Wednesday, September 19, 2007
Marty Malin (Chicago-Kent) and Charles Kerchner (Clarement Graduate Univ.) have just posted on SSRN their article (forthcoming Harv. J. Law & Pub. Policy) Charter Schools and Collective Bargaining: Compatible Marriage or Illegitimate Relationship?. Here's the abstract:
The rapid increase in charter schools has been fueled by the view that traditional public schools have failed because of their monopoly on public education. Charter schools, freed from the bureaucratic regulation that dominates traditional public schools, are viewed as agents of change that will shock traditional public schools out of their complacency. Among the features of the failed status quo are teacher tenure, uniform salary grids and strict work rules, matters that teacher unions hold dear. Yet unions have begun organizing teachers in charter schools. This development prompts the question whether unionization and charter schools are compatible.
In contrast to traditional public schools whose labor relations are based on the traditional industrial labor relations model, charter schools are envisioned as high performance workplaces in which teachers gain enhanced psychological purchase as a result of sharing in the risks of the enterprise. We look to traditional public schools and find exceptions where teachers and their unions have become agents of change and risk takers. We ask why these exceptional cases have not spread more broadly and find the answer in public sector labor law doctrine which has channeled teacher unions away from risk sharing and toward insulating their members from the risks of the enterprise.
We then consider the labor law governing charter schools. We discuss whether charter schools are governed by the National Labor Relations Act or state law and survey the different approaches that have developed under state law. We conclude that all of these approaches are based on the industrial relations model which is incompatible with the high performance workplaces envisioned for charter schools. We propose to free charter schools and their teachers from traditional labor law doctrine and propose a new approach to teacher voice that, in keeping with the vision of charter schools as shaking up the status quo by injecting competition, will lead to competition and innovation in teacher involvement in the regulation of their workplaces.
I'll admit that I was initially taken aback by the assertion that unions are incompatible with high performance workplaces. However, as the article makes clear, the authors do not mean by this that organized workplaces are incapable of high-quality output (in this case, presumably, student test scores). Instead, the authors define "high performance workplaces" as workplaces that emphasize "flexibility, employee involvement, responsibility, accountability, and an incentive system of rewards," in contrast to a "command and control system [in which] subordinates are not expected to think creatively but are instead confined to carrying out specifically and narrowly assigned tasks."