While the bulk of this study focuses on specific contract terms, it should be noted that some contracts contain a general clause affecting each of these terms. These contracts typically include prohibited language, but with the express acknowledgement that those terms are unenforceable. But other language in these contracts requires the district to automatically revive these policies in the event the law changed. As a result, in some contracts, these terms automatically became district policy on Feb. 13, 2024, when the repeal of the 2011 reforms went into effect.
Clarkston Community Schools provides an example of a contract that will differ dramatically and automatically after that date. The district’s current contract is mostly compliant with the 2011 reforms, because the district marked the prohibited terms in its collective bargaining agreement and recognized them as unenforceable. Clarkson simply struck the language, drawing a line through it, so the language in effect prior to these reforms remains in the contract, even if it is unenforceable. The district’s contract is clear that these terms immediately become effective upon a change in the law:
The prohibited subjects of bargaining … will be automatically re-inserted into the Master Agreement, or any successor agreement, if Michigan law changes such that a re-insertion of collective bargaining agreement provisions addressing prohibited subjects of bargaining is permissible.[10]
Presumably, no renegotiation is necessary for these terms to go into effect.[*] As a result, school districts with collective bargaining agreements containing similar language will soon be required to adhere to terms they have not considered for over a decade. Some school board members have never negotiated over these subjects, yet they will automatically be bound by them.
Districts with contract language similar to this are particularly vulnerable to legal challenges from their union, as failure to adhere to these revived terms is likely to lead to arbitration over what is required by the contract. Perhaps more importantly, the restoration of prohibited subjects can fundamentally alter the way in which a district operates. School administrators have long had the autonomy to make decisions about teacher discipline, layoff and recall, and performance evaluations. Automatically reviving previously prohibited language may require these administrators to significantly change the practices and procedures they have developed to provide their schools with the highest quality teachers available.
School boards and their legal counsel should carefully evaluate their contracts to determine whether their collective bargaining agreements contain these blanket revival terms. Where they do, the district should exercise caution about proceeding in the usual course. Going forward, these districts should consider each of the following individual terms and attempt to negotiate ones that are designed to promote better student performance and greater district control.
[*] In at least one district, the automatic revival of previously prohibited terms is likely to lead to arbitration. Grosse Pointe Public Schools has carved out prohibited subjects for teachers and has noted a conflict about the effect of repealing prohibited subjects. The district maintains that reinserting these terms requires renegotiation, while the local union claims the terms will automatically go into effect. “Master Agreement 2021-2023: The Grosse Pointe Public School System, The Grosse Pointe Education Association/MEA-NEA” (Grosse Pointe Public School System, Sept. 13, 2021), 9, https://perma.cc/79HH-GKPK.