Charter schools and collective bargaining: compatible marriage or illegitimate relationship?

• Author: Malin, Martin H.

1. INTRODUCTION II. WHY CHARTER SCHOOLS III. EMPLOYMENT RELATIONS AND CHARTER SCHOOLS A. Charter Schools as High Performance Workplaces B. Traditional Public Schools and the Industrial Labor Relations Model C. The Industrial Model, Teacher Unions, and Charter Schools IV. TEACHER COLLECTIVE BARGAINING AND HIGH PERFORMANCE WORKPLACES A. Teacher Unions as Agents of Change: The Exceptional Cases B. Why Are These the Exceptions Instead of the Rule: The Role of Legal Doctrine 1. The Basic Structure of the Law Governing Teacher Collective Bargaining 2. What the Law Requires School Districts to Negotiate 3. Legislative Backlash Against Teacher Bargaining 4. The Inhibiting Effects of Current Legal Doctrine on the Attainment of High Performance Educational Workplaces V. LABOR LAW DOCTRINE AND CHARTER SCHOOLS. A. Which Law Governs: State Law or the NLRA? B. Charter School Teacher Representation Under State Law VI. TOWARDS A CHARTER SCHOOL LABOR LAW VII. CONCLUSION I. INTRODUCTION

   Charter schools are in fashion. (1) Once the darling of the right wing, they are now embraced by educational reformers of all stripes. For the most part, however, the teacher union response ranges from outright opposition to reluctant and qualified acceptance. (2) The largely negative reaction to charter schools from organized labor is understandable, as some of the loudest advocates of charter schools are equally loud in their condemnation of labor unions, particularly unions that represent teachers. (3)

   In this article, we confront the question of whether charter schools and collective bargaining are compatible. In Part II, we consider the various rationales that have been offered for charter schools. These rationales include the notions that charter schools will break the public school monopoly, thereby injecting free market mechanisms for the betterment of all schools; reduce school size to more manageable levels; free schools from bureaucracy and regulation; provide teachers with increased psychological purchase; and increase diversity in approaches to education.

   In Part III, we examine the role of employee relations in charter schools. We contrast the model of the high performance workplace with the traditional industrial workplace. The traditional industrial relations model dominates public schools and fuels the view that charter schools are anti-union because they are intended to break from that mold.

   In Part IV, we consider whether charter schools are inherently antiunion. Implicit in the view that charter schools are antiunion is the idea that teacher unions are guardians of a failed status quo and key obstacles to reform. (4) In contrast to this view, we relate examples where teacher unions have served as agents of change and teachers have shared in the risks of the educational enterprise. We observe, however, that these examples are the exception and ask why the traditional industrial relations model continues to dominate public schools that collectively bargain with their teachers. We look to conventional labor law doctrine, as developed in the private sector and imported to the public sector, to explain this result. We show that, encouraged by legal doctrine, most teacher unions and school districts have internalized the traditional industrial relations model.

   In Part V, we focus on the implications for charter schools and examine the application of existing legal doctrine to charter schools. First, we address the fundamental question of which law governs charter schools' labor relations--the National Labor Relations Act (NLRA) (5) or state law. We next consider the diversity of approaches taken by the states to regulation of charter school labor relations. We find that all of these approaches operate in a traditional industrial relations framework that is incompatible with the promise of charter schools as high performance, high involvement workplaces. Accordingly, we propose to free charter schools from traditional labor law doctrine and develop a labor law for charter schools.

   In Part VI, we describe a new approach to providing a voice for teachers in charter schools. In Part VII, we conclude that this approach will help resolve the tension between risk and reward for charter school teachers and between authority and responsibility for those who sponsor those schools.

2. WHY CHARTER SCHOOLS

   The movement for charter schools has been fueled by the belief that public schools have failed and that at least part of the reason they have failed is because of their monopoly on providing education. (6) Charter schools thus serve to break the monopoly of traditional public schools. They offer alternatives that empower parental choice in their children's education. Furthermore, it can be argued that by placing competitive pressures on traditional public schools, charters shock traditional schools out of their complacency and force them to change for the better.

