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Introduction

One of NEA’s priorities for the re-authorization of the Elementary Secondary Education Act (ESEA) was to “Ensure that educators’ voices are part of decision making at the federal, state, and local levels.” This priority was met with the Every Student Succeeds Act (ESSA). The voices of educators were heard as the bill worked its way through Congress and educators have the opportunity to have their voices count as the new law is implemented at the state and local level. ESSA significantly expands upon the bargaining and legal protections in No Child Left Behind (NCLB).

The purpose of this document is to help association leaders, members, and affiliate staff understand the collective bargaining and advocacy opportunities in ESSA, explain what rights ESSA protects, and help local associations navigate ESSA at the local level and insert their voice into developing and implementing the provisions of the new law.

This guide covers the following topics:

  • The protections provided by ESSA savings clauses in both bargaining and non-bargaining situations. This section also includes sample contract language that further strengthens and reaffirms bargaining protections.
  • The significance of educator participation in the implementation of the law, which includes an attempt to link the distinct, but complementary opportunities provided by educator participation and collective bargaining.
  • Options for establishing the process for implementing ESSA at the local level and guarding against the unilateral implementation of these provisions. A variety of options are outlined to account for differences in the scope of a state bargaining statutes and the quality of the local labor-management relationships. These options range from general bargaining protections to language that promotes the association’s role in a collaborative implementation process. Much of the implementation process language can be modified and adapted for non-bargaining settings.
  • A title-by-title overview of the “voice” provisions in the law that specifically identify bargaining protection or educator participation in the implementation of ESSA at the local level.
  • Key issues that will likely emerge at the local level and examples of relevant contract language. Often the opportunity to design policy will happen at the local level – at the bargaining table, through school board policy, and/or through joint labor-management committees.
  • Steps to take for a smooth transition to ESSA implementation.

Savings Clauses

Among the victories achieved in ESSA are its strong “savings clauses” for collective bargaining and contractual rights. These savings clauses appear in, and apply to, three specific portions of ESSA and state, in identical terms, as follows:

“Nothing in this [portion of ESSA] shall be construed to alter or otherwise affect the rights, remedies, and procedures afforded to school or local educational agency employees under Federal, State, or local laws (including applicable regulations or court orders) or under the terms of collective bargaining agreements, memorandums of understanding, or other agreements between such employees and their employers.”

It is critical to understand that the savings clause provisions are “rights-preserving” provisions, not “rights-creating provisions”. If you did not have the right to bargain a matter before the enactment of ESSA, the savings clauses in ESSA do not give you that right. Likewise, if you didn’t have a state law covering a topic before the enactment of ESSA, the savings clauses in ESSA do not give you that protection. Rather, the savings clauses protect against ESSA interference with existing rights under state and local law and association agreement.

If your state law permits, but does not require, negotiation over certain subjects, the savings clause language provides another opportunity. Associations and LEAs can reach MOUs or other types of agreements that will be shielded from subsequent state imposition of ESSA-related standards. An association with a collaborative relationship with its LEA may be able to prompt such discussions. Even in an adversarial context, an employer could likely be persuaded that such agreement is to its advantage. It would provide for local determination, according to local needs, of issues that would otherwise be mandated statewide.

Meet and confer scenario: Washington Teachers United proposes to Washington County that the parties meet and confer over teacher transfers. In the event the state subsequently mandates, as part of a Title I school improvement plan, school “turnarounds” that result in school site staff being summarily disbursed throughout the County or placed on paid leave while a principal select a new site staff. Both the County and WTU could find such an approach unduly disruptive and potentially harmful to students. The parties could, for example, reach an MOU providing for a more integrated approach that provides for additional resources for high-need schools and potentially phased-in or voluntary transfers.

Thus, even absent a state statutory right to bargain, associations can affirmatively move local policy concerns toward agreement, then benefit from the ESSA savings clause.

The ESSA includes language in three places that specifically preserves contractual and bargaining rights. The first step in understanding what these savings clause mean is to understand the portion of ESSA to which each such clause applies.

