Teacher Unions, Charter Schools, and the Public/Private Distinction in Education Law and Policy
by Benjamin Michael Superfine & David S. Woo - 2018
Background: Over the past decade, courts and administrative agencies increasingly have considered cases that involve clashes between charter school proponents and teacher unions. While these cases have focused on a range of education policy issues, some cases have focused on arguably the most important legal and policy distinction applicable to charter schools—whether a charter school should be considered public or private.
Purpose: This study examines the intersection of the public/private distinction in U.S. law and policy, and the shifting political positions of teacher unions and charter school proponents, in courts and agencies. We examine the history of the public/private distinction in U.S. law and policy and specifically in education, in addition to conducting an in-depth analysis of three recent decisions involving charter schools and teacher unions in which courts and agencies determined whether charter schools were public or private organizations.
Research Design: This article is a legal analysis and historical case study.
Findings: Three recent and high-profile education cases in agencies and courts reflect the continuing breakdown of the public/private distinction in law and policy. Courts and agencies have hinged their decisions about the applicability of federal and state collective bargaining laws on this distinction and have grounded decisions about the basic constitutionality of state charter school laws in this distinction as well. However, there is little consistency in how the public/private distinction has been applied in legal clashes between teacher unions and charter schools.
Conclusion: Our analysis underscores the limitations of the current debate over the public/private nature of charter schools and teacher unions, particularly in the institutional settings of courts and agencies, because this debate is largely untethered from issues of teaching and learning. However, our analysis also suggests that the public or private nature of charter schools still appears “up for grabs” in the legal arena. As such, courts and agencies might offer reformers a useful venue compared to the legislative arena for influencing how the public/private distinction applies to charter schools.
Over the past decade, courts and administrative agencies increasingly have considered cases that involve clashes between charter schools and teacher unions. While these cases have focused on a range of education policy issues, some cases have focused on arguably the most important legal and policy distinction applicable to charter schoolswhether a charter school should be considered a public or private entity. Courts and agencies have hinged their decisions about the applicability of federal and state collective bargaining laws on this distinction and have grounded decisions about the basic constitutionality of state charter school laws in this distinction as well. As such, courts and administrative agencies are becoming critical venues for shaping one of the fundamental issues structuring the political, policy, and legal environments in which charter schools and teacher unions operate.
Such cases have appeared at the intersection of two important historical and legal trends: the breakdown of the public/private distinction in education and across legal policy fields more broadly, and the changing strength of educational interest groups like charter school proponents and teacher unions. As Schoenhard (2008) noted, the public/private distinction was one of the principal cornerstones of classical liberalism (p. 636) and a central distinction underlying law and policy in the beginning of the 20th century. However, this distinction has broken down in the modern policy environment. A range of actors and spaces that were previously viewed as private are now considered quasi-public, while actors and spaces that were previously viewed as public are now considered quasi-private (Schoenhard, 2008). For example, privately managed correctional facilities and utility companies now maintain contracts with local governments and thereby provide public goods. Recent Supreme Court cases, such as Citizens United v FEC (2010), have similarly muddied the distinction between the public and private spheres in the law.
Charter schools and teacher unions also have undergone serious shifts in their political strength, often in opposition to each other. Over the past few decades, the number and popularity of charter schools have grown dramatically (Larkin, 2015). In contrast, teacher unions have been the objects of exceptionally strong political attacks in several states since at least the early 2000s, and resulting policy changes have weakened their collective bargaining powers (Malin, 2009). Indeed, as some states have prohibited collective bargaining in charter schools or have made such bargaining difficult, the growth of charter schools has sometimes come at the expense of teacher unions. As discussed in more detail next, teachers in most charter schools are not unionized, and charter schools are often not covered by school district collective bargaining agreements. As such, the growth of charter schools effectively reduces teacher union membership and funding through dues or agency fees. The breakdown of the public/private distinction has been intertwined with the trajectory of these entities. Because they receive public funds but are free from some regulations that apply to traditional public schools, charter schools are clear beneficiaries of this breakdown. At the same time, teacher unions, along with other public sector unions, have been attacked on grounds that public sector collective bargaining is inappropriate because it creates vast inefficiencies and political distortions through the influence of privately operated unions on the political process (e.g., Hess & Kelly, 2006).
The convergence of the breakdown of the public/private distinction and shifts in the political positions of charter schools and teacher unions, particularly in the adjudicative settings of courts and agencies, present a critical opportunity for scholarly examination. This convergence involves fundamental education law and policy changes in an institutional setting that is theoretically more evenhanded than the sphere of traditional politics. Indeed, the requirement of developing written decisions in both settings involves lengthy and detailed treatments of the public/private distinction in the abstract and its application to concrete conflicts between interest groups. We examine the convergence of the breakdown of the public/private distinction and such interest groups by focusing on the judicial and administrative consideration of three major cases. In Ohio Congress of Parents & Teachers v. State Board of Education (2006) and League of Women Voters of the State of Washington v. The State of Washington (2015), teacher unions argued that charter schools were not public and therefore were receiving public funding unconstitutionally. Whereas one state supreme court found that charter schools were public in Ohio Congress of Parents & Teachers, another state supreme court found that charter schools were not public in League of Women Voters. We also examine a National Labor Relations Board (NLRB) decision in Chicago Mathematics & Science Academy Charter School (2012) (CMSA), in which the NLRB found that a charter school is private at least for employment and collective bargaining purposes. Together, these cases reflect a spectrum of how courts and agencies have applied the public/private distinction to charter schools in clashes with teacher unions.
To be sure, other researchers have begun to examine legal cases focused on the legality of charter school laws. For example, Green (2009) examined a range of such cases from a legal perspective and categorized the various types of such litigation by focusing on legal theories employed by parties. Green, Baker, and Oluwole (2013) more recently examined the ways in which charter schools aim to obtain public funding and autonomy and again focused on the legal dimensions of these issues. However, researchers generally have not incorporated League of Women Voters v. Washington (2015) into such analyses, which is critical because it was the first case in which a court ruled that a charter school law is unconstitutional. Moreover, our analysis includes a broader lens that sheds light on these cases as reflective of the broader clash between teacher unions and charter school proponents over the increasingly ambiguous political notion of the split between public and private spheres in specific institutional settings.
