Upcoming webinars from the Education Law Association

Wednesday, March 2 - 2 PM Eastern

The Long Arm of Campus: The Definition and Exercise of Off-campus Jurisdiction on College Campuses

Wednesday, March 9 - 4 PM Eastern

Legal Issues with Public School Fundraisers: A National Legal Analysis through the Lens of Michigan

Wednesday, March 16 - 1 PM Eastern

Sexual Harassment and Bullying: Similar, but Not the Same

Tuesday, March 29 - 3 PM Eastern

Looking Down the Barrel: Weapons on Campus

https://educationlaw.org/webinars-bookstore

Legal Literacy at the Education Law Association Conference

Today I attended a session at the Education Law Association entitled “Legal Literacy: The View for the Education Law Bar” by Mark Paige (University of Massachusetts-Dartmouth) and Vince Connolly (University of New Hampshire). They shared their results from a survey of education law attorneys about what legal issues administrators and teachers need the most support from attorneys.

A key point underlying the study is that school administrators and teachers must have a working knowledge of the law in order to do their jobs. One definition of ”legal literacy” that was promoted during the session was a deep interconnected knowledge about school legal issues so school leaders and teachers have a sense of what to do in certain legal situations and knowing when they should call a lawyer for assistance.

Administrators need guidance on issues surrounding discipline, teacher employment & termination, teacher evaluation, first amendment rights of teachers & students. Other important issues include sexual harassment, Office of Civil Rights investigations, and discrimination issues in schools.

Teachers need guidance on bullying, teacher evaluation, special education services, student records, student First Amendment rights, and student discipline.

What was interesting about this study is that the legal issues differ based on the role individuals play in schools. Educational leadership programs are cognizant of this fact when they design courses to inform school personnel about relevant legal issues and principles. I look forward to learning more from this study about key legal issues and how to promote legal literacy as this work continues.  

New Book Provides Insight into Preventing Special Education Litigation

TC Press recently released the book, How to Prevent Special Education Litigation: Eight Legal Lessons. This book provides key information regarding eight topics in special education law that all educators need to know. It is designed to allow anyone working in a school to easily teach others about these topics. It does so by answering the following questions through a series of engaging activities:

Why learn about special education law?

What are the main entitlements and protections?

Who is eligible for special education?

How can we ensure an appropriate IEP?

What does it mean to teach students in the least restrictive environment?

How are students with disabilities disciplined differently?

Why must we plan for students' lives beyond high school?

Why is fostering positive family-school relationships important?

The book was written by Regina Umpstead, Janet R. Decker, Kevin P. Brady, David Schimmel and Matthew Millitello.

Regina Umpstead is an associate professor of educational leadership at Central Michigan University. Janet R. Decker is an assistant professor of educational leadership at Indiana University’s School of Education. Kevin P. Brady is an associate professor in the Department of Curriculum and Instruction at the University of Arkansas. David Schimmel is professor emeritus at the University of Massachusetts, Amherst. Matthew Militello is a professor and the Wells Fargo Endowed Chair of Educational Leadership at East Carolina University.

Michigan A Top 10 Education State (in the next 10 years)

Michigan's State Board of Education spent the day today listening to presentations from state officials and education association representatives on what needs to be done to make Michigan a top 10 education state in the next 10 years. Currently, Michigan is in the bottom 15 states ranked by student academic performance. Amber Arellano (Education Trust MidWest) reported that student achievement has declined in Michigan over the past few years, and Jeff Guilfoyle (Public Sector Consultants) explained that this decline was likely due to the economic crisis that resulted in an increase in students living in poverty in the state. There is also declining enrollment in the public schools because of a reduction in Michigan's population and increased competition for student enrollment. All of the presenters agreed that improving Michigan's educational system and it student outcomes is a worthy goal.

