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.
Get full access to this article
View all access options for this article.
References
1.
AT&T Mobility v. Concepcion, 563 U.S. 333 (2011).
2.
BelfieldC. R., & LevinH. M. (2005). Privatizing educational choice: Consequences for parents, schools, and public policy. Boulder, CO: Paradigm.
BlackC. L. (1967). The Supreme Court, 1966 term—forward: “State action.” Equal protection, and California's Proposition 14. Harvard Law Review, 81, 69—109.
5.
BlackD. (2013). Charter schools, vouchers, and the public good. Wake Forest Law Review, 48, 445—488.
6.
Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288 (2001).
7.
BulkleyK. E., & BurchP. (2011). The changing nature of private engagement in public education: For-profit and nonprofit organizations and educational reform. Peabody Journal of Education, 86(3), 236—251.
8.
Chicago Mathematics & Science Academic Charter School, 359 NLRB No. 41 (2012).
9.
Citizens United v. FEC, 558 U.S. 310 (2010).
10.
CushmanB. (1998). Rethinking the New Deal court. New York, NY: Oxford University Press.
11.
DodgeW. S. (2008). The public-private distinction in the conflict of laws. Duke Journal of Comparative & International Law, 18, 371—394.
12.
GarveyJ. H. (1993). Private power and the constitution. Constitutional Commentary, 10, 311—318.
13.
GerardiD. (2012). Trix are not just for kids: The Supreme Court's clumsy handling of the public-private distinction and its legislative impact on breakfast and beyond. Hofstra Law Review, 40, 1027—1061.
14.
GreenP. C. (2009). Charter school law. In BerendsM., SpringerM. G., BallouD., & WalbergH. J. (Eds.), Handbook of research on school choice (pp. 137—154). New York, NY: Routledge.
15.
GreenP. C., BakerB. D., & OluwoleJ. O. (2013). Having it both ways: How charter schools try to obtain funding of public schools and the autonomy of private schools. Emory Law Journal, 63, 303—337.
16.
GreenP. C., DonaldsonM. L., & OluwoleJ. O. (2014). An analysis of the policy, research, and legal issues surrounding the exclusion of charter schools from the teacher evaluation revolution. Journal of Law & Education, 43, 463—483.
17.
Harvard Law Review. (2010). Developments in the law: State action and the public/private distinction. Harvard Law Review, 123, 1248—1314.
18.
HenigJ. R. (2005). Understanding the political conflict over school choice. In BettsJ. R., & LovelessT. (Eds.), Getting choice right: Ensuring equity and efficiency in education policy (pp. 176—209). Washington, DC: Brookings Institution Press.
19.
HessF. M., & KellyA. P. (2006). Scapegoat, albatross, or what? The status quo in teacher collective bargaining. In HannawayJ., & RothermanA. J. (Eds.), Collective bargaining in education: Negotiating change in today's schools (pp. 53—88). Cambridge, MA: Harvard Education Press.
20.
HorowitzM. J. (1982). History of the public/private distinction. University of Pennsylvania Law Review, 130, 1423—1428.
21.
KaestleC. (1983). Pillars of the republic. New York, NY: Hill and Wang.
22.
KahlenbergR. J. (2006). The history of collective bargaining among teachers. In HannawayJ., & RothermanA. J. (Eds.), Collective bargaining in education: Negotiating change in today's schools (pp. 7—26). Cambridge, MA: Harvard Education Press.
23.
KahlenbergR. J., & GreeneJ. P. (2012). Unions and the public interest. Education Next, 12(1), 60—68.
24.
KauffmanP. (2013). Unionized charter school contracts as a model for reform of public school job security. New York University Law Review, 88, 1379—1413.
25.
KomesarN. (1994). Imperfect alternatives: Choosing institutions in law, economics, and public policy. Chicago, IL: University of Chicago Press.
26.
KoppichJ. E. (2005). Addressing teacher quality through induction, professional compensation, and evaluation: The effects on labor-management relations. Educational Policy, 19(1), 90—111.
27.
KoskiW. S. (2012). Teacher collective bargaining, teacher quality, and the teacher quality gap: Toward a policy analytic framework. Harvard Law & Policy Review, 6, 67—90.
LabareeD. F. (1997). Public goods, private goods: The American struggle over educational goals. American Educational Research Journal, 34(1), 39—81.
30.
LarkinB. (2015, November). Review of recent state court rulings on charter schools. Paper presented at the Education Law Association Annual Conference, Cleveland, OH.
31.
League of Women Voters of Washington v. The State of Washington, 2014 Wash. LEXIS 621 (Wash., Aug. 6, 2014).
32.
League of Women Voters of Washington v. The State of Washington, 355 P.3d 1131 (Wash. 2015).
33.
LiebermanM. (1997). The teachers' unions. New York, NY: Free Press.
34.
LindyB. A. (2011). The impact of teacher collective bargaining laws on student achievement: Evidence from a New Mexico natural experiment. Yale Law Journal, 120, 1130—1191.
35.
LoTempioC. (2012). It's time to try something new: Why old precedent does not suit charter schools in the search for state actor status. Wake Forest Law Review, 47, 435—462.
36.
LubienskiC. A. (2001). Redefining “public” education: Charter schools, common schools, and the rhetoric of reform. Teachers College Record, 103(4), 634—666.
37.
MalinM. H. (2009). The paradox of public sector labor law. Indiana Law Journal, 84, 1369—1399.
38.
MalinM. H. (2012). Sifting through the wreckage of the tsunami that hit public sector collective bargaining. Employee Rights & Employment Policy Journal, 16, 533—557.
39.
MalinM. H., & KerchnerC. T. (2007). Charter schools and collective bargaining: Compatible marriage or illegitimate relationship?Harvard Journal of Law & Public Policy, 30, 885—937.
National Labor Relations Board v. Natural Gas Utility District of Hawkins County, 400 U.S. 990 (1971).
45.
No Child Left Behind Act of 2001, P.L. 107-110 (2002).
46.
Ohio Congress of Parents & Teachers v. State Board of Education, 857 N.E.2d 1148 (Ohio 2006).
47.
Ohio State Constitution, Article VI-XII.
48.
PaigeM. (2013). Applying the “paradox” theory: A law and policy analysis of collective bargaining rights and teacher evaluation reform from selected states. Brigham Young University Education and Law Journal, 2013, 21—43.
49.
Pilsen Wellness Center and Chicago Alliance of Charter Teachers and Staff, 359 NLRB No. 72 (2013).
50.
RabbanD. M. (1990). Can American labor law accommodate collective bargaining by professional employees?Yale Law Journal, 99, 689—758.
51.
Ridgefield Park Education Association v. Ridgefield Park Board of Education, 393 A.2d 278 (N.J. 1978).
RussoC. J. (2012). A cautionary tale of collective bargaining in public education: A teacher's right or tail wagging the dog. University of Dayton Law Review, 37, 317—349.
54.
SchoenhardP. M. (2008). A three-dimensional approach to the public-private distinction. Utah Law Review, 2008(2), 635—664.
55.
School District No. 20 v. Bryan, 51 Wash. 498 (Wash., 1909).
56.
ShippsD., KahneJ., & SmylieM. A. (1999). The politics of urban school reform: Legitimacy, city growth, and school improvement in Chicago. Educational Policy, 13(4), 518—545.
VergariS. (2007). The politics of charter school. Educational Policy, 21(1), 15—39. Washington State Constitution, Article IX.
60.
WhittingtonK. E. (2015). Some dilemmas in drawing the public/private distinction in New Deal era state constitutional law. Maryland Law Review, 75, 383—391.
