Don't jump for Janus

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The recent Janus ruling was one of the most significant by the Supreme Court in years, especially with regard to education. I thought it was the right outcome, though I’d urge caution to fellow conservatives who may be celebrating the unions’ demise. The high court’s decision to strike down agency fees will surely result in fewer members and less money, but unions will still have collective bargaining rights and, as a result, continued influence in education politics at the local level.

This is important to note because, though Janus will surely tilt the scales toward reform when it comes to state policy, it’s not going to do much to help school districts run more efficiently or effectively. To do that, you need to limit collective bargaining, which is either mandated or permissible in all but seven states. Collective bargaining agreements (CBA) cover a remarkably broad range of items, though the arcane nature of what’s inside many of them contributes to the lack of nuance in the larger arguments at play about the pros and cons of public-sector unions.

To get a better sense of this, I thought it might be helpful to provide a behind-the-scenes look into collective bargaining in Indiana while I was at the state’s department of education. Prior to 2011, teachers unions there had negotiated almost anything under the sun. It was a veritable free-for-all, ranging from wages and benefits to teaching load and working conditions. Though some might argue this is about voices being heard, we found that it was more about special treatment and other processes that had little to do with agency and everything to do with ensuring that adult interests were prioritized ahead of student needs.

These processes handcuffed district superintendents across the state, who reached out to us lamenting the unworkable constraints within their CBAs. In response to these complaints, our legal team undertook the Herculean task of reviewing almost fifty of them. The product was a ten-page report that laid bare the prohibitive—and often nonsensical—barriers that were embedded in these contracts. Here are ten examples of provisions that were in place at the time, presented verbatim:

  1. During a Reduction in Force, a teacher with tied seniority will be dismissed based on the sum of the last four digits of the social security number. The higher sum of the two is granted the greater seniority.
  2. Principals have no authority to appoint teachers to classrooms. Teachers choose their own classroom assignments based on seniority. Each teacher submits to the Board their top three choices. The Board shall then work down the seniority list in assigning classes. If a less senior teacher prefers a class already requested by a more senior teacher, the Board shall move on to the less senior teacher’s second preference, and so on, until all teachers receive their most desired available pick. Then, the Board shall repeat for two more cycles to assign as many teachers as possible to their respective preferences.
  3. No more than five hours a school year may be used for teacher’s meetings. Teachers must have ten days notice of the meeting.
  4. Classroom instruction conducted via technology shall not be used to replace teachers.
  5. Teachers and students must be protected from students and non-student rowdies and troublemakers, hostile parents, and others who disrupt the school.
  6. Teachers hired before 2008 pay only $1.00 for health insurance.
  7. If a teacher's personnel file is examined by an administrator, the file shall contain a record indicating who reviewed it, the date reviewed, and the reason for such review.
  8. Special education teachers and teachers who have special education students shall not be evaluated based on the achievement of goals and/or objectives contained in the individual student's IEP.
  9. Non-permanent teachers must be fired twice. Non-permanent teachers are dismissed through procedures established in the contract, then granted protections in state law.
  10. All carpet should be vacuumed using a filtration method that filters at greater than 99 percent efficient at 0.3 micron and that prevents particulates from entering the workspace. As vacuum cleaners are replaced they will be replaced with vacuums that can accommodate HEPA filtration.

Now imagine nine more pages of analogous provisions. In many states, stipulations like these tend to make their way into contracts with scant public scrutiny, the reasons for which are many. When districts are strapped for cash, local school boards might acquiesce to a whole host of other items. Over time, these concessions contribute to the “culture of can’t.” This was certainly the case in Indiana. The lengths of these CBAs were also an impediment; we even had a district with a ten-year contract! It’s difficult enough for districts to anticipate their financial situation from one legislative session to the next, let alone a decade down the road.

Armed with this information, we shared our report with legislative leaders. This set the wheels in motion for our collective bargaining reforms, which among other things limited bargaining to wages and wage-related benefits and the length of any agreement to a budget biennium.

I still believe that there is a place for collective bargaining, but I’m incredulous to those who believe this means protecting it as it currently exists. It might make sense for teachers unions to advocate for core issues like wages and benefits, but I question whether any other item (the number of support staff, school climate, etc.) should be codified in a CBA. In fact, as we did in Indiana, districts and students would be better served if the bulk of these issues were permissible—but not required—in bargaining. Better yet, these items could be discussed at the table and put in board and district policy rather than in the master agreement. Doing so would provide leaders greater flexibility in responding to the needs of their students.

The Janus verdict was a momentous one, but let’s not lose sight of the power and influence unions will continue to exert because of collective bargaining. States that have not reined it in will continue to have a hard time dismissing ineffective teachers or allocating teachers across schools. Until that’s addressed, there’s little cause for celebration. For too many of our students, collective bargaining in education continues to be a bad deal.

 
 
Dale Chu
Dale Chu Senior Visiting Fellow