Still Another Madison Prep Update: After all this, Is a Non-Instrumentality Simply a Non-Starter?

The Urban League’s Madison Prep proposal continues to garner attention as we draw closer to the School Board’s December 19 up-or-down vote on the proposal.

This weekend the news has been the school district administration’s analysis of the Urban League’s current proposal for a non-instrumentality charter school (i.e., one where the teachers and other school staff would be employees of the Urban League rather than the school district and the school would be free of most administrative oversight from the district).

The analysis recommends that the School Board reject the Madison Prep proposal, for two principal reasons.

The first is that, as a matter of policy, the administration is opposed to non-instrumentality charter schools because of the lack of day-to-day oversight of their operations.  The second reason is that there does not seem to be a way the school district could enter into a contract for a non-instrumentality charter school without running afoul of our collective bargaining agreement (CBA) with Madison Teachers Inc. (MTI).

While this negative conclusion has appropriately drawn the headlines, the analysis also addressed and allayed some other concerns that have been expressed about the Madison Prep proposal.  For example, the analysis finds that the proposed temporary location of the school at the former Mount Olive church would, with some renovations, be adequate for the first three years of the school’s operations.

There have been a number of concerns expressed about Madison Prep’s plans and capacity for dealing with the needs of students with disabilities.  The administrative analysis recommends that, if the school is authorized, Madison Prep contract with the school district for case management services, evaluations, and services that exceed the capabilities of the charter school’s special education staff.  This seems like a sensible and workable approach to the issue.

No How, No Way to Non-Instrumentality?     

But what about the analysis’s two big objections?  The first is to the non-instrumentality approach.  According to the analysis, “the non-instrumentality charter school model goes beyond freedom and flexibility to a level of separateness that the Administration cannot support.”

I appreciate having the benefit of the administration’s helpful analysis.  However, whether the school district should be willing to consider authorizing a non-instrumentality charter school seems to me to be a policy matter that’s up to individual School Board members to decide.  This is an area where I think we owe less deference to the administration’s views than is appropriate with respect to operational issues.

My view for some time has been that I would not oppose the Madison Prep proposal simply because it called for a non-instrumentality charter school.  Back in February, during the time I was up for re-election, I wrote in response to an MTI candidate questionnaire, “I’m open to considering the Madison Prep proposal.  I won’t oppose it simply because the proposal is for a non-instrumentality school.”

Among other issues with a non-instrumentality proposal, it would be a challenge to identify and impose reasonable and adequate accountability measures.  But I don’t think we should automatically turn our backs on a charter school model that is specifically authorized by state statute and that is widespread in other states.

A Non-Instrumentality Still Can’t Be Reconciled with our CBA.

The administration’s second objection to the Madison Prep proposal is a real one, and one that I have been concerned about for some time and have written about before here and here.

The school district has a collective bargaining agreement with MTI that extends until June 30, 2013.  The CBA has a work preservation clause that mandates that all teachers employed by the school district must be members of MTI’s bargaining unit.  As far as the school district and MTI are concerned, a Madison Prep teacher would be a “teacher” within the meaning of the CBA, whether the school is an instrumentality or non-instrumentality. If Madison Prep does hire teachers who are not MTI members, and does not recognize MTI as the bargaining representative for its teachers, then it certainly seems like this would put the school district in violation of its CBA with MTI.

Here’s an email that I sent to Kaleem Caire on November 18 that describes the issue:

Kaleem —

It would be helpful to have your thoughts on how the school district could authorize Madison Prep as a non-instrumentality charter without thereby violating the terms of the district’s collective bargaining agreement with MTI.  Specifically, The school district’s CBA with MTI includes an agreement “that instructional duties where the Wisconsin Department of Public Instruction requires that such be performed by a certificated teacher, shall be performed only by ‘teachers.’”  For purposes of the CBA, “the term ‘teacher’ refers to anyone in the collective bargaining unit.”  Hence, it appears that all teachers in MMSD schools — including non-instrumentality charter schools — must be members of the MTI bargaining unit.

Can you shed any light on this issue for us from your perspective?  Thanks.

I received a response to my email Friday night.  You can find it here.  In a nutshell, the response makes two points.

The first is a fairly half-hearted argument that the state statute authorizing school districts to enter into contracts for non-instrumentality charter schools trumps or pre-empts any language in collective bargaining agreements that restricts school districts along these lines.

I say the argument is half-hearted because no authority is cited in support and it just isn’t much of an argument.  School districts aren’t required to authorize non-instrumentality charter schools, and so there is no conflict with state statutes for a school district to, in effect, agree that it would not do so.  Without that kind of a direct conflict, there is no basis for arguing that the CBA language is somehow pre-empted.