I noted many of the recommendations made today regarding things that the State Board of Education should consider on this journey to recreate Michigan into a top 10 education state. Here is what the presenters shared:

• Invest in early childhood education.
• Make sure all kids are in school. Address barriers to attendance such as discipline policies and support for students.
• Raise the expectations and close the achievement gaps for all students in Michigan's schools.
• Define common curricular standards for all students. Develop a coherent policy for teachers to implement. Early literacy is key for academic success in all areas. Do not narrow the curriculum; instead keep the arts, music, and literature for a well rounded education.
• Personalize education for all students.
• Address the needs of students with disabilities.
• Assessments: Reduce standardized tests so they are used as benchmarks every few years &/or Use assessments to guide instruction.
• Enhance school choice (at least within current public school options).
• Engage parents. Strengthen the school to home connection.
• Allow students to take more ownership in the school and in their own education.
• Encourage site based management with parent & community collaboration.
• Educators matter.  Honor the profession and compensate them fairly. Provide more professional development. Use evaluations to provide meaningful feedback. Employ and retain effective teachers. Solicit their input on changes to our educational system.
• Bring in talented people even if they are not traditionally trained.
• The classroom is key.
• Make clear connections for students to post secondary education.
• Fix the funding formula in light of Michigan's declining student population and increasing completion among schools for these monies. Equalize spending among districts. Consider more money for higher cost to educate students (poverty, special needs, etc.).
• The charter schools association recommended that the State develop a school accountability system that would close poor performing public schools. The unions recommended that charter schools be required to have a certificate of need in order to open new schools within a community.

Many presenters talked of using bold solutions to address big problems that involve transformational leadership and approaching school reform in new ways. Sandra York of the Parent Teacher Association recommended that Michigan set a goal of maximizing the options of all students in the state.

Bruce Umpstead (Scaleup Education Partners) & I presented a vision of Michigan having all students engaged in meaningful tasks that result in authentic and beautiful work based on our experience last year at High Tech High in San Diego. Their philosophy is one of integrated learning where all students take the same core classes together, teachers (rather than textbooks) design the learning experience, and students drive their own learning. It is a system where equity is embraced, each person is treated with dignity, and all students engage in deeper learning.

The Michigan Board of Education has a big task ahead of them in setting the direction for the future of our educational system. My hope is that we will come together and develop a meaningul educational experience for all of our kids where they can engage in authentic tasks that make a difference in their schools and communities today and prepare them for success in the future.

Education Law Association Conference, Nov. 4-7, 2015

Watch this video  about the Education Law Association Conference in Cleveland, OH on Nov. 4-7, 2015. I go every year to stay updated on education law topics and to stay connected to others in the field.

https://animoto.com/play/AcqVkENUp26iPvE5VgWP0Q

Here is the link to the website to sign up to attend the conference:

https://educationlaw.org/events/national-conference

Education Law Presentation Opportunity

The Education Law Association is hosting its 61st Annual Conference in Cleveland, OH on Nov. 4-7, 2015. It is a great opportunity to meet individuals from around the country in the education law field and to present your work. Proposals for roundtable and poster sessions are due by July 15th. Apply today!

https://educationlaw.org/events/national-conference

A Unique Approach to Education Funding Litigation in Michigan: The Headlee Amendment

Michigan voters passed an amendment (popularly known as the Headlee Amendment) to its Constitution in 1978 that prohibits the State of Michigan from requiring local governments to provide new services without supplying them with the funding necessary to accomplish them. Several lawsuits have been brought since the amendment's passage to challenge new state requirements. Specifically, Article 9, Sec. 29 requires:

A new activity or service or an increase in the level of any activity or
service beyond that required by existing law shall not be required by the
legislature or any state agency of units of Local Government, unless a state
appropriation is made and disbursed to pay the unit of Local Government
for any necessary increased costs.

Recently, in the case of Adair v. State of Michigan, 450 school districts in Michigan brought a lawsuit challenging the State's 2010-2011 and 2011-2012 allocations for education funding. The challenge questioned funding for new reporting requirements, a student-teacher data link, to Michigan's Center for Educational Performance and Information (CEPI). As a result of a 2010 court decision in a related lawsuit, the Legislature appropriated $25 million for 2010-2011 to pay for local districts reporting costs to CEPI. The Legislature allocated $34 million for 2011-2012 after a student-teacher data link requirement was added to the system.