Savings Clause Applies to School Improvement Provisions — Title I Section 1111(d) (4)

The school improvement provisions require states and districts to develop and implement school improvement plans for the lowest-performing Title I schools. In crafting solutions, states and districts must work in partnership with stakeholders, including educators. The savings clause means that neither the process of developing the plan or implementation of the school improvement plan can unilaterally override state or local rights to bargain or contractual provisions already in place. This becomes important in a situation like this:

Bargaining Scenario:

After four years, Franklin Elementary has failed to meet necessary improvement standards and triggers “State-determined action, such as the implementation of interventions (which may include addressing school-level operations)” per section 1111 (d) (3) (A) (i) (I) of ESSA. Such proposed interventions could mean longer work hours, additional prep periods, reorganization of the school into smaller academies, transfer of educators to other schools, and myriad other possibilities. Even though the state could propose interventions under ESSA, many of these subjects would trigger mandatory bargaining, depending on your state’s bargaining statute. The savings clause preserves the association’s existing rights to bargain over these subjects. And, even absent a right to mandatory bargaining over the proposed interventions, an association may have existing state law rights to bargain over the effects or impact of these changes. The ESSA savings clause also preserves rights contained in a contract. For example, a contract covering school employees may provide transfer rights to the employees that the district will need to respect given the savings clause.

The above, of course, is but one example of the protections the savings clause may provide in a school improvement scenario. The example is intended to illustrate the variety of ways that the savings clause may provide protections in such circumstances.

Savings Clause Applies to Teacher Preparation, Training, and Recruitment Provisions – Title II Section 2302(b)

While the savings clause application to school improvement provisions is a carryover from the NCLB, the savings clause also has now been inserted in the statute to apply to all of Title II. This is a new protection, one that was absent in NCLB. Given the substantial overlap between Title II provisions and state statutes and local contracts, the addition of this savings language should prove vital.

Activities such as reforming teacher certification, licensing, and tenure systems are eligible for Title II funding. Depending on the state, however, these topics may already be reflected in existing statutes. Assuming an association favors the current state licensing law, for example, over the proposed Title II sub-grant proposal, the association may assert those existing statutory rights. In another context, Title II makes eligible for funding “preparation academies” that may offer abbreviated tracks to certification. Per the savings language, such academies should not be established if they conflict with existing state licensing laws. In other words, just because a reform is eligible for Title II funding does not make it permissible under state law; state law would need to be changed or amended in order for the reform to occur. Other changes contemplated by Title II could implicate rights more often found in collectively bargained contracts.

Bargaining Scenario:

Springfield Unified applies for funding to develop a performance-based pay system (an activity eligible for funding under Title II). The Springfield Association of Educators (SAE) has a contract in effect that provides pay based on (a) longevity as a licensed educator; (b) district seniority; and (c) certain forms of advanced education. Without requesting SAE re-open its contract, the district moves forward with its new pay system. Under these circumstances, SAE could choose to file a grievance. SEA could also file a labor board charge alleging a unilateral change. Alternatively, if SEA sees advantages to the new pay system, it could offer to re-open its contract, either in whole or in part.

Again, the savings language can provide strong protection against potential changes opposed by the associations.

Savings Clause Applies to Full Service Community Schools Provisions –
Title IV Section 4625(h)

The savings clause found in Section 4625(h) is worded just as strongly as that for School Improvement and Title II. It may turn out to be less significant, if only because the Community School sector of public education is still relatively small and affects fewer educators.

Full-service community school grants are available under Title IV. A full-service community school is a public school that participates in a community-based effort to coordinate and integrate educational, developmental, family, health, and other services. Such a school may partner with community-based organizations and public and private entities to provide these services, which are accessible to students, families, and the community during the school year (including before- and after-school hours and weekends) and during summer recess. Community schools provide a continuum of coordinated supports, services, and opportunities (i. e., “pipeline services”) for children from birth through completion of post-secondary education and career attainment. ESSA’s community schools section includes specific savings language to ensure that the section’s implementation does not intrude on existing contractual or collective bargaining rights.

