Collective bargaining.

The harsh glare of state accountability systems has brought to public attention the expansive collective-bargaining agreements that local school boards negotiate with their employees. Big-city school superintendents such as New York City's Joel Klein and Philadelphia's Paul Vallas have decried the agreements under which they have labored. In this forum Linda Kaboolian says that collective bargaining is here to stay, but offers ways to make it more educationally productive; Howard Fuller and George Mitchell lament the impediments that collective bargaining has imposed on the learning process and call for more transparency; and Eva Moskowitz, a former New York City councilwoman, wonders if the system isn't "too broke to fix."

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Table Talk

The case for collaboration

How can we measure the effects of collective bargaining on the education of our children? Shall we look to student outcomes? Joe A. Stone of the University of Oregon says that average students do better in classrooms with unionized teachers, but less able and more able students do not. Or should we look to the economic effects? Stone says that collective bargaining increases the cost of wages and fringe benefits, but not by much. And Frederick Hess (in the American School Board Journal) tells us that the old chestnut about restrictive work rules limiting administrators' initiatives to improve student achievement turns out to be exaggerated; it seems to be as much a story about the differences between what administrators choose to do under the terms of the contract as what they can do. Dale Ballou of Vanderbilt agrees, arguing that administrators have more discretion than is commonly thought, though they fail to take advantage of it.

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Despite this lack of empirical clarity, I'm sure many administrators and school board members feel that it would be much easier to reform public education if teacher unions would just go away. In the age of accountability, if the benefits of collective bargaining to students are not both significant and measurable, we might wonder if it is time to restrict or prohibit it.

The fantasy of union-free school districts, however, like many fantasies, rests on false premises: on the one hand a stereotype that union contracts stand in the way of education reform, and on the other, an administrators' paradise where labor markets and managerial discretion are unbridled and collective action by teachers is unknown.

Whatever ambiguity might shroud past and current effects of collective bargaining, the future is more certain: collective bargaining and unionization aren't going to go away, and education reform wouldn't be better off if they did.

Collective Bargaining Isn't Going Away

Teacher unions and collective bargaining are here to stay, not simply because of the political clout that unions carry among elected officials or because the courts have determined that the Constitution protects union organization, but because teachers want the benefits of union membership. Eighty percent of K-12 teachers belong to a union. Meanwhile, less than 10 percent of the private sector is unionized, the lowest percentage of unionized employees among advanced industrial nations. At the same time, our country has the most restrictive laws on unionization, exempting many employees, prohibiting compulsory membership, and barring many forms of collective action (that are allowed in the European Union, for example). Public education has, by every measure, the highest density of membership and coverage by collective bargaining of any industry, public or private. Even in states where employees are covered by right to work laws that weaken unions or where other public employees cannot organize or bargain, teachers have won collective bargaining rights through local ordinances and executive orders.

Teachers across the range of age and experience support their unions. A 2003 national survey of teachers (veterans and novices) by the Public Agenda Foundation shows that 87 percent of the veterans say a union is "absolutely essential" or "important," and 79 percent of new teachers feel similarly. The same percentage of veterans (87 percent) say that without a union they would be "Vulnerable to school politics or administrators who abuse their power"; 76 percent of new teachers agree. When asked about collective bargaining, 87 percent of veterans agree that "Without collective bargaining, working conditions and salaries of teachers would be much worse"; 73 percent of new teachers think so too. While the survey suggests that new teachers may demand different services from their unions and are more open to innovations such as merit pay, there is every reason to believe that these teachers intend to hold onto their union membership and collective bargaining rights.

Prohibiting unions or restricting collective bargaining will not prevent teachers from organizing resistance to managerial discretion, just as outlawing strikes by teachers has not eliminated walkouts over contract disputes. Where employees feel aggrieved, they will organize. The question is whether that organization will be regulated by laws. The labor statutes we question today evolved from the compromises made to control the chaos of unregulated collective action. For example, employers confronted by multiple organized factions within their workforce, each with its own set of demands, may see the wisdom of recognizing a single union as the exclusive bargaining agent. Employers clearly see the advantages of collective bargaining over chaos. By legalizing unions, the government assures employers that the union representatives they are facing are duly elected and are authorized to negotiate a contract that binds the members. The range of permissible topics for negotiation and collective action are defined, as are state-sponsored mechanisms for dispute resolution.

Unions as an Asset

But before we dismiss out of hand the fantasy of a nonunion world, let's consider whether there is any empirical evidence that deunionization improves student achievement. Is there any reason to believe that school administrators, free from union contracts, have either the technical or the leadership abilities to design and implement innovations? Do administrators at the school level have the capacity to provide the necessary instructional leadership? No research makes these claims.

