Several teacher and public worker unions filed a lawsuit on November 30 challenging the constitutionality of Act 10. The controversial law took away collective bargaining rights from most public workers. The passage of Act 10 in 2011 led to massive protests, where up to 100,000 Wisconsin employees occupied the state capital, as well as an unsuccessful recall campaign for then-governor Scott Walker.
The legislation was passed in order to address a projected budget deficit. It affected many facets of jobs for public employees.
“Without collective bargaining, we have no say in our healthcare, no say in our post-retirement benefits, no say in our contributions that we put towards both economic facets of our position like healthcare and health insurance, and salaries generally,” said Amy Miller, president of the SEA, Shorewood’s educator union. “We have no say in our working conditions. What we do have a say in is we can collectively bargain up to the cost of CPI annually, and then hope that the district doesn’t reinterpret how they see Steps and Lanes, which they did three years ago.”
There have been several legal challenges against Act 10, all of which have failed. The pending lawsuit is considered more likely to succeed, as it is the first challenge to Act 10 during which Wisconsin’s supreme court holds a liberal majority. This lawsuit takes a new angle, contending that part of Act 10 violates the equal protection clause of the Wisconsin constitution. The provision in question, which has long been a point of contention, separates public workers into two classes.
“One of the provisions of Act 10 differentiates what they call public safety employees and general government employees,” said Lucas Webber, an attorney for the Wisconsin Institute for Law and Liberty (WILL), a conservative law firm based in Milwaukee. “Public safety employees would be police and fire, and general municipal employees would be sort of everyone else. Police and fire employees have more collective bargaining rights under the law than general municipal employees do. And so the challengers to this are arguing that this violates equal protection guarantees under our state constitution.”
This separation of public employees has been criticized as being a political move.
“When we go back to the gubernatorial race in 2010…those who were in the favored class for public safety, they all endorsed Scott Walker,” Miller said. “Everyone else, the general group…Act 10 applied to them, but it didn’t apply to police departments that supported Scott Walker, fire departments that supported Scott Walker, and sheriffs that supported Scott Walker. It seems pretty black and white, in my eyes … I want the firefighters, the police officers, the state troopers, the sheriffs, to maintain [the right to collectively bargain]. They deserve it. But we do, too.”
“What I think a lot of people don’t understand is that in Wisconsin, police officers and firefighters have all of the same collective bargaining rights that they had before,” said John Jacobson, former constitutional law teacher at SHS. “Ironically – sarcasm intended there – they were the two major unions that supported Scott Walker.”
Proponents maintain that the separation was not made on a political basis.
“I think throughout the Act 10 litigation the state has always argued that the purpose of exempting the public safety employees was essentially the fear that those employees would strike, essentially that their jobs were of the type that the state wanted to grant them additional rights,” Webber said.
Since its passage, Act 10 has changed the landscape of the public education profession. Although limited conclusive research has been conducted, both proponents and opponents of the legislation point to areas where it has affected Wisconsin schools.
According to Miller, the inability to bargain over healthcare has been severely detrimental to Shorewood teachers. Although districts have not been able to collectively bargain on healthcare since the passage of Act 10, the district still met with the SEA to “meet and confer”. According to Miller, this year, the district did not garner any input from teachers on their health insurance plans.
“This was the first time the SEA had zero say in [the healthcare plan]…we couldn’t even ask questions, it was just given to us,” Miller said. “…And so when that happens, you can’t be surprised when the plan doesn’t reflect the people it’s serving…There are [teachers] that can’t afford to go to the doctor.”
Teacher compensation has also been fundamentally impacted. Since teacher unions can no longer collectively bargain, and more of the costs of healthcare and pensions are offset onto teachers, districts have significantly more control than before over pay structures. Supporters believe that aside from saving districts money, this allows districts to more easily construct pay structures based on merit, rather than experience.
“We’ve seen school districts being able to be more creative in their pay structure so that teachers are rewarded for their performance rather than simply staying in the school long enough,” said Will Flanders, Research Director at WILL. “[Act 10] has been a real savings instrument for school districts across the state over the decade.”
According to a report in November 2023 by the Wisconsin Policy Forum, while the median salary has increased since the passage of Act 10, median salaries are 12.3% less valuable than they were pre-Act 10 when accounting for inflation. Take-home pay has also taken a hit because of the increase in pension and healthcare contributions by teachers.
Flanders believes that blaming Act 10 for inadequacies in teacher salaries is unfair.
“[WILL] thinks that teacher pay and benefits should be higher…but I think the blame lies more with districts who are spending money in questionable ways rather than with Act 10 or a lack of money in the system,” Flanders said.
Teachers are also affected by the potential inconsistency of pay schedules, which can no longer be the subject of collective negotiations. As a result, the rate at which teachers switch districts, or leave the profession altogether, has spiked.
“Teachers, because the salary schedule is unpredictable, will jump from district to district: ‘I’m going to jump here now, I can make a little bit more.’ Or, ‘I can’t afford to teach anymore, I’m leaving the profession’,” Miller said.
Another important aspect of Act 10 is its removal of tenure protections. These protections required districts to prove that they had just cause to fire an experienced teacher. Proponents argue that this allows districts to more easily fire ineffective teachers.
“Teachers were more easily able to be removed from the classroom if they were judged by the district to not be effective at their job,” Flanders said. “I think lowering the bar a little bit and making it like other professions that are non-unionized actually just allows us to have better quality control of the teaching workforce.”
Miller believes that the notion of unions defending ineffective teachers is flawed.
“I would always defend a teacher’s right to a predictable process if it’s not a right fit, but unions do not defend teachers, that’s not what we do. We make sure there’s due process, that’s what unions do,” Miller said.
Further, critics argue that the removal of tenure protections puts all teachers at risk, and hands more power to administration.
“I would absolutely agree with Act 10 proponents that it makes it easier to get rid of ineffective teachers, but by that same token, it also makes it easier to get rid of really effective teachers,” Jacobson said. “Really effective teachers are usually going to be the kinds of personalities that are not always agreeable when they sense that bad educational policy is coming down the road at them, and more importantly coming down the road at their students. Good teachers will stand up to school boards and administrators when they believe that the policies are flawed… The difference now is that good teachers no longer have the voice to stand up to that…they can be fired at any time for any reason.”
Jacobson believes that the lack of job security resulting from the removal of tenure could also affect teachers’ abilities to bring creativity into their classrooms.
“Teachers used to be in power to take chances, to create classrooms that were engaging for their students. Now teachers still will do that, but nowhere near to the same level they would have before Act 10,” Jacobson said. “That is where the ultimate punishment for all of this was on the students.”
Ultimately, the viewpoints surrounding Act 10 differ vastly. Some believe that it has made it difficult to pursue a career as an educator.
“I want the profession to continue to be a profession that people see as family supporting,” Miller said. “The people who go into education, we want to ensure that we have the ability to control what our salary benefits look like.”
Some consider Act 10 to have been a valuable cost-saving measure.
“[If Act 10 were overturned] we think that would be very detrimental to school district budgets and would actually set the state back and lead to a lot more cost to Wisconsin taxpayers,” Flanders said.
Others still believe that Act 10 was written to undermine public education in the state of Wisconsin.
“Act 10 is bad,” Jacobson said. “Act 10 is a metaphorical time bomb that was planted right at the heart of public education in Wisconsin, and we’ve been watching that time bomb detonate in slow motion over the course of the last 12 years.”