THE PUBLIC/PRIVATE DISTINCTION IN LAW AND POLICY
The distinction between public and private entities has long been a central idea underlying American law and policy. The public/private distinction has been described as a legal fictiona concept that exists only in the law instead of the world that law governsthat is used to classify property and actors as public or private (Schoenhard, 2008). This distinction in turn simplifies distinctions about which legal rules and principles should be applied in a variety of cases. The public/private distinction generally has been used to determine the applicability of constitutional rights or principles to actors and property, but it determines the applicability of other types of law as well. For example, this distinction can determine the applicability of the Establishment Clause of the U.S. Constitution, which governs the separation of church and state. This distinction similarly determines the applicability to various actors of Section 1983a provision of federal law enacted in 1871 as part of Ku Klux Klan Act that allows private parties to sue public actors for the deprivation of their civil rights. During the civil rights era, C. L. Black (1967) argued that the state action problem [the public/private distinction] is the most important problem in American law (p. 69), particularly because the state action doctrine created a barrier to eradicating racismif an actor is declared to be private, it would not be subject to the same constitutional requirements as a public actor.
The public/private distinction was originally sharp in American law and policy. As Horowitz (1982) related, One of the central goals of nineteenth century legal thought was to create a clear separation between constitutional, criminal, and regulatory lawpublic lawand the law of private transactionstorts, contracts, property and commercial law (p. 1424). Under this line of thinking, the public/private distinction served to stake out the private sphere as free from governmental intrusion (Whittington, 2015). Indeed, this distinction was aimed at creating a neutral legal system free from potentially dangerous redistributive propensities of democratic politics (Dodge, 2008).
However, the public/private distinction lost much of its power to distinguish between private and public actors and property. During the New Deal and postNew Deal era, the federal government dramatically expanded and increasingly financed nongovernmental entities, such as private construction and utility companies (Cushman, 1998). As a result, what were previously considered private actors and spaces are now sometimes considered quasi-public, and what were previously considered private actors and spaces are now considered quasi-public (Schoenhard, 2008). For example, business improvement districts, homeowners associations, and outsourced governmental contracts now straddle the line between public and private under both law and policy. As the Harvard Law Review (2010,) argued, In recent years, increased privatization, arbitration, and deregulation have significantly altered the foundation upon which the traditional understanding of the public/private distinction has been built (pp. 12501251).
A series of U.S. Supreme Court cases has played a significant role in muddying this distinction in the legal sphere. As Gerardi (2012) observed, these cases have consistently granted constitutional rights to corporations for almost two centuries. Moreover, a handful of recent cases have significantly expanded corporate rights, leading to results that might not seem consonant with traditional understandings of the meanings of public and private. Perhaps most notably, the Supreme Court in Citizens United v. FEC (2010) held that corporations must be treated like people under the First Amendment of the U.S. Constitution with regard to protection against the government for political speech. As such, the Supreme Court treated corporations as private individuals that merit protection from certain types of public regulation. Following a similar line of reasoning, the Supreme Court held in AT&T Mobility v. Concepcion (2011) that certain types of contractual arbitration clauses built to protect consumers by allowing class actions in contracts with corporations were invalid under the Federal Arbitration Act. Penning the majority decision for the Court, Justice Scalia stated that consumers would remain free to bring individual claims instead of class action claims. The Court therefore assumed that private individuals and corporations have similar bargaining power, placing them in a similar category of private entities (Gerardi, 2012). Yet, the Supreme Court itself has stated there is no single test to identify state actions and state actors (Brentwood Academy v. Tennessee Secondary School Athletic Association, 2001). Such jurisprudence has led to the argument that the state action doctrine governing the public/private distinction is one of the most complex and discordant doctrines in American jurisprudence (Harvard Law Review, 2010, p. 1250).
Highlighting the breakdown of this distinction, various academic theories of state action have emerged that emphasize how difficult it is to disentangle public and private issues. For example, under the permission theory, state action also involves state inaction because state action occurs when public entities let things happen without acting (Garvey, 1993). The prime mover theory alternatively holds that the state is actually involved in almost every private action, but state action occurs at such a deep level that it typically goes unnoticed (Garvey, 1993). For example, this theory frames commercial sales as things that can only occur in a legal system with property and contract rules. Under this logic, public law and policy constitute an almost omnipresent foundation on which private actors rely to order their lives and actions. Yet another theory focuses on the relationships between parties or things instead of the actors in question (Gerardi, 2012). Under this logic, corporations might be considered private when engaging in business arrangements with other corporations, but they might be considered public when engaging in activities such as political speech, which constituted the central issue in Citizens United. Indeed, the breakdown in the public/private distinction has led some to argue that this distinction is dead or at least has ceased to be useful (Horowitz, 1982; Schoenhard, 2008).
THE PUBLIC/PRIVATE DISTINCTION IN EDUCATION
Recent developments in education reflect the broader breakdown of the public/private distinction in U.S. law and policy. This breakdown has occurred in a wide range of education law and policy domains. For example, 13 states and Washington D.C. now provide publicly funded vouchers to students that can be spent on private school tuition (National Conference of State Legislatures, 2014). In Zelman v. Simmons Harris (2002), the Supreme Court deemed such voucher schemes constitutional because private individuals make decisions about where public funding should be spent under such programs, thus allowing vouchers to be spent without imputing religious decisions to particular public institutions. The No Child Left Behind Act of 2001 (NCLB) required school districts to hire private supplemental educational services (SES) providers to help schools if they continually failed to make adequate yearly progress. Up to $375 million in public funds were spent annually on SES during the implementation of NCLB (U.S. Department of Education, 2009). Although one might be able to find evidence of the breakdown of the public/private distinction in almost any area of education policy, the legal structure underlying teacher unions and charter schools in education particularly reflects its breakdown.
Collective bargaining in education has long reflected the breakdown in the public/private distinction. Although there are many types of unions involved with education, teacher unions arguably have the highest profile and absorb the most extensive attention from the media and policy makers. States began to enact collective bargaining laws for teacher and public sector workers more generally in the 1960s (Kahlenberg, 2006). However, the roots of these laws extend back to those governing private sector bargaining, and the legal framework for private sector actors continues to underlie public sector bargaining laws.
