It has been that way for many years, and while the body of decisions by the IELRB grows, it’s you’d think that the jurisdiction of the Board is rarely questioned.  Schools are in, everyone else is out. 

Of course, no issue of labor & employment law is ever really settled.  Even whether schools are within the jurisdiction of the Education Labor Relations Board.

When is a School a School?

A union in Kane County filed with the IELRB to acknowledge majority representation of the teachers of a charter school, and the Board certified the union.  The school took issue, arguing that the IELRB does not have jurisdiction over charter schools because they’re not “educational employers” as defined by the IELRA.  The Board disagreed, and the school appealed.

The school’s argument was that the Charter School Act exempts charter schools from “other [s]tate laws and regulations under the School Code”, and that this exemption included the Education Labor Relation Act.  The union countered that the IELRA was not an education law, but rather a law about how an employer that happened to be a school dealt with its employees.

The Fourth District Appellate Court sided with the school.  The court separated the phrase excluding charter schools from certain state laws into two interesting parts:  “other state laws” and “regulations under the School Code”.  The court pointed to non-education laws that are specifically mentioned in the Charter Schools Act, saying that the legislature clearly did not want to limit the exlusions to education-related laws:

…to conclude that charter schools are not exempt from the Education Labor Act would be to assume the legislature overlooked the Education Labor Act when it drafted the list of specific exceptions. We reject this assumption and conclude that the omission of the Education Labor Act from the list of specified exceptions is not somehow a legislative oversight.

Questions of Intent

The court’s opinion notes that both sides, along with numerous other interested parties, wrote briefs analyzing the legislature’s intent in drafting and passing (or opposing) the Charter School Act, as a way of proving that the schools should or shouldn’t be under the Board’s purview.  The court did a decent job of sidestepping the political issue inherent in that discussion by holding that the statute was plainly written, and refusing to consider what the intent of specific legislators was in drafting it.

A Moot Point?

The court’s opinion ends with a note that a recent legislative change specifically states that charter schools are “educational employers”.  The law isn’t in effect until next year, though, so the court said it couldn’t apply to the case before the court.  Nonetheless, it seems that one major difference between charter schools and typical public schools – the lack of unionized teachers - may be in flux in the coming years. 

At the very least, it looks like next year we won’t be questioning whether schools are under the jurisdiction of the IELRB.

Original photo by eye2eye (flickr)

The Workplace Prof Blog tipped off this story in the National Law Journal about the ongoing litigation between three former law professors at the Ave Maria School of Law and the school’s founder and financier, Tom Monaghan (the Domino’s guy).

The lawsuit has been going on for over two years now, with the professors claiming they were fired for voicing concerns over the legality of uprooting and moving the ABA-accredited school to Florida.

Now Monaghan has filed a motion to dismiss the case using what some see as a novel approach.  From the NLJ:

In the latest twist to the two-year-old suit… Monaghan… filed a motion last month claiming that the law professors are “ministerial.” Therefore, he argues, because the school is a religious institution, the administration over these minister-professors is exempt from civil trial court under the “Establishment and Free Exercise of religious clauses of the First Amendment.”

Monaghan also claims that the institution is eligible for “ecclesiastical abstention,” requiring courts to “abstain from inquiring into, or interfering with, governance of the religious institution.”

Seems crazy, right?  You’d think there’d be no support for a position like that, but it turns out that in cases where professors – law schools included – are actual ministerial employees, ecclesiastical abstention has been a decent defense.  The NLJ article mentions McDonough v. the Catholic University of America (83 F.3d 455 (D.C. Cir. 1996)) - where a nun/law professor’s sex discrimination case was thrown out as a ministerial matter outside of the court’s purview.  And Monaghan’s motion points to various sections of the Catholic canonical law regarding treatment of university faculty as a sign that the courts should stay away.

The difference here, of course, is that none of the professor plaintiffs are actual clergy.  Instead, Monaghan argues that if their jobs require them to address some theological issues related to their specialty (which Canonical law requires), they are ministers enough for the court to abstain from hearing the case. 

