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March 13, 2018

Elite hypocrisy about working class white and rural folks? The case of the West Virginia teachers strike

I've been keeping an eye on elite bashing of working class and rural whites for years now, and I published my first article about it as long ago as 2011.  But the election of 2016 brought the disdainful badmouthing by the chattering classes to a fever pitch, and I've occasionally blogged about the phenomenon, including here and here.  

 

One "series" I see on Twitter begins:  "And in today's episode of:  I Bet I Know Who You Voted For..." That is the common  preface to re-Tweets of headlines that could previously have appeared in the "Darwin Awards" or perhaps the petty crime pages of a local paper.  I'm pasting one below.  It re-Tweets a Fox News Tweet that reads "Substitute allegedly brought boxed wine to school, vomited in class."

 

Another re-Tweets this Fox News Tweet:  "Woman charged with choking teen for blocking view at Disney fireworks show."

 

On a related note, here's an item from Instagram just a few days ago, from the account called guerrillafeminism that reads "happy international women's day except the 53% of white women who voted for trump."

 

Pat Bagley, the cartoonist for the Salt Lake City Tribune (whose work I greatly admire, by the way--both cartoonist and paper), has referred to Trump's "idiot followers."  I could provide many more illustrations of this phenomenon.  

 

With that background, you can imagine my surprise--but also delight--when I saw this Tweet from Neera Tanden, President of the Center for American Progress, which bills itself as an

independent nonpartisan policy institute that is dedicated to improving the lives of all Americans, through bold, progressive ideas, as well as strong leadership and concerted action. Our aim is not just to change the conversation, but to change the country.

Despite the "nonpartisan" billing, I see Center for American Progress as clearly left leaning (a good thing in my book!).  Tanden's Tweet reads:

The teachers of West Virginia are heroes.  They deserve good pay and a real raise.  I stand with them. 

 

Now, I don't recall any past Tweets by Tanden blasting Trump supporters, though I do recall some highly critical of Trump.  That's fine by me.  It's a line I've drawn myself--at least in the last year or so (I was a bit less discriminating--a bit more knee jerk--as I reeled in the wake of election of 2016, and I sent off some angry, pejorative Tweets about Trump supporters as a monolithic group).  I now readily take aim at Trump but try to be more thoughtful and circumspect re: Trump supporters.  I'm looking to understand them, trying to listen empathically. (I've got a whole law review article forthcoming about female Trump supporters, delivered as the key note address at the Toledo Law Review symposium in October, 2017,  The Women Feminism Forgot:  Rural and Working Class White Women in the Era of Trump.  I hope to have the text posted soon on my ssrn.com page).

 

But the bottom line is that some things I saw on Twitter about the West Virginia teachers--many sympathetic comments of the sort Tanden shared--had me wondering if the lefties doing this Tweeting realized that many of the folks they were lauding and advocating for had no doubt voted for Trump.  That is, these newfound labor heroes with their wild-cat strike were one and the same with (many) reviled Trump voters.  Some 68% of West Virginians voted for Trump!  Could I possibly be seeing praise for these women--praise from the left?   These are the same women that many lefties on Twitter have said "get what they deserve" if they lose their healthcare (thanks to Trump's effort to dismantle Obamacare) or face further economic decline (thanks, for example, to the long-term consequences of Trump's tax reform law).

 

(Btw, I was at an Appalachian Justice symposium at West Virginia University College of Law in Morgantown from Thursday Feb. 22 'til Saturday Feb. 24th, and I got to see the teachers picketing--and hear the honking in support--first-hand, which was pretty cool.  One of my favorite signs, this published in the Washington Post, is here) 

 

Michelle Goldberg, a relatively new columnist at the New York Times who is writing a lot about gender issues, offered up this column under the headline, "The Teachers Revolt in West Virginia."  She called the strike "thrilling," noting that strikes by teachers are unlawful in West Virginia, which became a right-to-work state a few years ago, and where unions do not have collective bargaining rights. Yet, Goldberg writes,

teachers and some other school employees in all of the state’s 55 counties are refusing to return to work until lawmakers give them a 5 percent raise, and commit to addressing their rapidly rising health insurance premiums.

Goldberg further explains that the "obvious impetus" for action is West Virginia's awful pay of teachers, which ranks 48th in the nation (read more analysis here).  She also discusses the critical role that health care/health insurance plays in the labor dispute:

 In the past, solid health care benefits helped make up for low wages, but because West Virginia hasn’t been putting enough money into the state agency that insures public employees, premiums and co-payments have been increasing significantly.  

Ah, there's that health care problem again, by which I mean you should read this and this, among other sources cited and discussed in that forthcoming Toledo Law Review article. 

 

Having pored over many, many mainstream media reports of white working class Trump supporters in places like Appalachia (you guessed it, all discussed in that Toledo Law Review article!), I was struck that the women Goldberg identified and interviewed did not appear to be Trump supporters.  Quite to the contrary, these women are held out as having responded to Trump's election by becoming part of what is popularly known as "the resistance." I was delighted to learn about and hear from these women, but was Goldberg unable to find any Trump supporters among the striking teachers?  I would very much have liked to have heard their attitudes about the strike, also in relation to their support for Trump.  Did they reconcile the two?

 

Here are excerpts/quotes about the two women Goldberg did feature, Jenny Craig, a special education teacher from Triadelphia (population 811, northern panhandle) and Amanda Howard Garvin, an elementary art teacher in Morgantown (third largest city in the state, home of WVU):

Craig described the anti-Trump Women’s March, as well as the explosion of local political organizing that followed it, as a “catalyst” for at least some striking teachers.

Goldberg quotes Craig:  

You have women now taking leadership roles in unionizing, in standing up, in leading initiatives for fairness and equality and justice for everyone.

Goldberg also quotes Garvin:

As a profession, we’re largely made up of women. ... There are a bunch of men sitting in an office right now telling us that we don’t deserve anything better. 

Oh how I LOVE that quote, not least because it evinces a feminist consciousness.  In the wake of Trump’s election, Garvin added, women are standing up to say: 

No. We’re equal here.

I sure hope Garvin is right that the sentiment and movement are as widespread as she suggests--and as Goldberg implies.  If this is accurate, liberal elites--including feminists--will have to give Craig, Garvin and so many more like them their due.  (Indeed, teacher strikes may be in the works in the equally "red" states of Oklahoma and Kentucky, too).  That will challenge deeply entrenched stereotypes about folks from this region (read more here and here), which will in turn serve all of us quite well.  

 

By the way, the strike succeeded, with the teachers getting what they held out for.  You can find more exciting coverage of the West Virginia teachers strike herehere and here.  And don't miss this by WVU Law Professor and education law expert, Joshua Weishart.  

 

The question that all of this leaves me with is this:  What can the WV teachers strike teach us about how to build and sustain cross-class coalitions, including among whites?  How can these intra-racial coalitions interface with cross-race coalitions for even stronger pacts among progressives? And what role will gender play in that coalition building?  

 

Other hopeful news of change in relation to women and the national political landscape is herehere and here.  

 

January 19, 2017

Professor Saucedo to Deliver Alice Cook Distinguished Lecture at Cornell

Professor Leticia Saucedo will deliver the Alice Cook Distinguished Lecture at Cornell University on April 13, 2017.

Saucedo will deliver a lecture titled, "The Legacy of the Immigrant Workplace: Lessons for the 21st Century Economy."

The Alice Cook Distinguished Lecture is organized by the ILR School of Cornell University. ILR is a leading college of the applied social sciences focusing on work, employment, and labor policy issues.

November 13, 2014

Class Crits VII at UC Davis School of Law

The School of Law is pleased to host this year's Class Crits conference on November 14 and 15.

This year marks the 50th anniversary of the enactment of the Civil Rights Act of 1964, President Johnson's declaration of a "War on Poverty," and the establishment of the first Neighborhood Legal Services Program pilot in Washington, D.C. Each of these initiatives attempted to address problems of structural economic inequality-problems that remain with us nationally and internationally. The seventh meeting of ClassCrits will focus on work, poverty, and resistance in an age of increasing economic insecurity.

In law, it is generally easier to discuss "poverty" than to look deeply into its causes and incidents-including income and wealth inequality, the close interaction of class and race in America, and the connections between gender and economic hardship. It is also easier to discuss "poverty" than what some scholars call "precarity"-the increasing vulnerability of workers, even those above the official poverty line, to disaster. Precarity has both economic and political roots. Its economic sources include the casualization of labor, low wages, persistently high unemployment rates, inadequate social safety nets, and constant vulnerability to personal financial catastrophes. Its political sources include the success of neoliberal ideology, upward redistribution of wealth, increasing polarization and dysfunction in Congress, and the dependence of both political parties on a steady stream of big money. Precarity is also not limited to the United States, but is reshaping space around the globe. While the aftermath of the housing bubble and subsequent foreclosures drain home values across America and strip equity disproportionately from minority neighborhoods, in developing-country "megacities," millions of slum-dwellers are displaced to make way for high-end residential and commercial real estate developments.

