Appeals court: Charter school must recognize union

September 25, 2018 GMT

NEW ORLEANS (AP) — A federal appeals court has ruled that a New Orleans charter school must recognize a union whose members have voted for collective bargaining rights.

The 5th U.S. Circuit Court of Appeal ruling, dated Sept. 21, upheld a National Labor Relations Board ruling affecting the International High School of New Orleans. The charter is operated by the nonprofit Voices for International Business and Education, formed in 2009.

The ruling says the school’s employees voted to have United Teachers of New Orleans represent them in collective bargaining.

Voices had refused, saying charter schools are political subdivisions of the state and are therefore exempt from federal collective bargaining laws.

But a three-judge 5th Circuit panel unanimously ruled that a charter is a privately controlled employer — not a political subdivision.

Charter schools are public schools run by private organizations under charters granted by state or local education boards. They generally have broad autonomy and independence from school boards, which can decide whether to renew or revoke the charters. Lawmakers first legalized charter schools in Louisiana in 1995. Most public schools in New Orleans are charters, the result of changes in the law made after Hurricane Katrina in 2005.

The 5th circuit ruling does not appear to apply to all charter schools. The ruling noted, for instance, that the NLRB had ruled that a Texas charter school did qualify as a political subdivision. But, in that case, Judge Gregg Costa noted in the ruling, the Texas Education Agency retained authority to reconstitute the charter school’s board.

That wasn’t the case in Louisiana.

“There may be some situations in which it is ambiguous whether an entity is subject to enough public control to make it a political subdivision of the state,” Costa wrote. “This is not such a case. Louisiana does not control Voices.”

Costa, nominated to the court by President Barack Obama, was joined by Judge Jennifer Walker Elrod, a nominee of President George W. Bush. Judge James C. Ho, a nominee of President Donald Trump, added an opinion concurring in the result. But Ho disagreed that, in the Texas case, the charter school in question can be considered a political subdivision.

“There is no ambiguity here,” Ho wrote. “Charter schools that are privately opened and privately operated by privately chosen board members are unambiguously private entities, not political subdivisions.”