Tim Slekar, dean of education at Edgewood College in Wisconsin, alerted me to an important decision by the National Labor Relations Board.
The NLRB ruled that charter schools are private schools, not public schools. This echoes several previous rulings by the courts and the NLRB, which concluded that charter schools are private corporations that contract with government and are not “state actors.” Public schools are “state actors.” Charter schools are not.
The ruling was reported by a blog for the Albany Times-Union:
Here’s an interesting item that touches on the semantics as well as labor issues surrounding New York’s charter school movement.
A recent ruling by the National Labor Relations Board (NLRB), concludes that charter schools are private and efforts to start teachers unions in them should fall under their purview, rather than the Public Employment Relations Board (PERB) which oversees the public sector.
The decision stemmed from efforts by the United Federation of Teachers (UFT) to unionize teachers at the Hyde Leadership charter school in Brooklyn.
PERB had asserted jurisdiction over the school, but the union ended up arguing that organizing efforts should be overseen by the NLRB which administers labor law in the private sector.
The NLRB in its decision, concluded that “Hyde was not established by a state or local government, and is not itself a public school.”
I describe previous rulings by federal courts and the NLRB that charter schools are “not state actors” in Reign of Error. In a criminal case in California a few years ago, the California Charter School Association entered an amicus brief in defense of charter operators accused of fraud and claimed that charter schools are not subject to the same laws as public schools. They are not state actors.
The appropriate analogy would be a corporation like Boeing, which works for the government, is funded by the government, but is not a state actor. It is private.
Diane Ravitch's blog 
This is a sound, logical decision. At best, charters are like private government contractors, and as such, they should be carefully monitored as they are known for taking taxpayers for a ride. Where I live in north Florida, the most decent paying jobs are with government contractors. The irony is that most of the employees want to eliminate “big government;”it is the most conservative part of Florida.
Your fellow retired teachers as well. Especially those with nice pensions from the few remaining progressive states. It is mind bogelling.
The danger with this kind of ruling is that it could produce a negative effect where charters aren’t held under the microscope. For example, if they are private organizations run by a state, could they still be held accountable under FOIA? Would their finances still have to be published since they are receiving state, local, and federal funds?
I don’t know if this decision, based on labor, would have an impact on accountability. Charters are different from other private contractors. While most private contractors may put government workers out of work when they operate, charters go a step further. They not only put middle class teachers out of work, they further diminish the education of the existing students in public schools because the money follows the student. What is created is a parallel system that is less efficient and more costly as both schools continue to pay for underutilized fixed costs such as utilities, insurance, maintenance, transportation, administration, etc. The charter functions as a parasite with the public schools being the diminished host.
What I find interesting is our General Assembly has to have a 3/4 vote to pass our state budget. They argued earlier this year this applies because they vote on legislation for charter schools and universities which aren’t truly “corporations”. I wonder if this ruling would change that. Especially since they did NOT vote with a 3/4 vote this year on our budget because of this working group’s recommendation…
I saw the stat yesterday that public school enrollment is up but staffing is down (and teachers are paid less).
Another big win for ed reform- fewer teachers, paid less, and more students per teacher.
I’m wondering though- since charter employees are private sector, are they counted?
I wonder about this too when politicians claim private sector employment is up in states that are privatizing like crazy. Are they just converting public sector jobs to the private sector? If Kasich hires a contractor to run social services and they fire a bunch of people who make 24 dollars an hour and replace them with people who make 11 dollars an hour, is that a gain in private sector employment?
I saw the stat yesterday that public school enrollment is up but staffing is down (and teachers are paid less).
Do you have a source?
Some charter employees are private, some are public. In some states, charter operators hire their own teachers, principals, etc. who are in the Teachers Union and are public employees.
Then, out of their slush fund (left over “tuition fees” on 1099’s) charter operators CAN hire “support staff” or not, depending on how much they can save by cutting these positions (like special educators or classroom aids) and how much they can get away with short-changing the students before the public protests.
It’s chaos invented to blur the line between public money and private money, which is really what the privatizers are about.
People for Public Schools did important research into the disparity between actual public schools and charter “public” school imposters.
https://ppsbmore.org/
Hi Stan,
Does this NLBR ruling have any impact on the status of charters in NJ?
Tom
State attorneys general and, the FTC, should step up and punish (1) advertising that claims charters are public and (2) government officials who mislead the public.
I don’t think mendacious public officials can be punished, except at the ballot box, but I agree about the false advertising. It’s official – what the charter schools say in their ads is false advertising. And we don’t have to say “traditional public schools” anymore – we can just say “public schools.”
Dr. Ravitch, I was wondering what the NLBR is.
Mimiinqueens, my error. Typo. NLRB is National Labor Relations Board.
