The Legal Confines of School Reform

School Administrator, Nov, 1997 by Todd A. Demitchell

The handcuffing effect of state laws, court rulings and bargaining agreements on meaningful change in public education

"How small, of all that human hearts endure, that part which laws and kings can cure."

Oliver Goldsmith, in The Traveler

Since the release of A Nation at Risk 14 years ago, American education has undergone strenuous, visible and broadly based efforts to improve. At least two waves of reform have formed since the report.

While these reform efforts have varied in focus and philosophy, they share one commonality: Every reform has been implemented through a legal initiative. State laws, school board policies, court decisions and collective bargaining provisions have been the chief means by which school reform has been defined, altered and implemented.

By one account, 700 laws were passed, primarily by state legislatures, to meet the first wave of accountability and the second wave of increased professionalism. California, Tennessee, Massachusetts, Florida and Kentucky, among others, adopted omnibus reform bills touted as building a new educational system and not just tinkering with the old.

Public education was created by legal statute, and laws are essential for public education to function efficiently and equitably in our large and diverse society. But how well do public schools work when faced with the Herculean task of reforming a system of learning that is as complex and politically visible as public education?

Although the law has been the vehicle for launching school reform efforts, little attention has been paid to the way legal mechanisms enable and constrain effective school reform. For example, several state legislatures have attempted to empower teachers and create collegial school environments by passing laws that require school districts to implement site-based management. However, other laws--specifically state collective bargaining statutes--virtually mandate that teachers and school districts relate to one another as adversaries.

To date, no state legislature has come to terms with this incongruity. Thus, in state after state, laws that mandate a collegial and cooperative work environment exist side by side with labor laws that make this worthy reform goal difficult to attain.

Most school reform efforts intersect collective bargaining laws in those states that authorize school employees to bargain collectively. Public education has one of the most heavily unionized public work forces in the United States. The two major teachers' unions have more than 3 million members. In many school districts site-level administrators have unionized, and this does not count the unionization of secretaries, clerks, bus drivers, custodians and cafeteria workers.

Curiously, although school employee unions have the power to influence most educational matters, they are an understudied institution. Professor Michael Kirst of Stanford University likened our understanding of the role unions play in policymaking as a "dark continent." Charles Kerchner, Julia Koppich and Joseph Weeres, in their new book United Mind Workers, referred to unions as "the blind spot on the radar scope of educational reform." With few exceptions, one will search in vain in the school reform literature for mention of the words union or collective bargaining.

A Missing Component

If we are intent on real reform and not just window dressing, we must address the impact of law and lawlike mechanisms, such as collective bargaining, on educational reform. For too long the legal challenges of reform have been missing from the reform dialogue.

The impact of collective bargaining on site-based management initiatives is one example of how unions and collective bargaining affect reform. Another example comes from my experience in the California public schools. A major reform bill, SB 813, made more than 80 changes to the education code in 1983. The changes, among other things, implemented a mentor teacher program, created incentives to lengthen the school day and school year and supported higher starting salaries for teachers.

The mentor teacher program was intended to tap the professional expertise of classroom teachers and expand their professional opportunities. What appeared as a win-win situation for all parties became something else in all too many school districts. Because the provision had to go through the rigors of the collective bargaining process, the mentor teacher program became a tool to gain concessions on issues that would advance a union's agenda. In other words, a reform strategy became a bargaining chip. Reform was ill-served in those instances.

Unionism's Impact

An issue that exacerbates the ability of reform to pass through the gauntlet of collective bargaining is the nature of public-sector collective bargaining laws. These laws transplanted the industrial union labor model--a model that institutionalizes conflict between parties--into a profession that needs collegiality and collaboration. Unfortunately, we are left with a legacy of industrial unionism that must be altered n an era of reform.