The 2011 reforms also expanded school districts’ ability to control the staffing and placement of teachers. State law forbade school districts and unions from bargaining over:
Decisions about the development, content, standards, procedures, adoption, and implementation of the public school employer’s policies regarding personnel decisions when conducting a staffing or program reduction or any other personnel determination resulting in the elimination of a position, when conducting a recall from a staffing or program reduction or any other personnel determination resulting in the elimination of a position.[35]
This change, in conjunction with other reforms to state law, attempted to restrict the use of seniority as the primary factor in layoff and recall decisions.[*] Until this amendment, union contracts required teachers to be laid off based solely on their seniority status, or how long they had been employed. How effective they were at helping their students meet the state’s academic standards was not considered. The result was “last in, first out:” that is, newer teachers, no matter how talented or valuable, would be laid off first. Recalls, where districts hire back employees who were laid off, also follow seniority ranks. So the youngest teachers are not just the first fired but also the last rehired.
A seniority-based layoff system often requires districts to lay off more employees than they might otherwise. Employees with the least years of service are also the lowest paid, due to the rigid structure of the single-salary schedule. Thus, districts cutting personnel to save costs would be forced to lay off more teachers to make ends meet, compared to a system where other factors could be considered, such as teacher effectiveness.[†]
In this review, 11% of contracts contained prohibited language related to layoffs. Another 9% contained terms that were questionable or that could be interpreted as limiting a district’s discretion. The rest of the contracts, about 80%, appeared compliant with the law by either not containing language about layoffs, carving out teachers subject to the tenure law or expressly acknowledging that layoffs would be left to the district’s discretion. About 40% of contracts contained language that either automatically revived pre-2011 layoff terms or could be easily amended to restore seniority-based personnel decisions for all employees.
It should be noted that it is unclear whether the 80% of districts classified as compliant with the law have actually stopped basing personnel decisions on seniority. As with the merit pay and teacher evaluation requirements, there is no prescribed penalty for districts that fail to follow the law. If district officials wished to preserve a seniority-based system implicitly, it would be difficult to verify that they were doing so, as any number of justifications could be offered for why generally younger and less-experienced employees were the first laid off. Barring a record that is clear on the issue, extensive Freedom of Information Act requests would be necessary to obtain the facts needed to argue that a layoff had been conducted based on seniority. And even if this information were obtained, it is unlikely that anyone other than a district employee could challenge the layoff as improper. Regardless, these districts at least facially comply with existing law.
School districts should not renegotiate to allow seniority as the sole or even the primary factor when evaluating personnel for layoffs. The most important work a school district can do is to put good, effective teachers into classrooms and retain them. Using seniority to act as a proxy of effectiveness, particularly when coupled with the changes to the teacher evaluation process discussed above, seriously jeopardizes districts’ ability to provide the highest quality education possible. Michigan’s students should be taught by the most effective teachers available, without regard for how long they have been teachers.
[*] See MCL § 380.1248, which was also modified in 2011. This statute prohibited districts from using “length of service or tenure status” as “the primary or determining factor in personnel decisions.”
[†] It should be noted that a system of layoffs based on salary alone would be equally problematic. Higher paid teachers are generally those with more years of service, and as a result, are generally older. A purely merit-based layoff system avoids the pitfalls of both the seniority- and salary-based options, as both rely on factors heavily correlated with age.