So, if the evidence about the effects of collective bargaining on student outcomes is mixed, and teachers want union representation, and there is no good evidence about the value of alternative models of governance, then perhaps the question we should examine is, Under what conditions could collective bargaining be an asset to public education?

To understand how collective bargaining can be good for public education, we must appreciate the nature of collective bargaining. Since unions are creatures of laws that prescribe the scope and processes of organizing, they focus on adherence to the precise terms of a contractual agreement rather than on problem solving. This guarantees a rigid, adversarial posture that is unhelpful when conditions change or when management needs to make accommodations during the life of an agreement.

Most maddening to administrators, board members, and parents is union advocacy on behalf of nonperforming teachers. How can unions justify protecting adults when outcomes for children are at stake? This posture may not be the union's preference, but it is required by law to advocate for the teacher. In the evolution of labor relations law, the trade-off for the right to exclusive representation was the Duty to Fair Representation (DFR), a demand made by forces mostly hostile to unions to ensure that the unions treated their members fairly. When it was established, DFR was seen as strengthening democracy within unions; today, it is a legal obligation that seems, in the case of the teacher unions, to hamper the rights of children.

Every teacher union officer will tell you that 5-8 percent of the members consume 90 percent of their time and the union's resources. The majority of these are people they would rather not defend. Union representation of nonperformers makes other union members angry: they may be picking up the slack for that teacher, or they're paying for that person's defense and the process denigrates the value of their performance and calls into question legitimate concerns. Nevertheless, unions have an obligation to defend the member with enough vigor to withstand a legal claim that they discriminated against the member. If the member is a racial, gender, age, or even political minority, then the claim may carry additional consequences.

Exacerbating the rigidity of the legal framework is the historic relationship between the parties. Collective bargaining agreements are often the scar tissue of the struggle between the parties' attempts to limit the arbitrary discretion of the other side. Flip through a thick contract and you'll see many examples of attempts to define transfer rights and time use. Managers want to impose rules on the behavior of teachers while maintaining maximum flexibility in deploying them as an asset. Unions want to limit the arbitrary discretion of management. Each parry and thrust becomes restrictive contract language that defines in minute detail the limits of each party's discretion until the document itself is an embodiment of the sclerosis of the relationship.

What would be the alternatives to this system? In the absence of union representation, conflicts over discipline and discharges wouldn't go away. In fact, they would become costly legal headaches only for districts rather than for unions. Districts would face the same requirements for documentation, procedural fairness, and claims of discrimination without the benefit of procedures required by a union contract. However, through collective bargaining, a collaborative approach to the problem of bad teachers has been designed. Teacher unions in some districts (such as Toledo, Ohio) have bargained a Peer Assistance and Review Program, which, over 25 years, has allowed for the firing of many tenured teachers without long waits and legal costs.

A Reasonable Alternative

What would happen if the law made student performance a mandatory subject of collective bargaining, requiring that unions, professional administrators, and school board members address this issue in their contractual relationship and holding them accountable for the results? Most likely this would require conversation about what resources would be needed to produce what outcomes, just as it does in most other forms of agreement.

Accountability raises the stakes for the participants in the collective bargaining process. Innovative deals are not going to be negotiated by hired guns, people who advertise their services based on the cost of the total contract, time to completion of negotiations, and cost of their services, rather than student performance. Contractors' interests focus on closing the deal at a fixed cost rather than on the academic outcomes the deal can achieve. The school district, as well as the local community leadership, should step up to the bargaining table, either as negotiators or as members of joint problem-solving committees, to do the hard work of designing mutually agreeable options and compromises that a good working relationship requires.

I fear, unfortunately, that a more likely scenario is one in which collective bargaining becomes yet another part of education reform policy determined by a power struggle between the usual players. Where the parties are unequal in power, the stronger side will win. If this power asymmetry is stable over time, the victorious side will dominate and get the form of collective bargaining it wants. If the power asymmetry is not stable and dominance shifts frequently, with commensurate changes in policy, then no real work on substantive issues will be done. Where the parties are relatively equal in power, there will be a stalemate with continuing but unproductive conflict and avoidance of any real work on substantive issues.

Working Together for Better Schools

The only constructive alternative to these power struggles is an expansion of collective bargaining to include joint responsibility for achievement outcomes, along with balanced, shared roles in governance. In this framework, the parties are likely to identify mutual interests or accommodating agendas (such as what conditions are good for both kids and teachers) rather than focusing on the zero-sum outcomes that collective bargaining too often pursues.