Bargaining Scenario:

Richmond Unified applies for community school funding under Title IV. The school envisioned will emphasize expanded learning opportunities that may require the current teaching corps to work longer hours (a mandatory subject of bargaining) or the addition of staff who do not hold traditional teaching credentials (necessitating a possible bargaining unit modification). The school would also partner with several outside organizations to provide student services. The Richmond Educators Association has a contract in effect that bars the contracting-out of unit work. The savings clause would mean the employer could not unilaterally impose these changes absent bargaining. Additionally, if the Association wants to provide these services, they have an opportunity to bargain over this activity.

The Community School savings clause is a powerful way in which local associations can engage about the delivery of much-needed student services.

Asserting your rights under the savings clauses

The Association can use a variety of venues to pursue violations of the savings clauses. Depending on your situation, the following avenues may be open to you:

  1. In a bargaining state, if the school district unilaterally implements a plan that includes provisions that you have a right to bargain, you could demand to bargain under your state law. If the unilateral implementation violated a provision in your contract, you could file a grievance and, most likely, an unfair labor practice charge with your state labor board.
  2. If the violation is related to grant funding that the district has applied for, you can present the issue to your state department of education or the U. S. Department of Education. These agencies are providing funding under certain required conditions. If they find a lack of compliance with a savings clause, that funding may be withheld.
  3. In non-bargaining situations as well as in bargaining situations, you can bring certain violations to state courts or administrative bodies. Note that the savings language extends to all laws that afford rights to school district employees – not just bargaining laws. Therefore, advocates in non-bargaining states can assert that an action must comply with applicable state laws regarding employee rights, based on the ESSA savings clause.

Non-Bargaining Scenario:

In a state without bargaining rights, a local learns that the school district wants to implement a new transfer provision that would require involuntary transfers of the most experienced teachers to high-need schools. Currently, the district policy only includes voluntary transfers based on seniority. The local association in coalition with parent groups has developed a proposal to incentivize voluntary transfers to high-need schools through additional training and stipends, as well as additional paraeducator support, to teachers who voluntarily transfer. After conducting some research, the local discovers that the teachers who would be negatively impacted by this provision are all over the age of 40. They decide to file a complaint with the state human rights commission because the proposed policy violates state non-discrimination law.

Although the three titles noted above are the only ESSA sections that are covered by a savings clause, the absence of a savings clause in other parts of the new law should not discourage you from demanding to bargain, asserting a contractual violation, or, in non-bargaining states, asserting other effective forms of advocacy.

Additional Bargaining Protections Available Through the Collective Bargaining Agreement

While the regulatory framework in states typically establishes the duty to bargain and defines subjects of bargaining (and protects bargaining rights unless these rights are expressly waived by an association), it is not uncommon for labor agreements to include language that amplifies or reaffirms those issues or circumstances in which bargaining is required.

Below are several examples of the types of clauses that are commonly negotiated by affiliates when dealing with a new law, or other attempts by employers to change terms of an agreement, to protect the integrity of bargaining agreements and reinforce an employer’s duty to bargain.

  • General Association Rights in ESSA Implementation

This language is concise and protects the local’s role in ESSA implementation.

Sample bargaining language:
Any action taken in order to comply with or implement provisions of the Every Student Succeeds Act that implicates language in this contract shall be mutually agreed upon by the Employer and the Association.

Sample district policy language:
[School district name] shall work with the association to develop a mutually agreed upon plan to implement provisions of the Every Student Succeeds Act that impact educators and/or the workplace.

Sample meet-and-confer language:
The Employer shall meet and confer with the Association on any action taken to comply with or implement provisions of the Every Student Succeeds Act that impacts educators and/or the workplace.

  • Recognition Clause

Because ESSA does not set forth a specific role for labor organizations in implementation, nor would collective bargaining encompass all of the stakeholder input needed for implementation, your association always benefits from clear recognition language. A well-written and thorough recognition clause not only describes the scope and composition of the bargaining unit, but it also unequivocally acknowledges the status of the Association as the exclusive representative of bargaining unit members. It puts the employer on notice that it cannot fulfill its labor relations obligation to “consult” with educators by simply talking to a handful of members without the knowledge and consent of the Association. In all likelihood, your contract already includes a recognition clause.

