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Teacher collective bargaining is a central and often controversial element of American public education. Teacher contracts frequently include provisions prescribing the way teachers are assigned to schools. What are the consequences of these important provisions for schools and students? Some researchers contend they undermine school quality. Others say they don't. Who's right? Two national experts, Howard Nelson of the American Federation of Teachers and Michelle Rhee of The New Teacher Project, squared off on this timely topic.

The discussion featured:

Andrew J. Rotherham, Co-director, Education Sector (introductions)
Bess Keller, Assistant Editor, Education Week (as moderator) 
F. Howard Nelson, Lead Researcher in the Office of the President, American Federation of Teachers
Michelle Rhee, CEO and President, The New Teacher Project

Transcript
Andrew Rotherham: Today we are going to have some brief presentations. This is a data-rich issue, and an issue that is terrific because you can actually bring evidence on all sides to it and discuss it, which makes it somewhat distinct from some other issues we debate in education. We want to give both panelists a chance to do that and to lay out some of the evidence. Howard actually has a new paper on this out today that I would encourage you to pick up. Michelle has some previous work on the exact same issue. They're going to talk about the findings and then we will turn it over to questions and answers.

With that, let me introduce Howard Nelson. Howard is the lead researcher at the American Federation of Teachers (AFT), and he works in the Office of the President there. Currently, he is doing a lot of work on the No Child Left Behind Act (NCLB), especially what's going on with the Adequate Yearly Progress (AYP) provisions. He is also doing a lot of work—as we will discuss today—with high-need schools and teachers and what needs to happen in terms of supply of teachers to these schools. He also specialized in analyzing budgets. He does a lot of comparative and international work, teacher salary surveys, and work analyzing private contracting and privatization in education. In particular, he has done a lot of work on Edison Schools.

Michelle Rhee is president and CEO of The New Teacher Project. She started with Teach For America (TFA) in 1992. She is one of those TFA people who did two years and then you never hear hide nor hair of her again around education. She taught actually right here in Baltimore, and if you are a Good Morning America watcher, you will remember she was featured there. After TFA, she went back to Harvard and got a degree in public policy and started The New Teacher Project, which has grown from her idea into a full national organization that has more than 90 full-time staff, works in school districts around the country, and has recruited over 13,000 teachers around the country for hard-to-serve schools.

Bess Keller is a long-time journalist and a long-time education journalist. She's been at Education Week for ten years, where she is an assistant editor. I know that her work is familiar to all of you: she covers teacher quality issues very thoroughly there. Before that she covered leadership issues and state policy issues. She started as a reporter for weekly newspapers in Maryland, so she has a local background as well.

So I will turn it over to Bess and our panelists. Howard will kick it off, followed by Michelle. Again, please hold your questions until we get to audience question and answers; there will be plenty of time for interaction. I hope you enjoy the morning!

Presentation by Howard Nelson

HN: There is a handout in the back. It is not the full paper. It will take a few more days before we have the full study, but if you want something more than this Power Point—all 16 charts, rather than four or five along with a narrative study of what all this means and a slightly more detailed explanation of how all this works—it's in the back. And look for the full report later.

There is a problem in the disparity of staff qualifications between high-poverty districts and other districts. There is a big problem, which is the disparity between suburban districts and urban districts, and then there is a littler problem in some urban districts, maybe even most, of the disparity between high-poverty and low-poverty schools within a district. A lot of our urban districts really don't have wealthy schools, and—Michelle's report points this out very well—a lot of times, it doesn't make a lot of difference to worry about teachers transferring from high-poverty schools to slightly less high-poverty schools.

Now, to the extent that disparities exist, there are several reasons (slide 2) why this could occur: (1) problems in recruiting to begin with, (2) if a well-qualified teacher is recruited, they can leave teaching altogether, (3) they can transfer to another school district, or (4) look for another school within the district. Now, union collective bargaining agreements deal with that fourth bullet more than anything. The second and third bullets have nothing to do with collective bargaining agreements. For the first bullet, hiring, there is possibly some relationship, and Michelle will talk about staffing provisions and the influence she thinks they have on hiring.

The data (slide 3) for this study is a schools and staffing survey. A lot of people have looked at this. It is the gold standard of staffing analysis, a national database with 43,000 teachers and 3,000 transfers. We used the follow-up survey as well, which has some really nice questions but it's smaller. There are 1,000 transfers in that data set. We used a conventional definition of high- and low-poverty, the same that the National Center for Education Statistics (NCES) uses. If more than 75 percent of kids are eligible for free lunch, then it is high-poverty. Low-poverty is less than 15 percent. We use the Schools and Staffing Survey (SASS) definition of urban, rural, and suburban.

And then, the key variable here (slide 4): bargaining. I wish the SASS data set would attach to a teacher whether a teacher works under a collective bargain agreement or not, but that is not how SASS collects their data. We divided states into three categories: in the blue states, a teacher is virtually 100 percent certain to work under a collective bargaining contract. The yellow states are the states that prohibit collective bargaining, and it is almost 100 percent certain that there is no collective bargaining contract. The white states are kind of a group of "garbage" states that combine a lot of things—no collective bargaining, true contracts, meet and confer… Arkansas and Louisiana have about 15 percent of teachers in those situations. Wyoming and the Dakotas have maybe 60 to 65 percent. In a way, it is kind of an excluded category, and we really want to pay attention to the blue and yellow states.

OK, the first finding (slide 5): No collective bargaining in this slide; it is just urban schools, cross-tabulated by high-poverty or not. The highest yellow arrow shows that high-poverty urban schools, in fact, have the highest transfer rates. But it is only about 2 percentage points higher than the national average, which is about 7.3 percent (a figure that is not on this table). So we find what we expect but that couple-percentage-points difference is a lot less than what the rhetoric would indicate about these subjects. Also, note the transfers combined within-district transfers and transfers to another school district, and a later slide will separate those out.

