On July 19, 2011, four public acts were signed into law that directly impacted school district collective bargaining regarding teacher placement, evaluation and termination. These reforms were aimed at making it easier for school districts to retain the most effective teachers. Graphic 1 summarizes each law.

Public Acts 100, 101, 102 and 103 served as an attempt to revamp the entire collective bargaining process. The first three of these acts allow districts to improve teacher quality by raising the bar for teachers to acquire tenure, prohibiting the reliance on seniority alone to determine layoff or recalls and by lowering the barriers of removing an ineffective teacher.[9]

These three laws have the potential to dramatically change teacher hiring and retention policies, and in turn, improve the overall quality of teaching in Michigan. Evidence suggests that teacher termination for poor performance was limited prior to these reforms. For example, according to MLive.com, only nine teachers, out of more than 100,000, had their tenure revoked and were dismissed as a result of verdicts by the Michigan Teacher Tenure Commission during the
2009-10 school year.[10] Though not every teacher termination is appealed up to the tenure commission, this still provides some evidence that very few tenured teachers were removed from classrooms based on their performance.

Public Act 103 is related to the three other aforementioned acts. It prohibits districts from collectively bargaining over many of the policies addressed in the other three laws. Specifically, Public Act 103 prohibits districts, among other things, from bargaining over how they place, evaluate and dismiss teachers.[11] This law impacts large portions of collective bargaining agreements, and, based on the results of this survey, has the most varied level of implementation of the surveyed 2011 reforms.

Graphic 1: Summary of Public Acts 100, 101, 102 and 103 of 2011

Public Act

Summary

100

Allows school boards to discharge or demote tenured teachers for reasons that are not “arbitrary or capricious.”

101

Increases limitations on tenure, including requiring teachers to undergo a five-year probationary period before gaining tenure and must receive a “highly effective” or “effective” rating during his or her last three annual evaluations.

102

Prohibits the use of seniority as the determining factor for teachers when making layoff or recall decisions; individual performance will be used to make retention decisions; student growth must be the “predominant” factor in the assessment of individual teachers.

103

Adds prohibited subjects of bargaining, including teacher placement, evaluation, performance-based compensation and classroom observation, among other things.

Not only do these reforms impact what is permissible to collectively bargain, labor attorneys advise that districts can act unilaterally concerning any prohibited subjects of bargaining.[12] Moreover, district officials can refuse to discuss the prohibited subjects of bargaining when negotiating a new contract, even though these subjects might exist in the previous contract.[13]

Based on a plain reading of Public Act 103, one might reasonably expect that districts could only abide by the new law by removing these subjects from their contracts completely. In fact, presentations given by labor attorneys to the Michigan Association of School Boards and to the Michigan Negotiators Association recommend that school officials do just that.[14]

Some districts, perhaps facing pressure from their teachers union, might prefer to preserve provisions of their contract that contain prohibited language in order to reach an agreement. In the past, some districts have argued that local control allows them to decide whether to include unenforceable and prohibited subjects within their contract — an argument the Mackinac Center Legal Foundation has excoriated as “a gross misreading of the statute.”[15]

Though collectively bargaining over these issues is prohibited, non-binding discussion is not.[16] The Michigan Supreme Court has noted that a prohibition of discussion would amount to a violation of free speech.[17] But, discussion is not bargaining: According to the Court, those prohibited subjects are “illegal subjects of bargaining” and school districts should not be collectively bargaining over them.[18]

Since teacher evaluations, placement and retention are very common subjects of collective bargaining and could be found in teachers union contracts for the last several decades, Public Act 103 represents a significant change in the relationship between school officials, union negotiators and teachers.