The Bush administration wants district officials to have the freedom to override collective bargaining contracts while staffing their most troubled schools, but the controversial proposal could face an uphill battle against a Democratic-led Congress and the teachers’ unions.
Department of Education officials say the proposal, part of the administration’s blueprint for the renewal of the No Child Left Behind Act, would apply only to schools that are undergoing restructuring and is a direct response to concerns they have heard from urban superintendents.
School officials and union critics have long argued that senior teachers, who typically have greater transfer rights under union contracts than their junior colleagues do, tend to leave troubled schools. As a result, they say, such schools have the highest number of inexperienced and less-qualified teachers, which further hinders the schools’ progress.
“Our thinking is that when you have schools that haven’t done well for many years, you need to be more proactive in how you approach reform in these schools,” said Kerri Briggs, the department’s acting assistant secretary for elementary and secondary education.
Second Time Around
Attempts to undercut collective bargaining when the No Child Left Behind law was first approved by Congress in 2001 failed. But some education analysts point to what they contend is a change in the atmosphere this year because of a growing chorus against teachers’ seniority rights, from voices both within and outside public education.
“There is much more attention being paid to this issue now, and much more agreement across the whole continuum of ideologies,” said Frederick M. Hess, the director of education policy studies at the American Enterprise Institute, a conservative-leaning Washington think tank.
But teachers’ union officials say they will fight the proposal: If a teacher-transfer measure goes through, they say, it could open the door to other attempts to undercut collective bargaining rights. There are also questions about the legality of federal law overriding state laws on bargaining.
The principal federal education law specifically protects collective bargaining.
“Nothing in this section shall be construed to alter or otherwise affect the rights, remedies, and procedures afforded school or school district employees under Federal, State, or local laws (including applicable regulations or court orders) or under the terms of collective bargaining agreements, memoranda of understanding, or other agreements between such employees and their employers.”
SECTION 1116D OF THE NO CHILD LEFT BEHIND ACT
Collective bargaining agreements currently enjoy protection under the NCLB law, which says that districts cannot pursue options to restructure schools that conflict with existing contracts.
Joel Packer, the chief NCLB lobbyist for the 3.2 million-member National Education Association, warned of potentially disastrous effects on teacher shortages and already-high turnover rates should the transfer provision become law.
“Forcing a teacher to go someplace just doesn’t work,” Mr. Packer said. “They are not indentured servants, and if you force people to go where they don’t want to go, it will affect morale.”
Experts say the administration’s proposal appears to conflict with existing labor law, and would doubtless invite immediate legal challenges from the unions.
The National Labor Relations Act specifically exempts state and federal government employment. Within that vacuum, many states have enacted laws that give collective bargaining rights to public employees, said Michael LeRoy, a professor in the Institute of Labor and Industrial Relations at the University of Illinois at Urbana-Champaign.
“To the best of my knowledge, we have not had a situation where funding has been made conditional on overwriting collective bargaining agreements that are legitimately negotiated via state laws,” Mr. LeRoy said.
“I am doubtful of the lawfulness of this approach, but I am unaware of any precedent that decides the matter,” he added.
When the NCLB law was being crafted, the two national teachers’ unions worked hard to ward off a proposal from then-Secretary of Education Rod Paige that would have gutted the protection for newly negotiated collective bargaining contracts.
This time around, too, House and Senate Democrats have been quick to take a stand against the proposed change.
“It is wrong for the administration to propose to destroy collective bargaining agreements for teachers who have been trying to carry out the requirements of No Child Left Behind despite lacking the support they should have received,” said Rep. George Miller, D-Calif., the chairman of the House education committee. He called the proposal “unacceptable” in a statement.
The unions have also rushed to present their own evidence and arguments against critics of teacher-transfer rights. The American Federation of Teachers released a report in December, weeks before the blueprint came out, rebutting the perception that teacher-transfer rights are the reason behind the disproportionately large number of inexperienced and less-qualified teachers in high-poverty urban schools.
The report, which was based largely on data from the federal government’s 1999-2000 School and Staffing Survey, said that in urban districts with collective bargaining agreements, low-poverty schools were about as likely as high-poverty schools to replace transferring teachers with first-year teachers, but that in urban districts without such agreements, high-poverty schools hired first-year teachers at three times the rate of low-poverty schools.
John Mitchell, the director of the educational issues department for the 1.3 million-member AFT, said that to solve the problem, teachers need better working conditions and support from administrators. “Tinkering around with collective bargaining agreements that have transfer provisions,” he said, simply won’t work.
Calls for Change
But in the five years since the NCLB law was enacted, calls from various quarters to crack down on collective bargaining rights, especially teacher-transfer rights, have intensified.
Some scholars at think tanks like the Brookings Institution, which is perceived as Democratic-leaning, and the Hoover Institution, which is seen as conservative, have called transfer rights hindrances to school improvement.
A 2005 study from the New Teacher Project, which Ms. Briggs cited to support the Bush administration’s stand, said hard-to-staff districts lose opportunities to hire strong teacher-candidates because of delays caused or worsened by district policies requiring schools to hire all transfers before making new job offers. The New York City-based nonprofit group works with school districts, colleges, and state education agencies to raise the number of teachers entering public schools.
And Steve Jobs, the high-profile chief executive officer of Apple Inc., made headlines last month when he bashed unions and teacher-seniority rights for, in his view, standing in the way of school progress.
Meanwhile, even as the national unions remain strongly opposed to the idea, union locals in Boston, New York City, and Philadelphia have agreed to the implementation of limited changes in seniority rights in their respective districts.
California last year passed a law that would set a deadline for teachers to request transfers to other schools within their districts and still have priority over other qualified applicants from outside the districts.
Federal education officials assert that districts need flexibility in dealing with collective bargaining agreements as they work to bring the poorest-performing schools up to the mandates of the No Child Left Behind Act.
“We certainly have taken the position that collective bargaining agreements cannot stand in the way of compliance with the law,” said Doug Mesecar, the deputy chief of staff for policy at the Education Department.
A version of this article appeared in the March 21, 2007 edition of Education Week as Administration Wants Districts Free to Transfer Teachers