What Law Says Is Optional With These School Districts And Unions

Public schools in Michigan are highly regulated. The law — for good or ill — spells out what gets taught, when it gets taught and by whom. It also describes the rights and responsibilities of students, teachers, administrators and taxpayers.

Yet the behavior of public school officials sometimes suggests that they regard these laws as optional rather than mandatory.

Consider three statutes:

● Amendments to the state’s Public Employment Relations Act, adopted by the Legislature in the tumultuous closing days of 2012, give school employees the right to opt out of financially supporting public sector unions.

● Another part of PERA says that the starting day of the school year cannot be a topic for collective bargaining.

● An amendment the school code, which went into effect in 2010, requires performance-based merit pay for teachers.

In the years since right-to-work became the law of Michigan, contracts between school employee unions and district employers continued to require employees to pay unions “agency fees,” even if they were not members of the union.

In the Taylor School District, three teachers challenged a contractual requirement that they pay agency fees through 2023. Their challenge was validated by the Michigan Supreme Court after a four-year legal battle.

More recently, a contract between the Fitzgerald Public Schools in Warren and its teachers union required the district to collect dues or agency fees from employees through June 2022.

The fees are described in the contract as “a condition of continued employment.” The contract also said that an employee who fails to authorize the payments “shall be” fired upon request from the union, the Fitzgerald Education Association.

Subsequent sections of the contract spell out in detail how the district is to collect agency fees, and they provide for the FEA to defend the agreement in court and indemnify the school district for any costs resulting from a lawsuit.

The contract, the latest available online, covers the 2015-18 school years. Julia Yokel, president of the Fitzgerald school board, told Michigan Capitol Confidential there is a more recent contract, but she was uncertain whether the provisions on compulsory payments to the union are still included.

In response to a Freedom of Information Act request, Fitzgerald Superintendent Laurie Fournier said no district employees have been terminated for declining to make payments to the union. But district administrators did not respond to subsequent requests for comment, submitted by phone and email, on the legality of the contract provisions. The Michigan Education Association official responsible for overseeing contract talks for Fitzgerald teachers did not respond to a telephone inquiry.

State law also makes it unlawful for unions and districts to bargain over the starting date of the school calendar and amount of student contact time required. Yet some districts appear to honor the prohibition only in the breach.

Detroit Superintendent Nikolai Vitti recently told The Detroit News the district had been forced to scrap an agreement it had been negotiating with the Detroit Federation of Teachers. It had called for starting the school year before Labor Day, but the union backed out on it.

Asked to explain the discrepancy, Vitti spokeswoman Chrystal Wilson said in an email that the district does not bargain over the start and end dates of the calendar. But Wilson said the tentative agreement with the union called for holding professional development days during the week before Labor Day. She added, “DFT was unwilling to overlook that clause” to accommodate an earlier start to the school year.

Asked for comment on whether negotiations which include a school start date violate the law, Michigan Department of Education spokesman Martin Ackley replied by email: “That is how the law reads.”

The Michigan Department of Education has consistently stated that the law doesn't give it the ability to enforce legislative mandates on school districts.

One common example of schools not facing consequences for not following state law involves merit pay.

Michigan Capitol Confidential sent a Freedom of Information Act request in 2018 to every school district in the state, asking for its policy on merit pay.

Of the 406 school districts that responded, 175 reported not having any merit pay system. The remaining 231 school districts said they had some form of merit pay.