Finally, this conference focuses on challenging structural forms of inequality from a place of compassion and creating possibilities for resilience. In the words of Martin Luther King, Jr., "True compassion is more than flinging a coin to a beggar. It comes to see that an edifice that produces beggars needs restructuring." In this spirit, ClassCrits VII will explore the risks, uncertainty, and structural challenges of this period and discuss possibilities for shared goals and new forms of resistance.

Speakers from the School of Law include Dean Kevin R. Johnson and Professors Angela Harris, Lisa Ikemoto, Lisa Pruitt, Darien Shanske, Leticia Saucedo, and Brian Soucek.

For more information, visit law.ucdavis.edu/class-crits.

June 26, 2014

Professor Chandrasekher to Present at Prestigious Harvard/Stanford/Yale Junior Faculty Forum

A paper by Professor Andrea Chandrasekher has been selected for presentation at the prestigious Harvard/Stanford/Yale Junior Faculty Forum, held tomorrow and Saturday, at Stanford University.

Professor Chandrasekher will present "Police Unrest and Lengthy Contract Negotiations: Does Police Misconduct Increase with Time Spent Out of Contract?" as part of the conference session on Labor Law and Social Welfare Policy. Her article presents evidence that incidents of police misconduct increase when police departments are forced to work under expired contracts as new collective bargaining agreements are being negotiated.

Professor Chandrasekher's educational background includes a JD from Stanford Law School and a PhD in Economics from UC Berkeley. She has taught as a visiting assistant professor at Northwestern School of Law and served as a fellow at Stanford Law School. Her research interests include criminal law, law and economics, quantitative methods, criminal justice public policy analysis, and policing. She joined the King Hall Community in 2013.

January 18, 2013

Do Special Legislative Protections for Labor Picketing Violate the First Amendment?

Cross-posted from Justia's Verdict.

In my column this week, I explore an important First Amendment free speech ruling handed down at the end of December by the California Supreme Court.  The case, Ralphs Grocery Company v. United Food and Commercial Workers Union Local 8, is significant because: (1) it involves a dispute over some fundamental but complex First Amendment doctrinal principles; (2) it conflicts with a case from the United States Court of Appeals for the District of Columbia Circuit; and (3) (for reasons 1 and 2), it may very well end up in the United States Supreme Court.

At issue in Ralphs was an attempt by a supermarket owner to enlist the aid of a state court to enjoin (that is, judicially order) a labor union to stop picketing on the privately owned sidewalk in front of the consumer entrance to the store.  Among the various defenses the union raised were two (similar) California statutes that specifically prohibit state courts from enjoining peaceful labor picketing, but not other kinds of picketing activity.  (For simplicity’s sake, I will focus on just one of the two statutes, the so-called Moscone Act.)  The grocery store’s reply was that the Moscone Act, because it singles out labor picketing in particular for special protection, discriminates among speech activities on the basis of the “content” or subject-matter of the speech, and therefore is invalid under the First Amendment. Therefore, the Act cannot bar what would otherwise be a well-founded request for injunctive relief. The California Court of Appeal agreed with this argument and found the Moscone Act’s special protection for labor picketing invalid and thus inapplicable.

The Reasoning of the California Supreme Court

But last month, the California Supreme Court reversed, and, by a 6-1 vote, upheld the Moscone Act, and thus the ability of the union to picket outside the Ralphs store.  The California Justices in the majority reasoned that the two U.S. Supreme Court cases striking down content-based laws that had protected labor picketing – the two cases on which Ralphs relied – were “distinguishable,” that is, not controlling as to the outcome of the case at hand.  In Police Department of Chicago v. Mosley (1972), the U.S. Supreme Court struck down altogether an ordinance that prohibited picketing near schools while the schools were in session, but that exempted from its prohibition peaceful picketing regarding school labor disputes.  Then, eight years later, in Carey v. Brown, the Court invalidated an Illinois statute that made it illegal to engage in picketing in residential neighborhoods, but that (like the law in Mosley) contained an exception for labor picketing.  In each of these two cases, the U.S. Supreme Court said that the problem with the law was that it singled out one kind of picketing based on its content – labor picketing – and that such content-based discrimination violated the Constitution.

The California Supreme Court, in ruling for the union in the Ralphs case, argued that the situations presented in Mosley and Carey were different from those raised by the Ralphs dispute, in a few important ways.