Sample language:
The (Employer) recognizes the (Local Association/State Association/NEA) as the exclusive representative for all full-time and regular part-time employees in the bargaining unit certified by the (State Employment/Labor Relations Board/Commission), (certification docket/case number and certification date), for the purpose of collective bargaining on all matters with respect to wages, hours, and other terms and conditions of employment.

No other agreement, understanding, consideration, or interpretation which alters, varies, waives, or modifies any of the terms or conditions contained herein shall be made with any other employee or group of employees by the employer or any of its agents or representatives, unless it has been made with, ratified, and agreed to in writing by the Association.

Any such agreement shall not constitute a waiver of the Association’s right to future enforcement of any of the terms contained herein.

  • Maintenance of Standards

Maintenance of standards language codifies past practice and supports the status quo, including innovations that may have to be bargained. This type of provision not only protects traditional bargaining rights, but would also be beneficial to locals that have negotiated collaborative contractual arrangements that they wish to protect.

Sample language:
All conditions of employment, including but not limited to hours of work, extra compensation for work beyond the regular work day, relief periods, leaves, and general personnel practices, shall be maintained at not less than the highest minimum standards in effect at the time this agreement is signed. Provided such conditions shall be improved for the benefit of employees as required by the express provisions of this agreement. This agreement shall not be interpreted or applied to deprive employees of advantages previously enjoyed unless expressly stated herein.

  • Conflict with Law or Change in Law during the Term of the Agreement

It is possible that in some states, there may be conflicts between ESSA and certain existing provisions of a local affiliate’s collective bargaining language or between state legislation implementing ESSA and local contracts. The language below ensures that if there is a provision(s) that is found in violation of the law, the remainder of the collective bargaining agreement remains in full force and effect.

Sample language:
If, during the term of this agreement, any provision of this agreement or any application of this agreement to any employee or group of employees is found to be contrary to law, then such provision or application shall not be deemed valid except to the extent permitted by law, but all other provisions or applications shall continue in full force and effect. If the provision in question then becomes legal after appeal, the language will be considered part of the agreement.

Educator Participation

In addition to savings clauses, ESSA includes numerous “voice” provisions that create new opportunities for teachers and other educators to participate in the implementation process. Specific references to consultation, collaboration, coordination, and partnership with educators are found throughout the 1,000-plus pages of the law. A title-by-title summary of these provisions is included later in this document.

The voice provisions are invariably framed in ways designed to elicit input from a wide range of stakeholders, not just educators. In doing so, ESSA provides an opportunity for associations to work with parents and communities to fashion student-centered plans.

While the law does not specify a role for the local association in the implementation of its provisions, the association should nonetheless be proactive in injecting itself into the process. The association should consider the following steps for any grant application or plan that is required to be developed in consultation with educators:

  • Identify members, both leaders and rank-and-file, who have content expertise and who the association believes would best represent its interests.
  • Submit to the district a list of individual members who the association believes should be consulted with in developing the application or plan.
  • Independently develop a plan or grant activities and present it to the district. Consider including parents and other community stakeholders in this planning.
  • Where the association is the exclusive bargaining representative, formally communicate with the district its duty to bargain over the implementation of provisions of ESSA that alter or impact terms and conditions of employment.
  • Where the association is the exclusive bargaining representative, submit a demand to bargain letter to the district to prevent the unilateral implementation of provisions of ESSA.

Linking Educator Participation and Collective Bargaining

While the presence of a savings clause clearly protects collective bargaining agreements and bargaining rights, the absence of a savings clause does not necessarily diminish these protections.

The duty to bargain and the scope of bargaining are spelled in state law and administrative opinions and judicial interpretations of the law. The establishment of educator participation under ESSA does not diminish existing bargaining rights.