The federal Wagner Act, which was originally passed in 1935 and became the National Labor Relations Act (NLRA), provided most private sector workers with the right to form unions and bargain collectively. The principles underlying the NLRA are primarily based on the assumption that collective bargaining takes place in an industrial workplace (Malin & Kerchner, 2007). Under this assumption, management controls all business decisions, and workers simply enact tasks decided by management. State laws governing public sector collective bargaining were largely modeled on the NLRA from their very beginnings (Malin, 2009). Although the details of these laws differ across states, teacher unions operating under such laws can require school districts to collectively bargain over a variety of issues, such as teacher salary, teacher assignment, teacher grievance and dismissal procedures, class size, teacher transfer, and teacher layoffs (Lindy, 2011).
The fundamental classifications for issues potentially covered by public sector bargaining under state laws are drawn directly from the NLRA. State laws that govern collective bargaining for teachers generally divide such issues into three categories: mandatory, permissive, and excluded (Malin, 2009). Mandatory issues primarily relate to employee working conditions and must be bargained. These issues generally relate to compensation and working conditions and include issues like wages, hours, benefits, and teaching assignment. Permissive issues may be bargained if a union and school district choose. These issues are usually one step removed from core employment issues and can include matters that touch on education policy, like textbook selection (Koski, 2012). School districts and teacher unions are prohibited from bargaining over excluded issues. These issues generally relate to managerial or policy decisions, such as setting staffing needs (Russo, 2012).
Many potential issues for bargaining are not addressed by state laws and do not clearly fall into one of these three categories. As such, issues such as class size, procedures for teacher evaluation, calendar, and in-service professional development might be mandatory in one state but permissive or even prohibited in another (Rabban, 1990). Accordingly, courts and administrative boards have often determined how to classify such issues (Paige, 2013). These institutions generally examine whether an issue is primarily related to teacher working conditions or related to managerial authority or public policy. In making a decision about classifying these issues, the New Jersey Supreme Court stated that the very foundation of representative democracy would be endangered if decisions on significant matters of governmental policy were left to the process of collective negotiation, where citizen participation is precluded (Ridgefield Park Education Association v. Board of Education, 1978, p. 287). Emphasizing the difficulty of making such a distinction, the Court of Appeals of Maryland further stated, Virtually every managerial decision in some way relates to salaries, wages, hours, and other working conditions, and is therefore arguably negotiable. At the same time, virtually every such decision also involves educational policy considerations and is therefore arguably nonnegotiable (Montgomery County Education Association v. Board of Education, 1987, p. 986).
Such conceptual problems underlying public sector collective bargaining laws have led some to argue that such bargaining constitutes an improper delegation of public power to unelected, private special interest groups. As a result, Kowal (2011) argued that the exercise of this power should be considered undemocratic and tyrannical. Under this logic, strikes are particularly undemocratic. Instead of putting economic pressure on a private employer, public sector union work stoppages exert political pressure by affecting citizens who depend on the operation of services and vote to express their preferences. Along similar lines, several scholars have highlighted the strong influence that teacher unions can have on the political process by raising money for political candidates and heavily influencing school board elections where there is usually low voter turnout (Lieberman, 1997; Moe, 2011). School district management accordingly can find itself charged with enhancing the performance and efficiency of districts while working for school board members who have significant political interests in avoiding conflicts with teacher unions (Hess & Kelly, 2006).
On the other hand, some support teacher unions precisely because of the imputed relationship with the public. For example, some argue that school policy making faces an information problem, where administrators and policy makers do not know what is actually in the best interest of students. In this framework, teachers, working more closely with students and parents, are more likely to represent the public interest, and teachers interests largely converge with students interests on the most fundamental education policy issues (Kahlenberg & Greene, 2012). This is particularly the case where teacher unions engage in reform bargaining in which union members are treated as professionals who can help improve schools through flexible and ongoing bargaining processes that are not seen as zero sum (Koppich, 2005). Indeed, under this type of process, those issues more traditionally reserved for policy makers are typically bargained under the theory that teachers and school management should work together to determine how students are best served.
Despite such controversy, the number of public sector union members grew dramatically since the second half of the 20th century, while the number of private sector union members shrank. Still, at least since the early 2000s, public sector unions like teacher unions have been weakened by the passage of laws in several states limiting public sector collective bargaining rights (Malin, 2012). In education, such limits generally relate to the ability to bargain collectively in areas that typically fall under the ambit of policy makers, such as teacher evaluation. Nevertheless, public sector teacher unions remain fixtures in the education policy landscape and continue to reflect the muddiness of the public/private distinction in education policy.
Charter schools are perhaps the most high-profile and often-cited example of the growing ambiguity between the public and private spheres in education. Charter schools have spread quickly around the United States. Between the passage of the first charter school legislation in 1992 and 2014, 42 states permitted charter schools, and 7.1% of all schools were charter schools (Larkin, 2015). Because they have characteristics of public and private schools, charter schools have often been labeled as quasi-public or hybrid public schools (LoTempio, 2012). On a fundamental level, governing bodies that are often public create charter schools by granting charters to independent, private school operators. Parents and students then act as consumers and choose which schools they want to attend, theoretically enhancing competition between schools and therefore educational innovation. Moreover, charter schools generally are subject to less regulation than traditional public schools, under the idea that they trade heightened accountability for less regulation because charters must be renewed. Indeed, charter schools are largely grounded in the neoliberal logic that the marketplace can provide more efficient solutions than the public sector to pressing social problems (Bulkley & Burch, 2011, p. 236).
