decade before the murder of George Floyd, 12 led to discipline, the most severe being a 40-hour suspension. Public sector unions are, Howard says, “a political force unlike any in American history — amassed and entrenched using state power.”

Elected federal, state and municipal executives lack effective authority. Although the unions have achieved this from officials selected by democratic processes, Howard thinks this fact does not nullify two constitutional defects:

The guarantee clause (every state is guaranteed “a republican form of government”) was written, Howard says, to prevent an aristocracy or other entrenched group from becoming a permanent power beyond the ability of voters to remove it. And the nondelegation doctrine should forbid government from ceding to private entities’ core decisions about governance.

This doctrine is, however, unenforced, and the Supreme Court has declared the guarantee clause “non-justiciable”: to be enforced by politics, not the judiciary. Howard’s book is, however, a potent summons to politics, which can still bring such unions to heel.