School districts that are considering privatization should consult with their attorneys to discuss legal issues. The easiest time to privatize is at the end of a collective bargaining agreement. Contracting for noninstructional services during a collective bargaining agreement may be permissible under Public Act 112 of 1994, but this approach entails a risk that the union might fully pursue and prevail in an unfair labor practice complaint or contract grievance alleging repudiation of a collective bargaining agreement.

On the tort front, most of the legal risk — to the extent a risk exists — falls on the private vendor. As long as the district approaches the private companies, however, tort suits can probably be avoided. In addition, there is a good chance that either the National Labor Relations Board or the federal courts will hold that the successorship doctrine does not apply when a public-sector union that lacked the power to strike seeks to continue representing employees that have entered the private sector.

To sum up, with appropriate legal help, privatization may be proper at any time.