Distributed leadership--that of multiple individuals, rather than one person--strengthens an organization by increasing its capacity to engage in, respond to, and institutionalize constructive change. Research from the National College for School Leadership shows that student achievement is more likely to improve when leadership involved in issues of education quality is selected from among the stakeholder groups.

The union plays an important role as an institutional actor when the distributed leadership model is used. Employee participation in solving problems such as how to deal with poor teaching is most likely to result in improved organizational performance if the union is supportive of the effort and involved in the design and governance of the participation mechanism. It is important to remember, however, that even changes in practices require the consent of all parties. Research on participatory schemes makes clear that the positive effects of participation are greater and longer lasting when unions as well as individual employees are involved and when the domain of discretion is expanded to include strategic issues.

In fact, there seems to be what might be called a consensus on this point across the education spectrum: In order to change instructional procedure, teachers must be active participants in the design and implementation of new practices. "At the end of the day," says Randi Weingarten, head of the powerful United Federation of Teachers, "no matter how much teachers are regulated or micromanaged or NCLBed, it comes down to the interaction between a teacher and kids in a classroom."

Even former Milwaukee superintendent Howard Fuller has said, "You don't want to be antagonistic to the teachers.... [Y]ou need effective teachers, so you have a mind-set to do the best you can for them."

Where a collective bargaining agreement is in effect, the union will insist on representing or selecting the teachers, if only to protect its role as the exclusive agent. According to James Harvey, author of The Urban Superintendent, former urban superintendents agree that the language of collaboration should be incorporated in the collective bargaining contracts themselves. "The contract is the union's 'sacred text,'" Harvey writes. "If it isn't in the contract, it isn't important."

These former superintendents recognize that unions have an interest in good schools, and not only because students' learning conditions are teachers' working conditions. The accountability movement now contains goals that all the parties to public education share, just as they have shared authentic concern for kids.

The reality is that unions have an institutional interest in being constructive players in education reform. A generational shift in membership is occurring with regard to issues like merit, and perhaps on the value of union membership itself. According to Steve Farkas, Jean Johnson, and Ann Duffett, in a 2003 Public Agenda report, new teachers want a more professional and issues-linked relationship with their union. Other research suggests that those teachers rank salary considerably lower than other professional concerns, including: engaging with supportive administrators, collaborating with highly motivated and effective professional colleagues, and working in mission-driven schools that share their teaching philosophies. To survive, unions have to deliver, helping teachers to be successful by providing assistance with instructional practice, facilitating continuous professional education, and meeting the requirements of an increasingly regulated profession.

Innovative collective-bargaining practices and contract language show that student achievement is recognized as important to both teachers and administrators, as well as to students, parents, and taxpayers. As a result, negotiating parties express a growing willingness to look beyond the current ways of doing things and to experiment with new working relationships. Such innovations are open to the possibility that the other side has good ideas and flexibility.

Linda Kaboolian is faculty chair of the Public Sector Labor-Management Program at the Kennedy School of Government, Harvard University, and co-author with Paul Sutherland of Win-Win Labor-Management Collaboration in Education.

BY LINDA KABOOLIAN

A Culture of Complaint

"[They] don't get no satisfaction."

Though the advent of collective bargaining represents a significant development in the history of American education, most research and commentary about our schools focuses on other matters. It's a curious omission, especially after nearly five decades of extraordinary union growth.

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As we assessed its impact for this essay, we concluded that collective bargaining is taking public education in an unsustainable direction. But rather than watching it fall on its own, bringing our education system tumbling down with it, we propose fixing it. The bargaining process needs to be more open, so the public can see how it affects our schools. And the public needs more alternatives to the methods currently used.

Let's begin by turning back the clock. What would Americans in the 1960s reasonably have expected from their public schools if they had been told that the future promised a tripling in real spending for education; a major reduction in class size; and increased job security, higher pay, and sizable new fringe benefits for teachers?

A significant gain in academic achievement would not have seemed far-fetched.

Indeed, here is a widely discussed 1967 prediction from former teacher Robert Doherty and labor leader Walter Oberer (from their book Teachers, Schools Boards, and Collective Bargaining: A Changing of the Guard): If the "movement to improve the status of teachers by collective action is successful, if ... teachers ... come close to realizing what they seem to be striving toward, the concern over purely employment matters will decline. Then, perhaps, we can get on with worrying about how best to educate children.... If teacher leaders and school officials learn to use this development wisely, it may prove to be the most therapeutic educational development of this century."

Developments in American education since then have been the direct result of collective bargaining in our public school systems. Through their unions, at every turn, teachers have insisted that changes such as more money, smaller classes, and better pay for teachers were necessary if our children's academic achievement were to improve.