As charter school legislation began to spread across the United States, educational researchers paid particular attention to the ways that charter schools cut across public and private spheres. For example, Lubienski (2001) explored the historical purposes of public education and compared them to those underlying charter schools, and Vergari (2007) analyzed charter schools along interrelated dimensions of how education is provided. Drawing from Belfield and Levin (2005) and Henig (2005), Vergari (2007) specifically examined educational delivery, funding, governance, and purposes. Such dimensions are still useful for understanding the public/private nature of charter schools. With regard to funding, charter schools receive public funding, but this funding is typically less than 100% of the per-pupil operating money as compared with traditional public schools, and charter schools typically do not receive equivalent facilities funding. As noted, charters are generally granted by public entities such as states or school districts, though other entities such as higher education institutions sometimes grant charters. However, private independent operators generally operate charter schools. And although many states forbid for-profit entities from starting charter schools, many states permit charter schools to subcontract with them to provide educational services (D. Black, 2013).
Educational thinkers have long paid attention to the ways that the purposes of schooling potentially cut across public and private spheres. For example, Horace Mann promoted the idea that schools should be aimed at bolstering the public good of the U.S. democracy by developing students into democratically capable citizens (Kaestle, 1983). However, charter schools have potentially insular missions that do not strongly support the public good (D. Black, 2013, p. 482). Perhaps most obviously, charter schools position parents as consumers who can choose from an array of options to maximize their personal, private interests. Moreover, the fundamental logic of charter schools is grounded in the strategy and logic of the private sector. Many large urban school districts now employ a portfolio management model in which a central office manages a group of schools that is diverse with regard to organization and curriculum (Bulkley & Burch, 2011). But as discussed earlier, some have framed charter school legislation as a type of reform that can strengthen the educational options available for all students by promoting competition across the entire educational marketplace. Under this logic, charter schools enhance the public good.
Given such public and private characteristics of charter schools, similar policies apply to charter schools inconsistently across states. For example, 20 states permitting charter schools and Washington D.C. have teacher evaluation systems that hinge teacher tenure and dismissal decisions on evaluations that rely heavily on student achievement (Green, Donaldson, & Oluwole, 2014). However, only 10 of these states apply these systems to charter schools, 8 states and Washington D.C. exempt charter schools from these systems, and the application of these systems in unclear in three states. Indeed, surveying the charter school landscape, Lubienski (2001) argued that charter schools require a reconfiguration of the idea of the public (p. 467). The cases discussed next highlight precisely this muddying of the public/private distinction in the adjudicative sphere.
COURTS, CHARTER SCHOOLS, AND TEACHER UNIONS
As the number of charter schools continues to increase and teacher unions face difficult legal and political challenges, issues involving both of these types of entities have begun to emerge in the courts. As highlighted by Kauffman (2013), charter schools ostensibly conflict with the interests of teacher unions in many ways. Teachers in most charter schools are not unionized. Charter schools are often treated like school districts from a governance standpoint, and teacher unions must form in each charter school instead of a traditional school district that includes several schools. Because of the lack of collective bargaining agreement protections, charter school teachers are often employed at will, and administrators possess greater power to terminate and replace them than in school districts with teacher unions. Teacher pay is also often lower in charter schools, and teachers are often required to work longer hours in charter schools. Teacher unions accordingly have concerns about establishing a precedent of nonunionized teachers in public schools. Because charter schools are often not covered by school district collective bargaining agreements, charter schools effectively reduce union membership and, accordingly, funding through dues and agency fees as well.
Given the mixed characteristics of charter schools, they have been involved in significant litigation with a focus on the legitimacy of their public/private nature (Green et al., 2013). At least two state court cases have hinged on whether charter schools are ineligible for public funding because they are partially governed by private entities. Moreover, at least three state courses have examined whether charter schools should be considered public or private for the purpose of deciding whether they comport with state constitutional guarantees of providing students with efficient or uniform educations. Indeed, teacher unions have played critical roles in these cases by using litigation to attack charter schools. This section examines three cases in courts and agencies in which teacher unions and charter schools clashed over whether charter schools should be considered public or private with regard to issues of employment and basic constitutionality.
LEAGUE OF WOMEN VOTERS OF WASHINGTON V. WASHINGTON
In League of Women Voters of Washington v. Washington (2015), several organizations and individuals sued the state of Washington and argued that its state law authorizing charter schools as common schools violated the state constitution. The plaintiffs included the Washington Education Association, the League of Women Voters, El Centro de la Raza, the Washington Association of School Administrators, and various individuals opposing charter schools. Several others joined the state as intervenors, including the Washington State Charter Schools Association, the League of Education Voters, Cesar Chavez Charter School, and Tania de la Campos, the individual who sponsored the states charter school law.
Charter schools had long been a politically contentious issue in Washington. Voters in the state had voted down state laws authorizing charter schools in 1996, 2000, and 2004 on statewide ballots (Taylor, 2015). In 2012, charter school proponents succeeded in getting Initiative 1240 on the statewide ballot. This measure would again authorize charter schools. Initiative 1240 was based on a model bill developed by the American Legislative Exchange Council (ALEC), a conservative organization of state legislators devoted to reducing the size, reach, and cost of the government. Proponents of Initiative 1240 spent $10.9 million in support of it, with more than $9 million coming from six wealthy individuals, including Bill Gates (Microsoft), Alice Walton (Wal-Mart), and Eli Broad (KB Home and SunAmerica). In contrast, opponents of the measure spent approximately $700,000 (Taylor, 2015). The voters narrowly approved the measure by a 50.69% majority vote in November 2012.
Initiative 1240 allowed Washington to establish up to 40 charter schools within five years. The law explicitly defined charter schools as common schools, directed charter schools to be funded as other public schools, and defined public schools to mean common schools as referred to in the state constitution. However, charter schools were largely exempt from state laws and rules that apply to school districts, particularly in areas like scheduling, personnel, funding, and educational programming. Charter schools could be approved only by the Washington Charter School Commission, a state level agency with nine appointed members, or by school districts authorized by this agency. Although these authorizers could approve or deny applications, negotiate charter contracts, and monitor performance and legal compliance of charter schools, this oversight could not unduly inhibit the autonomy granted to charter schools (RCW 28A.710.180(2)). As such, a board of a charter school controlled much of its operations, including hiring, managing, and releasing employees, disbursing funds, entering contracts, and determining enrollment numbers (RCW 28A.710.030(1), .050(5)).
