The Leadership Limbo; Teacher Labor Agreements in America’s Fifty Largest School Districts

A number of respected researchers have recently turned their attention to teacher unions and the role that labor agreements play in public education. They point out that unions have the potential to contribute to solutions to intractable problems, or can be barriers to reform. Unfortunately, the Fordham Foundation’s new report, The Leadership Limbo; Teacher Labor Agreements in America’s Fifty Largest School Districts treats a very serious subject without the serious objective scholarship that it deserves. The study begins with a faulty premise, establishes skewed criteria, and leaves us with ratings that mask a not too hidden ideological bias.

The subject – what role labor agreements have in public education and what role teacher unions could and should have – is a serious one. Teacher unions need to be challenged to contribute more to the solutions in improving schools. But this study leads us off the mark, with all too predictable and cynical judgments. The question of what role teacher unions should play is much more contested terrain, requiring more nuanced analysis than these authors and those who compiled their database seem capable of providing.   

A faulty premise and hidden bias in the study

The media loves charts that rank and rate things. Politicians love rankings and ratings. These rankings generate attention-grabbing headlines, and vote-getting campaigns. They create quick and easy public impressions. But underneath rankings and ratings are assumptions and criteria chosen by the researchers, that need to be questioned.

All the rankings in this study are based on one simple, central premise and the different ways it is manifested in the three domains: compensation, personnel decisions, and work rules in labor contracts. The premise that underlies the Hess/Loup Fordham Institute study is that if there had been more “management discretion,” if principals had more “flexibility” to make decisions about hiring, firing, and teacher evaluation, then past efforts to improve public education would have been successful. Put another way, barriers (such as teacher contracts) to management having a free hand are the greatest obstacles to public education reform. This Fordham study is about only one thing – the degree to which principals have flexibility, a free hand, in making unilateral decisions in relation to pay, personnel decisions, and work rules.  

Most school superintendents, teachers and parents differ with this assessment of what is wrong with public education, particularly in challenging urban schools. The problem, they say when asked in studies, is not lack of management discretion but lack of management quality. Principal turnover is high. Most principals do not come to the job as instructional leaders capable of building collaborative learning communities. The more important questions concern whether principals and teachers know what they need to do and whether they have the capacity and resources to do it.  Are the systems of support adequate and are they aimed at the right things? It is quality, not flexibility that is lacking. This is our fundamental disagreement with the premise of the study. “Managerial discretion” does not lead to quality. It does not describe the desired state.

The issues raised by the study are real and important. But the barriers to solutions are misdiagnosed.

The Problem with the Fordham Report Criteria

Overall National Findings:
Three charts summarize the findings of the study. The first ranks the fifty largest districts in the degree of “flexibility” granted management. The second ranks districts, not on the degree to which their compensation structures effectively attract and retain sought after employees with competitive salaries, but whether the salary structures allow very specific provisions: hiring in shortage subjects, higher pay in high-need schools, and bringing experienced teachers in at the highest salary lanes. The third chart ranks districts on their ability to contract out, the ability of management to micro-manage teacher time, and whether time for union activity or pay for teacher training outside work hours have been eliminated. These three ranking charts do not do justice to the subjects they profess to address.

The Fordham thesis – that if principals had autonomy, as they presumably do in charter schools, then schools would be fixed – is also not supported by the comparative research on charter school results relative to regular public schools. While some charters do a fine job, on average charters do no better, even a bit worse. So looking at the impact of labor agreements through the one simple prism of the extent to which they inhibit unilateral management discretion makes this study fall short.

Crafting compensation structures that attract, retain, and motivate the highest caliber teachers is an important challenge facing school systems today. Many union locals have embraced this challenge, have negotiated instructional leadership opportunities for the most accomplished of their members, salary differentials for National Board Certified teachers, stipends for teachers who mentor their newer colleagues, and are exploring other ways to develop alternative salary options.

The authors of this study created a set of criteria that describe a very specific, narrow range of contractual options –  

  • Hiring teachers with past experience near the top of the salary schedule
  • Paying teachers based on the performance of students on standardized tests
  • Paying teachers more for teaching in high-need schools
  • Paying teachers more for teaching certain subjects (science, math, English as a second language and special education)

In the Fordham study, a district was rated with a “C” if these “management rights“ were available to administrators but it was not clearly stated in the contract. The contract – and implicitly the teachers’ union that negotiated it with their district – are blamed for restricting management flexibility to pay differently even though the district practice is in no way restrained.  