The Michigan Supreme Court dismissed this most recent lawsuit, holding that the plaintiffs were required to allege specific amounts of underfunding rather than relying upon expert testimony that the schools were underfunded. The Michigan Court of Appeals had allowed the plaintiffs to demonstrate that the funding methodology used by the Legislature to determine the amount of the appropriation was materially flawed. The Supreme Court explained that the Headlee amendment requires plaintiffs to quantify the extent of the harm so that the state government can anticipate financial adjustments that it needs to make to fully fund local government compliance with new laws and to avoid "litigation gamesmanship."

I've been following Headlee amendment litigation since I began working as an attorney in Michigan 20 years ago. It has always been a very complex and time consuming endeavor. I think the idea behind the law is sound--make sure the State pays for costs it is passing along to local governments. I also believe, for the most part, its operation is beneficial--school districts and other local government entities receiving more more when more is required of them. However, the enforcement mechanism--lawsuits--is cumbersone. I know this is the way our legal system operates, and it would be helpful to have another way to resolve these disputes. I see a similar sentiment in the court's reference to "litigation gamesmanship." Are all of these iterations of Headlee lawsuits necessary or is another solution possible?

Charter School Trends: Accountability and Ownership

I am attending the Ohio Alliance of Charter Public Schools in Sandusky, Ohio today. Nina Rees, the President of National Alliance Charter Public Schools spoke about the charter school movement that has grown to the point where 42 states allow them and 2.5 million students are currently educated in a charter school. She said that annually 600 new charter schools are opened and 200 are closed. 

I presented in a session on Charter School Policy Trends around the Great Lakes with Kevin McKenna (Latsha, Davis, & McKenna), Chad Reeves (Ohio Alliance), and David Hansen (Ohio Dept. Of Education). One policy trend we noticed in Ohio and a Michigan is the push for greater accountability for charter school authorized. In Michigan, HB 5852 is designed to encourage "complete transparency" and a more rigorous authorizing process and, if enacted, would prevent the creation of new charter schools until an authorizer accedition system is established. In Ohio, the Department of Education is working on a system.

The most notable case is Hope Acad. Broadway Campus v. White Hat Mgt., LLC, 2013-Ohio-911 (Ohio Ct. App., 2013), that is currently before the Ohio Supreme Court. It asks the court to determine whether the management company (White Hat) or the school owns the physical property at the school because the items were purchased by the management company for use at Hope Academy but White Hat was given public funds to do it. White Hat argues they own it, and the school contends they should be able to keep it because it was purchased to benefit the public. 

Another trend mentioned at the conference is the need for charter schools to perform better academically then traditional public schools. Two Pennsylvania cases involved charter schools that were closed in part because they didn't perform better than the traditional school district where they are located: Graystone Academy Charter School v. Coatesville Area School Dist., 2014 WL 4214057 (Pa. Cmwlth., 2014) and New Hope Academy Charter School v. School Dist. of City of York, 89 A.3d 731 (Pa. Cmwlth., 2014). Nina Rees applauded this effort by contending that charter schools should close themselves if after 5 or 6 years their students are not outperforming their neighboring public school district.

Education Law: A Year in Review Policy Institute

The Education Law & Policy Institute at Loyola University School of Law is holding an event entitled “Education Law:  A Year in Review” on June 25, 2014 from 1-5 p.m. The seminar will address important developments in the area of education law during the past year. Topics to be addressed include recent federal guidance on school discipline, bullying, and sexual violence; best practices in special education due process hearings; and other hot topics in the area of education law. CLE credit is available, and a reception will follow the program. For the full program and to register, click here.

Martha McCarthy Education Law & Policy Summer Institute

Looking for some Education Law Training this summer? 

June 12, 2014
9 a.m. to 5 p.m.

The Institute program will include several national speakers discussing current developments in school law including special education, bullying and harassment, and teacher evaluation.