But better education outcomes have been elusive, at best. How long do we wait? How much more money do we spend?

Even the American Federation of Teachers (AFT) recently reported that a "sizable and growing proportion of the American public--especially in urban areas, where many failing schools are located--has lost faith in public schools and in the government bureaucracies that control them." Similarly, the National Education Association (NEA) reports, "General achievement [on the National Assessment of Educational Progress (NAEP)] has increased little over the past three decades, particularly in the upper grades."

Many independent researchers, nonpartisan groups, and blue-ribbon panels, of course, have documented the prolonged stasis in the achievement data.

While teacher unions acknowledge this situation, they accept no responsibility for the loss of faith in our schools. Nor do they accept the idea that their collective bargaining might have contributed to our students' lackluster academic gains.

Yet no serious assessment can dismiss collective bargaining from the school performance equation. And it is increasingly understood that teacher unions play a major role in electing the citizens who govern school districts (see Terry Moe, "The Union Label on the Ballot Box," page 58), thus allowing them to wield power both inside and outside the classroom.

Serious discussion of policies or programs rarely occurs without taking into account the local union contract and the position of union officers and member teachers.

Salaries and benefits, the largest share of school spending, are now negotiated. So, too, are teacher qualifications, the basis for teacher assignments, and other fundamental terms of teachers' employment. Just 50 years ago, such decisions were dictated largely by district superintendents and elected school boards.

More Achievement? Or Less?

Some would argue that our children's academic achievement would be worse without collective bargaining. Their hypothesis: districts with collective bargaining foster good salary and benefit structures, enabling more qualified teachers to be hired.

Union leaders also would likely conclude that their substantial political influence has blocked measures that would harm schools. The AFT, for example, says many politicians offer "quick-fix reforms" that would "hurt teachers." It asserts, "Conservative ideologues have [offered] proposals to privatize or dismantle the entire system."

Our research leaves us highly skeptical that collective bargaining has improved academic achievement. Indeed, the Milwaukee experience suggests the opposite conclusion. From observing conditions there and in other cities, we believe that bargaining and related union activity have not only hampered urban public schools with such things as cumbersome contracts, but have introduced practices into the education system that are counterproductive, fomenting a demoralizing pattern of acrimony between teachers and administrators that is fundamentally at odds with effective education.

Collective Bargaining in Milwaukee

The Milwaukee Public Schools (MPS) entered the collective bargaining era in 1964. Five years earlier, Wisconsin had become the second state, following Connecticut, to establish collective bargaining rights for teachers and other public employees.

An 18-page school-board resolution defined the initial relationship between the MPS and the Milwaukee Teachers Education Association (MTEA). And following a pattern seen in most urban districts, this has evolved during subsequent decades into a 232-page contract with more than 2,000 additional supporting documents, including grievance-arbitration rulings, memoranda of understanding, and state declaratory rulings (see Figure 1).

The result? An endless debate about what is and is not allowed in the daily governance of the school system and the creation of an environment where the interests of students are routinely subordinated to those of adult teachers. Several examples from Milwaukee illustrate the problem.

* Following a successful union grievance, the MTEA advised members that a principal "cannot require a faculty to submit lesson plans weekly nor on any other periodic basis." A principal "may occasionally check the lesson plans of all teachers." (Emphasis in original.)

* The MTEA once alerted members that "some principals have attempted to require teachers to attend additional meetings before and after school to write goals and objectives.... [A contract amendment] should be negotiated if MPS wishes to ask teachers to perform these services."

* Another MTEA advisory warned: "Some administrators need to be reminded of the two-and-one-half-hour monthly limit of faculty meetings/in-service. Furthermore, if a ... meeting will last longer than one hour, the administration is required by contract to notify teachers of the date and expected duration at least one calendar week in advance."

These examples reflect a system where sound education planning is secondary to the maze of rules and time limitations established for the convenience of teachers. But even more egregious was the union's effort, in 1988, to thwart legislation adding 20 minutes to the instructional day. "With an increase of 20 minutes, it [will] be necessary to work the emergency makeup day if there is a snow day closing," read the MTEA's report on the negotiations. "In order to avoid this impact on a separate provision of the contract the MTEA and the school board agree to add another 5 minutes of student instruction time without further lengthening the teacher day." (Emphasis added.) With similarly impenetrable and convoluted prose, the union's report clearly showed how collective bargaining trumped the simple goal of providing a meaningful increase in instructional time. And we see again how "bargaining" can undermine the most basic of education objectives.

