Ann Hodges on Teacher Unions and School Management

Teacher unions have become very powerful politically throughout the U.S. For example, in Wisconsin, teacher union bargaining resulted in the teachers not having to pay medical insurance premiums, in contrast to the private sector. Do you think teacher unions in our society are too powerful, not powerful enough or about enough power?

AH: I do not have any information about whether Wisconsin teachers pay medical insurance premiums. I would assume that it varies by district. In general, however, public sector workers are paid less in wages than private sector workers. Part of the difference is made up by benefits, as public employees generally have better benefit programs. Further, the differences in public sector pay and private sector pay tend to be greater for employees with more education, like teachers.

Historically, public employers have recruited employees by emphasizing the value of public benefits despite the lower wages. In Wisconsin specifically, for about 15 years, the collective bargaining law contained a provision for qualified economic offers which, in essence, privileged benefits over wages. As a result, there was some preservation of benefits while teacher wages declined as compared to the national median from above the median to below the median. This provision was eliminated in 2009 but certainly influenced the wages and benefits paid to public employees in Wisconsin for a number of years.

As for the power of the teachers unions, the absence of collective bargaining for teachers in some states, legislation limiting bargaining for teachers in states like Michigan and Pennsylvania, and its elimination in Wisconsin casts serious doubt on any argument that the unions are too powerful. Arguments about power tend to ignore the voice function of labor unions. In addition to negotiating on economics, labor unions provide employees a voice in the workplace. There are many examples of union-management partnerships in the education sector that effectively address issues such as teacher quality and student achievement. Without the union as a vehicle for employee voice, such partnerships, which benefit education, are far less likely to occur.

Some school systems are attempting to give teachers incentive money based on performance, not seniority. The unions typically object. Your thoughts?

AH: The difficulty with incentive pay based on performance is that such systems are susceptible of bias on the part of those engaged in subjective evaluation. Union preferences for seniority reflect the fact that it is an objective measure, not susceptible of bias. Anyone who has participated in subjective evaluation systems knows that there are disagreements about relative merit, particularly in situations other than the extremes. It is easy to recognize the very best and the very worst, but most are somewhere in between.

Where unions and school districts have worked together on teacher evaluation and improvement, however, such systems have worked effectively. For example, the union and school district in Denver agreed to an incentive pay plan designed and operated by representatives of teachers, administration and the community. See http://denverprocomp.dpsk12.org/about/ Trust between the union and management is important to achieving such goals.

Teacher performance is generally linked to students' performance on standardized tests, but critics say this has led to America going overboard on testing and teachers forced to just uncritically teach to the tests. Your thoughts?

AH: Of course, if teachers are evaluated on their students' performance on standardized tests, the incentive is to focus on improving test performance. The same is true for administrators. Depending on the nature of the test, that often focuses teaching on learning to answer fact-based questions rather than critical thinking skills or creative problem-solving, the skills that are necessary to succeed in the 21st century economy. While it may provide an easy basis for comparing student performance across school districts and even state boundaries, it does not encourage creative teaching. Additionally, it does not take into account the very different school readiness of students in different schools. It discourages teachers from teaching in those schools where the students' backgrounds and home environments make education more challenging.

Eleven states allow public schoolteachers to strike; 39 forbid it. How do you stand on this?

AH: Prof. Martin Malin and others have studied public sector strikes. Strikes most often occur in states without collective bargaining laws. And Prof. Malin showed that in Ohio and Illinois, strikes declined after the enactment of collective bargaining legislation that permitted strikes. Thus allowing strikes does not promote strikes.

Strikes are not common in either the public or private sectors, but except where they threaten public health and safety, the right to strike tends to encourage negotiation and settlement of collective bargaining agreements. Where health and safety are imperiled by strike, binding arbitration can substitute for the strike as a dispute settlement mechanism. Mediation also plays an important role in settlement of collective bargaining disputes. I would favor a system that allows strikes, except where there is a threat to public health and safety, and requires mediation prior to any economic action.

Another current issue involving the management of K-12 schools and universities is teacher and school administrator pensions. In the North County area of California near San Diego, four ex-superintendents get pensions of more than $200,000 a year and 108 other educational retirees get more than $100,000 plus a 2 percent raise every year. Employees of comparable salaries and service in the private sector get a fraction of that. In New York City, as another example, teacher pensions are exempt from municipal and state taxes; private pensions are not. Your thoughts?

AH: It is important to remember that unless public employees have also worked in the private sector for a significant part of their career, in most cases they do not participate in the Social Security system. Thus, unlike private sector retirees, they must live on their pension and savings alone. Also, historically, the relatively lower pay in the public sector has been offset by decent pension benefits and the option for early retirement. Having said that, some pension plans do allow employees, including administrators and managers, to increase their pensions significantly by pay increases in their final years of employment or using accumulated leave to boost pensions.

Pensions in most states are not collectively bargained but set by statute. Statutes could be changed to eliminate the ability to obtain very large public pensions in these ways. Of course, education is not the only sector in which this occurs. High-level private sector executives obtain deferred compensation many times that of any public employee. Moreover, many public employees have very small pensions as well and without Social Security, face difficulties maintaining a decent standard of living on a fixed income. States risk increasing the number of poor seniors who may be dependent on charitable or public resources if they reduce pensions so significantly that individuals cannot support themselves in retirement.