Here (slide 6) we look at collective bargaining compared in high-poverty school districts versus non-collective bargaining. This slide combines suburban, urban, and rural all together. We see the surprising findings—surprising because of all the complaints about collective bargaining agreements and transfers: it turns out to be just the opposite, transfer activity is higher in high-poverty schools without collective bargaining and the difference is 4 percentage points. Actually, the 7.5 percent transfer rate in the high-poverty school districts without collective bargaining is approximately the same as the national average.

Here (slide 7) it is limited to urban school districts and the bars on the right are high-poverty schools. It looks like the previous graph except you can see that the transfer rates are higher across the board, because you are dealing with urban school districts.

The other side of this question is: When teachers transfer, who replaces them? One common assumption, or assertion, is that the greenest of the green teachers end up in the high-poverty schools. We don't find that. (slide 8) The blue bars represent collective bargaining schools and states, and in the SASS data set, first-year teachers are about equally represented in the three different categories of schools. Without collective bargaining (slide 9) we get precisely the result that people often assume happens with collective bargaining. We see a big disparity between first-year teachers in low-poverty and high-poverty schools, which is what this slide illustrates with the yellow bars.

Then there is the issue of whether anybody wants to transfer into high-poverty schools, and the answer is yes. (slide 10) In fact, in collective bargaining situations—and by the way the whole slide isn't up here, but here's a case where bargaining doesn't make a difference—there are more transfers into high-poverty schools than there are into low-poverty schools, and actually, the main reason for that is that there are more vacancies in low-poverty schools. But the point is that people will move there.

The previous data include transfers due to layoffs. When teachers are laid off, they can quit or they can find another school. (slide 11) So the little tiny pie that you can hardly see—the circle the yellow [arrow] points to—shows that less than 1 percent of teachers are laid off and remain in teaching. That's an important fact because it is a pretty small number. Sometimes we get this notion in collective bargaining situations that masses of teachers are being laid off and floating between schools and that is not the case at all.

Now, the issue of transfers to another district or within districts (slide 12): in high-poverty, urban schools, 50 percent of teachers move to another district. And it is even higher from low-poverty schools, 60 percent. So if you take those out (slide 13), the within-district-transfer rate is pretty tiny, about one in 25 teachers—that's about one per elementary school and two per secondary school. There is also a table on charter schools there (slide 14). We looked at charter schools because they seldom have collective bargaining, and it is another way to look at this issue. The data is really quite familiar; there are a lot of studies on this. Transfer rates double in charter schools. The hiring of first-year teachers is more than triple.

Why do teachers transfer out of high-poverty schools? It is really about the same (slide 15) as why average teachers transfer, although there is a little bit of difference in intensity. The main reason is to get a grade or a subject that you really want to teach. Sometimes you get hired as a sixth-grade teacher when you really want to teach second grade, and it takes some time to get that job. And then there are two dissatisfaction variables: dissatisfaction with administrative support and with working conditions. Both of those are more intense reasons for transferring in high-poverty schools. Then change-of-residence, as well, is a more important reason for teachers transferring from high-poverty schools.

So in conclusion, (slide 16) this national database says that there is no evidence that collective bargaining increases the amount of transferring or contributes to the shortage of qualified teachers in high-poverty schools. It also indicates that you have to go beyond contract language and look at how collective bargaining actually works. Language is ambiguous, and you can see it two different ways. In the end, you have to go to the data. And probably the main finding of all of this is that we need to get off this side issue and focus on real solutions, which is attracting, but also preparing teachers to teach in urban, high-poverty schools.

Thank you.

Presentation by Michelle Rhee (link to slides)

MR: I am going to start off by giving you a little overview of what brought us to our study, Unintended Consequences. We published a study in 2003 called Missed Opportunities. In that study, we looked at four representative urban districts across the country. Contrary to popular belief at the time, which was that urban districts could not find the quality people that they wanted to teach in their schools because nobody wanted to go into teaching, we actually found that there were quite a few people who wanted to teach in urban districts; the issue was not so much that you couldn't recruit these people but more because there was late hiring timelines and a lot of bureaucracy involved in getting hired, which really stopped the best people from getting hired in those districts.

So just a little bit of data from that first report showed that when you had an aggressive and strategic recruitment effort, you could find many, many more applicants than vacancies in the district, but even when a district did a great job, for example with our eastern district here, by May you had 600 pre-screened, highly qualified teachers ready to go out and be hired by principals, and the first teacher was not hired until August 12, which was a week before new teacher orientation and a few days before school started. We found that between 30 and 60 percent of the applicant pool were withdrawing applications from the process, and those that were withdrawing were much more likely to be highly qualified—to have high GPAs; subject-area knowledge in the hard-to-staff subject areas; to be certified; to graduate from highly selective colleges, etc.

So we actually looked at this data, and we started talking about it with a lot of folks, and the first thing they said to us was: "We knew it. We knew this was going on. We've heard all the stories and that is why we should blow up the human resources departments in school districts." And we said that there are a lot of issues within school districts and HR departments, and those definitely need to be solved, but we also saw that amongst the school districts we were working in, that really, the HR departments were functioning quite well; they were hamstrung by a series of external policy barriers. The ones that we identified were vacancy notification requirements—when existing teachers were required to tell the district that they were resigning or retiring. Usually that is not required until the middle of summer and that was having a negative impact because a lot of teachers—mostly traditionally certified teachers—do not want to make a commitment to a district overall; they want to know which school they are teaching in. So, if the existing teachers are not notifying until July 31, then those actual school-level placements can't happen until much later. The second barrier that we found was in the collective bargaining agreements around the transfer and excess provisions, which I'll talk about in more depth. And the last was budget and enrollment uncertainties. When the budgets came down from the state Department of Education to the school districts, and then down to the schools, typically—especially in this time of contracting budgets—very, very late in the summer. So that was impacting principals' hiring decisions as well.