ESSA Implementation

At the local level, ESSA implementation will be an ongoing process. There is no one approach to bargaining ESSA implementation. Locals should consider the options and make the best decision in light of the local situation. Mutual agreements on the implementation of the ESSA can be achieved through regular bargaining, mid-term bargaining, or joint committees that may already be in place in the contract. Alternatively, the parties could agree to mid-term bargaining only for the purpose of setting up a structure for ESSA implementation. For the purposes of this document, mid-term bargaining means returning to the bargaining table to discuss all or select provisions of a collective bargaining agreement. Joint committees are labor-management committees composed of association and school district representatives that collaborate on prescribed shared decision-making. These committees usually meet on an identified, preset schedule throughout the course of a contract or for the duration of a specified project. The scope of the decision making authority granted to joint committees can be district-wide or it can be restricted to specified buildings or sites or limited to designated topics or programs.

The key issue for a local association is to ensure that in bargaining states, the local uses the framework of the collective bargaining agreement to clarify the Association’s role in ESSA implementation. In states without collective bargaining rights, a local association can advocate for school board resolutions and school district policy that promote the educator voice in a school district’s ESSA implementation. In non-bargaining states, local associations can also advocate for joint committees to enhance their voice, but they will not have legal protections to ensure equal partnership. In all cases, locals can also work with parents and other community partners to ensure that ESSA truly ushers in positive changes for students and educators. The prior sections of this document provided some sample language regarding general protections. The following language provisions highlight different ways to approach ESSA implementation.

Joint ESSA Implementation/Steering Committee

Given the breadth of issues under the ESSA, local associations may want to consider negotiating a Joint ESSA Implementation or Steering Committee that would oversee overall implementation and decision-making. This helps the local association and school district address issues on a regular and ongoing basis, not necessarily when implementation problems arise. Joint committees can be created to oversee general implementation, or can focus on specific subcommittee issues such as curriculum changes.

The following sample includes factors that should be considered in drafting language. The NEA Collective Bargaining & Member Advocacy Department (CBMA) can provide additional recommendations and sample language on joint committees.

Sample language:

Purpose:
The parties agree to establish a joint steering committee composed primarily of school practitioners chaired by the President of Association or her/his designee and the [School District Official] to fulfill the shared purpose of collaboratively determining the means and methods for implementing the provisions of the Every Student Succeeds Act in a manner that best enhances student learning conditions, supports and develops educators, and elevates the education profession.

Responsibilities:

  • Inform policy interpretations and recommendations within the scope of ESSA implementation.
  • Coordinate the work of any potential joint subcommittees related to ESSA implementation issues specific to school improvement, compensation, working conditions, professional development, curriculum and instructional materials, communication, and other relevant provisions.
  • Serve as ESSA Ambassadors in their school communities about the work, provide information, and gather input and feedback on implementation of ESSA.
  • Provide feedback on major district communications regarding ESSA.
  • Make recommendations on school district ESSA implementation, which are then subject to negotiations.

Membership (to be modified to reflect the needs of your school district and association, but Association members should be at 50% or more of membership) :

  • Teachers from all levels of schools and specializations and ESPs selected by the Association
  • Association President or her/his designee
  • School district officials such as Superintendent, Chief Academic Officer, School district official(s) responsible for Curriculum, Professional Learning, and Assessment, and principal(s) selected by the Superintendent.

Decision-making, Compensation and Other Factors:
[Note: The structure should be similar to that of other joint committees, in terms of governance and rules, including release time with provision of substitutes if meetings occur during the school day, compensation for any additional hours, and school district funding for any cost items such as room rental. Assignments to committee should be voluntary. ]

Meeting Frequency:
Due to the urgency of the ESSA work, initial meetings shall occur within 30 days of this agreement to introduce and clarify the purpose of the ESSA Steering Committee and share ESSA background materials.

Additional meetings shall be decided by the committee (meeting frequency options: monthly, bi-monthly, quarterly, or other).

Duration of ESSA Steering Committee:
This joint committee shall function until such time as the parties reach mutual agreement to discontinue.

