Charter Schools and Collective Bargaining: Compatible Marriage or Illegitimate Relationship? (with C. Kerchner)

I. 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. …