So we decided to look at the collective bargaining agreements, and I want to be clear that the report does not look at collective bargaining agreements overall, we just specifically look at the provisions that govern the movement of incumbent teachers through the system. What we found in the districts that we studied—and this was mostly from the work we were doing in these districts when we were trying to bring highly-qualified new teachers into the district and get them hired quickly—we found that many of these districts had collective bargaining agreements that said that there were basically what they called post and bid periods. During those periods schools declared their vacancies and incumbent teachers bid on those positions and were placed into those positions, and typically new teachers are not hired into the district until all of those post and bid periods are complete. A lot of times, those processes go through the middle to late summer. So, our first idea was that ideally, in order to be able to capture the highest quality people, we would collapse these processes so that there would not be three post and bid periods, for example, there would be one, and we would move it up to January so that the school district would be able to hire new teachers starting in February. Based on our data, they could still capture the highest quality teachers in that timeline.

In order to figure out whether this would be feasible, we thought that maybe a good argument for why this should happen is that, if the number of teachers who are moving throughout the system is so small, why hamstring the entire district hiring process just for a few teachers? We first looked at the scale, and we were actually incredibly surprised to find that about 40 percent of all of the vacancies that were declared in schools across these five districts were filled by incumbent teachers who were moving through the system. So just the sheer scale of the internal movement was much greater than we thought it was going to be.

So our first argument now did not hold water, but we also thought that maybe this was not such a bad thing because a lot of times people are talking nowadays about teacher maldistribution issues (How can we move veteran teachers into low-performing schools?). So we thought maybe large cadres of veteran, incumbent teachers moving into low-performing schools would be a good thing. But when we talked with principals, we found that they did not agree with this, and the reason is because they thought that a significant number of people who were moving through the system through these transfer and excess processes were actually poor-performing teachers. They believed this because they admitted themselves to having either encouraged a poor performer in their school to transfer out of their school or having put them on an excess list.

When we heard this, we literally thought this was the worst management practice we had ever heard of. If you have a poor-performing teacher in your school, why does it make any sense that you would just pass them down to the next school two blocks down or two miles down instead of doing the right thing and trying to terminate that teacher? We started talking to the legal counsels and principals in these various districts, and basically what they told us is that the process for terminating a teacher for incompetence is extremely cumbersome. One legal counsel said that it takes between 10 to 15 percent of a principal's time to do the documentation necessary to try to move that person out of the system. So we actually looked at the data of the actions taken by principals versus the actions that were successful, and we found that the odds of being successful at terminating a teacher—if you did take the 15 percent of your time to do this—were very, very slim. We do not condone this practice at all, but we began to see a little bit of why principals were doing this.

That takes us to the next point of what we saw happening within these school systems, which is that, in order to avoid having to have a transfer or excess teacher forced on them, principals were doing what we are calling "hiding the vacancies." They would rather wait until the transfer and excess processes are over so that they can have their pick of the new teachers coming in. If they knew someone was retiring or resigning, they would ask that person to hold off, and they would hide that vacancy until the transfer and excess process was over. Then they would open it up.

This led to some rules in some districts that said that if a vacancy is filled after the transfer and excess process for that year is complete, then the following year that position is considered a vacancy. So think about it: You have these new teachers—80 percent of who are hired a month before school starts, so pretty much all of these new teachers are hired after the transfer and excess process is over. They teach an entire year, they become acclimated, oriented, parents and teachers and schools like them; but they could be bumped out of the position by any senior teacher who wants that position the following year. School districts are spending a tremendous amount of resources and time recruiting teachers only to have these people potentially bumped out the following year. We found that certainly not all of the teachers who are eligible to be bumped are bumped, but we also found that, in these districts where bumping occurs, there is a culture of being very worried about what they should do. Amongst the new teachers, they are saying, "Should I be looking for a new job? Should I be talking to principals?" So that was impacting retention in a negative way through those means. Finally, what we started the report with was just that all of these processes, again, pushed the timeline back, and pretty much ensured that these school districts, which were most in need of highly qualified teachers, were actually unable to capitalize on the highly qualified folks in their recruitment pools.

I will stop there and let Bess ask us questions.

BK: To recap for our listeners, I will start with Howard: I am an advocate for students. I am a policymaker. I heard your talk. What is my take-home lesson? What should I be pushing for?

HN: As I concluded on my slides, the collective bargaining, if anything, is going to help the situation in urban, high-poverty schools. And if outside policymakers attempt to eliminate contracts or put limits on them for some reason in some ways, it could make things worse. I think the main conclusion is to just stop it on these issues. Focus on the real problem. Michelle raised some problems, and I've been taking notes on it. I think a lot of those can be worked out: the hiring timelines, the bumping things. I just realized, we have a different notion of what bumping means. And a message for our [teachers'] unions might be to work on these timelines. After all, we represent 24 of the 25 teachers that stay in a school, not just the ones that transfer, so these issues are important to us as well.

BK:  Michelle, same question to you. I am an advocate of students. I am a policymaker. What should I take home from your findings?

MR: I think what we need to focus on is what changes we need to make to the system in order to ensure that school districts can capitalize on the highest quality candidates who are applying to the districts. And what we found through our research is that, in order to do that, you really have to put school districts in a position where they are able to hire early. The highest-achieving candidates are the ones who have the most options, and they are not going to wait around until August to find out if they have a job in September. If they are applying in December and January, they pretty much need to know they have a job in February and March. Moving those timelines up, I think, is the crucial factor. What we need to do in order to make that happen is take a real look at the collective bargaining provisions because we do feel like there are several ways in which those provisions move the timeline back, but we also need to look at other things like how the HR departments are functioning. We need to look at the budget timelines, and we need to look at leadership and their role in how they are playing games and how, in essence, those games are resulting in late hiring times as well.

BK: Howard, do you agree that the "principal problem," if I am paraphrasing Michelle correctly, is timelines?  The "principal correctable problem" having to do with staffing rules?

HN: I think that it is an important problem, and it could be correctable. My wife teaches in Prince George's County, and we were talking about some of this, and she said, "I'm teaching in PG County because they asked me first, I had my application in other places." There's an anecdote that works for me.

MR: Works for me too.