Milwaukee, unfortunately, is not an exception to the rule. A 2003 survey of urban public-school superintendents that one of us (Fuller) conducted for the University of Washington found that more than two-thirds of the administrators in states with collective bargaining said union contracts impede reform. One superintendent cited a "150-page contract [with] over a thousand rules," adding, "You have Gulliver and the Lilliputians. You've got a thousand of these little ropes. None of them in and of [itself] can hold the system down, but you get enough of them in place ... and the giant is immobilized."

Inflexible staffing rules are among the "ropes" cited most often by superintendents. A 2005 New Teacher Project report concluded, "These rules undermine the ability of urban schools to hire and keep the best possible teachers."

NEA president Reg Weaver called the Teacher Project report "just another smokescreen to blame so-called 'union rules' for our society's lack of commitment to all children." His rhetoric underscores the gulf between the outlook of unions and that of superintendents.

Acrimony

Former NEA president Robert Chase once worried that "industrial-style, adversarial tactics" conflicted with education reform. But he wasn't speaking of the heated, intemperate comments and stern rhetoric that occasionally can be part of the process. He was referring to an almost relentlessly negative aura in discussions between management and union.

Again, Milwaukee's experience provides apt examples of the unproductive rancor. A 1970 union memo suggested: "The Board and the administration intend to force an all-out confrontation with the teachers in an attempt to nullify the teachers' bargaining power." A union newsletter in the 1980s described a negotiating session thus: "The board's team members ... sat in comfortable swivel chairs. The chief negotiator looked 'managerial' in his new suit and tie.... On the other side of the large room at the MPS administration building, the MTEA's team seems to overcrowd its side of the table. Smaller chairs; no coffee; no water; no amenities." In 1986, a former MTEA president made a presentation to the school board that included such lines as, "I tell you, you are destroying us," and "I'll tell you, you are beating your teachers down and we are getting discouraged."

Such commentary has epitomized the MPS-MTEA relationship for four decades. Though the MTEA and its members have achieved many of their stated goals, the union mainly fosters a posture of discontent. We are unaware of any organization that can continue to achieve its goals in such an environment.

The Outlook

The educational and fiscal consequences of bargaining as practiced in the past four decades appear unsustainable. Citizens have tripled their investment and yet, as the AFT concludes, many have "lost faith in public schools."

In Milwaukee, by the time students enter their sophomore year, taxpayers have invested about $100,000 per pupil in their education. Real per-pupil costs have quadrupled since collective bargaining began. The student-teacher ratio has declined from 26:1 to 16:1. Yet only one in five black MPS sophomores is proficient in math or science. Fewer than four in ten are proficient in reading. The Schott Foundation for Public Education has issued the numbing finding that "nearly three-quarters of the black male students (in the MPS) fail to graduate with their (9th-grade) cohort."

Fiscally, even an increase of 20 percent in real per-pupil spending in the past decade has not forestalled program cuts and the elimination of many teaching positions. An examination by the Milwaukee Journal Sentinel links these cuts directly to collective bargaining. The costs of fringe benefits, the newspaper reported, "have spiraled out of control." The paper cited the "decision to sweeten an already lucrative pension program in 1998 [as] a classic example of how public employee benefits are enhanced, often with privileged insiders pushing for the deal, and little study in advance." The paper further observed that the union had "successfully pushed for benefits increases" and had "lobbied and made campaign donations to School Board members who have ultimately approved higher benefits."

The monopoly status of public education has insulated it from the difficult adjustments occurring in most other sectors of the economy, including many sectors that rely on unionized labor.

Will there be a similar day of reckoning in public education? We believe the question is when, not if. Eventually, in our view, there will be insufficient public support and capacity for continuing a system that uses more and more resources without commensurate results.

This outlook is not shared by teacher unions. An Associated Press report quotes the NEA's Weaver: "Issues such as classroom size and adequate funding come before improving test scores."

If a tripling of expenditures and a significant reduction in the student-teacher ratio is not enough, what "input" would be sufficient for Weaver? Or is the answer always to be "more"?

Recommendations

What can we do? Two things, we believe, will start to bring the system back into a sustainable orbit: a dramatic expansion in the range of education options available to parents and a fundamental change in public access to the collective bargaining process.

The first part of our proposal is patterned on America's system of higher education, where colleges and universities provide a wide array of choices that help students determine which college or university they may attend. While access to higher education is still far from ideal, the range of options is substantially greater than in K-12 grades. If barriers to parent choice at K-12 schools can be reduced, all sectors of the education market may become more responsive, as Milwaukee shows.