The McDonough court framed the ministerial exemption pretty broadly, actually:

[T]his circuit and a number of others have long held that the Free Exercise Clause exempts the selection of clergy from Title VII and similar statutes and, as a consequence, precludes civil courts from adjudicating employment discrimination suits by ministers against the church or religious institution employing them.

***

The ministerial exception has not been limited to members of the clergy. It has also been applied to lay employees of religious institutions whose “primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship….”  If their positions are “important to the spiritual and pastoral mission of the church,” they “should be considered ‘clergy.’”

(Citations Omitted)

Everything I’ve read about the motion sort of frames it as a bizarre stalling tactic (the attorneys for the professors certainly thinks it is), but if the standard in McDonough is applied, then I think Ave Maria at least has a solid argument here.

The American Federation of Teachers President Randi Weingarten stated in a press release, “The AFT fully supports the President’s call for shared responsibility for education…”  A bold move, maybe, since many AFT locals disagree with the President’s view on merit-based pay.  Weingarten went onto state, “as with any public policy the devil is in the details.” 

One of the arguments against merit based pay is that rewarding teachers with more pay based on the achievements of their students is biased and unfair. Critics of merit based pay feel that many low performing schools won’t improve just by giving the teachers more money.

Their argument is that money is not the only problem when it comes to these low performing schools. Parental responsibility and involvement coupled with socio-economic factors are just some of the reasons the areas these schools are underperforming and no amount of money will fix these problems until a conscience effort is made by all in the education process (i.e., families, teachers, administrators) to “fix the system”.

Proponents of the merit based pay system feel that by rewarding teachers who strive to improve, not only their students test scores, but themselves professionally, schools will retain the best and brightest of educators, who, in turn, will improve the educational process in their schools.

One thing President Obama did not address with much detail yesterday was the controversial No Child Left Behind Act.  The NCLB has been a contentious issue since its enactment.  Many feel it requires teachers to “teach to the test”, and it disregards classes such as music, PE, and art.  As Obama gets settled and attempts to get the economy rolling again, a plethora of educators will be waiting to see what he does, if anything, with NCLB.

At the end of the year, the District issued Wood a letter informing her – without providing a reason - that it would not be renewing her contract for the following school year.  Wood sued the District, claiming she had tenure, and the District couldn’t terminate her contract without cause. 

The School District argued that Wood wasn’t tenured because she hadn’t taught for four consecutive years.  She taught for two, was out on disability for one whole year, and then taught for another year.  The curcuit court agreed with Wood and ordered the District to reinstate her.  The District appealed, and last week the Court of Appeals sided with Wood as well.

In Illinois, by statute, teachers reach tenure after 4 consecutive years in the same district.*  Tenure, of course, means job protection – a nontenured teacher is employed year-by-year, while a tenured teacher’s contract automatically renews – they can only be fired for cause, or as the statute puts it, “a specific reason.”

The Appellate Court said that the School Code didn’t require four years of teaching – it required four years of employment as a teacher:

It is undisputed that Wood was employed in the district as a full-time teacher for four years.  That she was granted a leave of absence from her teaching duties to recover from a serious injury does not change the fact that she was a contractual employee and that she was paid as a full-time teacher for four consecutive years, including the [year she was on leave].

Finally, it’s important to note that the District’s error was not necessarily terminating Wood, but that it didn’t give “a specific reason” for the termination.  Since she was arguably on the cusp of tenure, and there’s no rule against giving non-tenured teachers reasons for their termination, the District could have saved itself a lot of time (and money – appeals aren’t cheap) by explaining its reasoning in the first place.

 The court seemed to think the District may have omitted the “specific reason” because it didn’t have one.  In dicta, the court noted that the District renewed Wood’s contract the year after her leave, which means they must have “held a favorable view of her abilities” at the beginning of the year. 

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*IL School Code – 105 ILCS  5/24-11

Read the decision: Wood v. North Wamac School District No. 186