HN: On the other hand we have access to a lot of contracts that we can search electronically, and preparing for this debate, I wanted to know if I was on firm ground to see if the timeline problem was really in the contracts. It is in a couple places, but it is rare that you can find a date where these things can be pegged down. It is true that there are transfer windows or transfer periods. I never heard of three, but I saw contracts with two. The second window usually occurs late in the summer when they are still scrambling to hire enough teachers. But seldom are there dates attached to these windows. And in some contracts, they sit down in January and they negotiate outside the contract. I mean, it is within the contract, but they negotiate the dates of when these windows can occur, and January seems early but March seems like a reasonable date to work out all these transfers. Another thing I also heard is that some of the vacancy issues are in state law; sometimes they interact in weird ways that I can't explain with retirement. I heard a story where, if you are going to retire, you wait until August because you'll retire with more money, and it's just a way of playing with the state law. And those things certainly have to be changed.

MR: Absolutely.

HN: And the lawmakers can do that. That's outside the contract.

MR: Absolutely.

BK: To prepare for this, one of the things I did was to talk with the UniServe director, the NEA affiliate director in the Chattanooga, Tennessee—that is, Hamilton County—district. They have collapsed their system. Their deadline—their two-week period for people to signal they want transfers—is in February; so that is an interesting compromise between your March and your January. State law requires that you put in your notice of retirement by June 1, or you face financial penalties having to do with cost of living increases, I think. Do you two want to raise factual issues with what we've heard today?  Do you see problems with the picture, Michelle, as painted? Do you see problems with the picture Howard has painted?

MR: No, we don't have reason to question the data Howard presented. What we would say is that they are slightly different arguments. We don't make an argument in our report that the transfer and excess provisions are the reason for teacher maldistribution, and we also don't think it is the solution to teacher maldistribution to limit teachers' ability to move. I don't think it is ever a good idea to say to a teacher, "You can't move out of a high-poverty school or into a low-poverty school." That doesn't make any sense. I think we need incentives in place to encourage the highest-performing teachers to go into the schools that need them most. And we did not do a survey of the suburban districts or the urban districts that don't have collective bargaining agreements. But to Howard's point, I think that when we looked at what was going on in the urban districts with these collective bargaining agreements and the detriment they were having there, my point would be then that these are the kids who need more advantages in life, so if we can correct some of these provisions and make what is happening in the urban districts even better, why wouldn't we do that?

HN: There are two points I would like to raise. I am not sure that they are factual or not. When you study four or five school districts, even if you are deadly accurate, there is a problem of generalizing. In your most recent report, it is pretty widely known that two of your districts are San Diego and New York City, and when you studied them, teachers in both districts could exercise seniority to claim a vacant job. That changed in New York City probably while your report was in press.

MR: Actually, it was because of the data that we presented to the independent arbitration panel that the contract was changed.

HN: Our local has a different story of that.

[Laughter]

MR: Well, I did testify at that hearing, and you can look at the reports.

BK: What's the local story?

HN: Well, there is a broader issue: if management has a problem, they have to bring it to the table so we can bargain over it. The union, on several issues relating to this, has had its own ideas. But the other side, probably in past contracts more than recent ones, they didn't bring these issues to the table. And I don't bargain all the time, in fact, it has been years since I sat at the table and did any of this, but I can't think of an instance where management has brought a hiring timeline issue to the table to bargain over. It seems like it may be just a convenient excuse for them. I could be wrong, maybe this is bargained over all the time, but it just is not on my radar screen.

I would like to make one other observation about bumping and displaced teachers. It is my impression that since seniority is so important, people who leave a school and then try to claim a position in another school because they are excessed, are pretty inexperienced themselves. In a place like New York City, in the era that you studied it, they are also likely to be unqualified substitute or temporary teachers. And for substitute and temporary teachers, of whom there are about 6,000 four or five years ago in New York City, they can go at any time. They don't have tenure or seniority rights or anything. I have to think that principals are worried about these unqualified teachers—[that's] the heart of the problem, being circulated among their schools. Better and experienced teachers are not the problem; it's back to the core problem of not having enough good teachers in urban, high-poverty schools.

MR: Actually, in New York, because of the laws that were changed, New York City now has very few uncertified teachers. So when you are talking about new teachers moving around there, they are all highly qualified and certified teachers now. The other thing that we found that was quite surprising was that the average tenure of the teachers that were excessed, who we also assumed would be mostly new teachers, ended up being 11 years in some districts. So it is not just with the excessed teachers that the majority of them are new or that they are not highly qualified.

BK: Does that mean that many of the transfers are "lemons"?

MR: Based on the principal data that we gathered, I would definitely not say that all of the teachers who are transferring are. Some people want to move schools for good reasons. They want to be closer to their homes…

BK: Day care, match of subject…

MR: Exactly. There might be some great reasons why. But it is also clear from the principal data that there is a significant portion of the people who are transferring or are excessed who are poor performers.

BK: Then what is the solution to that?

MR: I think we would say that the solution to that is that first of all we need to sit down and create processes for terminating poor-performing teachers that protect the rights of the people and take into account due process but are also efficient and effective processes. I think the union would probably agree with that… I think…

[Laughter]

BK: Howard is not saying right now.

MR: I think that's an important piece to it.

BK: I want to know why suburban districts typically do not have the same seniority rights in their contracts. Do you agree with that? That's been my anecdotal observation, that suburban districts—I think Betsy Useem's work in Philadelphia suggested that she did look at Philadelphia's suburban districts and the school district of Philadelphia, and there were lots of differences in the prerogatives given to seniority there.

HN: I disagree with you not on your characterization of suburban contracts but on your characterization of urban contracts. You brought up Philadelphia. That is one place where half the teachers do have seniority rights to transfer to a vacant job. I can name one or two other school districts, but predominantly, in urban school districts in this country, the most that seniority offers you is the right to an interview. And a lot of our urban school districts don't even address voluntary transfer.

BK: You get no prerogatives from seniority? Even if it's a voluntary transfer?

HN: It is not even in the contract. The most common provision is no provision at all. And after that the most common provision is a right to an interview.

BK: Well, my touchstone is Chattanooga, and in Chattanooga there are 13 factors that can trump seniority, so I don't know how strong that makes seniority. But if there is a wash on those 13 factors than the senior teacher gets the transfer.