Dispute resolution:
Every effort shall be made to reach consensus on committee recommendations. However, in the event that the parties cannot agree, the parties shall attempt to resolve the dispute using the dispute resolutions in the parties’ collective bargaining agreement. In the event that is not successful, the parties shall revisit the issue during regularly scheduled bargaining.

[Note: Depending on local conditions, the Association may want to use other dispute resolution mechanisms such as mediation. The key goal is be able to resolve disputes as quickly and effectively as possible. ]

School Improvement Programs – Site Based Decision Making

As a result of the language relating to school improvement programs, local associations may want to consider negotiating site or building-based language on certain issues. In general, a building-based agreement maintains the key tenets of the master agreement, such as general compensation (the salary schedule) and benefits, and focuses on other provisions that reflect the educational and work environment of that particular school. The following is suggested language. The list of excluded issues at the end of the sample language is not exhaustive, but shows the types of provisions that are essential to maintaining the integrity of the contract.

Sample language:
The parties agree that building-based joint labor-management committees (BBCs) at selected sites will be authorized to enter into contractual agreements different than provisions contained in the Master Agreement.

BBCs shall not create agreements which suspend or change the contractual rights of employees at other work locations or change the terms and conditions for any bargaining member at other work locations.

The principal and the designated Association Representative shall be authorized to sign off on tentative agreements negotiated by the BBC.

Both the District and the Association shall establish their own “ratification” procedures for agreements reached by the BBC. All BBC agreements must be ratified prior to implementation. (Note: NEA suggests that the agreement be ratified by a supermajority of at least 75-80% of voting members).

If the Local Association and School District have a collaborative model in place or if you have established a joint ESSA implementation steering committee, consider the following:
The District/Association Joint Labor-Management Committee (JLMC) [or Joint ESSA Implementation Committee] shall serve as a resource to the school-level committees. Any procedural issues that a BBC is unable to resolve shall be referred to the JLMC for immediate consideration.

The JLMC shall establish a mechanism for monitoring the progress of BBCs and for supporting the school-level implementation. The parties agree to jointly design an evaluation process for the BBC effort.

At any point during the life of this agreement, either party at a school engaged in the BBC may terminate their participation by petitioning the JLMC/their respective parties to the master agreement. The JLMC shall attempt to resolve problems leading to such requests; however, approval to end participation shall not be unreasonably withheld.
The parties agree that the following contractual provisions shall not be within the authority of the BBC deliberations:

  • Recognition
  • Savings Clause
  • Association Rights
  • Grievance and Arbitration Procedure
  • Discipline/Discharge
  • Base Compensation and Health and Pension Benefits

All other contract sections may be subject to change through negotiation by the BBC.

Joint Instructional/Curriculum Committee

In addition to the joint committees described earlier in this document, a local may want to consider negotiating or advocating for a joint instructional/curriculum subcommittee. This ensures that the NEA members have input when new curriculums are considered and implemented as part of a LEA or school improvement plan.

Sample language:
A joint instructional committee is hereby established. The committee will be composed of ___ bargaining unit members selected by the association, and an equal number of representatives selected by the administration. Bargaining unit members who serve on the committee shall be compensated in accordance with the rate established in Appendix ___ or shall be provided with release time. The school district will pay for all expenses associated with this committee’s work.

The committee shall meet at least ___ times per year.

The joint committee shall initiate and establish policies affecting the design, development, and implementation of district instructional programs and curriculum. In conjunction with recognized responsibilities for professional development, the committee’s responsibilities shall include:

  • Develop and maintain a comprehensive district-wide curriculum.
  • Develop procedures and criteria for the continuous evaluation of all district instructional programs.
  • Conduct an annual review and update of the district’s plan and policies for testing and assessment of student learning.
  • Research, review, and issue recommendations regarding any proposed change or revision in instructional programs or curricula in the district.
  • Develop and disseminate appropriate policies relating to all district instructional programs and curricula.
  • Establish, alter, or otherwise modify district curricula as appropriate.
  • Approve, reject, or modify all recommendations of the textbook committee.