The second point the letter advances is that a way out of the dilemma may be provided by recently-enacted state legislation, known as Act 65.  This bill allows a school district and  union to enter into a Memorandum of Understanding (MOU) “that reduces the cost of compensation or fringe benefits in the collective bargaining agreement” without thereby triggering the draconian provisions of Act 10, the anti-collective-bargaining legislation that provides that any amendments to CBAs are effectively their death knell.

The letter states in relevant part:

The Urban League believes that Act 65 gives the Board and MTI the opportunity to make changes that will facilitate cost reductions, based in compensation and fringe benefits, to help Madison Prep move forward.  And, the law allows the parties to do so in a way that does not adversely impact the teachers represented by MTI or the union security provisions of the Collective Bargaining Agreement.

For example, the parties could agree to reduce the staffing costs of Madison Prep.  The parties could also agree that a longer school day would not have to cost more.  And, the parties could agree that the work preservation clause referenced in the first part of this letter does not apply where the School Board has determined a charter school will be a non-instrumentality of the District, a move that would also most certainly reduce costs.  These changes would not be forced upon any existing MTI represented teacher as teachers would apply for vacancies in the school.

I’m afraid I don’t find this argument persuasive.  The type of MOU authorized by Act 65 reduces the cost of compensation or fringe benefits specified in the CBA to be paid to bargaining unit members. This may have been applicable if the Urban League were still pursuing an instrumentality approach, whereby Madison Prep teachers would be members of the MTI collective bargaining unit.

The legislation does not seem to have any bearing on provisions in a CBA that address issues other than compensation or fringe benefits, such as the type of work preservation agreement that is the stumbling block here.  Since teachers at a non-instrumentality Madison Prep would not be members of the MTI bargaining unit, the CBA has nothing to say about their compensation or fringe benefits.

In short, the legislation does not authorize changes to a CBA that may have some indirect effect on a school district’s costs – such as an agreement “that the work preservation clause . . . does not apply where the School Board has determined a charter school will be a non-instrumentality of the District,” even if that would “most certainly reduce costs.”  Instead, the law is clear that the authorized changes must reduce the cost of compensation or fringe benefits paid to members of the collective bargaining unit.

Don’t Blame MTI.

I’m not a big fan of the work preservation clause in the CBA, but I am a fan of our respecting the terms of the contracts we enter into.  MTI has bargained for the work preservation clause and is entitled to its protections for as long as the CBA remains in effect in its current form.

It is frustrating that that we seem to be at a place where this provision prevents the school board from authorizing a non-instrumentality charter school, no matter how beneficial it might seem for our students.  But I think it’s important to recognize that MTI is not at fault here.  It’s unfair to blame the union for either the inclusion of this clause in the CBA in the first place (the School Board had to agree to it, after all) or for declining to consider changes in the CBA at this point, when any change would be a poison pill that would destroy the agreement (other than changes that reduce compensation or fringe benefits in the way that is authorized by Act 65).

It also seems appropriate to note here that I thought the Urban League and MTI tried in good faith to figure out a way for the Madison Prep proposal to proceed as an instrumentality of the school district.  For various reasons, that just didn’t work.  But the course of negotiations proceeded in a way that was inconsistent with the notions that the Urban League was just trying to bust the union or that the union was just trying to kill the charter school proposal.

What’s the Least-Worst Option for Madison Prep Supporters at this Point?

So, what comes next?  From the perspective of the CBA, the best approach has always been to wait a year.  If Madison Prep were to enroll its first class in the fall of 2013, then either the CBA work preservation clause would no longer be operative (if the provisions of Act 10 remain in effect) or else the school district and MTI could address the issue in a new CBA (if the provisions of Act 10 are repealed prior to that date).

I understand that Madison Prep supporters do not want to wait another year.  That type of delay would be a problem with the Urban League’s planning grant with DPI, which is premised upon a charter school opening its doors in the fall of 2012.

I suppose that if sufficient School Board votes could be mustered for the Madison Prep proposal today – which is very far from a sure thing – there may also be uncertainty created by School Board elections in the spring. It is conceivable that new board members could be elected who have different views on the issue and who might try to put a kibosh on the proposal before the school started operations in 2013.

But given the CBA complications, I don’t see how the school board can authorize a non-instrumentality Madison Prep to open its doors next fall, and I say that as one who has come to be sympathetic to the proposal.

Perhaps supporters could coalesce around a second-best approach whereby the school plans could proceed except that the first class of sixth-grade students would spend their school days in their home MMSD middle schools and gather at the Madison Prep site after school for tutorial/enrichment classes and athletics and co-curricular activities.  The school sponsors could continue to stress high academic expectations, mentoring and community support, and parental engagement for their first class of students, even if they would not be able to attend classes at Madison Prep until seventh grade.

A Denouement on the 19th?