First, the laws in Mosley and Carey were laws that prohibited speech activity (picketing) with an exception, whereas the Moscone Act doesn’t prohibit any speech activity—it merely prohibits judges from interfering with speech activity.

Second, and relatedly, invalidating the laws at issue in Mosley and Carey had the effect of generating more, rather than less, expressive activity, because invalidating the general prohibitions in picketing in those cases meant that everyone—not just labor unions—could picket. By contrast, if the Moscone Act were to be invalidated, the result would be that no one — neither labor unions nor anyone else—would be free from judicial injunctions that limited their picketing.  So striking down the Moscone Act, unlike striking down the laws in Mosley and Carey, would produce no additional speech.

Third, the California Supreme Court said, the picketing at issue in Mosley and Carey was taking place on public property, whereas the picketing at issue in Ralphs was occurring on private property. As the California Supreme Court reasoned: “Because here the walkway in front of the [Ralphs] store is not a First Amendment public forum, the holdings in Mosley and Carey do not apply.”

A Critique of the California Supreme Court’s Analysis

Each of these “distinctions” of the precedents set by Mosley and Carey is open to serious question.

The first two related notions invoked by the California Supreme Court—that the laws in Mosley and Carey were prohibitions on picketing with labor exceptions, rather than affirmative protections of labor picketing, and that, as a result, striking down those laws would lead to more, rather than less, picketing activity—are really a function not of First Amendment analysis (as the California Supreme Court wrongly suggests) but, instead, of how the laws in question were drafted.

Suppose, for example, that the Moscone Act were codified in California’s trespass law provisions:  “Courts can enjoin all trespass activities including expressive trespass activities, but may not enjoin labor picketing even when it involves trespass.”  That law, like the ones at issue in Mosley and Carey, would take the form of a “general prohibition” (of trespass), with a specific exemption.  And striking down that law would lead to more expressive (trespass) activities, but I doubt that the California Supreme Court would (or should) strike it down.

We can see the same basic point if we look at what lawyers call “severability” analysis.  (Severability analysis focuses on what a court does when it finds some aspect of a law unconstitutional—does it throw out the whole law, or just the part that is constitutionally problematic?)  In Mosley and Carey, the Court threw out the entirety of both laws (and thus freed up everyone to engage in picketing), but it did so only because each plaintiff challenged the law on its face (as opposed to challenging specific applications), and because the legislature did not make clear up front that if the labor exception were unconstitutional, then its preference would be to bar all picketing, even labor picketing.  Suppose the Illinois legislature had specifically stated the following in its statute:  “If the labor exception is problematic under the First Amendment, courts should simply ignore that exception and enforce the ban on all residential picketing.”  The U.S. Supreme Court still would have invalidated the labor exception, and the result would have been to allow less, not more, picketing activity than had existed before the statute was passed.

Indeed, that is exactly what happened in another case decided after Carey v. Brown. In Frisby v. Shultz, (1988), the town of Brookfield, Wisconsin wanted to ban residential picketing except for labor picketing.  But they realized that the exception for labor picketing would be problematic under Carey, so they revised their ordinance to ban all residential picketing, including labor picketing.  Their willingness to restrict more, rather than less, speech in order to remain content-neutral surely would not be a reason to permit the Town to stick with its first law, which had an exception for labor picketing; even though we know that Brookfield is willing to ban all picketing if need be, we would not let it exempt labor picketing from its ban any more easily than could the State of Illinois in the Carey case.

Importantly, none of what I have said thus far denies that judicial skepticism of content-based laws may very well—in the big picture—lead legislatures to pass fewer speech-restrictive laws, because legislatures can no longer provide content-based exemptions to politically powerful groups who would, absent the exemptions, block the laws from being enacted.  Without the device of content-based exemptions, legislatures will (as occurred in Mosley and Carey) often decide not to restrict anyone’s speech.  But that doesn’t mean that courts should be skeptical of content-based laws only when they suspect that such a political dynamic is afoot.  (Indeed, as noted above, in Frisby, the legislature decided that if it couldn’t exempt labor picketing from its ban on residential picketing, it would then simply ban all residential picketing without exception.)  Judicial doctrine is built around bright-line rules that courts must apply generally, because they make sense in the main.  And so courts can and should generally be dubious about nearly all content-based regulations of speech.

