Michigan daycare operators who had millions of dollars taken from them in a unionization scheme that has since been outlawed, may get some of their money back.

On June 30, the U.S. Supreme Court ruled 5-4 in Harris v. Quinn that people who take care of others and are paid with funds that partially come from the state cannot be unionized because they are not state workers. It also opened the door for Michigan daycare workers involved in a previous, separate scheme to revisit a class action lawsuit to get money back that was taken by the American Federation of State, County and Municipal Employees union and the UAW.

"Along with its ruling in Harris v. Quinn the Supreme Court has told the 6^th District U.S. Court of Appeals to reconsider the Schlaud case," said William L. Messenger, lead attorney in the Harris v. Quinn case for the National Right to Work Legal Foundation. "That was the case involving Michigan child care providers. The court had denied them certification for a class action suit. Now, in light of the Harris v. Quinn decision, it has to revisit that ruling."

Carrie Schlaud, who operates a child care center in North Branch, is the chief plaintiff in the case. She, along with other Michigan child care providers had dues and fees deducted from the checks they received on behalf of customers who were on assistance. The dues and fees were then sent to the AFSCME.

"What we're hoping is that justice will be done," said Patrick Wright, vice president of legal affairs at the Mackinac Center for Public Policy. "That would include the child care providers getting all of their dues money back."

Michigan's "daycare dues skim" lasted a shorter time than the home-based caregiver scheme in the state, and roughly $4 million was taken by the union. By contrast, the Service Employees International Union took more than $34 million from the elderly and disabled in Michigan before that scheme was outlawed last year.

In Michigan's daycare forced unionization, the dummy employer was called the Home Based Child Care Council and the by-mail election took place in 2006. It was the second by-mail unionization election in Michigan history. The one involving home-based caregivers in 2005 was the first.

Messenger said that it took AFSCME longer to put its scheme in place than it took the SEIU with the home-based caregivers. The daycare dues skim started in 2009 and was ended by Gov. Rick Snyder in early 2011. The unions arranged for dues to be taken from the checks of 34,084 daycare providers in 2009 and 32,272 in 2010.

It is up to the court to decide what the next step is for daycare workers and the possible return of money, Messenger said.

By some accounts, the Mackinac Center has committed terrible offenses in recent months. The most egregious, according to the Michigan Education Association, was letting teachers know that they are no longer forced to financially support their union.

Apparently, nothing is more threatening than a postcard that tells teachers they have the right to choose.

But the MEA is also upset at the Center’s recent work showing that school districts and their unions appear to be ignoring state law. Michigan law requires districts to make important personnel decisions on the basis of employee performance, rather than seniority.

More than four years ago, the Michigan Legislature passed a bill that then-Gov. Jennifer Granholm signed into law requiring that individual teacher performance be a significant factor when determining pay. Unfortunately, a survey of Michigan school districts found that unions and their districts were ignoring the law. In some cases, exceptional teachers were given just $1 more for their hard work and stellar performance.

Who, exactly, are MEA officials representing when they negotiate against contract provisions that reward high-quality teachers?

Three years ago, a series of reform laws were passed that prohibited districts from making layoff and recall decisions on the basis of seniority. These laws were an attempt to stop “last in, first out” policies, which protected older teachers and forced the layoff of younger teachers, even if they were doing a better job. Again, a survey of school district contracts found that many districts and their unions appeared to be ignoring the law.

Sadly, union officials who push for seniority-based decision making are prioritizing ineffective teachers over students’ needs. A California superior court judge just ruled that these policies protect ineffective teachers and hurt students, especially those from low-income and minority backgrounds.

Who, exactly, are MEA officials representing when they negotiate for layoff policies that only consider teacher seniority?

On June 17, upset that the Center would dare inform teachers of their rights, the MEA wrote:

If [the Mackinac Center is] so concerned about your career, why did they make sure the recently-passed school funding plan includes options for school districts to get more money if they move to merit pay or lets districts make money if language about prohibited subjects of bargaining are gutted from your contracts? Whose interests are they really looking out for—yours or theirs?

High-performing teachers should ask the MEA the same question. Seniority-based decision making protects ineffective teachers, and penalizes other, perhaps better, teachers for simply being young. In some cases, the union’s pursuit of forced dues has cost teachers thousands of dollars in salary.

When MEA negotiators ask districts to keep illegal contract language in their collective bargaining agreements, they are not only hurting students and younger teachers, they are putting the district at risk of legislative ire.

The MEA and the district officials it has persuaded to ignore state law should be thankful that the only penalty they will suffer is not being able to access additional funding. Few Michigan residents enjoy the luxury of being paid to simply follow the law.

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Audrey Spalding is director of education policy at the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich. Permission to reprint in part or in full is hereby granted, provided that the author and the Center are properly cited.