Atlantic Legal focuses primarily on supporting charter schools, as an effective alternative to failing district schools. A significant part of this effort has been the publication of a series of state-specific law guides “Leveling the Playing Field,” written by nationally known labor law attorneys, to educate charter school leaders about what they need to know to deal with efforts by public employee unions to curb charter schools by unionizing charter school teaching staff and burdening charter schools with intrusive union work rules that may stifle innovation.
One element of school operations and structures that has been hotly debated is the role of collective bargaining in the charter structure. The operational flexibility that charters enjoy has typically led charter leaders to try to remain unencumbered by the collective bargaining agreements that constrain district schools, although some charters choose to integrate collective bargaining in their design.
Efforts to organize charter schoolteachers and other employees are likely to have a significant impact on the flexibility the school needs to meet its charter responsibilities, and charter administrators need to know how to react when the union seeks to represent employees. Charter boards and administrators are well advised to seek counsel from firms that practice regularly in this area.
As the movement has evolved from a handful of schools focused on improving and increasing innovation, to a broad-based movement focused on high quality outcomes, increasing attention has been focused on examining the diversity of operational structures, and how to enhance the vital role of teachers.
Whatever choices charter communities make to best serve their students, we believe that those choices must be made with the benefit of full information, transparent communication, and clarity about the roles and responsibilities of charter boards, leaders, teachers, and all others engaged in each charter’s communities.
In the past years, we have provided counsel to various charter schools from the east to the west coasts concerning critical charter grants and renewals often in the face of opposition, as reported extensively in Atlantic Legal’s prior Annual Reports. Charter schools assisted by Atlantic Legal rank in the highest percentiles in reading aptitude, math and other skills among schools throughout the world.
The Foundation’s “Leveling the Playing Field” publication produced in multiple states, the latest California edition having been published in the summer of 2017, has continued to garner accolades from the California Charter Schools Association and from Charter Schools throughout the nation. One of those Charter Schools here in California that has benefited from Atlantic Legal’s direct support, recently has been recognized as among the top five high schools in California and has a majority of minority students in its student body.
California’s charter movement has been a leader in energizing public education with a robust infusion of innovative schools. Now more than 1,200 strong, serving over 600,000 students statewide, California’s charter schools represent a diversity of instructional programs and operational design as unique as the communities they serve.
Atlantic Legal is continuing its work to support the Charter School community by providing labor law guidance to school leadership through counseling and advocacy, and its ongoing publication of the Leveling the Playing Field series of books which address the particularly difficult area of union organizing, collective bargaining, and related charter school employee rights at charter schools. These issues have historically been determined by the individual states’ charter school legislation and public sector labor law, since all charter schools are public schools, as defined by the various state statutes.
The Foundation has published separate state-centric books, with the financial support provided by various valued contributors including the able pro bono assistance of specialized lawyers serving on its Advisory Council, focusing initially on charter schools in New York, New Jersey, California, Michigan, and Massachusetts. Encouraged by the California Charter Schools Association, Atlantic Legal published an updated edition of that state’s Leveling the Playing Field in June of 2017.
We have received requests to publish other new editions as well. However, as the Foundation has continued to research the evolving jurisprudence in this highly specialized area, it has deemed it wise to defer for the short term any further definitive work on any new volumes due to the rapid evolution of federal labor law in this area.
Leveling the Playing Field – Evolving Law
When the Leveling series was initially published, it raised the then-theoretical question of whether the National Labor Relations Act (NLRA), and not state law, could be deemed to have jurisdiction over charter schools, despite their states’ characterization as “public schools.”
Although there is variation from state to state, in most instances, while charter schools are funded and regulated by state or local governments, they are created by and administered by private entities. The Foundation was somewhat prescient, as the National Labor Relations Board (NLRB) soon started to assert federal labor law jurisdiction over charter schools in various states.
To date, either the NLRB, its regional offices, or its administrative law judges have exercised jurisdiction over charter schools in New York, Connecticut, Pennsylvania, Michigan, Illinois, California, Arizona, Louisiana, Minnesota, Ohio, Oregon, Tennessee, and the District of Columbia. In fact, based on our research, we have determined that in only one Texas case did the Board decline jurisdiction due to a greater level of authority over the charter school retained by the state.
There are many differences between the labor law of the individual states and that of the NLRA. Parties in these cases have their own preferences. In some cases unions have sought NLRB jurisdiction. In others, employers sought it. As the NLRB has added more states to its jurisdiction, interested parties on both sides have raised their concerns. However, it is clear that no state provides protections and rights to employees as broadly as the NLRA.
Labor law is inherently political. The rise of charter schools has also been highly politicalized. However, as reported in the Wall Street Journal in an opinion piece by former Democrat US Senator, Mary Landrieu, in the Spring of 2019, progressives and conservatives alike support and should support the charter school movement.
“Students who spend four years or more in a charter school gain two months of additional learning every year in reading and more than two months in math, compared with demographically similar students with similar past test scores in district schools. In urban areas, it’s 3 ½ months gained in reading and five in math.”Mary Landrieu, Wall Street Journal
Most recently, as we go to press with this 2018 Annual Report, the lead Review & Outlook opinion piece in the May 13, 2019 Wall Street Journal touts research results presented by the National Bureau of Economic Research affirming 40% gains by charter school students compared with public school peers coming from comparable socioeconomic environments and concluding that the charter school template successfully replicates.
In Jason Riley’s “Upward Mobility” column in the May 22, 2019 Wall Street Journal, he affirms:
“Repeated studies have demonstrated that charter schools are closing racial gaps in academic achievement. Whether the measure is test scores, graduation rates or college readiness, charter schools consistently outperform their peers in traditional public schools. Charter high schools make up only 10% of the country’s 26,000 public high schools. But according to the latest U.S. News & World Report rankings, charters comprise three of the top 10 public high schools in the country, and 23 of the top 100. Low-income charter school graduates complete college at two to four times the national average for their peers.”Jason Riley
The NLRB began its march toward charter school jurisdiction during the years of the Obama Board, when Democrats held a majority of seats on the Board. In those years, the Republican minority were vocal dissenters on the subject. Now that the Board presently has a Republican majority, the NLRB is considering exercising its very rarely utilized statutory authority to universally decline jurisdiction over all charter schools nationally.
There is a key case presently pending at the Board, which Atlantic Legal has been following. In that case, one of Atlantic Legal’s Advisory Council members is representing a New York charter school which seeks federal jurisdiction to support its employees’ NLRB petition for a decertification vote. The Board is using that case as a forum to decide whether to withdraw from jurisdiction over all charter schools – an outcome that no party in the litigation requests. The NLRB issued a call for amici to file briefs. The matter will soon be ripe for decision. KIPP Academy Charter School, NLRB 02-RD-191760.
The Atlantic Legal Foundation has consulted with state and national charter school groups on this subject. The Foundation has declined to file an amicus brief because schools and charter school associations it supports are on both sides of the matter. While the potential impact of a Board decision is mixed, we have observed that a rejection of jurisdiction now, after the NLRB has de facto granted coverage of the law to employees and the parties in scores of cases nationwide would be unprecedented – and would in effect tell hundreds of thousands of employees that they no longer have federally protected rights.
Because the NLRB may again recreate the legal landscape in this field, the Foundation, while preparing and continuing to build its expertise, has deferred further advisory publications, until the uncertainties are resolved. Atlantic Legal will revisit this when the Board issues its decision in the KIPP case and anticipates the need for its continuing guidance to the charter school leadership community will be as compelling as ever.