Report: NCLB Law Hasn’t Superseded Contracts

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The possibility that the No Child Left Behind Act could trump provisions of collective bargaining agreements with teachers has hung in the air as an open question since before the measure became law in 2002. But it shouldn’t anymore, says a report released last week asserting that the teachers’ contracts have the winning hand.

The debate began as the law was being shaped, with the two big national unions working hard to keep the measure from giving district officials the power to undercut bargaining in the name of NCLB compliance.

At issue seemed to be the major overhauls the law prescribes for schools that remained “in need of improvement” for at least four years. One of those, for instance, involves disbanding an entire school staff and hiring from scratch—a process that is bound in many districts to run afoul of contract provisions offering job protection on the basis of seniority.

Authors Frederick M. Hess and Martin R. West, two Washington think tank scholars, argue in a paper calling for the teachers’ unions to back down on seniority privileges, pensions, and performance pay, among other issues, that the unions won a “key” victory when it came to bargaining. Within the federal law, the pair points out, the unions got explicit protection for the agreements in these words: “Nothing in this section shall be construed to alter … the terms of collective bargaining agreements.”

Next Generation

Still, the conflict continued over the generation of contracts following those already in place when the law was enacted. If districts couldn’t use the NCLB law to dismiss existing contract provisions, could they consider it a trump at the bargaining table, insisting that none of the options the law lists for failing schools be off limits in contracts being negotiated?

At first, apparently, then-U.S. Secretary of Education Rod Paige saw it that way. He proposed regulations that required districts to keep all the options open in the contracts they bargained. But after a campaign by the teachers’ unions to defeat such a requirement, the secretary wrote to officials in June 2002 saying merely that their contracts did not excuse them from compliance with the law.

No Showdowns

Mr. Paige’s deputy, Eugene W. Hickok, continued to press local officials for contract changes in keeping with the No Child Left Behind Act, but he left the department in January 2005. ("Illinois Governor’s Plan for 3-Year-Olds Drawing Attention," March 15, 2006.)

“Today, it is understood that districts must comply with NCLB requirements in a manner that accommodates the local collective bargaining agreement,” writes Mr. Hess, the education policy director at the American Enterprise Institute and Mr. West, a research fellow at the Brookings Institution.

Negotiating Anew

The paper, “A Better Bargain: Overhauling Teacher Collective Bargaining for the 21st Century,” says school officials should pursue six types of changes in teachers’ contracts:

• New compensation systems that base pay on the scarcity and value of teachers’ skills, the difficulty of their assignments, the extent of their responsibility, and the caliber of their work.

• Pension and health-care benefits structured like those offered by other organizations seeking to hire mobile, skilled, college-educated professionals, which would end defined-benefit pension plans and “gold plated” health insurance.

• Streamlined processes for firing ineffective teachers and more flexibility evaluating teachers.

• Assignment of teachers on the basis of educational need rather than seniority.

• Elimination of provisions related to work rules and governance, with the union’s role in crafting district policy limited to informal consultation.

• Ambiguous language on managerial prerogatives replaced by explicit language maximizing the operational flexibility available to administrators.

“Without that real explicit direction from the feds, you can’t really expect that districts in the current environment will take a strong stand” on recrafting contract provisions, Mr. West added in an interview.

Paul Hanna, a professor of public policy at the College of William and Mary in Williamsburg, Va., who has written about teachers’ unions and the NCLB law, generally agrees that collective bargaining has carried the day. No high-profile showdowns over bargaining have occurred, nor are they likely to with reauthorization of the law looming in 2007, he said.

“For now, it’s a settled matter on the formal legal side,” Mr. Hanna said. “But there may be other, informal ways for district leaders to get what they want.”

Contracts in Boston, New York, and Philadelphia are typical of the era, according to several observers. In all three cases, district officials got limited changes in seniority rights while arguing they needed even more flexibility to do the best job of raising student achievement.

Press accounts of a teachers’ strike last fall in the Oregon Trail district near Portland, Ore., pinned the unrest on teachers’ resistance to transfers that might occur as administrators sought to comply with the federal law. But according to the president of the local union, Sena E. Norton, seniority rights were an issue for broader reasons, such as fear of school closings or elimination of art and music classes.

Alex Wohl, a spokesman for the American Federation of Teachers, said that much of the discussion is beside the point because “collective bargaining is not an obstacle to school improvement if done right.”

He added that the AFT and the Bush administration had a meeting of the minds on the inviolability of teachers’ contracts.

But Reg Weaver, the president of the National Education Association, portrayed the history of the debate differently: “Did they try to make an end run? Yes. Did they get caught? Yes. Has it been that much of a problem since then? Nope.”

The Education Department did not respond to a request for comment.

Vol. 25, Issue 30, Pages 8-9

Published in Print: April 5, 2006, as Report: NCLB Law Hasn’t Superseded Contracts
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