Second, we do not propose the end of bargaining, but we do argue for greatly increasing the public's awareness of it. Mike Antonucci, a prominent analyst of teacher union activity, explains how the current system puts the general public at a disadvantage: "The 'closed door' nature of contract negotiations applies equally to both sides, [so] it seems like an equitable (if less than sensible) restriction. But it isn't, because the school board is representing the general public. The union is not.... Teachers are kept well-informed of the status of negotiations while the public--supposedly represented at the table by the board's negotiators--is not. And, unlike teachers, citizens don't get a contract ratification vote."

We believe bargaining sessions should be public. The specifics of union contracts are one of the least reported, yet most important, aspects of American education. With the general public largely shut out, the result is the uneven playing field Antonucci described. In Wisconsin, legislation would be required to achieve transparency; currently, if one party requests that the negotiations be private, that prevails. We propose altering those terms so that either party can stipulate that the negotiations be public.

Increased public awareness could change the situation dramatically. The news media need to push aggressively for greater public access to the bargaining process. This would go hand-in-hand with expanding education options for parents. In the final analysis, more parental freedom to choose and a more open collective bargaining process surely would produce better results. Without such change, the unacceptable education outcomes that characterize the era of collective bargaining will continue, especially in urban districts.

Howard Fuller, a former superintendent of the Milwaukee Public Schools, is director of the Institute for the Transformation of Learning at Marquette University. George Mitchell is a Milwaukee-based researcher.

BY HOWARD FULLER AND GEORGE A. MITCHELL

Hard Labor (Figure 1)

Since the 1960s, the size of the contract between the Milwaukee Teachers
Union and Milwaukee Public Schools has grown dramatically.

Number of Pages in the Milwaukee Teachers Union Contract, by Section

                              Pages
                         1965  1968  1997

Salaries and benefits    8     12    37
Teaching conditions      0     11    26
Leaves of absence        6      8    19
Assignments              1      2    12
Evaluations              0      0     8
Layoffs                  1      1     6
Discipline and security  1      2     5
Grievances               1      1     5

SOURCE: Howard Fuller, George Mitchell, and Michael Hartmann,
"Collective Bargaining in Milwaukee Public Schools," in Conflicting
Missions: Teachers Unions and Educational Reform, Tom Loveless, ed.
(Brookings, 2000)

Note: Table made from bar graph.

Breakdown

The ten-foot rule and other fine points of collective bargaining in New York City

The multiplicity of ills facing our nation's public schools can depress even the most optimistic. How can we be hopeful when we have 30 million illiterate children? And it is no longer just the well-being of our poorest children that we need worry about; our top-performing public schools are no match for the international competition. China and India, among others, will finish our lunch if we do not find a way out of our education quagmire.

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My views on how to solve some of these seemingly intractable education problems have been informed by two experiences: my four years as chair of the New York City council's education committee and, more recently, my role as founder and executive director of a new charter school. During the years I spent as a public school student in the city, my time teaching social studies to public school students, and now my experience as a public school parent, I have seen a great deal. But one of the most striking phenomena I have observed is the education industry's ability to preclude any dramatic improvement in the schools. It is a monopolistic structure in which management and labor have colluded for the better part of four decades to protect the interests of adults over those of children. The labor agreements signed by both public officials and labor leaders, governing every aspect of New York City public schools, profoundly inhibit our ability to improve public education. The complicity between management and labor must end if we are to improve learning and teaching and have a chance at competing in the global economy.

I do not oppose some of the commonly proposed solutions to our education failures. I support universal pre-K, reduced class size, year-round schooling, and career ladders for teachers. Money matters, terribly. Just look at first-rate private schools: in New York City parents spend between $20,000 and $40,000 per child, and they do so for a reason.

But if we don't end the collusion among those in power, more money won't matter. The problem with the Soviet Union was not its leaders or its employees; it was the closed, uncompetitive economic system that stifled innovation. We have the Soviet equivalent in our schools; it's a system that shuns competition and thwarts change. But in America it's the collective bargaining agreements that are the glue keeping the monopoly together.

I came to these conclusions about the school system and the negative effects on it of the labor agreements after spending three months reading and rereading the long and complex union contracts for teachers, principals, and custodians in preparation for five days of public hearings. In my capacity as chair of the education committee, I also produced what amounted to Cliffs Notes of these documents (see sidebar). The public can now turn to three slim volumes (approximately 20 pages each) to understand the different work rules and fundamental provisions of the contracts instead of having to plow through more than 1,000 pages of fine print.

The Long and Longer of Union Contracts

The teacher union contract is more than 200 pages long; with the various side agreements and state laws that supplement the terms of the contract, it grows to 600. These pages determine nearly every aspect of what a teacher does, and does not do, in a New York City school, and what can and can't be done to them. For example, a high-school teacher in New York City cannot be asked to teach for more than 3.75 hours per day.