HN: That is why you can't just read contracts and jump to a conclusion. You read a contract like that and you say, "Seniority rules!" We read a contract like that and we say, "This is a joke!"

[Laughter]

BK: What happens on the ground then?  Is it a joke or, "Oh my god!"?

HN: I presented evidence that showed that transfer activity and voluntary transfer activity is less in situations with collective bargaining. Without it, you have a lot more of that stuff.

BK: Why is that?

HN: To tell you the truth, I was surprised by the findings because my theory was that there would be no difference at all. Like I said, my observation—I work with a lot of people who deal with contracts—was that contracts have little to say about transfer activity. So if you compare a non-collective bargaining situation that has no contracts, I would expect it to be about the same. As we have discussed this at the AFT, we think that it is the rationalization, the objectivity that contracts bring to the hiring and transfer process, and without that, things occur in the shadows that are unpredictable. For example, in Alabama, a principal in an attractive, middle-class neighborhood can go out and attract teachers to come to his school without the constraints of about anything. With the collective bargaining contract, the job might have to be posted so that everybody knows about it, and it is brought into the open. Something in that process creates a slightly better situation with collective bargaining.

MR: You are correct that one of the districts that we studied was San Diego, and we were recently in California talking to the state legislature there. The California Teachers Association came to testify based on my testimony, and they said, "You're looking at San Diego. San Diego is the anomaly in California. It is the only place where seniority plays a role in the transfer and excess provisions." So then we looked at five other large, urban districts in California and found that seniority provisions played out both in voluntary transfer and excess provisions in those contracts as well. So I will have to disagree with you, Howard that seniority is not in play when it comes to transfer and excess provisions in most urban district contracts.

BK: Although, you agree that there is a role for seniority?

MR: Absolutely, effective senior teachers in these urban districts should be afforded certain rights and privileges. We should absolutely reward them for the good work that they are doing. We recommend that senior teachers should be looked at first when there is a vacancy, even maybe given an interview, but the rights of those teachers cannot trump what is in the best interest of the students.

BK: Howard, I presume that you do not think that is happening now or seldom? And then there is the overall rationale for why these provisions are in these contracts in the first place to the degree that they are. What is the policy rationale for providing any prerogative to seniority? Some of these provisions seem a little strange to those of us who don't work in education. "Oh, you mean the boss doesn't get to decide who gets hired?"

HN: First of all, let us distinguish between being laid off and voluntary transfers.

BK: Fair enough. Being laid off is what we have referred to as excess?

MR: No, being laid off is being laid off from the system. Being excessed from a building means you are still secured a job in the system.

BK: Thanks for the clarification.

HN: OK, either way, let me qualify excessing. I don't think school districts should excess teachers after the beginning of the school year. That's just ridiculous. Whatever problems roll out after that are not problems imposed by a collective bargaining agreement.

MR: I agree.

HN: I think the American public and parents understand the value of seniority. How else are you going to do it fairly? Just let principals target their enemies and get rid of them like some kind of patronage system? Until there is a better way to do it, seniority makes the most sense. We all know that inexperienced teachers in their first and second year, and to a smaller extent in their third and fourth year, are the least effective teachers. The right wing and the left wing and all sorts of economists will agree with this.

BK:  Do we get another agreement on this, Michelle?

MR: Yes.

HN: Of course, this is all on average, like everything dealing with data. Now, in the case of voluntary transfers, I think that even Michelle agrees that maybe veteran teachers should get some right to interview for a job or at least know about a job.

MR: Absolutely.

HN: I also think that if you have 13 factors and seniority is a tiebreaker that makes sense. What we disagree on is when you get into tiebreaking situations and how is it invoked.

MR: Yes.

HN: Empirically, you can measure that by whether it is arbitrated or not. I don't know what the record is on that.

MR: So, you bring up layoffs, which we don't actually address a whole lot in our work, but since you bring it up, let me share with you a story that we found in one of the districts that we studied. We were looking at a district that was suffering from huge budget cuts and a huge deficit within the school district. They laid-off about a thousand teachers that year. The provisions in the union contract required that they lay off in seniority order district-wide. What happened was that we found a school that, for ten years prior to this, had been one of the lowest-performing schools in the city. Year after year, it was unable to make AYP. Finally, the school superintendent actually went out on a big search for a highly qualified principal to come in. When she got there, 50 percent of the teaching spots in her school needed to be filled, so she went out and recruited these people, brought them in, wrote grants, got all sorts of professional development for this cadre of teachers, and for the first time in this ten-year period, the school met AYP. Then the layoffs came, and 50 percent of her staff was decimated by these layoffs. Meanwhile, there were high-performing schools down the street, which had more senior, stable staffs, which were literally untouched by the layoffs. So you are talking about the lowest-performing schools, which need great teachers and stability the most, having to pay the price and bear the brunt of the budget deficits in the system, which we don't think makes any sense.

BK: Howard, would it be your contention that a skilled principal with half a stable staff and then teachers brought through seniority should be able to make AYP another year?

MR: Or that schools should equally share the burden. We would say that every school should be required to lay off three teachers, no matter what your staff looks like.

HN: I won't disagree with your characterization of that specific incident, but it sounds a little bit funny because, if a thousand teachers are laid off district-wide—well, first of all, one reason seniority provisions can be complex is that you can't lay off a high school teacher and have that teacher bump a second-grade teacher. The 13 criteria you were talking about all have to do with whether you are qualified for a specific spot or a specific school. So, district-wide layoff by seniority is not the way it usually works and that should be refined. That's wrong. Second, what I would assume is that class-size rules in the budget process would change, which would mean that every school would have to excess some teachers. While this would work against the principal who just recruited all these teachers, this would actually increase the supply of qualified teachers who are excessed, and they would filter down to the hard-to-staff schools. So a school that made AYP for years would have to excess a couple teachers who would then have to find a job at another school and bring their expertise to that school.

BK: It seems to me that some of the disagreement here is that you are upholding value of experience, Howard, apart from whatever fairness issues there may be, and you are holding up the value of team, Michelle.