The committee will review and approve all changes in existing or proposed instructional programs or curricula prior to implementation, and ensure that materials and texts will be available to the teacher, within a reasonable period of time, prior to the time the teacher is expected to implement the curriculum.

School Board Resolution

ESSA contains language requiring local school districts to meaningful consult or partner with teachers and other educators on various aspects of its implementation. For affiliates in states without bargaining law protections, this language provides associations with the opportunity to play a central role in developing plans and approaches with the school district.

In both bargaining and non-bargaining settings, the local association should advocate for the employer to memorialize its commitment, in the form of a board resolution and/or policy, to collaboratively work with the association and other stakeholders, and to develop and implement plans to ensure every student is provided the opportunity for a quality education. The following sample school board resolution can be used as a basis for establishing and publicly promoting a collaborative process within a school district.

Sample School Board Resolution:

WHEREAS, our nation’s future well-being relies on a high-quality public education system that prepares all students for college, careers, democracy, and lifelong learning; and
WHEREAS, our nation’s school systems have been making too many critical decisions without benefit of the voices and expertise of the educators who know students’ names in our schools; and
WHEREAS, the overreliance on high-stakes and standardized testing in state accountability systems is undermining educational quality and opportunity in U. S. public schools by hampering educators’ efforts to focus on creativity, problem solving, collaboration, communication, critical thinking and deep subject-matter knowledge that will allow students to thrive in a democracy and an increasingly global society and economy;
WHEREAS, a child’s chances for success should not depend on living in the right zip code; and
WHEREAS, the President of the United States signed the Every Student Succeeds Act on December 10, 2015 based on educators’ calls to end No Child Left Behind’s misguided federal mandates;
THEREFORE, let it be resolved that the [your School District Governing Board name] supports the collaborative development, meaningful consultation, and implementation of a plan with the [your Local Affiliate name], parents, students, and community members to ensure the opportunities for a well-rounded education presented by the Every Student Succeeds Act are realized by including all stakeholders in decision-making; and
THEREFORE, let it be further resolved that [your School District Governing Board name] calls on the governor, state legislature, and state education boards and administrators to reexamine public school accountability and finance systems in this state to ensure that accountability for district, school and student success are based on multiple forms of evidence that feature indicators of school and student supports and success; and that those indicators are used to drive resources and a system of collaboratively developed (by all stakeholders) improvement strategies to schools so that all students receive the opportunities and supports they deserve.

Educator Voice Provisions

Title I – Improving the Academic Achievement of the Disadvantaged

Title I of ESSA, which governs state and local plans, accountability, and school improvement plans, authorizes financial assistance to local school districts (referred to in ESSA as “LEAs”) and schools with high numbers or high percentages of children from low-income families to “provide all children significant opportunity to receive a fair, equitable, and high-quality education, and to close educational achievement gaps.”

Under Title I, LEAs that serve the lowest performing schools, which are generally identified as the lowest-performing five percent of schools receiving Title I funds and high schools that fail to graduate a third or more of their students, and LEAs that serve schools in which any subgroup of students is consistently underperforming must develop and implement, in “partnership” with stakeholders, which include teachers and parents, a comprehensive support and improvement plan for those schools.

As previously mentioned, a savings clause applies to ESSA School Improvement Provisions (see Title I Section 1111(d) (4)).

The law also sets forth requirements for LEA Plans. These plans must describe, among other things, how the LEA will develop and implement instructional programs to ensure all students’ academic needs are being met and improve conditions for student learning. The plans also must describe how the LEA will identity and address any disparities in teacher quality and qualifications for low-income and minority students as well as how the LEA will reduce the overuse of discipline practices.

In order to receive Title I funds, LEAs must submit a plan to the state educational agency (“SEA”) that is developed in “timely and meaningful consultation” teachers, specialized instructional support personnel, paraprofessionals, other appropriate school personnel, and parents. Through the consultation requirement, educators will have an opportunity to provide input on any decisions regarding instruction methods and programs, staff assignments, and student discipline.

