The Mackinac Center reviewed the collective bargaining agreements governing teachers working in Michigan’s 200 largest school districts. These districts enroll nearly 70% of all public school students.[*] The purpose of this review is to help school administrators prepare for the various policy changes they may be facing in the near future. The review focused on terms that were prohibited subjects of bargaining in 2011 but are now legal for school boards to bargain over. Those terms include:
These subjects were removed from the scope of collective bargaining in 2011, leaving them to the discretion of school administrators.[†] The 2023 repeal of these reforms renders them “permitted” subjects of bargaining again, which school administrators and unions may now negotiate as part of the collective bargaining process. In some school districts, however, negotiations might not be necessary for these terms to go back into effect.
One might expect that prohibiting school districts and unions from negotiating over certain subjects would result in those subjects being stripped from union contracts. But this is not the case: Few contracts appeared fully compliant with the law. Districts significantly varied in their implementation of the 2011 reforms. This is consistent with prior Mackinac Center research from 2014 finding that 60% of contracts did not completely remove prohibited language.[8] This raises questions about how committed districts were to the Race to the Top reforms. Did districts change their practices to retain and reward high-quality teachers, or did they continue to let their union contracts dictate these decisions?
Broadly speaking, the collective bargaining agreements reviewed contain terms that fall into one of three categories: compliant, questionable or noncompliant. A collective bargaining agreement was deemed compliant if it did not mention a prohibited subject of bargaining. Noncompliant contracts include those that refer explicitly to a prohibited subject, regardless of the substance of the contract term.[‡] The questionable category signifies contract terms that are vague and open-ended, calling into question whether these prohibited subjects of bargaining are still practiced in these districts.
A common technique that is concerning — despite being technically complying with the 2011 reforms — is keeping the prohibited policies in place for school employees who are not subject to the Michigan Teacher Tenure Act. Many of the 2011 reforms applied only to teachers subject to the state tenure law.[9] But teachers unions can include school employees who are not subject to this law, such as school librarians, counselors and social workers. Some districts agreed to contracts that retained the newly prohibited language just for these employees. Contracts that use this approach were generally deemed compliant with the law, barring additional terms that would lead them to be classified as questionable.
In addition to categorizing district compliance with the 2011 reforms based on those categories, we also identified contracts with clauses that either automatically revive prohibited terms or that would allow them to be easily reintegrated and expanded to all employees. Most contracts reviewed contained one of these terms. School administrators in these districts should be aware of these impending changes and should resist attempts to roll back reforms.
This lack of compliance might be due to a shortcoming of the 2011 reforms: There was no clear penalty for noncompliance. This is due, in part, to the fact that only school districts and unions have the standing to sue when a contract contains an illegal term.[§] Unions have also argued that the removal of a prohibited subject of bargaining from a collective bargaining agreement is, in fact, a negotiation over a prohibited subject of bargaining in and of itself. This argument is strained, as the Michigan Legislature obviously did not intend to enshrine these terms into collective bargaining agreements via the 2011 reforms.[**] Unions argued this point, nevertheless, and some districts may have agreed.[††] Future reforms should consider adding a penalty for noncompliance, a mechanism for taxpayers to challenge illegal contracts, and a mandate to remove illegal language from contracts.
The following section describes the results of this review of teacher contracts in Michigan’s largest 200 districts. The six prohibited subjects of bargaining mentioned above, a ban on school districts using public resources to collect union dues through payroll deduction, and language that would automatically revive illegal subjects were the focus of the research. Examples of particularly problematic language are provided. Where applicable, the various approaches to compliance with the 2011 reforms are discussed in greater detail. This report concludes by suggesting school districts review their existing contracts, familiarize themselves with previously prohibited terms, and negotiate firmly to preserve contract terms that prioritize improving teacher effectiveness and educational outcomes rather than union priorities such as reestablishing seniority-based rules.
[*] The 200 largest school districts in terms of enrollment counted more than 940,000 students in fall 2023, which is approximately 70% of the 1,357,200 counted statewide. “District FTE Pupil Counts” (MI School Data), https://perma.cc/K7LB-AB59.
[†] The Legislature made privatization a prohibited subject of bargaining in 1994, not 2011. For ease of reference, we have included it in the list of these reforms. For more, see: Robert P. Hunter, "Michigan's Public Employment Relations Act" (Mackinac Center for Public Policy, Aug. 24, 1999), https://www.mackinac.org/2322.
[‡] As an example, the 2011 reforms rendered performance-based pay for teachers a prohibited subject of bargaining. Some of the collective bargaining agreements reviewed expressly provide for such merit pay systems, which were required by a 2010 state law. Despite this, these contracts are still classified as noncompliant, as they contain terms that were prohibited subjects of bargaining.
[§] The Mackinac Center previously brought a lawsuit challenging a collective bargaining agreement which contained illegal terms regarding privatization. While a judge agreed that the challenged language was illegal, the case was dismissed due to a lack of standing. Lindsey Smith, "Judge rules taxpayers, Mackinac Center, do not have standing in lawsuit over privatization" (Michigan Public Radio, March 2, 2011), https://perma.cc/32DJ-K5LP.
[**] The Michigan Employment Relations Commission called these attempts by unions to keep these prohibited subjects in teacher contracts “baseless” and “simply an attempt to delay and obfuscate the bargaining process.” “MERC Clarifies Treatment of Prohibited Bargaining” (Thrun Law Firm, Sept. 29, 2015), https://perma.cc/ZT5J-TNTY.
[††] This is an old union tactic. For example, a union official makes this argument in a letter from 1995 to a district superintendent, writing that “it is impossible to change or delete” prohibited subjects of bargaining “since that would involve bargaining. And bargaining is prohibited.” La Rae G. Munk, “Collective Bargaining: Brining Education to the Table” (Mackinac Center for Public Policy, 1998), 17, https://www.mackinac.org/1437.