MR: I think that experience should absolutely be taken into account. What we are arguing is that, if principals are being held accountable for the results in their schools, they should be able to work with their school team to determine which candidates are the best fit for vacancies in their schools. I think that part of the thing that doesn't make sense to us about allowing the teachers to take positions in schools randomly, just because of seniority order, is that, in some ways, it assumes that teachers are interchangeable parts and you can pluck one teacher out and put another one in and it doesn't matter. That devalues teachers as professionals because everyone has different qualifications and characteristics which need to be looked at and considered individually to determine whether or not it is a good match for the particular environment you are going into in a school.

BK: But does your scheme devalue loyalty to the district?

MR: Absolutely not.

BK: I have heard that as a primary defense of the rights that go with seniority.

MR: Absolutely not. I think that senior teachers, who are effective and who have been teaching for a long time in the district, should be afforded certain rights and privileges. A teacher can leave a district at any time, right?

BK: Many urban teachers do!

MR: Right! They are not going to say, "I will teach here for the next twenty years regardless." It needs to be a two-way street; if the teachers allowed to leave at any time then shouldn't the school district be able to look at the teachers, evaluate their performance, and decide whether or not they should be employed on a yearly basis as well? 

BK: I have been meaning to ask Howard: are principals worse bosses than others? We tend to trust hiring to bosses in our economic system and society. Do they not do as well?If teachers had a significant part in hiring how would things change?

MR: We agree that teachers should have a significant role in hiring. Principals should work with teams of constituents—both parents and community members as well as teachers—to make sure, again, that it is a good match for their school.

BK: We aren't letting Howard get off the hook about principals!

HN: Someone said I was going to say this…

BK: And now you are about to say it?

HN: "That's what I was going to say!" The part about school-site hiring is very prominent in our contracts now. It is almost like the automatic magic bullet we pull out when we are in a troublesome situation. We like school-site hiring. On questions of fit, I think that's the way to do it! You do need some administrative oversight so that you can get a mix of new and experienced teachers, racial balance, that sort of thing.

BK: On your hiring committee? Or you mean guidelines for hiring? 

HN: From the HR department saying whether a school is too white and you should hire a minority candidate or something. I don't want to say anything negative about principals because they attract teachers to school and keep them there. It won't help us to say that principals are incompetent. On the other hand, principals have multiple agendas, and they are not always good. That is especially the problem in high-poverty, urban schools. It could even be worse than the teacher quality problems in those schools. I think trusting everything to a principal backfires, especially when principals are only in an urban school an average of four years. You can't have a new teacher coming in every year and changing the rules and hiring new teachers.

MR: We agree with that. Principals should not have unfettered control. I would go a step further than you and say that a significant number of principals in urban districts are incompetent. That is a problem that needs to be solved.

BK: So you would not entrust hiring to them?

MR: No. One thing we need to consider is that it is very difficult to conceive of being able to attract high quality principals to the profession when their hands are often tied by these hiring provisions. You won't get a lot of people wanting to become principals when they can't have hiring and firing power over their staff, especially when they will be held accountable for the results.

BK: We are about ready to move into questions so here is one wrap-up question. You are moving into a district. You have 100 percent energy to put into solving the staffing problems we've been talking about here. How much of that energy are you going to give to changing these staffing rules that more or less characterize urban districts, the ones that favor seniority, and how much will you put into other things like changing the hiring process in general and changing the timeline or getting better principals? How big a deal is this? How much of your energy do you want to throw into this? Because these are the choices that administrators and policymakers make every day. Where will I push?

MR: I'd say that it is a complicated puzzle when we think about how we change the situation that urban schools are in. There are lots of pieces to that puzzle. These hiring provisions are one. I don't think that it is 70 percent of the problem. I don't think that it can be unlinked from the hiring timeline because it has a huge impact on the hiring timeline. I don't think it is one of the first things that needs to be changed, however, because I don't think you will succeed in bringing in high caliber principals until they get a say in what they're staff looks like.

BK: Howard, would you agree that it is one of the first things that needs to be changed?

HN: Well, what do you mean by policymakers—policy with a big "p" like state legislators or congress or policy makers, as in management, who are at the table with the union? I'll start with the big "p." I think that teachers should have right to decide whether they have a collective bargaining contract or not. There are eleven states that prohibit it, and those legislators could change their minds. Mexico and Oklahoma sort of flip back and forth. The evidence suggests that there is something about bargaining that helps with these situations. Then, I think that the problem with urban districts generally—even though it shows up in high-poverty schools it is really an urban problem—is an insufficient supply of qualified, prepared teachers who grew up and were educated in an urban system. This connects to an argument, that many of you are familiar with, that labor markets are very local and urban districts just to fill jobs are attracting teachers from the suburbs where there are plenty of good teachers—at least at the moment—and you can attract them, but it is hard to hang on to them for very long. So what urban districts need to do—it can be big and little "p"—is working on programs like Grow Your Own, taking teacher's aids that seem skilled, alternative certification programs like Teach For America, or Teacher Fellows in New York. It looks like that is really working. There is a different way to get quality people other than the traditional qualification process, which tends to favor the suburbs. I think we need to work with non-selective teacher preparation institutions and not beat them down or wipe them out but strengthen them because a lot of teachers from urban areas come from there. So it is a combination of attracting and then preparing a new source, increasing the supply.

BK: So you would let the rules be?

HN: I don't think the rules are a problem now, but when they are, like in hiring timelines, I think we can work them out.

MR: The only reason we are worried about these hiring provisions is that they will negatively impact the hiring timelines.

BK: If I might drag in Chattanooga one more time, it is like a dream scenario, according to the UniServe director. The superintendent has been doing collaborative bargaining. He came to the unions and said, "We need to change the hiring timeline." The union, after hearing the way that it played out in the high-poverty schools in Chattanooga, said, "Maybe we do need to change the timeline." They did that while preserving seniority and their 13 criteria that trump it, but they start hiring people in April.

