One of the most important 2011 reforms may be one of the most ignored: restrictions on negotiating over disciplinary procedures for teachers. Under the state’s labor law, public schools are prohibited from negotiating over:
Decisions about the development, content, standards, procedures, adoptions, and implementation of a policy regarding discharge or discipline of an employee, decisions concerning the discharge or discipline of an individual employee, or the impact of those decisions on an individual employee or the bargaining unit. … [A] public school employer shall not adopt, implement, or maintain a policy for discharge or discipline of an employee that includes a standard for discharge or discipline that is different than the arbitrary and capricious standard.[27]
These restrictions apply only to teachers subject to the Teacher Tenure Act, just like many of the other 2011 reforms. That law defines a teacher as “a certificated individual employed for a school year by any board of education or controlling board.”[28] Read plainly, these restrictions essentially foreclose negotiations relating to all disciplinary procedures, processes or decisions.
They go further, however, by also barring districts from adopting a disciplinary policy that uses something other than the “arbitrary and capricious” legal standard. By so doing, the Legislature made clear that discipline cannot be overturned by a lesser standard.
Compliance with these restrictions varied considerably. In our review, 23% of contracts discussed the prohibited subject of discipline. Just more than 30% contained terms which were questionably related or that could be interpreted as limiting a district’s discretion. Just shy of 50% of the contracts appeared compliant with the law by either not discussing the prohibited subject, carving out teachers or expressly acknowledging that discipline would be left to the district’s complete discretion. Overall, 63% of contracts contained language that either automatically revived pre-2011 discipline procedures or that could easily adapted to do so.[*]
In enacting teacher discipline reforms during the Obama administration, the Legislature sought to empower school officials with the tools they needed to improve their teaching corps. Administrators could now identify and reward valuable teachers, while removing those who persistently underperform. That authority and those tools are now in jeopardy, as unions will likely demand that districts revert to the old legal standard, known as “reasonable and just cause.” This was the most common standard used by districts prior to the 2011 reforms. It makes it so difficult for school officials to remove poorly performing teachers that it dissuades many districts from even trying.[29]
Under this standard, arbitrators determine whether discipline is appropriate based on a seven-factor test that gives little deference to school administrators. An employee who is disciplined can challenge it as inappropriate, and for that discipline to be upheld, it must typically pass the seven tests established in a 1966 legal decision.[30] Those tests include:
The problem with this approach is that it leaves the ultimate decision regarding teacher discipline to an unelected and unaccountable arbitrator. Typically, arbitrators are chosen by the parties, and reflect a compromise over the preferred decision maker. But if an arbitrator makes an unreasonable decision, there is little that can be done by the administration or the public to challenge that decision. Arbitrators’ decisions are given extremely broad discretion on appeal and are rarely overturned by courts.
Taxpayers are also excluded from the process. If the public believes a school administrator’s decisions are unreasonable, they can voice their dissent through the political process by electing new school board members. Thus, those administrators are accountable to the public. There is no such relief available when an arbitrator makes a just-cause determination — the best citizens can do is elect new school board members in the hopes they select better arbitrators. Michigan should not be delegating decisions about the proper level and type of discipline for public school teachers to politically insulated entities. As the Janus ruling reminds us, these decisions about public school policies are inherently political, so they should include the means for voters to hold decisionmakers accountable.
The unaccountable nature of arbitrators is not the only problem with mandatory arbitration. Many collective bargaining agreements specifically limit arbitrators’ ability to deviate from the text of that agreement, which, generally speaking, is a positive thing. But this poses a risk for contracts that have specific terms regarding what discipline is to be issued in a specific circumstance.
Take, for instance, a restriction that can be found in the Bay City Public Schools teachers’ contract. Under that contract, public school employees could be under the influence of alcohol on school grounds five times before being terminated. They could also possess or be under the influence of illegal drugs three times before being fired. These employees could even be caught selling or manufacturing drugs, alcohol or tobacco twice before facing that penalty.[31] An arbitrator charged with reviewing discipline under these terms would have no discretion to deviate from them, even if the discipline issued would otherwise be upheld as satisfying a just-cause standard under a different collective bargaining agreement.
Bay City’s contract has been amended so that this provision only applies to employees not subject to the state’s tenure law. It also specifically cites the 2011 reforms as the reason that these terms are no longer effective for teachers. Despite this, they remain in an appendix to the district’s master agreement, meaning they could easily be revived now that bargaining over discipline for all school employees is permissible.
These, and similar disciplinary terms, impact not only the learning environment but also student safety. Given the absence of guard rails in the repeal of the 2011 reforms, discipline poses a new risk to the education of Michigan’s children. Districts should carefully review their current collective bargaining agreements to ensure that they are aware of any new disciplinary standards that will automatically go into effect thanks to the repeal of the 2011 reforms. School officials should protect their authority to discipline ill-behaving school employees.
[*] Some of these carve-outs were not counted as being compliant with state law, which is why a larger portion contained carve-outs than were compliant. Noncompliant carve-outs were ones that attempted to apply the contract’s disciplinary procedures only if the employee could not seek a remedy under the Teacher Tenure Act. That does not comply with the intent or letter of the law of the 2011 reforms.
[†] These are paraphrases of the seven tests. For the original wording, see “In re Enterprise Wire Co and Enterprise Independent Union,” 46 LA 359 (March 28, 1966), https://perma.cc/UE8S-R6PT. It should be noted that while these tests are at least somewhat facially reasonable, they become problematic in their application. While a full discussion of the just-cause standard is outside the scope of this study, arbitrators retain considerable discretion when evaluating the reasonableness of discipline, which can lead to significant restrictions on a district’s ability to manage its employees.