No compensation innovations that might attract and retain teachers – other than those above – were given any credit by the study’s authors. Districts and unions that have negotiated extensive career paths for the most accomplished teachers, including stipends for achieving National Board for Professional Teaching Standards certification or salary supplements for mentoring or coaching new teachers, or serving in positions such as “consulting teachers” or other lead teacher roles were given no credit whatsoever.

Personnel Decisions:
In this component, the criteria were similarly narrow, missing innovative ways to improve teacher induction, evaluation, or transfer procedures. The criteria used in this study were –

  • Lengthening the time it takes to get tenure
  • Using student performance on standardized tests to judge teacher competence for granting tenure or for evaluating tenured teachers
  • Whether outstanding young teachers can be retained and more senior teachers let go if district-wide layoffs are necessary
  • Whether the most junior teacher must be selected when teachers are involuntarily transferred from a school, and whether less senior teachers can be bumped in order to place more senior teachers

Such criteria miss other human resource approaches that don’t fit those descriptors. There is wide variation in voluntary and involuntary transfer procedures. For example, the study overlooks districts that place teachers in school transfers as part of a collaborative decision in schools or with the union district-wide. It ignores districts that give priority to internal job applicants to schools within certain calendar dates but allow new hires to be placed on an equal footing on other dates. And since almost every district utilizes seniority in permanent district-wide layoffs, the study gave poor grades across the board for this longstanding personnel practice.

The study’s authors downgraded districts that were judged to have fallen short on making student performance data the most important part of a teachers’ evaluation. For one district, the study gave a poor grade because student test scores could not, in themselves determine the evaluation, even though student performance data was a required part of the evaluation narrative. This is a judgment on the part of the authors with which many education researchers and testing experts in particular, would disagree.

Work Rules:
The authors operate under some assumptions here that are worth revealing. There were only four criteria under work rules and each resulted in poor scores for districts. Districts were downgraded if –

  • They provide compensation to teachers for required training outside the work day.
  • They did not have contractual language that specifically allowed services, whether janitorial, cafeteria, or classroom instruction to be contracted out to private vendors.
  • They have any limits on the length of faculty meetings.
  • They allow leave to be taken for any kind of union activity.  

In many districts, leave for union activity is provided when teachers serve on collaborative teams that design district reforms, or consider curricular revisions, or attend certain kinds of professional development. These practices are considered by the authors as anathema to effective management rights.

Union locals and district management devote much effort to the challenge of preserving teacher time for preparation for instruction and the improvement of instruction. Yet, the study authors seem to take the contrary view: the less control that teachers and teacher unions have over the use of the most valuable resource a teacher has– his or her time– the better. This is shortsighted and uninspiring conservative thinking.

For example, rather than arbitrarily downgrading any district in which the labor agreement places limits on the length of faculty meetings when the Hess/Loup criteria are applied to rating school districts, it might make more sense to examine whether limits are reasonable or sufficient for principals to communicate with faculties, or more importantly, whether time is generally allocated according to contract in a way that guarantees teachers time to plan for instruction. Teachers consider it a huge step forward when districts agree to bring teachers in four or five days before students come back in the fall, and protect that time for teacher preparation in the classroom. The authors of this study do not.  They assume that any protection of teacher time has a negative result, and any mandating of how time is used is a negative. We do not. Some unions have negotiated language that specifies that teachers reserve time to work collaboratively in teams to examine student work. That is a bold and worthy move. This study ignores such efforts.

Rather than determining that any provision of leave for teachers to engage in union sanctioned activity is a negative thing, it might make more sense to look at whether the union uses their association leave in ways that contributes to the improvement of teaching and learning. 

Another assumption driving a bias of the study is that contracting out of services is a necessary good. The ability to privatize services represents 25% of the criteria in this domain – yet another ideological choice of the authors. 