For more information, check out the website at http://education.indiana.edu/graduate/programs/ed-leadership/mccarthy-institute.html

Securing Freedom through Civic Education

I recently heard Dr. Os Guinness speak about the importance of the U.S. Constitution and the American experiment with freedom. Dr. Guinness argues that the U.S. is facing a gathering crisis of freedom and that we must act to protect our freedom.

Although we as Americans celebrate the freedom that we won in 1776, that was really just the first step in our great experiment. Next our founding fathers ordered freedom by setting its parameters in the Constitution. The framers of the Constitution placed much importance on gaining freedoms as on keeping them. They wanted a free republic that would last forever. Now maintaining freedom is our most important task as a nation. 

Dr. Guiness describes the paradox of freedom--that freedom is its own worst enemy. Freedom can be undermined in times of prosperity because people stray from the principles that tie us together as a nation and protect freedom. Freedom can also be damaged by actions that are desgined to protect us such as terrorism survelliance. 

It is returning to the first principles that is the most important step in maintaining freedom, according to Dr. Guiness. He describes a Golden Triangle of Freedom involving freedom, virtue and faith where freedom depends on virtue, virtue requires faith of some sort, and faith depends upon freedom to survive. Sustainable freedom depends upon the charater of the rulers and trust between rules and citizens. Only a virtuous people are capable of freedom. 

Although key to the survival of our democracy, since the 1960s, civic education has disappeared from our schools. Reintroducing civic education would return our nation to a common understanding of our the first principles or virtues upon which our nation was built and protect our freedom, particularly our freedom of conscience. He describes it like the bedding in which the Constitution sits. If the bedding is corrupted, the Constitution will fail. This would allow for a re-opening of the public square where every American would be able to speak their mind based on their own values, including religious values. 

He concluded that we need a renewal of faith and an end to culture warring.  The next chapter is crucial. Just like a novel, the hardest part of a revolution to write is the ending.  The chapter that the next generation writes will be critical for sustaining the USA.

Although I haven't read his books, as a supporter of civic education, I thought Dr. Guiness's arguments were important. I think civic education is something that we as Americans can all agree to support.

Having studied Establishment Clause jurisprudence, though, I understand why church and state are separate in the U.S. in the sense that laws cannot promote or inhibit religion, particularly in public schools. Yet as currently practiced it creates a conundrum where thousands of Americans feel excluded from the public square because their views are based on their closely held religious beliefs and these views cannot be used as the official basis for new laws. Instead, Americans who are driven by religious convictions to pursue worthy causes that better society as a whole must explain them in secular ways in order to be heard and taken seriously. Dr. Guiness argues that this exclusion is more serious than just a feeling of exclusion; instead it threatens to undermine the foundation of Constitution itself because it is these principles that undergird our original freedoms. I think what he envisions is an American society that would more readily welcome relgious views into the public sphere while still maintaining the formal separation, so that the laws themselves would not promote or discourage religion but that individual citizens are able to openly discuss their views in religious terms if they want to but then lawmakers decide to pursue or not based on the needs of the society. This reintroduction of civic education and a welcoming of religious voices into the public square would return the concepts of virtue and first principles back into the national conversation.

Virtual Snow Days

Living in Michigan, the articles about virtual snow days have caught my attention this year. We have been pounded by bad weather this season, a combination of extreme low temperatures and higher than average snowfall. My kids have already missed 8 days due to bad weather, and some districts have missed more days. 

Michigan law provides many opportunities for virtual learning for K-12 students. The legislature has authorized 5 virtual charter schools and all public school students can take 2 virtual courses per marking period (Mich. Comp. Laws 388.1621f). For more flexibility, school districts can apply for students to receive seat time waivers, so they are able to receive their education without physically attending school. Yet, the Department of Education hasn't yet addressed the idea of virtual snow days. 

Are virtual snow days possible in Michigan? Probably not.

School districts are required to provide 1098 hours of instruction over at least 175 days to K-12 students. To count instructional hours for a particular building, pupils and certified teachers must be present and engaged in instruction. This instruction must be scheduled in advance and be available for the entire student population (MDE, Pupil Accounting Manual 2013). The requirement that pupils and certified teachers be "present" most likely means "physically present" because it is referring to counting hours per school building. Therefore, Michigan would have to change its Pupil Accounting Manual to allow for virtual attendance during snow days in order for this to be possible. 

