You know this story already, as it was decided a few days ago, but it is nice to see the headline in the Washington Post:
National Labor Relations Board decides charter schools are private corporations, not public schools
The National Labor Relations Board decided in two separate cases last week that — as far as federal labor law is concerned — charter schools are not public schools but private corporations.
The decisions apply only to the specific disputes from which they arose, involving unionization efforts at charter schools in New York and in Pennsylvania. But they plunge the labor board into a long-running debate over the nature of charter schools: publicly funded, privately run institutions that enroll about 3 million students nationwide.
Charter school advocates have long argued that charters are public schools because they are tuition-free, open-enrollment institutions funded primarily with tax dollars. But union leaders and other critics describe charters as private entities that supplant public schools, which are run by elected officials, with nonprofit and for-profit corporations that are run by unelected boards that are unaccountable to voters.
In its recent decisions, both issued Aug. 24, the National Labor Relations Board ruled that Hyde Leadership Charter School in Brooklyn and the Pennsylvania Virtual Charter School are — like other government contractors — private corporations that receive taxpayer dollars. In the New York case, for example, the board found that even though state law describes charter schools as existing “within the public school system,” the schools were not directly established by a government entity and the people who administer them are not accountable to public officials or to voters.
“Hyde was not established by a state or local government, and is not itself a public school,” reads the board’s majority opinion, signed by Democrats Kent Hirozawa and Lauren McFerran.
The decisions mean that the schools’ employees must organize under the National Labor Relations Act, which applies to private-sector employees, rather than under state laws that apply to public-sector employees.
This is not the first time that the NLRB has ruled that a charter school is a private nonprofit corporation, not a state actor. In several previous cases, charter operators fought unionization by contending that they were not public schools and thus not subject to state labor law.
In Philadelphia in 2011, the New Media Technology Charter School insisted that it was not a public school, as it resisted efforts by its staff to unionize, even though it was publicly funded with $5 million annually. Even as it was fighting unionization, the leaders of the school were indicted by a federal grand jury in April and charged with stealing $522,000 in taxpayer funds partly to support a small private school they controlled, a health food restaurant, and a health food store. The Pennsylvania Labor Relations Board refused to accept jurisdiction over labor negotiations at this or other charter schools because the schools were not public schools subject to state oversight. The NLRB took jurisdiction over the battle at New Media, which insisted it was not a public school; the staff joined the union. The founders of the school were convicted and sentenced to jail. Founded with Gates money, the school closed in June 2016.
There was a similar NLRB ruling in 2012 in the case of the Chicago Mathematics & Science Academy. The school (a Gulen-affiliated school) insisted it was not a public school. The NLRB agreed because it was not created by the state or governed by the state.
The Ninth Circuit Court of Appeals heard a case in 2009 from Arizona, where a charter school teacher claimed that he was fired and defamed by his employer. He wanted a hearing to clear his name. The Court ruled that the charter school was not a “state actor,” even though state law defines charters as “public schools,” dismissing the employee’s charges against it. The Court concluded that the charter operator was a private corporation with a contract to provide a public service and was not bound by the same laws as public schools.
When the founders of a charter school in California were indicted for misappropriating $200,000, the California Charter School Association submitted an amicus brief in their defense, contending that the charter was operated as a private nonprofit corporation, and thus its founders could not be convicted of theft of public money. Despite their plea, the founders were convicted.
As it happens, I wrote a post about these issues in 2013. Be sure to read Julian Vasquez Heilig’s link on charters and discipline.
Not even state law can turn a privately managed charter school into a “public school.”