The law also required charter schools to receive funding on the same basis as public schools. It allocated charter school funding based on the same criteria as funding for noncharter public schools and provided that charter schools are to be included in the same levy planning, budgets, and funding distribution as other schools in the same district. As the Washington Supreme Court emphasized, the voters pamphlet for Initiative 1240 indicated that the financial impact of the law simply would be to shift school funding from existing schools to charter schools (League of Women Voters, 2015).
The plaintiffs sued shortly after the passage of Initiative 1240. The lower court hearing the case found that portions of Initiative 1240 were unconstitutional because charter schools are not common schools under the Washington State Constitution (League of Women Voters, 2014). The court particularly found that the provisions of Initiative 1240 permitting appropriations from the construction fund for common schools were unconstitutional because such funds were only permitted to be given to common schools. However, the court also found that the other provisions of Initiative 1240 were constitutional because other funds provided to charter schools, such as money from basic education funds, were not required to be provided only to common schools.
The Washington Supreme Court directly reviewed the decision of the lower court. Like the lower court, the state supreme court grounded its analysis in the state constitution, which establishes the legal foundation for public schools in the state:
The legislature shall provide for a general and uniform system of public schools. The public school system shall include common schools, and such high schools, normal schools, and technical schools as may hereafter be established. But the entire revenue derived from the common school fund and the state tax for common schools shall be exclusively applied to the support of the common schools. (Washington State Constitution, Article IX, Section 2)
The state constitution similarly provides that the common school construction fund is to be used exclusively for the purpose of financing the construction of facilities for the common schools (Washington State Constitution, Article IX, Section 3).
After providing an overview of the relevant law, the courts analysis began by squarely focusing the case on the designation, funding, and control of charter schools (League of Women Voters, 2015, p. 405). The court citied School District No. 20 v. Bryan (1909) as controlling precedent. In this case, the state supreme court established criteria for understanding the meaning of common school. As the Washington Supreme Court noted, Bryan stated, The words common school must measure up to the requirement of the constitution . . . and whenever by any subterfuge it is sought to qualify or enlarge their meaning beyond the intent and spirit of the constitution, the attempt must fail (Bryan, 1909, p. 503). Bryan particularly established that a common school is one that is common to all children . . . free, and subject to and under control of the qualified voters of the school district. The complete control of the schools is a most important feature, for it carries with it the right of the voters . . . to select qualified teachers (Bryan, 1909, p. 504). Although the defendants argued that the Washington Supreme Court should overturn Bryan, the court refused, highlighting how Bryan had stood as good law for over 100 years.
Grounded in this analysis, the court stated, Because charter schools under I-1240 are run by an appointed board or nonprofit organization and thus are not subject to local voter control, they cannot qualify as common schools within the meaning of Article IX [of the state constitution] (League of Women Voters, 2015, p. 405). Given the language of the state constitution regarding school funding, the court further found that diverting any funding from the common school fund and state tax for common schools is unconstitutional. Because the state did not segregate constitutionally restricted common school funds from other state funding and there was no way to track the restricted funds and ensure that the money was used exclusively to support common schools, the court particularly found that charter school provisions were unconstitutional. Furthermore, because the law relied on such money as its funding source, the law could not function as fundamentally intended and was therefore entirely unconstitutional. However, it is worth noting that one judge wrote in a dissent that although charter schools are not common schools, the law itself was valid; because nothing in the law required the use of restricted funds, the state had the option of funding charter schools with other funds in way that would not violate the state constitution.
It is worth noting that League of Women Voters is somewhat of an outlier. Although other state supreme courts have considered such arguments about the public/private distinction in charter schools, no other state supreme court has struck down an entire charter school authorizing law. Yet, courts in other states with similar constitutional provisions may look to League of Women Voters if they decide similar cases. As noted by Bethke et al. (2015), at least 12 other states have similar common school clauses and at least 7 other states emphasize local control in their constitutions. Moreover, several other state constitutions have various provisions that could be used against charter school laws in litigation, and a handful of courts in other states have explicitly relied on Bryan. So, there is certainly the possibility that the logic of League of Women Voters could spread across various states. It is also worth noting that the state of Washington enacted a new law authorizing charter schools in 2016. Given the League of Women Voters (2015) decision, this new law has been structured to address the constitutional deficiencies identified by the Washington State Supreme Court. However, a series of plaintiffs immediately sued to challenge the constitutionality of this law as well, and this litigation is currently making its way through the state court system.
OHIO CONGRESS OF PARENTS AND TEACHERS V. STATE BOARD OF EDUCATION
In Ohio Congress of Parents and Teachers v. State Board of Education (2006), several organizations and individuals sued the Ohio State Board of Education and argued that the state law authorizing charter schools violated the state constitution. The plaintiffs included the Ohio Federation of Teachers, the Akron Education Association, the Ohio Congress of Parents and Teachers, and the Ohio School Boards Association. The defendants included the State Board of Education and White Hat Management, a company that managed 28 charter schools at the time of the trial, along with other charter school management companies. The case was highly publicized, receiving extensive coverage in Education Week (e.g. Robelen, 2005) and other media outlets, and the entire hearing was broadcast over the Internet.
The state legislature authorized charter schools in 1997 with the enactment of R.C. Chapter 3314. The law referred to charter schools as community schools and was passed during a decade of Republican political dominance in the state (Mason, 2012). The stated purposes of R.C. Chapter 3314 included providing parents a choice of academic environments for their children and providing the education community with the opportunity to establish limited experimental educational programs in a deregulated setting. Ohio charter schools were exempt from several state laws and regulations, such as those governing teachers pay, districtwide teacher-to-student ratios, and teacher contract requirements. The schools were permitted to target programs for small student target populations, such as students with learning disabilities. These schools were to receive state funding but managed by private organizations. They were required to contract with sponsors, which were responsible for monitoring their performance with applicable requirements. Sponsors originally were required to be public entities (e.g., local school boards, the state department of education), but in 2003, a subsequent law approved other nonprofit educational entities (R.C. 3314.02). The Ohio Department of Education approves and monitors sponsors.
