Charter Schools and Collective Bargaining: Compatible Marriage or Illegitimate Relationship?

53 Pages Posted: 15 Sep 2007

See all articles by Martin H. Malin

Martin H. Malin

Chicago-Kent College of Law - Illinois Institute of Technology

Charles Kerchner

Claremont Colleges - Claremont Graduate University

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.

Keywords: collective bargaining, charter schools, teacher unions, employee voice, workplace governance

Suggested Citation

Malin, Martin H. and Kerchner, Charles, Charter Schools and Collective Bargaining: Compatible Marriage or Illegitimate Relationship?. Harvard Journal of Law and Public Policy, Vol. 30, 2007. Available at SSRN: https://ssrn.com/abstract=1014633

Martin H. Malin (Contact Author)

Chicago-Kent College of Law - Illinois Institute of Technology ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States

Charles Kerchner

Claremont Colleges - Claremont Graduate University ( email )

150 E. Tenth Street
Claremont, CA 91711
United States

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