As this suggestion indicates, there’s no elegant solution to the issues that continue to surround the Madison Prep proposal, despite the Urban League’s efforts to adapt and respond to community concerns.  It’s a complicated situation and a challenging one for us School Board members, who are each trying to sort through all the cross-currents and think through in our own way what’s best for the district and our students. We’ll reach some sort of a resolution at our School Board meeting on the 19th, but I won’t be surprised if – one way or another – the Madison Prep saga doesn’t end there.


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17 Responses to Still Another Madison Prep Update: After all this, Is a Non-Instrumentality Simply a Non-Starter?

  1. Dorothy says:

    Did I miss something, or have you not written about your reasons for becoming sympathetic to the proposal? However moot that may be at this point.

    • Dorothy –

      You’re right – I haven’t yet written in any detail about the factors that have caused me to be more sympathetic to the Madison Prep proposal. There’s a lot to say. I tried to summarize my thinking to include in this reply, but even that effort got away from me and was turning out to be much longer than I intended. I certainly hope to set out my current views in another post prior to our vote on the 19th.

      • Mark says:

        I look forward to that post. May I suggest the sooner the better, for you have been a voice of calm thoughtfulness, while in recent days other key parties seem to be escalating the emotional level of the debate in ways that make it harder to see the best path.

  2. Laura Chern says:

    I urge caution concerning the location of Madison Prep. I don’t think the Freedom from Religion Foundation will hesitate to sue if they feel they have just cause.

  3. Lauren Mikol says:

    I think there could be other options, such as Madison Prep going back to being an instrumentality and increasing what they would pay staff, accept that School Social Worker and School Psychologist would be bargaining unit members, since the people they hire, whether instrumentality or non-instrumentality, would have to hold DPI licenses, which most in the private sector do not have. They could balance off the increased budget for staff by reducing administrative costs, such as having only one principal for the two schools for the first few years, reducing the otherwise large number of administrative positions for such a small student body over the first several years, reducing the “administrative fee” paid to Urban League (which pays for what, by the way?), staggering the starting and ending times of various staff to accomplish the longer day without extra compensation, hiring staff for the extended year as others are hired for summer school and at those salary levels, not requiring and thus not having to pay for uniforms but instead set a dress code that is somewhat similar, like plain dark pants (and/or skirt for girls) and a plain white or light blue shirt/blouse, all of which could cost a lot less than a set uniform, not plan the bonuses they wanted to give for signing and for “performance”, seek donations from businesses for hardware such as computers, furniture, etc. If they get creative, this could all be do-able. The core of what they want to do could remain intact. Students wearing Uniforms, for instance, is not an essential core to the program, like the instructional method and curriculum are. If they really want to start this school by fall 2012, then they need to be more flexible, and not so “do it our way” or nothing. I saw virtually no change overall in the non-instrumentality proposal than the instrumentality proposal other than making that change and justifying further their plan for staffing with persons of color. Their holding out in agreement process with MTI over the exclusion of Social Workers and Psychologist from being hired as MMSD employees was just plain ridiculous. If there are some DPI licensed School Social Workers and School Psychologists out there in the private sector who would meet their racial profile of desire, those people could be employed by MMSD. MMSD would love to be able to hire more qualified Pupil Services staff of color! If they really want to exist, and I hope they do, then they should be willing to give some on some issues, drop some of the frills for now, reduce some administrative costs, and get creative in how they can further reduce costs. I noticed, for instance, in their discussion of how they would eventually buy or build their own building, they spoke of building up the funds through excess funding from operational costs over several years. What excess funding are they talking about?

  4. janeofdane says:

    So MMSD is arguing that diversity is one of the great things about Madison Public Schools but is ready to fund a charter school seemingly based on the principle that segregation by race and gender is necessary to the closing the achievement gap? Sorry; as a member of a racially-mixed family, I don’t believe in segregation and don’t think segregated education should be funded by our public monies. The Prep model is unproven in Madison and unimpressive in cities like Chicago where it has been tried. If some group wants to try this with private funds, go right ahead. But our public funds should be spent on inclusive strategies aimed at underachieving kids regardless of gender or background.

    First item of business for the school board; pass the proposed conduct policy based on the Positive Behavior Support model and stop expelling/suspending so many minority kids!

  5. Torrey says:

    Ed, you had said: “I’m not a big fan of the work preservation clause in the CBA.”

    What did the school board do to try and get this clause removed from the CBA before it was extended this past Spring? Why was it not negotiated out of the contract by the district since the district knew at that time that Madison Prep was seeking non-instrumentality / non-union status? Why would the school board effectively sign away their authority and power with regards to implementing a non-instrumentality charter school down the line if it so desired?

    It seems to me that the school board ceded some of it’s state authorized powers to MTI, and I’m not sure why. I understand that negotiations and concessions are made in any collective bargaining agreement, but it seems odd to me for an elected school board to give up it’s inherent power to create and authorize the creation of schools.

    • Torrey —

      This is a fair question. The work preservation clause has been a part of the collective bargaining agreement for many years. I don’t know the background of how it first was included or what efforts were made over the years by the school district to eliminate or modify it.

      Given how important the provision is to MTI, I imagine it would have been an enormous challenge to reach agreement on changes to the provision through collective bargaining negotiations. I assume that the accepted approach was instead to negotiate individual memoranda of understanding when issues arose that implicated the provision.

      There was no discussion of the provision at the time the collective bargaining agreement was extended last March. The school district’s focus was on obtaining relief from CBA provisions that limited the district’s control over the school day. Madison Prep was not part of the discussion.

      Indeed, Kaleem Caire assured me during a meeting last May that the CBA didn’t restrict the district’s authority to enter into an agreement for a non-instrumentality charter school. At the time, I didn’t have any reason to question his statement. However, the assertion hasn’t exactly been borne out by the facts.

  6. David Blaska says:

    Ed, the Madison School Board had a great opportunity to eliminate the work preservation clause this Spring but instead rushed to ratify the CBA with MTI before Governor Walker’s Act 10 kicked in. That was YOUR choice. Now we see Laura Chern invoking the specter of religious taint by the fact that Madison Prep has purchased a VACATED church! Apparently, the stench of religion can never be removed for some. Ed, these are the people with whom you will side if you vote against Madison Prep. I think you’ve got more courage than that. Be not afraid of John Matthews.

    • Mark says:

      David, I would hope (and I believe) Ed will take the “side” of what he thinks is best for our students and community collectively, not because of a political knee jerk reaction to what specific individuals are already standing on that or the other “side.”

      Also, I am puzzled that you seem to acknowledge that this clause is a major impediment (one of many), but you still suggest recklessly charging into a legal noncompliance issue with it.

    • David –
      I insist upon my right to freedom of association. Heck, I’ve even had coffee with you. Let’s do it again (after the 19th), and I’ll invite Laura and TJ this time. I’ll even buy. It’ll be like one of those Kumbaya-fests for lefties and Tea Partiers that gets Chris Rickert all excited.

  7. Laura Chern says:

    Madison Prep is not purchasing the church, the district is leasing it at considerable cost and paying about 1 million of tax payer dollars to remodel it. I was just stating the obvious- when FFRF says they are going to sue, they do. And yikes, I can’t imagine Ed wanting to hang out like a radical nobody such as myself! 🙂

  8. David Blaska says:

    Laura, I am certain FFRF likes to bring lawsuits. Do former drill sergeants make bad therapists? But it is a former church. Now it is just a building. If that still isn’t enough for you, perhaps you can hold an exorcism, round up all the monks and friars, and paint over the dust shadow left when the crucifix was removed.

    As for Mark, I am equally certain that Ed will take the side of what he thinks is best for our students and community collectively, not because of a political knee jerk reaction. Since he is an elected official, part of his duty is to listen to his constituents as to their suggestions. I have made mine, what are yours? (Of course, yours will not be a political knee-jerk reaction while mine, you infer, is.)

    • Mark says:

      David, I’m really not reading and posting questions here to try to influence Ed. I’m here to influence myself. Because I honestly am torn on this issue (whether you believe that or not), and I’ve found this blog to be the most even-handed, level-headed source of information about this proposal, and understand Ed has asked and tried to answer many of the most thoughtful questions, about the pure education and community building merits of the idea, leaving out all the political crap about whether the union is weakened, where political blame should fall, etc. Ed obviously considers the union, but I perceive only to the extent that we have agreements with them that must be honored, and of course the morale of the MTI teachers (and reduced funding diverted away form their schools, unless taxes are raised) is critical to the success of the 98% of students that won’t be part of this program (or whatever the figure is).

      I realize now though that my comment you are replying to may have tainted the focused & thoughtful tone of this blog, that I am at fault for turning this particular discussion that way. I apologize.

  9. David Blaska says:

    Yes, always, the morale of the teachers. Paramount!

    • Mark says:

      I think so. I’ve watched the teachers of my kids in action & most of them have been amazing. I don’t know how they do it, with so many kids, some of them pretty disruptive of the classroom. I know I couldn’t do it. I can only presume they can because they truly love doing it. So … yes, morale is paramount; we agree 😉

      I think we’ve probably all had the misfortune of experiencing either ourselves or our kids being taught by teachers who have lost their enthusiasm for their jobs & are just going through the motions, and in my experience, it makes a world of difference, PARTICULARLY for the same kind of students MP is proposed to serve, the ones who probably won’t get there from an innate and/or parent instilled drive.

      Frankly, David, if you think the enthusiasm level of teachers doesn’t matter, isn’t that basically a rejection of one of the core tenets of the MP proposal?

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