As Michigan continues to develop its online educational practices, I think this is something to seriously consider as an option to allow students to learn in a way that is less disrupted by the state's sometimes extreme weather conditions.

Here is an article about the practice in New Jersey: http://www.cnn.com/2014/02/23/living/snow-days-virtual-schools/ The article describes the practice but says schools don't know if the instructional time will actually count towards the State's requirements.

Teacher Evaluation Law in Michigan: A Case Study

To further my interest in the legislative changes to teacher evaluation laws nationally, I partnered with Wayne State University researcher, Ben Pogodzinski, to investigate how teacher evaluation reform in Michigan affected labor relations in this strong union state through a survey of local district superintendents and human resource directors.

The Michigan legislature revised its educator evaluation system in two consecutive years: 2010 and 2011. The law now requires districts to adopt and implement a "rigorous, transparent, and fair performance evaluation system" that includes annual evaluations of teachers' job performance, to inform decisions regarding employee effectiveness, retention, promotion, firing, and the granting of tenure. These evaluation systems must include student growth data as a "significant factor" (Mich. Comp. Laws Sec. 380.1249). Student achievement growth will account for 50% of a teacher's evaluation by 2015 (Mich. Comp. Laws Sec. 38.81). 

While these types of changes to state teacher evaluation law were common around the country, the Michigan Legislature added a prohibition against collective bargaining on this topic (Mich. Comp. Laws Sec. 423.215(3)). This change was significant because the teacher employment relationship at the vast majority of Michigan's public schools are governed by collective bargaining.

Through our survey, we found that teacher unions continued to play an informal role in shaping teacher evaluation policy in about half of the districts relating to issues such as how student acheivement data would be used in the evaluation process, how classroom observations were structured, and teacher goal setting and attainment. This limited union involvement through channels other than collective bargaining may have contributed to administrators' positive reports about the labor climate in the state despite the significiant change in teacher labor policy.

Michigan Innovative Schools Conference

I attended the Michigan Innovative Schools Conference in East Lansing, MI today. Michael Horn of the Clayton Christensen Institute was the keynote speaker. He spoke about the ideas from his book, "Disrupting Class: How Disruptive Innovation will Change the way the World Learns." He provided suggestions for how schools should think about adopting emerging blended learning models to improve student learning outcomes. One key point he made was that schools should not blindly adopt new technologies. Instead, they need to identify the problem they are trying to solve to see if blended learning makes sense to try to solve it and then quantify the learning outcomes they'd like to achieve. 

He also discussed the difference between hybrid models of instruction that add online learning to the mix of available options such as in an elementary classroom where students spend some time receiving direct instruction from a teacher and some time learning online and disruptive models that use online learning to drive all instruction such as in a virtual school. 

Ultimately, Horn contended that for any blended learning to be successful teachers need to understand that they have a very important role in student learning. Teachers need to be trained for the new models, not feel replaced by the technology. Horn argued that the currently available technology isn't ready yet to take over core academic subjects, especially in high schools. It is more useful in non-consumptive areas like credit recovery and to offer additional learning opportunities for students in subjects not offered at their schools. Yet, the introduction of technology in these areas will be the engines of change in the long run. They bring unique value propositions such as not being tied to seat time and student agency in owning their own learning. Also, students can accelarate at their own pace once they start learning, so productivity can increase. Another benefit is access to great teachers wherever students are located. 

Horn's advice to create disruptive innovation, schools should create an autonomous team that is separate from the rest of the organization, have them focus on a point of nonconsumption, and commit to supporting a fledgling project they create.

As a faculty member in a higher education institution, I see my institution moving very quickly to adopt new models of blended learning to meet student learning needs, particularly for flexibility since most of our students work full time in addition to pursuing their advanced degrees. As a parent, my children's schools are moving much more slowly to incorporate techonology into their instructional options. However, Michigan has a robust virtual university that offers online courses to high school students, legislation that allows several K-12 virtual schools to operate, and new law, Sec. 21f of P.A. 60 of 2013, that allows students to take more online courses as part of their education. The educational landscape is rapidly transforming.