MR: It should happen before April, but that is the hope that we had in writing our report. We have no interest in saying that there shouldn't be collective bargaining or tenure, which a lot of people want to characterize the report as saying. What we are saying is that these provisions have a negative impact on the hiring timeline, and now that we have the data to show that, we should sit down together and try to figure out how to solve that problem.

BK: Howard, does that sound like a reasonable way to go, to work on the hiring timeline problem?

HN: That would certainly be a first step. We should get some clarity on voluntary transfers. All of our locals will steadfastly support seniority in the case of layoffs. Excessing gets complicated. It's too bad that in a contract you can't negotiate no excessing. Maybe we should try that.

[Laughter]

MR: We would be partners with you on that.

BK: So what would you say are your biggest points of disagreement? 

HN: What I just said. Agreement: work on the hiring timeline. Disagreement: I am saying that, in involuntary transfer situations, contracts add objectivity but seniority does not rule. And I am not going to characterize what Michelle will say, but I think she thinks differently on that issue.

MR: I would say that based on our review of the contracts, seniority still plays a potentially too-significant role in the hiring of teachers.

Question and Answers from the Audience

Questioner 1: I am from the AFT, and I think that Michelle's slide—which has been up on the screen all this time—is very important. Before working for the AFT, sometime in my checkered past, I worked for the ETS, and I find that policymakers like to deal with tests and collective bargaining agreements, because they are the cheap ways to deal with these problems. But if you think of the concept "hard-to-staff school," it seems to me, we should get at the issue of why. We should not have hard-to-staff schools. We should focus on why they are hard to staff. The surveys of teachers do not say, "I can't stand these children and that's why I am leaving!" They talk about disruption, lack of materials, facilities falling down, and administrative chaos. If we are going to be serious, it is not that we don't need to look at issues of bargaining agreements, but it is trivial compared to the issue of how to staff schools. We shouldn't have hard-to-staff schools.

Questioner 2: I work at The New Teacher Project, and one of the things that I have seen in our work is that the crucial but missing piece of this debate is the role the school districts play. A lot of times, the collective bargaining agreement is not particularly specific about how the provisions are implemented. Sometimes, on the part of school administrators or central administrators, it results in sometimes explicit, sometimes perceived collective bargaining agreement issues. So why isn't the school district in this conversation and talking about how it plays into these problems? 

BK: I promised Howard I would mention Rick Hess's observation that the language in the contract is one thing; often there is plenty of ambiguity. He makes the point that districts don't press where they can to eliminate some of the negative effects of seniority scheme.

MR: I think we are clear in our report that districts play a large part in this as well. One of the things we want to make clear is that we are not saying in this report that the unions are solely to blame. People ask me all the time "What the unions should do?" It is the unions' job to protect the rights and to maximize those and the pay of their members. Until now, there was no data that showed that seniority provisions had a negative impact. Meanwhile, you have the superintendents and school boards that are also signing on to these contracts because there were no perceived economic costs. They bear just as much of the burden of why these things are in place, and why they need to be solved, as anyone else.

BK: I am struck by your characterization of unions because I am not sure that they would agree with that. It is certainly more public relations-friendly to say that unions have a heavy duty interest in quality schools.

MR: I wouldn't say that they don't, but that is their primary purpose. I think they would agree that their primary purpose is to provide services to their members.

HN: I don't agree with that because without quality institutions, we don't have members, so it is the same issue. The point you raised is excellent. I would like to point out that today I presented evidence, I think for the first time, about transfer rates. Inside the black box, we see that collective bargaining works better than non-collective bargaining situations in minimizing transfers and its possible negative impacts on students.

BK: Audience, do we believe that?

Questioner 3: Last year I was a teacher, and I am actually a union member. It seems to me that the problems you have raised about excessing and not being able to hire new teachers would not be a problem if the teachers who were excessed and the senior teachers within the district were good teachers. The problem is that you are talking about ineffective teachers. The problem would disappear if the excessed teachers were good teachers. I wonder if the problem disappears if we are not talking about the worst teachers being bounced around the district or about bad teachers with seniority preventing the hiring of new teachers. I guess my question is a question to the union. To what extent, when teachers are excessed or asked to move to another school, do the unions identify those teachers as ineffective and—rather than having them bounced or fired—give them remediation. Being a bad teacher isn't terminal. The whole idea as educators is that people learn and get better. What I don't hear about is how to help teachers who are in trouble. To what extent do unions have a role in that and to what extent would that make the problems disappear?

HN: You brought up two things. First, I don't agree that the worst teachers are being bumped around and that they are the ones that are excessed. The seniority rules determine that. Second, you raise a very good point that what unions prefer, with teachers who are having problems, is to go into some kind of mentoring program, and this is quite common. It was invented in Toledo by the union, and a lot of teachers leave teaching as a result of these programs rather than through the formal process of dismissal.

BK: If all teachers were good teachers, though, would the problem disappear, Michelle?

MR: The problem would not be as severe. If principals were not in these conditions where they felt like they were moving teachers out of their buildings through these transfer nexus processes because they were low-performing, they would feel that the pool of people potentially moving into their building were higher quality. That would help. I run a large organization; I don't think I would ever want to be in the position where someone, good or bad, was forced on our organization without the right of refusal on our part. That doesn't make sense. You want to be in a situation where you are able to consider what the qualifications and characteristics are of those people and whether it is a good fit for your organization.

BK: I think Howard would say that there aren't too many places where there is no right of refusal.

MR: In three of the five districts we studied, senior teachers have rights to jobs based on seniority only.

HN: Just one more observation I wish I could have made earlier: You have one set of union critics saying, "Oh my god, these voluntary transfer positions and exercising seniority rights, they are leaving the best, most experienced teachers to go to middle class schools." Then we hear Michelle say that principals are working underground, covering up bad records and trying to shove their teachers into the voluntary transfer process where the bad teachers can use the voluntary transfer process to go somewhere. Please, get your story straight. Let's get to the data on this instead of one theory versus another.

BK: You say that people aren't lured through the provisions of collective bargaining agreements to wealthier schools.