National Labor Relations Board. When profits are made, based on a fraud targeted at taxpayers, enabled by Dept. of Ed. employees practicing deceit, it must violate some statute that is within the purview of attorneys general or prosecutors.
We should remember the NLRB also believes that nuclear treaties, the world bank, the Fed and ever other entity they choose are under their regulation. But, “it ain’t so, just because they say it”.
The Ninth Circuit Court of Appeals also ruled that charter schools are not “state actors,” but private corporations that contract with the state.
Although recent years have seen other circuits competing with the Ninth Circuit for the title of “Most Reversed,” the Ninth still appears to hold the unquestioned title.
Read more at: http://www.nationalreview.com/bench-memos/373273/ninth-circuit-leading-pack-most-reversed-jonathan-keim
A convenient route to the decision and dissent:
http://apps.nlrb.gov/link/document.aspx/09031d45821bf44f
Why do ed reformers care if they’re “public” anyway? If “great schools” are great schools and the “money should follow the child” then what does it matter if they’re public sector or private sector?
Why is it so vitally important they claim “public”?
‘Why is it so vitally important they claim “public”?’
You know the answer to that, Chiara. They want easy access to taxpayer monies. It also makes it easier to hoodwink the voters since they do not have to differentiate themselves from true public schools. They can get all sorts of initiatives past voters who still assume that “public” means their neighborhood school system that has “always” been there.
It’s official again!
“There… are… four lights!”
–Jean-Luc Picard
There is no such thing as “public charter schools.”
Good analogy. Privately owned for profit charters are not being regulated in Pennsylvania. There is a smoke and mirrors mentality where the the students’ needs through funding, especially in special education are not being met. Tax dollars are being wasted.
The Great Charter School Scam is about just two billionaire objectives; Breaking teachers’ unions, and making piles of money while doing so by skimming public tax dollars into private pockets.
The case cited in this post by Diane Ravitch is “Hyde Leadership Charter School—Brooklyn and United Federation of Teachers, Local 2, AFT, AFL-CIO” Case 29–RM–126444, August 24, 2016. Here are some key excerpts from the ruling:
“Hyde is not a political subdivision because it was neither created directly by the state so as to constitute a department or administrative arm of the government nor is it administered by individuals who are responsible to public officials or the general electorate.”
“Under the New York Charter Schools Act of 1998, as amended in 2014 (CSA), the charter school’s board of trustees, its governing body, has ‘the final authority for policy and operational decisions of the school’.“ CSA § 2853(f).
“Under the Hawkins County test, an entity may be considered a political subdivision exempt from the coverage of the National Labor Relations Act if it is either (1) created directly by the state so as to constitute a department or administrative arm of the government, or (2) administered by individuals who are responsible to public officials or to the general electorate” 402 U.S. at 604-605; The Pennsylvania Virtual Charter School, 364 NLRB No. 87, slip op. at 3.
“The state’s highest court has ruled that charter schools are not public entities” (New York Charter Schools Association v. Smith, 15 N.Y.3d 403, 410 (N.Y. 2010)) and are not political subdivisions of the state (New York Charter Schools Association v. DiNapoli, 13 N.Y.3d 120 (N.Y. 2009)).
“Even if the CSA directly authorized the Board of Regents to create a charter school, it did not authorize the Board of Regents to do so as an administrative arm of the government.” See Research Foundation of the City Univ. of New York, 337 NLRB 965, 968 (2002) (nonprofit corporation founded to assist a public university was not intended to operate as an independent arm of the university). The Regional Director reasoned that the governance and control of the School is ‘vested solely with the private incorporators’ rather than public entities, such as the Department of Education. Id. He further found that, although the CSA may state that the New York state legislature intended charter schools to be public schools in many respects, the CSA is not binding on a federal agency like the [NLRB] Board.”
“The CSA places decision-making authority for Hyde’s policy and operations in the self-appointed and self-perpetuating board of trustees rather than any public entity. The Regional Director found that public officials did not appoint any of the trustees on the School’s board and that the Department of Education could remove a trustee only in specific, limited circumstances set out in the charter agreement itself, namely for material misstatements or omissions in the trustee’s background information and financial disclosure reports.”
“Hyde is a private corporation whose governing board members are privately appointed and removed. The method of selection of Hyde’s governing board is dictated by its bylaws, and not by the CSA or any other law, statute, or governmental regulation. Those bylaws provide that only sitting members may appoint, remove, and fill vacancies on the Hyde board of trustees, and only board members may appoint and remove Hyde’s executive director. The record contains no evidence that any local or state official has had any involvement in the selection or removal of any members of the board of trustees, or in the hiring of the School’s staff, including its executive director.”
“Thus, the governance and structure of the School lies with private individuals— Dr. Dupree and the board of trustees—not the state.” See CSA § 2853 (1)(f) (once the Board of Regents has approved the charter, the board of trustees has final authority for “policy and operational decisions of the school”).