Section 504 and Virtual Charter Schools. What does the OCR Say is Required?

The Office of Civil Rights (OCR) just announced a resolution agreement with the Virtual Community School of Ohio to guarantee equal access to educational opportunities to students with disabilities. It specifically addresses rights under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.

OCR's letter noted that the school had insufficient procedures to identify students with disabilities, test them, and develop 504 plans to meet their educational needs. It noted that online schools lack a typical teacher referral method because teachers do not regularly observe students in a classroom setting. It also questioned whether the school provided sufficient access to learning in its online environment for visually impaired students and students with learning disabilities. The OCR identified several features of the school's website and courses that were not accessible to students with low vision. Ultimately, the OCR "concluded that the School has not provided individuals with disabilities, including visual impairments, with an equal opportunity to participate in or benefit from its web-based education program and that access to its website and web-based education program is not as effective for individuals with disabilities as that provided to individuals without disabilities" (Resolution Letter, Analysis and Conclusion).

To remedy this situation, the Virtual Community School agreed to develop new procedures to identify and place students who need 504 plans. It will also revise its website and online learning environment to ensure its accessibility to students with disabilities.

This is the first of its kind resolution agreement, so it provides important guidance to virtual schools around the country as they develop and implement their procedures for complying with the legal requirements for students who qualify for 504 plans under the Rehabilitation Act and the Americans with Disabilities Act. It lists specific deficiences in the identification procedures, evaluation processes, and educational web delivery systems. Schools that deliver educational content online should review this resolution agreement.

A copy of the announcement can be found here:

http://www.ed.gov/news/press-releases/us-education-department-announces-first-its-kind-resolution-virtual-charter-scho

Michigan Governor's Education Summit: Connecting Education to the Economy

I'm attending the 2013 Michigan Governor's Education Summit today. Its theme is connecting education, business, and talent to create vibrant economic opportunity in the state. It follows the Governor's Economic Summit that was held last month in Detroit.

Michigan's workforce is aging, so within 10 years, we will need a lot of highly skilled workers to take these jobs. This is a big opportunity for our state. Historically, Michigan has had a strong manufacturing economy. We are continuing with advanced manufacturing where we have an advantage over foreign countries. Here's a list of the predicted workforce needs:

STEM

Skilled trades (welders, tool and die fabricators, line workers, machinists, mechanical maintenance technicians, pipe fitters, designers, electricians, and mold makers), engineers (electrical, mechanical, electro-mechanical, manufacturing, chemical, robotics, software, metallurgy, and design), and IT specialists.

Non-STEM

Project managment, administrative services, digital marketing, and primary care physicians and registered nurses (in particular, speciality RNs).

Soft skills:

Adapatibility, ability to work in teams, critical thinking skills, passion, and problem-solving skills are crucial because workers need to constantly adapt to a changing workplace. 

Suggestions for educators: expose secondary education kids to potential job opportunities through information and internships, and help students identify job interests, so they pursue careers where jobs will be available. Apply business principles such as continuous improvement in the classroom.

Suggestions for parents: value the skilled trades as viable careers for their children. Consider apprenticeships. 

Other things we need to work on as a state: place-making so that Michigan remains attrative for young people (vibrant urban areas, capitalize on the great lakes), be positive about the state.

This conversation reminds me of the various, competing goals of education. David Labaree's work would classify this economic goal as social efficiency, the matching of talent with economic needs. This view of education, while always present, was prominent at the turn of the 20th century. This strong focus on the economy downplays the importance of the other goals of democratic equality (education for citizenship) and social mobility (education as a way to better an individual's life). In light of the fact that Governor Rick Snyder is a businessman, it is not surprising that his education agenda would be for a stronger connection between schools and the workforce.

