It
is nice to see the headline in the
Washington Post:
National Labor Relations Board
decides charter schools are private corporations, not public schools
The
National Labor Relations Board decided in two separate cases last week that —
as far as federal labor law is concerned — charter schools are not public
schools but private corporations.
The
decisions apply only to the specific disputes from which they arose, involving
unionization efforts at charter schools in New York and in Pennsylvania.
But
they plunge the labor board into a long-running debate over the nature of
charter schools: publicly funded, privately run institutions that enroll about
3 million students nationwide.
Charter
school advocates have long argued that charters are public schools because they
are tuition-free, open-enrollment institutions funded primarily with tax
dollars.
But union leaders and other critics describe charters as private
entities that supplant public schools, which are run by elected officials, with
nonprofit and for-profit corporations that are run by unelected boards that are
unaccountable to voters.
In
its recent decisions, both issued Aug. 24, the National Labor Relations Board
ruled that Hyde Leadership Charter School in Brooklyn and the Pennsylvania
Virtual Charter School are — like other government contractors — private
corporations that receive taxpayer dollars.
In the New York case, for example, the board found that even though state law describes charter schools as existing “within the public school system,” the schools were not directly established by a government entity and the people who administer them are not accountable to public officials or to voters.
“Hyde
was not established by a state or local government, and is not itself a public
school,” reads the board’s majority opinion, signed by Democrats Kent Hirozawa
and Lauren McFerran.
The
decisions mean that the schools’ employees must organize under the National
Labor Relations Act, which applies to private-sector employees, rather than
under state laws that apply to public-sector employees.
This
is not the first time that the NLRB has ruled that a charter school is a
private nonprofit corporation, not a state actor.
In
several previous cases, charter operators fought unionization by contending
that they were not public schools and thus not subject to state labor law.
In
Philadelphia in 2011, the New Media Technology Charter School insisted that it was not
a public school, as it resisted efforts by its staff to
unionize, even though it was publicly funded with $5 million annually.
Even
as it was fighting unionization, the leaders of the school were indicted by a federal grand jury in April and charged with
stealing $522,000 in taxpayer funds partly to support a small private school
they controlled, a health food restaurant, and a health food store.
The
Pennsylvania Labor Relations Board refused to accept
jurisdiction over labor negotiations at this or other charter
schools because the schools were not public schools subject to state oversight.
The
NLRB took jurisdiction over the battle at New Media, which insisted it was not
a public school; the staff joined the union.
The
founders of the school were convicted and sentenced to jail. Founded with Gates
money, the school closed in June
2016.
There
was a similar NLRB ruling in 2012 in the case of the Chicago
Mathematics & Science Academy. The school (a Gulen-affiliated
school) insisted it was not a public school. The NLRB agreed because it was not
created by the state or governed by the state.
The
Ninth Circuit Court of Appeals heard a case in 2009 from Arizona, where a
charter school teacher claimed that he was fired and defamed by his employer.
He wanted a hearing to clear his name.
The
Court ruled that the charter
school was not a “state actor,” even though state law defines charters as
“public schools,” dismissing the employee’s charges against it.
The
Court concluded that the charter operator was a private corporation with a
contract to provide a public service and was not bound by the same laws as
public schools.
When
the founders of a charter school in California were indicted for
misappropriating $200,000, the California Charter School Association submitted an amicus brief
in their defense, contending that the charter was operated as a
private nonprofit corporation, and thus its founders could not be convicted of
theft of public money. Despite their plea, the founders were convicted.
As
it happens, I wrote a post about
these issues in 2013. Be sure to read Julian Vasquez Heilig’s link on charters
and discipline.
Not
even state law can turn a privately managed charter school into a “public
school.”