NLRB Rules Two Charters are Private Corporations, Not Public Schools

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August 30, 2016; Washington Post

In two decisions last week, the National Labor Relations Board found charter schools to be private rather than public bodies, at least as concerns federal labor law. These particular cases involve unionization drives at charter schools in New York and in Pennsylvania, but they are but a sample of a number of cases the NLRB has seen over the last few years.

Advocates for charter schools argue that because they are tuition-free, open enrollment, and funded primarily with tax dollars, charter schools are public. Critics argue that unlike public schools, they are not accountable to elected officials and voters.

On August 24th, NLRB held that the Hyde Leadership Charter School in Brooklyn and the Pennsylvania Virtual Charter School are merely private contractors. The board found that Hyde was established privately rather than by a state or local government, and therefore was not a public school.

The decisions mean that the employees of these two charters must organize under the National Labor Relations Act rather than under state laws that apply to public sector employees. In each case, the decisions split along partisan lines, with Philip Miscimarra, the lone Republican on the board, taking the opinion that charters are indeed public schools.

Because charter schools are still so new, regulatory agencies and the courts are still actively considering the question of whether they are public or private. With no resolution in sight, Carl Korn, speaking for New York State United Teachers, says that charter advocates exploit all gray areas to their benefit:

Charter management claims charters are public schools when they want taxpayers’ money, but use legal maneuvers to hide from public audits, seek to evade the rules that govern public pre-K programs and, in this case, claim they are private schools when it comes to union representational elections.

These two decisions are narrow in scope, applying only to the employees at the schools involved, but the rationale behind the decisions may be more far-reaching.—Ruth McCambridge