Past and future trends affecting K-12 employment relations: A management perspective

Journal of Law and Education, Apr 2001 by Clark, R Theodore Jr

Looking back at the educational reform movement that was spawned in large part by the publication of A Nation At Risk in 1983, it is possible to see that there have been three broad waves of educational reform.1 The first wave involved setting and maintaining higher standards for both teachers and students. This wave of educational reform resulted in, among other things, the establishment of stiffer graduation requirements, more rigorous standards for entering the teaching professions, and more student testing to measure progress.

The second wave of educational reform involved the establishment of a more decentralized decision-making structure in education. In 1986, The Carnegie Task Force on Teaching as a Profession urged local school districts to find ways to give "teachers a greater voice in school decisions." In 1987, a task force of the National Governors Association specifically recommending developing "school-site management." This second wave of educational reform has been referred to as "school-based management" or "site-based decision-making," among other names.

The third wave of educational reform has been the school voucher and charter school movement. Although there are major differences between school voucher programs and charter schools, the underlying thrust of both school vouchers and charter schools is to provide alternatives to the existing public school establishment. This so-called "school choice" movement, as it is sometimes referred to, seeks to inject an element of competition.

These three waves of educational reform have, to a very significant extent, shaped the major legal, legislative, and collective bargaining trends of the 1990's. In my judgment, there were five major trends during the 1990's:

1. The enactment of amendments to existing collective bargaining laws to remove perceived impediments to educational reform.

2. The negotiation of contractual provisions to permit more decision-making at the school level.

3. The passage of charter school legislation in a majority of the states.

4. The establishment of voucher programs in several major cities, of which Milwaukee and Cleveland are the most prominent.

5. The wide-spread emergence of interest based bargaining in teacher negotiations as the preferred alternative to adversarial collective bargaining.

While there is an obvious interrelationship between some of these trends, each deserves separate discussion because the legal and/or collective bargaining implications of each are somewhat different.

Amendments to Existing Collective Bargaining Laws

While most of the public sector bargaining legislation that has been enacted in the past 35 years has been at the urging of organized labor, in the past few years several states have enacted significant amendments to their laws to address concerns that such collective bargaining laws inhibited or restricted educational reform efforts. The following is a review of the changes to collective bargaining laws covering teachers in three states.2

First, in Michigan, perhaps the strongest bastion for organized labor during the 60's and 70's, the Michigan Legislature amended the law governing teachers to significantly reduce the scope of bargaining on educational policy matters. For example, the Michigan law now provides that the following, among others, are prohibited subjects of bargaining in public sector education negotiations3:

* "Establishment of the starting day for the school year and the amount of pupil contact time required to receive full state aid."

* "Composition of site-based decision-making bodies."

Just to make sure, the Michigan act provides that all of the subjects or matters declared to be prohibited subjects of bargaining "are within the sole authority of the public school employer to decide."4

Second, the Illinois General Assembly, reacting to what it termed "a crisis in education in the Chicago public school system," passed legislation in early 1995 applicable only to the Chicago Public Schools that includes the following:

* A provision that provides that notwithstanding any law or collective bargaining agreement to the contrary, a principal with the concurrence of at least 51 % of the employees in the teachers' bargaining unit at his or her attendance center "shall have the right to declare waived and superseded a provision of the teachers' collective bargaining agreement as it applies in or at the attendance center to the bargaining units' employees."'S

* A provision that provides that any employee of the Chicago Public Schools "whose job description or actual performance of duties requires an [administrative certificate] shall not be a member of the teachers' collective bargaining unit."6

* Establishes as prohibited subjects of bargaining "[d]ecisions to contract with a third party for one or more services otherwise performed by employees in a bargaining unit, the procedures for obtaining such contract for the identity of the third party, and the impact of these decisions on individual employees or the bargaining unit," "[d]ecisions to lay off or reduce employees. . .'" "[d]ecisions to determine class size, class staffing and assignment, class schedules, academic calendar, hours and places of instruction, or pupil assessment policies, and the impact of these decisions on individual employees or the bargaining unit." This amendatory legislation further provides that all of the subjects which are specified as prohibited subjects of bargaining "are within the sole authority of the educational employer to decide."'