More Right-to-Work Controversty in Michigan

In what the Michigan Education Association (MEA) calls a political move, the Ferris State University Trustees rejected an extension to their current faculty contract recently after this solution was initially supported by the university and ratified by 96% of the faculty.  Allegedly the trustees voted against the contract because it extended the MEA's right to represent the faculty for another three years.  This move is allowed under Michigan's new Right-to-Work law, but it would essentially prevent the law, which prohibits public employers from making participation in a union a condition of employment, from taking effect at FSU until it expires. The MEA has filed suit.

I think this is a very interesting situation, and I will be watching it closely. Michigan has a long and proud tradition of being a union friendly state. This is evidence of our very painful transition to a Right-to-Work state.

Taylor Teachers sue for Right-to-Work in Michigan

The Right-to-Work law controversy continues in Michigan with a new lawsuit being filed by the Mackinaw Center for Public Policy and three teachers employed in Taylor, Michigan. This lawsuit is in response to the 10-year union security agreement entered into between Taylor's teachers' union and its public school system. This agreement provides for the Taylor Federation of Teachers to be the exclusive bargaining representative of the teachers until 2023 and requires teachers to pay union dues or a service fee as a condition of their employment. Michigan's new Right-to-Work law prohibits this type of union security provision in contracts entered into or modified on or after March 28, 2013.

Taylor's new agreement is drawing rapt scrutiny because it was just enacted, appears to comply with the requirement, and therefore allows parties to enter into extended agreements that circumvent the Right-to-Work law. Unions around the state have been asking and achieving similar agreements with their school districts in exchange for significant consessions.  Because Taylor is one of the first school districts enacting the new security provision, it is serving as the issue's lighting rod.

The lawsuit takes issue with the fact that the union security agreement is a separate collective bargaining agreement from the five-year agreement containing the teachers' wages, terms and conditions of employment, and working conditions. It alleges that Michigan law prevents one part of a labor agreement from extending beyond the others (Count I). It also contends that the agreement has insufficient consideration because it lists "labor peace and bargaining continuity" as the benefit (Count II). Finally, the lawsuit alleges that the union security agreement is in essence a policy that binds future school boards and this is impermissible under Michigan law (Count III).

Examining Michigan law on these points, I don't think the plaintiffs are likely to be successful on Count I because the provision they cite, M.C.L. 423.215b, prohibits wage or benefit increases after a collective bargaining agreement expires. It doesn't specifically address the issue of the continuation of a separate collective bargaining agreement for union security. I think their argument is that there can only be one agreement, not two like in Taylor, but it's a stretch to read that into the law's prohibitions.

Regarding Count II, for the consideration to be valid, there must be a mutual exchange of something of value.  The plaintiffs argue that this was already guaranteed during the five years of the other CBA, so it can't be used again for this agreement. In addition, the union can't guarantee bargaining continuity for 10 years, especially because Michigan law allows for another union to be elected as bargaining representative three years after a new agreement is enacted. There is no clear answer in Michigan law for this argument. I lean towards the defendants, though, because I think labor peace and bargainining continuity could be considered valuable consideration. I do think it could be problematic for the union security contract if another union was elected during its 10 year term.

Finally, to be successful on Count III, the plaintiffs will have to prove that the union security contract is really a legislative policy that binds subsequent school boards. I think this will be hard to establish.

We will be watching closely as this lithmus test for Right-to-Work and certain circumvention strategies unfolds in court.

http://www.mackinac.org/archives/2013/Taylor_Complaint.pdf

If the entrance is closed, is it still an open meeting?

The Michigan Education Association and the AFL-CIO have filed a lawsuit challenging the new right-to-work legislation that passed in December.  The suit alleges that the legislature violated Michigan's Open Meetings Act, its Constitution, and First Amendment principles by blocking access to the capitol for four hours during the debate on the legislation.  The focus of the lawsuit is the Open Meetings Act violation.