The plaintiffs filed suit in 2001 in state court and cited 10 different claims. The trial court split the litigation into two phases to focus solely on legal issues first before proceeding to factual issues that involved legal compliance and sponsorship contracts. This article focuses on the first phase of litigation because it particularly relates to the public and private nature of charter schools. The trial court found for the defendants on all issues. However, the appellate court ruled that the record needed to be more developed on funding issues. On request of both sides, the Ohio Supreme Court accepted the case to decide its legal merits.
The Ohio Supreme Court ultimately heard the case in 2004. The plaintiffs argued that the R.C. Chapter 3314 violated Section 2, Article VI of the Ohio Constitution, also known as the Thorough and Efficient Clause, Section 3, Article VI, which determines how city school districts are organized; Section 5, Article XII, which specifies that tax dollars must be spent on their stated purpose; and Sections 4 and 5 of Article VIII, which limits the states lending of credit. In other words, the plaintiffs argued that the charter school law is unconstitutional because charter schools cannot be considered common schools, they make the system of public education less thorough and efficient, they violate the use of tax dollars for their stated purpose, they circumvent the authority of city school boards, and the law allows charter schools to borrow money based on expected tax revenues.
In a 43 decision written by Justice Lazinger, the court rejected all the plaintiffs legal arguments. The court first examined whether charter schools are common schools under the Ohio Constitution. The plaintiffs argued that charter schools could not be considered a part of the system of common schools because they were publicly funded, privately owned, and not held to the same statewide standards as all other public schools. However, the court determined that the state legislature has the power to define a system of common schools in the state even if this means giving schools flexibility over certain regulations. While the court agreed that charter schools are given exemptions from certain standards, the court also highlighted that charter school students must pass the same graduation test as other public school students, and charter schools must administer proficiency and achievement tests, maintain adequate facilities and meet health and safety standards, and report annually on fiscal, operational, and academic issues. As a result, the court found that many of the exemptions are picayune in nature (Ohio Congress of Parents & Teachers, 2006, p. 577). Moreover, the court found that parental choice and sponsor control would hold charter schools accountable in a similar fashion as traditional school management.
The court then addressed the plaintiffs claim that charter schools diverted state funding away from traditional public schools and therefore violated the state constitutional requirement to provide a thorough and efficient system of common schools. The court disagreed, stating that the diversion of funds could occur when a student leaves a district for any reasonthose same funds would follow the student because state funding is based on enrollment. Next, the court tackled whether the charter school law unconstitutionally allowed charter schools to operate without control of local voters of local school boards. The state constitution specifically provides that each school district in a city has the power to determine by referendum vote the organization of the local school board and that the district must allow the board to exercise its power. However, the court found that the state constitution does not give voters more power than the legislature to create and administer a public school system. Moreover, because the state legislature has the authority to determine school districts and can make charter schools their own district, the court found that the legislature did not intrude on the power of school boards.
Finally, the court turned to the question of whether the state could legally extend credit to charter schools and fund them through state-assumed debt. The Ohio charter school law allows charter schools to borrow funds in anticipation of receiving state funding to purchase resources needed to educate students. It also allows the state to guarantee loans for charter schools. The Ohio Constitution provides that the state cannot extend its credit to private corporations. However, the Ohio Supreme Court determined that the charter school law does not violate the Ohio Constitution on these counts because charter schools are political subdivisions and are public organizations that advance a public purpose (Ohio Congress of Parents & Teachers, p. 585). So, the court ruled that the legal underpinnings of the Ohio charter school law are constitutional.
Justice Resnicks dissenting opinion in this case is particularly worth noting because it directly relates to the public and private characteristics of charter schools. Justice Resnick argued that the charter school law is unconstitutional because it effects a schismatic educational program under which an assemblage of divergent and deregulated privately owned and managed community schools competes against public schools for public funds (Ohio Congress of Parents & Teachers, 2006, p. 587). She further emphasized that, for the framers of the Ohio Constitutions education clauses, the only education deserving public funding is a common education that brings diverse people together instead of one that creates rivalries. As such, Justice Resnick argued that the idea of charter schools runs directly counter to the idea that public schools are to promote social harmony and create a sense of national identity. In doing so, Justice Resnick was one of the few, if any, judges to highlight philosophical arguments of the fundamental purposes of education when considering charter schools.
CHICAGO MATHEMATICS & SCIENCE ACADEMY CHARTER SCHOOL, INC. AND CHICAGO ALLIANCE OF CHARTER TEACHERS & STAFF
In CMSA (2012), the NLRB considered whether a charter school is a public or private entity, particularly for collective bargaining purposes. In 2010, the Chicago Alliance of Charter Teachers & Staff (CACTS), the Illinois Federation of Teachers, the American Federation of Teachers, and the AFL-CIO filed a petition with the Illinois Educational Labor Relations Board (IELRB) to represent teachers employed at the Chicago Mathematics & Science Academy Charter School (CMSA). The IELRB governs issues related to public sector labor relations in Illinois, and the teachers successfully voted to form a union under IELRB rules. In response, CMSA filed a petition with the NLRB, which governs issues related to private sector labor relations, to rule that the petition should have been filed with the NLRB because CMSA should be considered a private employer.
First, the acting regional director of the NLRB examined the petition, determined that CMSA is a political subdivision of the state of Illinois, and found that the case falls under the jurisdiction of the IELRB and not the NLRB. CMSA then appealed to the national office of the NLRB, which reversed the order from the acting regional director. The NLRB applied a two-prong test taken from a U.S. Supreme Court case, NLRB v. Natural Gas Utility District of Hawkins County (Hawkins County) (1971), to determine if a particular entity can be considered a political subdivision. According to the Hawkins County test, an employer is a political subdivision if it is either (1) created directly by the state so as to constitute a department or administrative arm of the government, or (2) administered by individuals who are responsible to public officials or to the general electorate (CMSA, p. 1).