Oversimplification of the barriers to improving schooling

By focusing single mindedly on the degree to which the contract is a barrier, getting in the way of innovation, the study is implying that contractual restrictions are what are preventing improvement in educational outcomes. Few education researchers would subscribe to the simplistic thesis that freedom to innovate is all that matters or that the best thing teacher unions can do is to get out of the way.

Looking at causes of the achievement gap, researchers like Ron Ferguson and reformers like Lauren Resnick and Jonathan Saphier remind us that teachers have to bring a broad repertoire of skills to close the achievement gap. They have to bring a belief in the ability of all kids to learn and effort based intelligence. What teachers and principals know and are able to do and the need for improvement in the conditions of teaching and learning must be addressed. This more complex analysis and the interventions that follow from it are what we want to see supported by contract language. Unions that have grappled with these issues at the bargaining table and negotiated collaborative programs to make the improvement of teaching and learning a priority for the workforce should be recognized. Apparently, none of this work or language was of interest to the authors of this study. Some of the local unions in districts studied by the Fordham researchers have engaged in deep reform work and negotiated professional growth systems and other processes for that reform work to be undertaken. They got not one mention in the report.

Researchers like Gary Orfield, Richard Rothstein, Linda Darling-Hammond and others, remind us that unequal educational outcomes based on race and class in education are intractable because the impact of societal processes outside the school walls have an impact that has to be taken into account. The shrinking social safety net and the abandonment of the war on poverty and programs designed to equalize access to health care, housing, and jobs affects whether kids come to school with glasses, well fed, or with parents working too many jobs to be engaged in their children’s education. According to research presented just this month at the American Association for the Advancement of Science, unhealthy stress hormones in children due to poverty impairs language development, memory, and neurological development for the rest of the child’s life.  It is important not to oversimplify the barriers preventing challenged urban school systems from succeeding with all kids, which is what the No Child Left Behind law requires. Studies that are quick to cast blame and oversimplify the reasons for the achievement gap need to be questioned. The last thing we need to be doing is to vilify teachers or their unions. We need to be challenging them to step up to the plate.

The limitations of the data base and methodology

The study relies heavily on analysis of contract language gathered by the National Council on Teacher Quality. Contract language is not hard to gather. Contracts are generally publicly available, often up on both the school district and union’s web sites. NCTQ initially relied on attorneys from a non-education law firm to try to make sense of the letter of contract language in these 50 largest districts. In the end the authors had to acknowledge that the contract language used is in many cases “out of date,” and hard to interpret. The authors “most surprising” finding is that contracts are ambiguous or silent on many of their chosen criteria. They then downgraded districts for not having explicitly permissive language, failing to discover the practice in effect in those districts. For example, districts were rated “C” if they have no language that grants management permission to hire teachers with credit for past teaching experience, rather than assuming that if there is no language that prohibits the practice, then it can be done. The study confuses the letter of the contract with the practice of the district, assuming that if a power is not granted, it must not be done. What they fail to acknowledge is that the letter of the contract is sometimes a poor way of capturing what is in practice. The fact is that practices agreed to outside the contract, or in state law, or in memoranda of understanding often supersede the letter of the contract. The study therefore in some cases misreads the contracts and accordingly mis-rates the districts. If this data base had been compiled in collaboration with the union locals and the district leadership, which it could have been, the actual practices in place would have been more accurately described.

Progressive teacher union leaders, not the study’s authors, take seriously the union’s broader, reform role

The authors of “Leadership Limbo” can’t seem to make up their minds. On the one hand, in the study’s forward Checker Finn and Michael Petrilli assert that its time to take seriously the “new unionism” or “professional unionism” that envisions a much broader mission for unions, including improving teaching quality and creating professional responsibilities and expectations for its members. On the other hand, the study is obviously premised on an assumption about the role of unions and contracts with which we disagree – that “The core obligation of any union is to promote member pay and security.” That later assertion that unions have a simple, limited role reflects what we would call an “industrial” model of teacher unionism. Unfortunately, in the context of the entire study, Finn and Petrilli’s note “to our teacher union friends” in the forward is disingenuous.  

