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Wednesday, Oct. 14, 2009 | As bargaining grinds on between San Diego Unified and its teachers union over its expired contract, a public debate has erupted over a few paragraphs of legalese.

Teachers and their union say a new proposal will help kids by preventing teachers from being overloaded with new duties. Opponents say it will allow the union to veto any changes to what teachers do — even small ones — by enshrining all existing practices in the contract. It has pitted the principals union against the teachers union, divided and perplexed parents.

Yet both its backers and its critics point out that the proposal, known as “maintenance of standards,” is nothing new. Similar rules show up in teachers union agreements as early as the 1970s in New York and have cropped up across Wisconsin and Michigan, spreading to Colorado and even Alaska. They typically state that working conditions “shall be maintained at not less than the highest minimum standards in effect” at the time — language that isn’t always clear to the average person.

That wording has varied, along with its impact. Attorneys and educators tell radically different stories about how the clause works. A Wisconsin attorney calls it “a union trump card.” A Minnesota superintendent said it posed no problems. And a New York official said it’s sometimes difficult.

It’s tough to draw any simple conclusions about what a rule with somewhat different wording would mean in San Diego Unified, a larger school district with different state laws. Researchers from the University of San Diego are still studying how it has worked elsewhere.

But success stories and cautionary tales from across the country help illuminate its potential risks and rewards. Two key factors seem to shape whether the rule proves troublesome. One is the exact wording: Some school districts have limited the rules to things that ordinarily must be bargained, while others are in states where laws do that for them. Existing relationships between the union and schools also shape how the clause is used, making it either a hassle or a nonissue.

In New York State, a similar rule has sometimes been frustrating for Assistant Superintendent Cora Stempel at the Hyde Park Central School District. For instance, the union invoked it when counselors switched from paper forms to an electronic system to change students’ classes, contending that it was new work, Stempel said. It hasn’t halted change in the school district, but it has made it more difficult.

Hyde Park now gives the union two weeks’ notice before making significant changes, which often allows them to work out any problems in advance and avoid grievances. Even if a grievance was filed, Stempel said that wouldn’t necessarily stop schools from making changes, unless the union ultimately wins and forces them to reverse it. But it may slow down or alter its plans.

If the union balks completely, it can sway the school district to hold off on an idea to avoid grievances that the union might win. The threat of a grievance — and the desire to avoid it — can steer their decision.

“It’s just good practice to work towards consensus anyway,” she said. “But there are times that there are things I’d like to do, and I should be able to make that decision. It’s sometimes a struggle.”

One of the largest school districts with such a policy is Jefferson County Public Schools, a Colorado system with more than 80,000 students. Union leaders said they used it to push the school district to discuss — not bargain — changes to the date teachers were paid. Robert Archibold, Jefferson’s executive director of employee relations, said it hadn’t been a problem for them because few issues weren’t covered by their contract, which is highly specific. No new programs had been blocked, he said.

Still, “it puts the brake on the district just going around changing things without having a conversation with us,” said Lisa Elliott, the union’s executive director. She might invoke it to challenge whether the district can immediately change how it handles pay errors. “But it’s only related to working conditions and pay. It’s not saying, ‘You can’t get a new set of textbooks.’”

Some of the worst clashes over the rule are documented in Wisconsin. The Salem Joint School District tried to remove a similar rule while bargaining with teachers in 1992, complaining that the union had objected to schools encouraging teachers to help at a lunchtime salad bar and requiring teachers to make their own photocopies. It stated that six grievances were filed based on the clause in a single year, compared to just one that had gone as far as a hearing in earlier years.

“We cannot be constantly assaulted by these teacher objections over even the most minimal of changes in District policy and practice,” Salem officials wrote. More grievances can mean more money spent on legal fees. They also consume time and become a political cudgel against a school board or superintendent, even if they are ultimately lost or dropped.

The union countered that few complaints ultimately were pursued because the rule worked: Schools altered their plans to accommodate teachers. Steve Weld, formerly the president of the Wisconsin School Attorneys Association, said the rules are overly restrictive, forcing schools to keep practices the same. One Michigan arbitrator found that the “obvious purpose” of the rule was to freeze past practices, keeping the daily work of teachers and operations of schools the same as before.

The San Diego teachers union says those scenarios won’t happen here. It has altered the language to assuage worries raised by the school district, adding a new section that says the rule wouldn’t prohibit schools from “implementing programs, initiatives, or curricular reforms” and focusing it solely on workloads. Union President Camille Zombro said schools could still require that teachers do new things, but would have to take something else off their plates to make it work.

Salem’s language is “much more restrictive than ours,” said Steve Johnson, the union’s executive director. “We can’t assert that a tradition existed and prevent the employer from changing it. We’re trying to address those concerns.”

Other school districts were surprised to be even asked about the rule, calling it a nonissue. Elsewhere in New York, an assistant superintendent at the Shenendehowa Central School District said the language “had not really caused any issues” and was curtailed by state law. Their schools had easily made changes, such as switching to a common report card, without negotiating them. And in Minnesota, La Crescent-Hokah Superintendent Ron Wilke said it hadn’t prevented them from trying new things.

David Honish, superintendent of the Lena Public School District in Wisconsin, said the rule sometimes crops up when he brings up changing practices, but he’s never actually seen it used. Back in the 1980s, the Lena schools tried to remove the rule during union negotiations, complaining that it spurred grievances and “erode(d) its ability to control the school district.” The rule stayed put.

“There’s always that looming concern that if we did want to change anything, we wouldn’t be able to get it through because the union has quite a bit of control,” Honish said. “But we have a family-like atmosphere. Most of the time, we just sit down at the table and resolve it.”

The question is how such a rule would translate to San Diego Unified, where relationships between the union and the district have been far from familial over the years. Sitting down and resolving that may not be so easy.

Please contact Emily Alpert directly at emily.alpert@voiceofsandiego.org and follow her on Twitter: twitter.com/emilyschoolsyou. And set the tone of the debate with a letter to the editor.

Emily Alpert

Emily Alpert was formerly the education reporter for Voice of San Diego.

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