   Charter schools have been described as the idea everyone likes. They have bipartisan support, and charter advocates can be found among free market economists, civil rights leaders, religious fundamentalists, advocates for the poor, and public educators. (7) Such broad support is possible because the charter school structure brings together three important motivations: the revolt against bureaucratization, the introduction of choice or market mechanisms in public schooling, and increasing teacher professionalism. (8)

   Although Ray Budde was the first to advocate charter schools, (9) it was Albert Shanker, the late president of the Amreican Federation of Teachers, who popularized the idea. (10) Shanker lauded the charter school idea as "a new kind of school governance framework under which successful teachers would become 'empowered' to create innovative programs at existing schools--but only with the express approval of their union." (11) He conceived of the charter school as a place where teachers had more control over the educational environment because he viewed the failure of public education as the fault of the system rather than its teachers. (12) In application, however, charter schools became managerially driven organizations rather than a community of professionals as originally envisioned.

   Early advocates predicted that charter schools would increase choices available to parents; facilitate innovative teaching through waivers of laws and regulations; be more innovative and of higher quality than traditional public schools due to the interplay of autonomy and market forces; be more accountable than traditional schools; and produce higher student achievement, greater parent satisfaction and greater teacher empowerment. (13) Critics, however, have raised serious equity and accountability issues. (14)

   Performance comparisons have not indicated that charters are substantially more effective in boosting student achievement than comparable public schools. (15) The first nationwide comparison, using data from the National Assessment of Educational Progress, found charters either showing no positive difference when compared to traditional public schools or lagging significantly behind them in math and reading scores. (16)

   Earlier studies reflect the complexities involved in evaluating charter school performance. In 2002, Bulkley and Fisler reviewed the characteristics and performance of charter schools. (17) They found that comprehensive evaluation of charter schools is difficult to do for many reasons. Because "[c]harter schools differ considerably from state to state and district to district," (18) the "charter school" label says relatively little about how the school is operated, the degree of freedom it has, or the socioeconomic status of its students. Although this is changing as charter schools gain more experience, Bulkley and Fisler found that they had more unstable or different enrollments than corresponding public schools, and used different assessment methods that frequently varied annually and, "tend[ed] to be too new to have established track records." (19) "In addition," Bulkley and Fisler wrote, "the quality of research varies considerably: some studies have exercised considerable effort to use appropriate controls and make suitable comparisons, while others have been less cautious." (20) Bulkley and Fisler continued, "It is thus not surprising that a recent review of student achievement in charter schools by RAND researchers found that '... evidence on the academic effectiveness of charter schools is mixed.'" (21) They also noted that in studies on charter school achievement, "'the charter impact on student achievement appears to be mixed or very slightly positive.'" (22)

   Miron and Nelson reviewed eighteen studies and classified them according to the strength of charter school impact, either positive or negative, and the quality of the study itself. (23) When they considered only the highest quality studies, those from Arizona, Texas, and Connecticut suggested positive impacts while those from Michigan and the District of Columbia found negative effects. (24) Miron and Nelson stated, "The overall conclusion remains that the evidence of charter schools' impact on student achievement is mixed." (25)

   A major factor in the success or failure of charter schools is the schools' relationships with their teachers. The next Part examines the role of employment relations in charter schools.

3. EMPLOYMENT RELATIONS AND CHARTER SCHOOLS

   Charter schools are envisioned as high performance workplaces where teachers, freed from bureaucratic constraints, take charge of student learning. This Part explores the model of charter schools as high performance workplaces, contrasting that with the traditional industrial union model of employment relations, and exploring the view that charter schools are antiunion.

   1. Charter Schools as High Performance Workplaces

      Traditional workplace organizations center around management and emphasize the "heroic manager." (26) In this model...