Nor can a teacher be asked to help supervise a lunchroom or study hall, help special-education students on and off the bus, help college applicants prepare their transcripts, score city-wide tests, or write truant slips. One New York City teacher cannot be paid more, or less, than any other teacher at the same level of seniority, regardless of the particular teacher's talents and effort or the difficulty of recruiting a teacher for a hard-to-find position such as math or science. The right to hire or not to hire a teacher is limited by teachers' "transfer rights," which gives them first choice on a place in another school. The right to fire a teacher is limited by teachers' "retention rights" and a complex and lengthy set of due process procedures. Assistant principals have similar rights.

In short, although principals are supposed to be the CEOs of their schools, they have little control over their management teams. Hiring, firing, promoting, setting compensation, determining work hours and assignments, setting requirements and expectations: these powers, taken for granted in most organizations, are, for all practical purposes, outside the purview of a principal.

This is as true for maintenance as for instruction. The school custodian presides over his (there were no women at the time of my hearings) own domain, even though it is the same building that the principal is supposed to run. The school custodian has his own budget (computed from a complex set of rules and algorithms that factor in the size of the building and amenities like pools, escalators, and gyms) and hires his own staff, which does not technically work for the city. The custodial staff doesn't work for the principal, who must get permission from the custodian to keep a building open beyond the regular school day.

Many custodians are quite entrepreneurial, but the system's incentives tend to channel this entrepreneurial spirit in directions that are less than optimal, for taxpayers at least. Since a principal has no power to fire a custodian, the best way for a principal to get rid of a bad custodian is to give him high marks so that he can transfer to a larger building, where, according to the contract, he automatically earns more money. Thus is incompetence rewarded. By the same token, to keep a good custodian, a principal will give him mediocre marks, penalizing competence. Think of it as the Peter Principle on steroids: custodians are promoted from jobs they can't do to those they can't do even better.

As with other New York City school employment contracts, myriad work rules limit the activities of a custodian. However, the custodians aren't complaining. Thus they sweep, but they don't vacuum. This particular rule created a big problem because the chancellor mandated "reading rugs" in all elementary-school classrooms so that children could sit on the floor. When he learned that the custodians wouldn't clean them, the chancellor and the deputy mayor were forced to negotiate a "rug cleaning policy." Unfortunately, those long and complex negotiations (memorialized in a two-page, single-spaced memorandum of understanding) turned out to be for naught because the contract protected custodians' right to limit their cleaning responsibilities.

Other limitations abound. A personal favorite of mine is the ten-foot rule, which I learned about when I asked why school walls frequently seemed to be painted only to a certain height; above that line and on the ceilings, the paint was often peeling. Why? Because the contract says custodians cannot be asked to paint above ten feet. The painters union has another collective bargaining contract ... which is another story.

A final twist to the already contorted custodian incentive system can be found in the "custodian trust fund," a term of some amusement once you understand how it functions. According to the contract, if the custodian can maintain his building to a standard that he judges satisfactory, without using all of his budgeted funds, he can simply keep the remainder. You'd be amazed what a custodian would consider satisfactory in these circumstances.

Unfortunately, perverse incentives such as these are not limited to teachers and custodians. School principals, whose union contract is a slim document (150 pages) by New York City union standards, also work by rules that reward uniformity before excellence. Principals are paid in lockstep, regardless of their performance, abilities, or even the size of the school they oversee. Their agreement also spells out in mind-numbing detail the circumstances under which a superintendent can relieve a principal of his or her responsibilities. Tenured principals have to do something truly egregious to be fired. The process for removing a principal begins with sending letters of complaint to the personnel file, any and all of which can be appealed by the principal. The process, if successful, can take as long as 150 days, which is most of a school year. By the same token, even small procedural details in the contract can have profound effects on the operation of a school. Principals and assistant principals, for instance, are not required to notify superintendents in advance of their retirement, a circumstance that can create significant disruptions. You can "retire" in the middle of the year and head off to Bermuda, as my son's principal did, without any penalty or deduction from the pension.

Remarkably, while the school system purports to hold children to a standard of excellence, principals can be removed only if they engage in "persistent educational failure." Intermittent failure or persistent mediocrity is perfectly acceptable.

The Way Out

Recently I had the opportunity to begin seeing things from a slightly different perspective. As a legislator, I looked at the language of the labor agreements and concluded that their provisions impede our ability to educate children. Now, as the director of a school, Harlem Success, I see that the major education questions cannot even be asked within the confines of labor agreements.