The NLRB concluded that CMSA is not a political subdivision because it fails both prongs of the test. First, the NLRB found that CMSA was not created by the State because it was created by private individuals even though it receives public funding and operates pursuant to a contract with a governmental entity (CMSA, p. 7). The NLRB particularly highlighted that entities created by private individuals as nonprofit corporations are not exempt under the first prong of this test. Indeed, the Illinois charter school legislation requires that nonprofits apply to become charter schools, and CMSA was created and incorporated by private individuals under the Illinois General Not-for-Profit Act. Moreover, the NLRB highlighted that it has asserted jurisdiction over private employers that provide certain services under agreement with government entities. The NLRB did acknowledge that Illinois characterized charter schools as within the public school system in the charter school law. However, it also emphasized that the State has shown that its intention is to permit others to establish and operate charter schools, albeit within a framework of regulations fashioned by the State (CMSA, p. 7).
Second, the NLRB found that CMSA is not responsible to public officials or the general electorate. The NLRB specifically found that members of the CMSA governing board were not appointed by or subject to removal by public officials or the general electoratethey were instead privately appointed and removed. The selection of CMSAs governing board is determined by its bylaws instead of law or regulation, and these bylaws provide that board members can only be selected and removed by other board members. As such, this decision framed CMSA and other Illinois charter schools as private entities for major labor relations purposes and under the jurisdiction of the NLRB.
Notably, one NLRB member agreed that CMSA is not a political subdivision but dissented on whether the NLRB should assert jurisdiction anyway. This member found that relationships among CMSA, the State of Illinois, and Chicago public schools are so intertwined and extensive around services of a peculiarly public and local nature (CMSA, p. 14) that CMSA should be considered a quasi-public institution (p. 13). Despite this dissent, the NLRB (again) affirmed the conclusions in Pilsen Wellness Center and Chicago Alliance of Charter Teachers and Staff (2013). In this case, the CACTS filed a petition with the IELRB to represent the teachers at a charter school managed by the Pilsen Wellness Center (PWC). PWC then filed a petition with the NLRB asking for an election in accordance with NLRA instead of Illinoiss charter school laws and IELRA. Again applying the Hawkins County test, the NLRB concluded consistently with the decision in the CMSA case that PWC was a private employer and therefore fell under NLRB jurisdiction. So, unlike the extant judicial disagreement about the public/private nature and basic constitutionality of charter schools, the NLRB has thus far consistently viewed charter schools as private entities for labor relations purposes.
BREAKDOWN OF THE PUBLIC/PRIVATE DISTINCTION
As a detailed examination of Ohio Congress of Parents and Teachers, League of Women Voters, and CMSA reveals, these cases reflect the convergence of historical and legal trends involving fundamental education policy issues. First, the cases reflect the continuing breakdown of the public/private distinction in law and policy, and specifically in education. Although this distinction was originally aimed at creating a neutral legal system for private actors to be free from what were considered dangerous properties of democratic politics, this line blurred because of several factors, such as the expansion of the federal government in the 20th century and public financing of institutions controlled by private actors.
The legal theories employed in all three cases accordingly focus on how charter schools straddle this line. For example, the League of Women Voters court focused on the control of and funding source for charter schools. The court specifically pointed to the presence of a nonprofit school board and funding streams mixed with those of traditional public schools to deem Washington charter schools unconstitutional. The Ohio Congress of Parents and Teachers court employed a similar analytical frameworkit also examined the public source and recipients of funding streams, and the presence of nonprofit governing boards of charter schools that are not directly accountable to the general electorate. However, this court highlighted the legal requirements that apply across various types of schools and the power of the legislature to construct such structures to deem Ohio charter schools constitutional. The Hawkins County test employed by the NLRB in CMSA for labor relations issues similarly focused on how charter schools are created and who controls them. To be sure, these three adjudicative bodies came to different legal conclusions. The League of Women Voters court and the NLRB both found charter schools to be more like private entities, whereas the Ohio Congress of Parents and Teachers court found charter schools to be more like public entities. Yet, the focus on control, funding, and how charter schools are created spans across different bodies considering different legal and policy issues.
Although these bodies did not consistently engage in philosophical considerations of the purpose of education in their opinions, Justice Resnicks dissent in Ohio Congress of Parents and Teachers is particularly worth noting. As discussed earlier, some have argued that charter schools are targeted at private instead of public goods because they can have insular missions and attract only certain types of parents and students. Justice Resnick specifically argued that charter schools create rivalry and competition between each other and traditional public schools instead of emphasizing social harmony and commonality, which constitute public goods. Mirroring the approach of education historians like Labaree (1997), who have focused on public and private goods, Justice Resnick incorporated this insight into her legal analysis not simply by citing precedent but by looking at the history of the educational clauses of the Ohio constitution. However, this deeper examination of the purposes of education was unique in these decisions.
The ambiguity of the public/private distinction in these three decisions reflects the breakdown of this distinction not only in education but in U.S. law and policy more broadly. As discussed, legal scholars have developed several theories to make sense out of this ambiguity. The prime mover theory holds that almost any legal action can be considered public because state action creates the rules for the underlying legal system. Both the Ohio Congress of Parents and Teachers court and the NLRB in CMSA explicitly considered this argument, but the adjudicative bodies diverged on their analysis of it. Ohio Congress of Parents and Teachers emphasized the public nature of charter schools because a state legislature created their authorizing statute. In contrast, the NLRB emphasized that the nonprofit charter school operator and not the authorizing statute should be considered in this analysis. The League of Women Voters court employed similar logic as the NLRB. Yet, reflecting Gerardis (2012) theory of relationships, the NLRB also found that Illinois charter schools were private for labor relations purposes without considering whether they were public or private with regard to other issues, thus leaving open the possibility that charter schools could simultaneously be considered public or private in a large range of situations. These cases accordingly highlight the various ways in which both legal institutions and researchers have attempted to grapple with the public/private distinction at its most fundamental level, and the lack of agreement about how to proceed.
SHIFTING POLITICAL POSITIONS OF CHARTER SCHOOLS AND TEACHER UNIONS
In addition to reflecting the breakdown in the public/private distinction, these cases also reflect the changing political positions of charter schools and teacher unions. Given the legal stakes in these cases, being labeled as public or private was not simply theoretical or political; such a decision by a court or agency had significant and concrete implications for the way that these entities could operate. Given that teacher unions have been losing political power while charter schools have been expanding in number and gaining in power, all three cases are examples of teacher unions using litigation to attack charter schools. In League of Women Voters and Ohio Congress of Teachers and Parents, teacher unions spearheaded lawsuits aimed at deeming charter schools unconstitutional on a statewide level. By having courts in these cases label charter schools as fundamentally private, these unions ultimately aimed at hamstringing a strong threat to their ongoing interestswithout the presence of charter schools in a state, it would be easier for teacher unions to generate and maintain membership.
