Charter Schools Are Private Corporations, National Labor Relations Board Rules

Published October 25, 2016

The National Labor Relations Board (NLRB) has ruled charter schools are private corporations, not public organizations, and it has ordered charter school employees must organize under private sector rules.

Charter schools are publicly funded, privately operated tuition-free schools that are open to all children. Charter schools are not required to adhere to many of the rules and regulations governing traditional public schools, but they are subject to greater accountability. Nationwide, approximately three million students are enrolled in charter schools.

Private, Not Public

NLRB is a federal agency overseeing private sector unions. NLRB ruled in August in two cases involving unionization efforts Brooklyn, New York’s Hyde Leadership Academy and the Pennsylvania Virtual Charter School are private schools.

“The decisions mean that the schools’ employees must organize under the National Labor Relations Act, which applies to private-sector employees, rather than under state laws that apply to public-sector employees,” The Washington Post reported.

In the New York case, NLRB ruled Hyde was “neither created directly by the state so as to constitute a department or administrative arm of the government nor is it administered by individuals who are responsible to public officials or the general electorate.”

Philip Miscimarra, NLRB’s only Republican member, dissented in both cases. In the Pennsylvania case, Miscimarra wrote, “Charter schools operate as K–12 public schools, they are substantially regulated under state and local laws, and they are overseen by state and local authorities.”

“The decisions apply only to the specific disputes from which they arose … but they plunge the labor board into a long-running debate over the nature of charter schools,” the Post reported.

‘A Semantic Trick’

Nat Malkus, a research fellow in education policy studies at the American Enterprise Institute, says charter school opponents will use the NLRB’s ruling as fodder in their arguments.

“The problem here is that folks who oppose charters are going to use this to say the NLRB says these are actually private schools [and that] they’re not public,” Malkus said. “But the distinction is a semantic trick. There is certainly something to the argument that charters are not traditional public schools, because they’re not governed by local school boards. They’re schools of choice, and they’re free from a lot of the rules that traditional public schools have to abide by.

“A lot of charter critics say they’re private schools that are stealing public funds,” Malkus said. “Charter proponents believe these are public schools. They use public funds. They have a different governance structure, based on a charter, but they offer free, publicly funded education to all students, and that’s what constitutes a public school.”

Malkus says NRLB’s decision “does not settle these arguments over whether charters are public or private schools.”

‘Unconstitutional’ NRLB Actions

Neal McCluskey, director of the Cato Institute’s Center for Education Freedom, says NRLB has too much power.

“The NLRB itself seems to be an unconstitutional, unchecked entity that can unilaterally decide what a school or lots of other things are and force association on them, which seems to be in violation of our freedom of association, by saying you have to bargain with a union,” McCluskey said. “That goes far beyond federal power, and the NLRB seems to be an institution that is not subject to the normal checks and balances of the legislative and executive branches.”

‘A Looming Threat’

McCluskey says school choice advocates should be concerned about NRLB’s influence.

“There is a lot of confusion about charter schools,” McCluskey said. “It seems people often think they are private schools to which they just don’t have to pay tuition, and they need to know right off the bat, ‘No, these are public schools and they have to do a lot of the things public schools have to do.’ They also need to know though they are public schools and many of them don’t have to deal with unionized teachers, there is a looming threat that you will have to deal with unionized teachers. It may not even be changes of state law or chartering laws or even rules from the U.S. Department of Education that are causing that; it is the National Labor Relations Board.

“It’s also a warning for the whole school choice community, a reminder of the grey area in which charter schools find themselves—not quite public, not quite private—which could end up meaning the worst of both worlds in that you have to take the public school standards and tests but you also get treated by groups like the NLRB like you’re private. [NLRB will] try to force the types of things they force on private entities,” McCluskey said. “The main thing is that charter schools need to realize there is a looming possibility that they will be forced to negotiate with teacher unions.”

Elizabeth BeShears ([email protected]) writes from Trussville, Alabama.

Internet Info

Robert G. Holland, “Fairness for Charter Schools,” The Baltimore Sun, August 17, 2007: