Well, you know, some of us want to change the world
West Virginia teachers have been striking for seven school days to vindicate the constitutional rights of their students. They have braved the picket line in the cold rain even as some officials have threatened to sue them. Their strike or work stoppage is unauthorized under existing West Virginia Supreme Court precedent, although subsequent statutory changes may provide a basis for the court to revisit that precedent. But as it stands teachers have no right to strike and, although their peaceful actions do not expose them to criminal liability directly, they could be subjected to a civil lawsuit seeking a preliminary injunction to compel them back to work.
The optics of suing teachers who are putting so much on the line has thus far deterred potential plaintiffs. Such a lawsuit would also seemingly be impractical so long as teachers remain united. Hence, no state agency has taken the attorney general up on his repeated offer to sue the teachers. Still, the threat looms and causes teachers, not necessarily versed in all the legalese, some angst. If the strike continues, one could easily foresee disgruntled legislators, school boards, or parents pursuing legal action. That sounds ominous and indeed should not be taken lightly. And yet, there is a political movement afoot in West Virginia; democracy is in action. From that perspective, the risks of a potential legal action might be weighed against the rights of students and teachers.
I cannot and would not predict which of those interests (the state’s versus students’/teachers’) a court would say deserves greater weight. The last time the issue was squarely before the West Virginia Supreme Court it tipped the scales in favor of the state, upholding the trial court’s grant of a preliminary injunction against 400 Jefferson County teachers. It is not a foregone conclusion that the court would reach the same result regarding the present strike, however.
First of all, the court might decline to intervene, at least initially, because, as it stated in the Jefferson County case, these “complex issues are best resolved in the legislative arena” and are “ill-suited to any comprehensive judicial solution.” Perhaps given the modest scale of the Jefferson County lawsuit involving only 400 teachers in one county, the court thought it was on firmer ground in affirming that particular injunction. But it made no bones about the fact that teacher compensation issues have “been the exclusive subject of legislation not only because of the complexity of the problem, but also because of its direct impact on the public treasury.”
Given the magnitude of the present strike and the political controversies swirling around teacher compensation, including severance taxes and long-term fixes to PEIA, the court would be on much safer ground to abstain this time around.
Second, even if the court were inclined to intervene, it might conclude, in this instance, that the strike has not caused irreparable harm—the standard to obtain a preliminary injunction. In the Jefferson County case, the court noted that other state courts have declined to issue injunctions absent clear facts showing irreparable harm. But the West Virginia Supreme Court then gave no indication what weight it would give to the evidence or what factors it might consider. It simply said the trial court in that case “did not act precipitously.”
The court might be strained to conclude that there is sufficient evidence of irreparable harm regarding the current strike, particularly given that there is still time to make up the missed instructional days within the 180 day requirement. Perhaps most important, the court might consider an argument that it is the state, not the teachers, causing irreparable harm to nearly 300,000 children by chronically underfunding education, which brings me to my next point.
Third, any legal claim seeking an injunction against teachers might be greeted with a swift counterclaim against the state for violating children’s fundamental right to education. Such a lawsuit has already been considered by one legislator. Talk about a battle royale that would give a court some pause. Which is more harmful to students, the loss of a few instructional days due to the strike or the loss of the state’s quality teachers?
Although I would personally prefer a more carefully considered legal strategy to effectuate the education rights of children (one that considers a host of other issues besides teacher quality), the defendants or intervenors would, in my view, have a cognizable and credible claim against the state for the inadequate and inequitable education funding that precipitated the current strike.
Fourth, the court could intervene and decide in the state’s favor and yet withhold an effective remedy against the teachers, as other state courts have done. Alternatively, because the plaintiffs would be seeking an equitable remedy, the court would retain a great deal of discretion in fashioning an appropriate remedy. Nothing compels the court to approve the plaintiffs’ requested form of relief.
For instance, the court could instead order county boards to exercise their authority within the relevant regulation to provide “instruction on any available non-instructional day” or “apply for a waiver.” Whatever form that equitable relief might take, plaintiffs would have a difficult time obtaining monetary damages against striking public employees arising from a peaceful work stoppage, based on existing precedent.
Finally, worst case for the teachers, the court intervenes and grants the injunction and orders them to return to work. Should teachers then elect not to report to their schools, they would be subject to contempt for violating the court’s order. Particularly in the 1960s and 1970s, a few state courts upheld contempt citations against striking teachers; it is less common in the modern era but a possibility. The contempt citation could take the form of a monetary penalty.
Assuming teachers still continue to walk the line instead of returning to work, a school board could assert a “willful neglect of duty” charge seeking the teachers’ dismissals. If so, tenured teachers would retain their due process rights and could not be terminated without the state making its case, giving the teachers an opportunity to respond, and the conduct in question being evaluated by an impartial decisionmaker.
Count me as skeptical that we ever make it that far with so many of the state’s teachers united and more than 700 teaching positions across the state unfilled. One hopes that cooler heads will prevail. Above all, one hopes that, in all of this, the education rights of children ultimately prevail. On this score, the teacher strike has already succeeded in causing us to take a hard look at our state’s investment in education.