At the same time, teacher unions pushed for charter schools to be considered public in the collective bargaining context. As Green et al. (2013) noted, treating charter schools like public employers would be more beneficial to teacher unions. Public sector unions in Illinois are easier to form than private sector unions, particularly because they are allowed to use a card check process in which a majority of employees must sign an authorization form indicating their wishes for union representation. This process generally favors unionization because coworkers and unions have access to knowledge about whether people signed a card and can exert pressure on those who did not (Sherk, 2007). Under the NLRA, employers may petition for a union election by secret ballot. Moreover, Illinois law requires public sector employers to engage in mediation or arbitration to reach a final contract when there is an impasse in bargaining before employees can strike or an employer can impose a lockout. However, the NLRA does not include similar requirements.
On one hand, one might expect courts and, to a lesser extent, agencies, to provide an evenhanded analysis of whether charter schools should be considered public or private. As Komesar (1994) argued, the institutional characteristics of courts in particular make them less susceptible to political pressures than institutions like legislatures. Moreover, the arguments in these cases do not require courts to venture into scientific decision making, an area identified by Komesar (1994) as one of institutional weakness. Yet, there seems to be very little consistency in the ways that courts and agencies have decided in these three cases. It is even possible that a court could deem charter schools public for purposes of assessing their basic constitutionality in a state while the NLRB deems charter schools in the same state private for labor relations purposes.
On the other hand, courts and the NLRB have at least focused on the same basic set of issues even though they have decided on these issues differently. The consistent presence of these issues in adjudicative settings might simply highlight the room for reasonable difference about the nature of charter schools and ultimately reflect the haziness of the public/private distinction in modern education policy. Indeed, this lack of agreement points to the lack of a clearly defined understanding of whether charter schools should be considered public or private in courts and agenciesin many respects, the public or private nature of charter schools still appears up for grabs in these arenas and perhaps open to a new framing that can help adjudicative bodies better make sense out of these ideas. In contrast, charter schools are simply accepted in state legislatures as a legitimate part of the educational policy landscape. So, courts and agencies might offer reformers a better venue for influencing how the public/private distinction applies to charter schools.
When stepping back and looking at the issues that were consistent across the three decisions, it is also worth noting potentially significant issues that were not considered. The legal arguments primarily focused on issues related to governance but largely ignored those related to teaching and learning. Researchers have previously noted that education reform debates and policies have sometimes followed this approach, and the efficacy of these debates in turn has been limited (Shipps, Kahne, & Smylie, 1999). In the context of adjudicative decision making in courts and agencies, such a constrained focus makes much senselegal frameworks are built precisely to direct analyses in particular ways. Yet, constraining decision making in this fashion forces decision makers to miss critical opportunities for connecting teaching and learning with broader issues of public and private governance.
These missed opportunities are particularly stark in the case of labor relations issues. As discussed, the evidence on the impact of traditional modes of collective bargaining in relation to teaching and learning is mixed and limited. Traditional forms of collective bargaining for teachers entails a narrow focus on salary and working conditions, while bargaining on issues that are closer to those involving public policy (e.g., teacher evaluation) are often excluded. Although certain forms of bargaining, such as reform-based bargaining, show promise for improving teaching and learning, current legal frameworks do not promote this sort of bargaining; public sector bargaining laws are largely grounded in the NLRA, which applies to private actors, and such bargaining would move teacher unions more deeply into the public decision-making processes. As the argument goes, allowing teacher unions to engage in this type of bargaining would allow private interests to have too large a role in such public processes. Yet, collapsing the public/private distinction could be useful for certain purposes like improving teaching and learning through reform-based bargaining. Indeed, while the cases discussed in this article focus on the ambiguity of the public and private dimensions of charter schools, a parallel ambiguity in the characteristics of teacher unions lurks just below the surface of these discussions and is reflected in how these entities pursue their own interests. So, in some critical respects, the development of a more consistent public/private distinction in education law, to the extent that it is untethered from issues of teaching and learning, might actually do more harm than good.
Taken together, League of Women Voters, Ohio Congress of Teachers and Parents, and CMSA underscore the limitations of the current debate over the public/private nature of charter schools and teacher unions. Critics have attacked both types of entities in the political sphere in direct relation to this distinction. These entities have been labeled as improperly masquerading as public entities or for the public good when they are in fact private or inappropriately using the benefits of public status to their advantage. In the cases we examine, charter schools and teacher unions in fact appear to have made arguments about their public or private nature in line with their interests instead of broader principlein these cases, these entities have treated this distinction as one driven by expediency.
While institutions like courts and agencies have used fairly consistent analytical touchstones when evaluating these arguments, their final decisions also have been inconsistent and hold the potential for even more inconsistency across issues like labor relations and fundamental constitutionality of charter schools. Such inconsistency likely signals the lack of clearly defined understanding regarding these issues in courts and agencies. Moreover, given the fundamental limitations of the legal analyses employed by these institutions, their examinations have focused largely on governance instead of critical issues like teaching and learning. As these cases highlight, the distinction between public and private decision-making can weigh against considering the relationship between governance and teaching and learning, which is critical for promoting systemwide education reform. Although the public/private distinction in education and U.S. law and policy has long been breaking down, its hold on our debate persists, sometimes to our detriment.
This is not to say that the public/private distinction has completely lost its utility in education or more broadly. However, we should keep in mind that it is simply an ideaa legal fiction that helps us organize the legal and policy world. The distinction might be very useful in particular instances. For example, it can help foreground Justice Resnicks keen insight about the purposes underlying educational reform. However, even in institutional settings like the courts that are not as heavily swayed by politics, it can also blind us to important considerations for productive school reform. Especially in an area with such strong political interests and highly politicized debates, understanding the history, utility, and limitations of a concept like the public/private distinction is critical.
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