At Harlem Success, for instance, we know that our most important resource is our teachers, so we have extensive internal discussions about how to pay them in a way that most benefits our kids. We are asking whether a teacher with three years of experience should be paid more than a teacher with two years of experience. What about someone with 20 years of experience? In determining salaries, should we place as much value on five years spent at another school as five years spent at our school? None of these questions about compensation can be asked by schools subject to the teachers contract. The contract preordains every decision about compensation that a school leader would want to make. Those givens can only be changed every few years when the contract is up for renegotiation and when the mayor and the president of the United Federation of Teachers (UFT) complete their political dance.

While employment contracts make it almost impossible to redesign a traditional school around the needs of students, we can do that redesign at our charter school. Harlem Success kids will have a school day of 8 hours and 40 minutes, compared with 6 hours and 40 minutes in the traditional public schools, because we determined that that was the amount of time the kids needed. In an effort to determine our core competencies, we are asking whether it makes sense to have extracurricular activities, such as supplemental sports and art classes, taught by the school's teachers or contracted out to nonprofit groups who may offer these services at reduced prices and provide higher-quality services. Even seemingly small decisions such as the number of minutes for science instruction cannot be made in traditional public schools because they are fixed by the contract. At Harlem Success, we determined that our kids need 60 minutes for science labs, rather than the 50-minute periods prescribed by the union contract, and so they got them.

As we have been thinking through all the education questions, I am struck by the fact that we couldn't even be posing these questions if we were constrained by the labor contracts governing the regular public schools. Our hands would be tied by the contracts and by the powerful precedents that enshrine them in stone even in the face of so-called negotiations. There is no doubt in my mind that we will be able to do a far better job educating our students because we are free from these constraints. That is important to me, not least of all so that I can keep my job. My one-page contract, which I negotiated and drafted myself, states: "I will serve at the pleasure of the Board as an at-will employee."

Eva Moskowitz, former member of the New York City Council and chair of its education committee, is executive director of the Harlem Success Charter School.

BY EVA MOSKOWITZ

The Crib Sheet

During the hearings I conducted for the New York City Council in November of 2003, I prepared summary notes of the thousand-plus pages of union contracts dictating the education parameters of our public schools. Following are excerpts from my notes (with references to page numbers in the appropriate contract):

Salary of Custodians

Custodians are entitled to keep whatever money they do not spend from their annual lump-sum allotment, up to a "Maximum Permissible Retainage" (MPR) of around $85,000. There are exceptions to this limit:

"Custodial Engineers employed in buildings of 247,000 square feet and above, as of November 1,1994, who receive an outstanding performance rating of an average of 4.00 on a 1-5 scale shall be exempt from the MPR limit ..." (p. 8).

"Any Custodial Engineer who transfers to a school over 247,000 square feet after December 31,1995, shall be eligible to be exempt from the MPR after a new and separate evaluation period where he must receive an overall average rating of 4.00" (p. 9).

The School Day

The school day is 6 hours and 40 minutes, except for schools that have extended their school day. During that day, middle-school and high-school teachers can be programmed to teach for no more than five periods per day (approximately 3.75 hours) and for no more than three consecutive teaching periods (approximately 2.25 hours). Elementary-school teachers teach slightly longer, a 4.5-hour portion of the day (pp. 20, 26).

Making an Exception on Teacher Salary

Although most teachers are paid based on their position and seniority, exceptions are possible when responsibilities exceed ordinary duties. But a higher salary cannot be set until:

1. An audit is conducted;

2. The Division of Human Resources reviews the audit;

3. The UFT (United Federation of Teachers) is consulted;

4. The chancellor approves the salary; and

5. Any disagreement is arbitrated (pp. 64-65).

Steps for Giving a Teacher a Poor Performance Rating

Under the contract, a principal can give an unsatisfactory ("U") rating to a teacher at the end of any school year, with or without providing interim feedback or support. Typically, however, a principal may first informally speak to a teacher who has performance problems and suggest ways to improve, perhaps through counseling memos "or other non-disciplinary means" (p. 128 and Memorandum of Agreement). The principal's authority to do so is limited, however.

A principal may also seek a formal conference with the teacher or attempt formal peer intervention (p. 132). This process is repeated as often as the principal deems necessary and can spare the time to do it. If these steps fail, the teacher eventually receives a "U" rating.

After a teacher receives a first "U" rating, the teacher cannot transfer to another school and must be offered professional development to improve performance. If problems persist, the cycle of documenting problems continues and, if no improvement occurs by the end of a second year in the classroom, another "U" rating is given.

--Eva Moskowitz

ILLUSTRATIONS / ADAM NIKLEWICZ