Academic journal article Journal of Law and Education

From the Statehouse to the Schoolhouse: How Legislatures and Courts Shaped Labor Relations for Public Education Employees during the Last Decade

Academic journal article Journal of Law and Education

From the Statehouse to the Schoolhouse: How Legislatures and Courts Shaped Labor Relations for Public Education Employees during the Last Decade

Article excerpt


During the last decade, the public cry for education reform has been a driving force in shaping labor relations for education employees. Many people believe that the public schools, especially those in large urban school districts, are failing to educate children. As a result, courts and legislatures across the country increasingly have turned to more drastic measures under the guise of education reform. Regardless of one's opinion on the "reform" in question, it is clear that these measures are having a substantial impact on the rights of public school employees. Moreover, several trends are evident throughout the varied approaches states and localities have taken in the name of reform. There is an alarming trend toward privatization of education. Rather than improve the existing public education system, proposals for vouchers and tax credits simply provide a means to leave the system altogether. Further, although charter schools are generally public schools, a charter school still operates outside the existing public school system and its impact on public school employees may be similar to situations where work is sub-contracted to a private entity. Many state legislatures attempt to place the blame for failing schools on teachers and as such, they enact laws restricting bargaining rights and altering tenure protection. To the extent that many of these "reforms" have been legislative, education employees, like other workers, have had to fight union dues initiatives that attempt to radically restrict the extent to which employees and their unions participate in the political process. While there have been some victories on behalf of education employees in the last decade, many have lost rights and even more have had to wage a battle to retain the rights most believed were well settled.

In this paper, we examine six areas that have shaped the rights of education employees. In section two, we discuss the labor ramifications of disestablishing local schools through reconstitution and school takeovers. In section three, we assess the movement toward privatizing education through the use of voucher and tuition tax credit programs. In section four, we examine the charter school movement and the question of whether teachers have retained their bargaining rights. In section five, we recount various measures across the country to restrict the scope of bargaining for public sector employees, and in section six we discuss various attacks on teacher tenure. Last, we examine the trend to challenge the means by which unions and their members participate in the political system.


In the past decade, there has been an increase in the use of existing law, as well as a proliferation of new laws on the state and local level to "takeover" or "reconstitute" schools that repeatedly failed to properly educate students. For those frustrated by problems ranging from low student achievement, high dropout rates, and poor student discipline to a lack of financial resources and failing school infrastructure, extreme measures seem to be attractive as quick and easy ways to give a school a fresh start.

The legal authority that allows for school takeovers or reconstitution varies. In some instances, the authority derives from a court order or consent decree in ongoing desegregation litigation. Alternatively, federal, state, or local laws may provide for intervention. In other situations, the power to reconstitute schools may arise from negotiations between school and union officials. Although the words "reconstitution" and "takeover" are often used interchangeably, they describe different situations in both a legal and labor relations context. However, as described below, reconstitution and its concomitant effects may closely follow the takeover of a district.

Generally, in a state takeover situation, either the state board of education, the state legislature, or a federal court chooses a designated entity, such as the mayor or the state department of education, to manage the affairs of a local school district for a limited period of time. …

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