One of the first lessons I impart on law students is the importance of being careful and precise in their choice of words as would-be lawyers. After all, our interpretation of the law can hinge on a single word or even the placement (or lack) of a comma. So, I caution my first year law students in particular to avoid generalizations and overstatements in describing a proposition of law or the holding of a judicial decision.
Those characterizing the WV teacher strikes as “illegal” apparently never learned that lesson.
“Illegal” is defined by Oxford English Dictionary as “contrary to or forbidden by law, especially criminal law.” Black’s Law Dictionary similarly defines “illegal” as “forbidden by law; unlawful<illegal dumping><an illegal drug>.”
Illegal conveys deviance and criminality, if not immorality.
The WV Supreme Court did not use this pejorative term when it concluded in the Jefferson County case that teachers “have no right to strike” under common law. The lower circuit court’s use of “illegal” to describe the 1990 strike was not endorsed by Justice Miller, which was most likely deliberate. Indeed, Justice Miller in an earlier decision, City of Fairmont, understood the implications of using the term “illegal.” There, in the context of a peaceful public employee strike, Justice Miller observed, “The assertion that the strike is ‘illegal’ only serves to confuse the issue.”
Nor is there any indication in Jefferson County that illegality was critical to the WV Supreme Court’s ultimate decision to affirm a preliminary injunction against teachers, enjoining them to return to work.
It would thus be mistaken to say that “illegal” carries even the weight of dicta in Jefferson County.
Rather, critical to the WV Supreme Court’s decision was the absence of a “collective bargaining statute” plus the fact that teacher salaries are “unilaterally set by the legislature.” The court was concerned that creating “a right to strike without any underlying process for dispute resolution” e.g., “collective bargaining, mediation, or arbitration before having to face the strike issue” would invite “chaos.” The court was thus reluctant to disturb the common law rule (it borrowed from other states) that public employees do not have a right to strike.
Setting aside that there were then, and are still now, good reasons for revisiting that common law (judge made) rule, especially as applied to teachers, we cannot equate the absence of a right to strike with illegality.
As a professor, I don’t have a right to show up late to teach my class (“the 15 min. rule” is a myth), not grade my exams (grading is the worst), or refuse to conduct legal research (that so few read). If I’m late for class, fail to grade, or never do my research, I might be disciplined or even lose my job, but that doesn’t make my behavior illegal (with or without tenure).
You have no right to flip off your boss, particularly for some nonpolitical, expressive reason. You likely will be fired. That doesn’t make flipping off your boss illegal (indeed, it might be justified).
Regrettably in this state, LGBTQ have no right to be free from discrimination in the workplace, but that doesn’t make their status illegal (on the contrary, LGBTQ have constitutionally protected status in other contexts).
There is, in short, a substantial difference between illegal and unprotected (or not fully protected) activity.
A slim Republican majority in the WV Senate are attempting to belie that difference with a not-so-subtle, retaliatory maneuver to make what is unprotected, illegal. Seeking to resurrect the omnibus bill, they have injected an anti-union provision hoping to make this monstrosity more attractive to their conservative friends in the House. It should scare them away.
If anything is “illegal” about teacher strikes, it is this punitive anti-strike amendment that punishes educators for exercising their constitutional rights on behalf of their students.
Don’t be fooled by proponents of this anti-strike section who claim it is a “mere codification” of Jefferson County. It “goes well beyond what the Supreme Court said in 1990” in that it
- Declares strikes “unlawful”;
- Expresses the legislature’s view that a strike “poses a serious disruption” to children’s fundamental right to education;
- Prohibits the reduction of instruction time or term of employment during a strike;
- Presumes that teachers are participants in a strike unless they are absent for one of the three specified reasons;
- Provides that strikes are “grounds for termination”;
- Instructs county boards of education who decline to fire teachers, to dock their pay for participating in a strike; and
- Prohibits superintendents from closing school “in anticipation of or to facilitate” a strike.
The proponents of these measures are the very same legislators who have been most vocal about providing greater flexibility and local control of schools.
Stripped of all the legal jargon and doublespeak, this anti-strike section is about subjugating teachers. Period.
But this power play is doomed to fail. That slim Republican majority in the Senate has once again overplayed its hand, this time running afoul of the U.S. and WV Constitutions.
First, as Professor Catherine Fisk demonstrates in a recent essay, a string of U.S. Supreme Court Court—including ironically the anti-union Janus decision—portends a stronger defense of labor protests on First Amendment grounds.
If [as Janus suggests] all union speech is political, that must mean that restrictions on union speech are unconstitutional. The Court cannot have it both ways: It cannot be that all speech by and about unions is political except when union supporters gather in a public forum … If regulation of the funding that enables collective bargaining violates the First Amendment, regulation of labor protest should too.
Second, the WV Supreme Court made clear in Woodruff that “article III, §§ 1, 7, and 16 of the West Virginia Constitution” prohibits “provisions abrogating [public] employees’ fundamental constitutional rights of expression, assembly, association, and petition.”
That is exactly what the anti-strike section does by directing county school boards to fire teachers who strike, effectively abrogate those freedoms. As the court explained in McClung a “public employee … may not be discharged in retribution for the exercise of a constitutionally protected right, unless a substantial governmental interest outweighs the … public employee’s interest in exercising such right.”
The anti-strike section’s assertion that the substantial government interest justifying retribution against teachers is children’s fundamental right to education represents the height of hypocrisy. Teachers are being forced to strike because the legislature and executive branches have for decades failed to provide all children with a thorough and efficient education.
That was why teachers went on strike in 2018, to ensure that our state could attract and retain high quality teachers essential to delivery of adequate education. Teachers were forced to return to the picket line this year—to strike against a teacher pay raise!—because the same legislature that has failed to provide a thorough and efficient education is now attempting to undermine that right further by imposing a privatization agenda.
So, spare us the pretext that now, all of a sudden, the legislature is just trying to effectuate children’s education rights. Teachers—not parents, not the courts—are the only ones trying to vindicate those rights despite the consequences.
Jefferson County might have turned out differently had the WV Supreme Court believed such retribution were a realistic possibility. But the court simply could not fathom “discharging striking public employees” as that “would waste their years of expertise and training and create obvious problems finding capable and trained replacements.”
Well, 1990 WV Supreme Court meet the 2019 WV Legislature, intent on retaliating against teachers in the midst of a teacher shortage.
Third, and most important, WV teachers will not be subjugated. This is the fundamental miscalculation of the anti-strike section: it underestimates teachers who know that the future of public education is at stake. They will not be intimidated because there is only so much disrespect they can take and because they did not enter their profession for themselves but for their students.
If the anti-strike section becomes law and teachers are forced to strike again, call their activism illegal, if you wish, but as the teacher protest sign depicted in the photo above implies, you will be sorely mistaken.