We, in contrast to this study’s authors, take seriously the crying need for teacher unions to have a broader, progressive mission. Unions should be a source of innovation and intervention and of strategies to improve teaching and learning. Under this view, good teacher contracts are ones that:

  • Clearly articulate the union’s commitment to student achievement, to closing the achievement gap and to intervening when teaching or learning quality fall below acceptable standards. Several of the studied labor agreements do that, but get no credit.
  • Detail professional rights and responsibilities of teachers, and establish processes for making sure that the work that needs to be done on behalf of students can be done effectively. This includes efficient and effective processes for teacher hiring, assignment, evaluation, transfer, and support for instruction. 
  • Do not establish arbitrary or cumbersome barriers to teacher assignment, teacher evaluation, teacher transfer, or removal of incompetent teachers.
  • Establish professional conditions of work and supports for accomplished teaching that will attract and retain bright, high quality, entrants into the profession.
  • Establish collaborative quality control mechanisms, such as peer review, and professional development, professional growth, and career advancement programs that nurture good teaching and teacher leadership.
  • Value and protect time for the examination of student work and collaborative teacher teaming so that the focus of teaching professionals can be on improving student work and improving the process of teaching.

None of these criteria were considered in examining teacher labor agreements. Ironically, innovative contract language in several of the districts was ignored. These districts were downgraded simply because they did not pay homage to the preservation of management flexibility and discretion.

There is a germ of truth in the Fordham study – that it’s time for any union locals that still have contract language that gets in the way of effective teacher transfer and teacher evaluation procedures to change that language.

The fact is that some union contracts do include overly cumbersome and restrictive transfer and evaluation procedures. Contractually specified procedures must not restrict who schools may hire into vacancies and must not make the removal of any teacher for performance reasons a procedurally difficult task.

  • The small percentage of contracts that include transfer procedures that allow senior teachers to bid into jobs of their choice in schools with vacancies need to be re-examined. Some locals that used to have such provisions have worked with management to change them. Both the Boston and New York City unions have done so, for example, as documented in the recent Citizen’s Commission on Civil Rights study. Such bumping language is a rarity among districts, but it is still a barrier that needs to be removed in some contracts.
  • Contracts need to make sure that the work load of new teachers is not burdensome. Susan Moore Johnson’s study, Leading the Local documents the sensitivity of teacher union leaders to that issue. Developing contract provisions that create a manageable process for entry into the profession, one that nurtures new teachers, is an important new area of work for union locals.
  • Transfer language needs to not restrict who can apply for voluntary transfer into a school.
  • Salary schedules could be more dynamic than the single salary schedule that most districts have. But there is lots of evidence that most locals are engaging with district management to modify those provisions and make those fixes. However, it is not so much an unwillingness on the part of union locals to create alternative compensation structures that is a barrier to that work, so much as the difficulty of getting the details right. Past attempts to create alternatives to the single salary schedule have met with disaster because they were not perceived as fair or had unanticipated consequences. The very complex Denver Pro-comp plan illustrates some of what it takes to get the details right. 

Susan Moore Johnson’s study of 30 local leaders is an interesting snapshot of what local leaders are doing to re-examine their own agreements. The Citizens’ Commission on Civil Rights study is another look.

Fixing contract language that was designed to limit the abuses of arbitrary managerial power is not as simple as re-imposing pure managerial discretion. The time teachers require as professionals to teach and prepare for teaching needs to be protected from management incursions. Arbitrary management authority has led to abuse. Administrator incompetence is frequently cited as the number one reason teachers leave the profession. The challenge to both the union and management is to come up with just the right levels of professional discretion and managerial oversight that will lead to a high quality performing enterprise. The Fordham study makes much too simple that difficult task.

The Hess/Loup Fordham study seems to be motivated by the desire to address legitimate issues of contractual barriers to improving schools. However, the study identifies in many cases the wrong criteria in their examination of that legitimate issue. To the extent that many teacher union locals are working hard to make their collective bargaining agreements relevant to the pressing issues of the day, those efforts are not captured by this study. To the extent that some locals continue to fight to defend problematic language in their labor agreements, this study does not do a good job of specifically identifying those problematic agreements. This study addresses a worthy topic, badly, and does an injustice to teacher union leaders who are working to make the collective bargaining process useful to improving schools and the teaching profession.

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