Perhaps an example will help drive these points home.  Suppose California passed a law that said:  “California courts, notwithstanding any other powers they enjoy, may not enjoin abortion-related picketing.”  That law, like the Moscone Act, would not take the form of a general prohibition on picketing, but rather only of a specific protection of some picketing.  And striking down that law would result in less, not more, picketing activity.  And yet could anyone doubt that that law would be considered a problematic content-based favoritism of abortion-protest speech?  Clearly, such a law would be struck down, even (I expect) by the California Supreme Court.

This hypothetical also undermines the California Supreme Court’s suggestion that Mosley and Carey were distinguishable because the picketing in those cases took place on public property.  In my hypothetical, the abortion picketing being specially protected is occurring on private property, and yet the skepticism of content-based favoritism would still doom the law.  More generally, it is not clear why the doctrine regarding content-based laws should be more lenient when the laws regulate speech on private property, and the California Supreme Court offers no explanation of why the public-fora settings in Mosley and Carey should be understood as crucial to the results in those cases.

A Better Defense of the Result in the Ralphs Case

Notwithstanding the difficulties with parts of its analysis, the California Supreme Court did, I think, reach the right result in Ralphs.  Why is the Moscone Act permissible under the First Amendment notwithstanding that it singles out labor picketing in particular?  My answer is that the regulation of labor activity in laws like the Moscone Act is not best understood as regulation of speech at all, but rather as part of a comprehensive legislative scheme regulating the economic system of labor-employment relations.  In other words, protections for labor picketing are just one small part of a complicated system of regulating the economic relationship between unions and employers—a system that is best characterized as a regulation of economic activity that has incidental effects on certain speech activities.  The text of the Moscone Act itself conveys this character, making clear that the limit on judicial injunctions is imposed “in order to promote the rights of workers to engage in concerted activities for the purpose of collective bargaining. . . .”

The First Amendment often allows incidental regulation of speech as part of a larger regulation of what is properly deemed economic activity.  The regulation of persons who work in the professions (a subject of a recent column Alan Brownstein and I wrote) is one example.  A government law telling lawyers (if they want to remain licensed) that they can’t recommend that their clients violate the law can, from one angle, be seen as regulating their speech on the basis of its content (indeed, viewpoint).  Yet it is not a speech regulation that troubles us.  Another example of incidental effects on speech as part of a larger regulation of economic activity is the Rumsfeld v. FAIR ruling allowing the federal government to require law schools to provide access for military employers (also the subject of a column I co-wrote with Alan Brownstein).  While, in general, people are free not to be forced to allow the government to speak on their property, when the government speech at issue is part of an effort to hire employees, and where the property at issue is a space dedicated to interviewing employers, the First Amendment concerns are lessened.  And there are many other examples of regulations of commercial activity having permissible, incidental effects on expression (including cases permitting the government to require companies to pay into funds that will be used for generic advertising of the industry’s products.)

The crux of the matter is that the Moscone Act (like its counterparts in federal law) does treat labor picketing and other organizing activity specially, but only as a part of a larger system of regulation in which labor unions and employers are both heavily regulated, with an eye to producing a fair system of economic allocation; it is not a governmental effort to interfere with the “marketplace of ideas” by favoring some subjects or viewpoints and disfavoring others (the traditional reason why content- and viewpoint-based laws are problematic) so much as a regulation of the marketplace of labor.  Importantly, neither the law at issue in Mosley nor the law at issue in Carey was part of a comprehensive system of labor-relations regulation, and thus neither law could partake of this defense.  Instead, these laws were best seen as a kind of favoritism for labor unions, or as a necessary appeasement to labor unions to get the laws enacted in the first place.  Both such scenarios, however, are problematic under First Amendment principles.

To be fair, I should say that the California Supreme Court did mention (without fully developing) this larger labor-relations-regulation framework and the federal labor law counterpart.  And one Justice (Goodwin Liu, joined by Justice Werdegar) wrote a nuanced concurrence in which he made an argument very similar to the one I make in the preceding three paragraphs.  But even Justices Liu and Werdegar joined onto the majority opinion, the primary thrust of which was to distinguish Mosley and Carey in the unpersuasive and formalistic ways that I discussed above.

In any event, the California Supreme Court did acknowledge that the U.S. Court of Appeals for the D.C. Circuit, in a case decided nine years ago, Waremart Foods v. N.L.R.B. (2004), seemed to come out the other way, and to call into question the Moscone Act because it was impermissibly content-based.  Such a split between what is clearly the most important State Supreme Court and what is (arguably) the most important federal court of appeals may very well be of interest to the U.S. Supreme Court in the coming months and years.