Like many other states, Michigan law requires that meetings of public bodies be held at a public place and be open so that members of the public may attend.  If an open meeting is not held, the decisions made while closed can be invalidated if this has impaired the rights of the public.  According to the complaint, although the actual vote on the legislation took place after the capitol was reopened, many significant changes to the bills were made during the building closure that essentially transformed the legislation into a right-to-work law. The plaintiffs allege that their rights to participate in the governement by listening to the debate, lobbying legislators while it was ongoing, and to report out the facts of what was taking place were impaired.  The state police claim that the building was closed for structural safety concerns.  The plaintiffs question this claim because this was, from their vantage point, one of the most significant pieces of legislation addressed by the legislature in the past 50 years and the building had never been closed before.

Here's my initial impression of this lawsuit:

While the closing of the Capitol was unprecedented and a very bad idea unless there really were safety concerns, I think that the plaintiffs are unlikely to prevail in this lawsuit because the actual vote took place after the building was reopened.  Michigan's law only invalidates decisions made while in closed session.  In addition, when interpreting this law, Michigan courts have looked for an intentional closing of a public meeting to cover up for misdeeds or to hide information about how public officials voted as proof of impairing the public's rights.  This situation appears to be about limiting public access to protest or talk about the law before it passed.  Moreover, even if plaintiffs could convince the courts that the votes should be invalidated, in the past Michigan courts have allowed public bodies to reenact votes that were not in compliance with the Open Meetings Act.  So, even if the vote was improper, public bodies have been allowed to re-hold the vote in a public forum and reach the same result.  

Despite my initial analysis, I am very concerned about the closing of the building during this legislative debate. Unless it really was for safety concerns, excluding hundreds of citizens who wanted to participate and observe the debate on important state legislation flies in the face of our democratic traditions.  Public bodies in other states have taken steps to keep their meetings open by moving locations to accommodate more people and/or televising the debate so many more individuals can watch it.  These changes were found to be consistent with open meeting act principles. Michigan did not take these steps in anticipation of a heated debate; instead it closed the capitol building.  It does have a government access tv channel that could have broadcast the legislative proceedings on December 6th.  I don't know if that actually occurred.

This issue promises to continue to be a contentious one in Michigan.  I'll keep you updated.

Here's a link to the complaint:

http://www.aclumich.org/sites/default/files/file/RTWcomplaint.pdf

Michigan is a Right to Work State - Updated

The Michigan House and Senate both passed versions of three bills that would transform Michigan into a right to work state.  The bills, which will be called the Workplace Fairness and Equity Act, prohibit the practice of requiring workers to pay union dues or fees as a condition of employment.  Police and firefighters are not affected by this legislation because their right to collectively bargain is protected by a different law.  The bills were passed primarily along party lines in the Repulican-led chambers.  Interestingly, protestors were prohibited from entering the capitol for several hours during the debate.  Apparently, the building was closed for structural reasons but was re-opened after an injunction was issued.

The legislation makes it illegal for any person to force, intimidate or attempt to compel an employee to become or remain a member of a labor organization or to financially support one.  It eliminates the law's previous requirements that all employes must pay a service fee to the exclusive barganing representative even if they chose not to be active members of the union.  It does retain the right for employees to collectively bargain and prevents employers from interfering with employees' rights to form and administer labor organizations.

This vote comes on the heels of the defeat of a Novemeber ballot proposal to add the right to collectively bargain in Michigan's Constitution.  Michigan's governor has been quoted as saying that the push for this legislation is a direct result of organized labor's ballot proposal initiative, Proposal 2, last month, and that he is ready to sign this new legislation.  The House still needs to consider the public right to work bill and will do so on Tuesday.  Michigan's labor organizations are planning protests to stop its passage and put pressure on the governor to veto the legislation.

The legislation:

For Private Workers - HB 4054 & SB 0116

For Public Workers - HB 4003 (Senate Substitute 8)

http://www.legislature.mi.gov/(S(ib4eik45ssqu0z45ez4rbnyh))/documents/2011-2012/billcurrentversion/House/PDF/2011-HCVBS-4003-17053.PDF

Update (December 11, 2012) - The Michigan House of Representatives passed HB 4003 and Governor Rick Snyder signed the bills into law making Michigan a Right to Work State.  The changes take effect in April 2013.