Tenure is another issue, with colleges and universities seemingly spending a lot of time administering it and deciding whether eligible professors should get it, while the professors themselves endure years of pressure about whether they'll qualify. Since tenure is virtually unknown in the private sector, is there still a need and justification for it?

AH: Tenure came about in education not as a result of collective bargaining, but as an analog to the civil service system, which was designed to eliminate patronage employment except for jobs where political affiliation was an appropriate condition of employment. For many reasons, public sector jobs were a reward for winning elections. "To the victor belong the spoils."

Reformers pushed for civil service and tenure to insure a professional and capable public workforce, chosen and retained on the basis of merit, not political favoritism. In particular, teachers served at the pleasure of the school district. Offending a politically powerful person could ensure their termination, regardless of their ability. A teacher who disciplined or gave a poor grade to the "wrong" child or attended the "wrong" church or associated with the "wrong" friends could be terminated. Flunk the star football player who refuses to do his homework or come to class and you are fired. Discipline the superintendent's nephew for misbehavior – out of work.

Tenure, provided only after a probationary period during which a district can refuse to renew a teacher's contract without cause, requires the employer to show cause for termination. In contrast to what is portrayed in the popular press, it is not a guarantee of employment. Tenure eliminated teacher terminations based on political favoritism.

In higher education, tenure also protects academic freedom, protecting the teacher whose publications contain unpopular views or who teaches controversial subjects from termination for those views. Imagine a return to an era when a teacher could be fired for teaching about evolution or for not being sufficiently "anti-Communist."

So yes, tenure is still necessary. In this era of rising political divisions in our country, it may be even more so. In my view, a better system would be to require cause for termination for all employees. Indeed, many employees still are under the faulty impression that they have such protection. Employees in all other industrialized countries do.

It is also common for professors to receive paid sabbaticals every seven years. This is very unusual if not unheard of in the private sector. Can teacher sabbaticals still be justified or have they become obsolescent?

AH: Another public misperception is that a teacher sabbatical is a paid vacation. In my experience, a sabbatical requires that you propose and complete a project that is related to your job. On my last sabbatical, I wrote a casebook on Public Sector Employment with two other professors, Martin Malin and Joseph Slater. I also wrote two articles for publication and revamped several classes that I teach.

The sabbatical relieves the professor of the other obligations of employment, teaching and university committee, work to allow more time for reflection, research and writing. Not all universities provide sabbaticals and many do not provide full pay during sabbaticals, although pay may depend on the length of the sabbatical. The same reasons exist for sabbaticals as always. They might be beneficial in some other jobs as well where the everyday pressures of meeting deadlines limit the time for reflection and dampen the creativity that might surface when the mind is not crowded with immediate "to do" lists.

The traditional model for managing public schools is a locally elected school board that appoints a superintendent. Is this still a good model or would you like to see changes and innovations?

AH: There are pluses and minuses to elected school boards. An elected board is directly responsive to the electorate and that provides a level of accountability, but no requirement of expertise. Without that expertise, the temptation is for the board to defer to the superintendent on virtually all matters. The best school boards, however, like the best boards of directors of businesses and nonprofits, inform themselves fully about the issues and consider all perspectives before making a decision. Appointed school boards are still used in some jurisdictions.

Appointed boards provide an opportunity to insure particular expertise, but more often are used for political purposes. Appointments are based on political support and connections and appointees are accountable to the person or persons who supported or procured their appointment rather than the general electorate. Some combination of election and appointment from particular groups with educational expertise might provide a system with both accountability and expertise.

A recent example comes from Raleigh, where newly elected school board members changed from an economically-based school assignment system to a neighborhood-based assignment system. By all accounts, the previous system was successful at diversifying schools without a race-based assignment system, but voters elected board members who campaigned for change. Given the controversy that has followed, including the resignation of the superintendent, one wonders how attentive potential voters were to the campaign and whether educational expertise played any role in the decisions.

Is there anything else you'd like to say about managing America's schools and universities?

AH: During this time when there is much focus on education reform, both for financial reasons and based on the decline in the competitive position of the U.S. educational system compared to other developed and even some developing countries, one would hope that the reform efforts focus on facts rather than misperceptions and real solutions rather than political quick fixes.

The majority of teachers are amazingly dedicated to their work, despite the challenges, long hours and relatively low pay as compared to other professional jobs. Public education has been an important feature in our system, enabling many to rise out of poverty and difficult circumstances. We cannot abandon our commitment to the young people who are the future of our country for political expediency.

(Prof. Hodges' teaching and research interests at Richmond focus on labor and employment law, feminist legal theory and nonprofit organizations. She most recently was a co-author of the book "Principles of Employment Law." Also, as a result of her own experience with cancer, she co-founded the Legal Information Network for Cancer (LINC), a nonprofit organization in Central Virginia which assists cancer patients and their families with the legal and financial problems that often accompany cancer. Prior to joining the faculty, Prof. Hodges practiced labor and employment law with the Chicago law firm of Katz, Friedman, Schur & Eagle. She has a B.S. from the University of North Carolina and an M.A. from Illinois and earned her law degree at Northwestern.)