HN: What I am saying is that they cannot simply exercise seniority to take those jobs.

Questioner 4: I am from the Urban Institute. I found this very interesting. As a researcher, I look at something, I find it interesting, and I try to figure out what is going on and why things seem to be counter to what emerges as the conventional wisdom. One question I have for you, Howard: when I work with school and school district data, I always find district size to be an important variable—which gets to your question of why no one talks about the district. Have you run any of this analysis controlling for district size? I think a lot of the literature—certainly the districts where Michelle has worked or the large districts, and the work of Margarita Rosa and Paul Hill—have all been in large districts. Organizationally, these large districts are very different animals from small districts. The vast majority of districts in the U.S. are less than 2,500 students. Most of the research that has been driving this story has been in big districts where there are lots of poor kids. I am just wondering if you've done any analysis cutting it that way and if we would see a different story if we cut it that way that would align closer what you are finding with what some of the other studies have been suggesting.

HN: I cut it by urban, suburban, and rural. I didn't talk about rural. There are problems with rural districts, though they are a different set of problems.

Questioner 4: District size tends to be a big explanatory factor.

HN: My data had schools and places like Florida, one district can have urban, suburban and rural schools so I did cut it different than district size. Your point is perfectly made that the implementation—to get back to that question—of a contract in a large, urban school district could be a lot different than the implementation of exactly the same contract in a smaller suburb because, like you said, there are more poor kids, and there is also a lot more residential mobility which goes with poverty, but that is probably the bigger problem when it comes to excessing and those sorts of issues. Then you have sheer quantity. In New York City, a budget office or personal officer told me that they know what money they are getting at the same time as the suburbs, approximately July 1 when the legislature settles, but it takes them six weeks to filter all of this stuff into each individual school so that they know who they can hire at the school level; a suburb can do it in a day. This is covered under Michelle's issue of budgetary issues, and the point is that it is not entirely the fault of the budget people in an urban district, it is just a factor of size itself.

Questioner 4:  It might be an interesting analysis if you cut it that way to see if we got different patterns because larger districts tend to be more bureaucratic in every way.

BK: Are you saying that if you looked at just large districts then you might get findings different from Howard's that collective bargaining is associated with lower transfer rates? 

Questioner 4: I am not sure which way it would play out, but I know from my own research that district size is a very important factor in explaining anything that is going on in school districts, the good, the bad, and the ugly. To omit it leaves a lot of stuff going on in this data that we are unable to sort out. It is unclear when we are attributing results to urban—which I think is a bad measure—or collective bargaining or not collective bargaining, we could somehow be attributing some of what is going on in district size to the those factors. There is a lot of noise in these data that you could clear out with district size, and you may see very different patterns for collective bargaining in the large districts than in you see in the small districts with regard to transfer factors. The other reason that it is important is that when you think about mobility models or vacancy models and chains, it is all going to be affected by the number of vacancies available. In a large district, there are lots of schools, and so there are lots of vacancies. It is a bigger deal to move outside a district than within it for an individual teachers. What I am saying is that I think these findings are interesting, and I would like you to push them harder to see how the patterns are either sustained or change.

BK:  I was fascinated that with collective bargaining, low-poverty schools are no more likely to hire first-year teachers than high-poverty schools. High-poverty schools aren't at a disadvantage with collective bargaining, but they seem to be without collective bargaining. That wasn't my picture of things. I ask why might that be, and I think maybe that is because without collective bargaining you are in a high-growth southern or western state and you have more classes opening up.

HN:  The high growth issue, you have in California and Florida in that collective bargaining camp. My observation, as someone who analyzes budgets and staffing patterns, is that if you are a principal in a middle-class neighborhood in a city, you like the new teachers. You can mold them. You have your pick. The data in New York City says that the first-year, certified teachers from the traditional process go to the middle-class schools in New York City. If you are a principal in a tough school, you want experience. So, I think that's why you see the data show up as it is.

Questioner 5: Good morning. I am a D.C. public school teacher, third grade, and a member of Teach For America. My comment piggy-backs on questioner one. I think this is a very academic discussion, yet as a frontlines teacher, I don't like that we are discounting principals that they don't have a role in keeping teachers in our schools. In Washington D.C., we have a union that yes has had some problems, but we are coming back. We have a collective bargaining agreement, yet my principal has violated provisions of that agreement multiple times throughout the school year, and as we have tried to go through our union to help with that, it took ten months to get AFT into our school to help, and now we are on our way out. We have 15 days of school left. I wonder how we can empower our teachers better through collective bargaining agreements. Yes, they exist, but I don't see it on my local, sight level. I know so many teachers in the district who are having principal issues. That is why I am loosing 15 teachers from my school this year. We only have a staff of 17. They are all trying to go to Maryland and other schools. The principals have such an impact on this, whether or not there is a collective bargaining agreement. I wonder if that is because there is not as much local-based help within the collective bargaining agreement.

MR: I can't speak from the union point of view about services to its members, but I agree that the quality of leadership in our schools is very serious and needs to be addressed.

HN: Somehow we have to get better. You indicate that you want help and that collective bargaining and working through the union would be helpful in your schools. That is key. We have to get better in that situation.

AR: We end with a bit of common ground! Thank you all very much. Thank you, Howard and Michelle, for your efforts. I also want to thank Bess for moderating and all of you for questions. It is the questions that help to tease out these issues.

One of the good things we saw today was two different sets of evidence and some differing interpretations. This issue is not going away. One thing I am very excited about is a project—Dianne Piché is here from the Citizens' Commission on Civil Rights and along with the National Council on Teacher Quality an organization that I am involved with, and I am actually serving as an advisor for this project—the Gates Foundation is funding a project to put collective bargaining contracts online and break them out by key dimensions to make them easier for people to look at. I think that will take this debate from where it has been, which is a lot of stuff just being tossed back and forth, to one on more empirical footing. What is exciting is that we will be able to come back to this same room, maybe next year or the year after, and this debate will get more and more granular as we go forward, and that's for the good.

On behalf of Education Sector, thank you for coming.