Title I also covers Schoolwide Programs to upgrade the entire educational system of a school that serves a large population of low-income students. The ESSA mandates that school-wide programs be developed with the “involvement” of teachers, specialized instructional support personnel, paraprofessionals, school staff, parents, and the community. The educator voice authorized in this section can be used to make decisions on such things as increasing the amount of quality learning time (e. g., decreasing the amount of time spent preparing for and administering standardized tests), providing counseling, mental health programs, and specialized instructional support services, and determining appropriate and useful professional development activities.

Finally, Title I creates a pilot program which will grant up to 50 LEAs with the flexibility to consolidate eligible federal funds and state and local funding to create a school funding system based on weighted per-pupil allocations for low-income or otherwise disadvantaged students. A local flexibility demonstration agreement must be developed in “consultation” with teachers, parents, and community leaders. In this instance, educators must use their voice to guard against arbitrary or misguided decisions that, if unchecked, could erode their rights, decrease services for students with special needs, and increase class sizes.

Title II – Preparing, Training, and Recruiting High-Quality Teachers, Principals, and Other School Leaders

Title II authorizes grants to SEAs and LEAs to increase student achievement, improve the quality and effectiveness of teachers and principals, increase the number of effective teachers and principals, and provide low-income and minority students’ greater access to effective teachers and principals.

Under Title II, LEAs are eligible for sub-grants, which may be used to support:

  • Professional growth and career advancement for teachers and paraprofessionals.
  • Training and professional development and improvement for teachers.
  • Fair, rigorous, and transparent evaluation systems.
  • Incentives to attract and retain teachers.
  • Differential and incentive pay (which may include, but does not require, performance-based pay) in high-need academic subject areas and specialty areas.
  • Class size reduction.
  • Parent and community engagement.
  • Enriched and accelerated curriculum.

The law requires the LEA to “meaningfully consult” with teachers, specialized instructional support personnel, paraprofessionals, parents, and community partners, in developing the grant application.

The ESSA also establishes a Teacher and School Leader Incentive Program, which essentially replaces the former Teacher Incentive Fund, authorizing comprehensive performance-based compensation systems or human capital management systems for raising student achievement and closing the achievement gap.

The law defines performance-based compensation systems to include differentiated compensation (including bonuses) based on the employment responsibilities and success of effective teachers in hard-to-staff schools or in high-needs subject areas and on recognition of skills and knowledge as demonstrated through successful fulfillment of additional responsibilities or job functions (such as leadership roles), evidence of professional achievement and mastery of content knowledge, and superior teaching and leadership skills.

Under the ESSA, human capital management systems are defined as decisions on teacher preparation, recruitment, hiring, placement, retention, dismissal, compensation (including performance-based compensation), professional development, tenure, and promotion.

The application for a Teacher and School Leader Incentive Program grant must include “evidence of support and commitment” from teachers and members of the public. Further, the law requires the performance-based compensation system or human capital management system be developed, implemented, improved, or expanded in “collaboration” with teachers and members of the public.

A savings clause applies to the entirety of Title II (see Title II Section 2302(b)).

Title III – Language Instruction for English Learners and Immigrant Students

Title III of the ESSA authorizes financial assistance to states and eligible entities to support the academic achievement of English learners, to assist in teaching English learners, and to promote parental, family, and community participation.

The law requires that an eligible entity’s plan for developing and implementing high-quality language instruction curriculum, meeting long-term and interim academic goals and academic standards, and assessing English learners must be developed in “consultation” with teachers and parents of English learners.

See the sample language on joint curriculum committees later in this document. In addition, assure that there is a fair process for selecting parent members of this group and incorporating their voices into decision making.

Title IV – 21st Century Schools

Title IV of the ESSA authorizes financial assistance to improve students’ academic achievement by increasing the capacity of states, LEAs, schools, and local communities to provide all students with access to a well-rounded education, activities to support safe and healthy students, improved school conditions for student learning, improved use of technology, community learning centers, high-quality charter schools and magnet schools, and family engagement opportunities. The ESSA requires an LEA to develop its grant application through “consultation” with teachers, specialized instructional support personnel, students, and parents.

As described earlier at pages 3-4, full-service community school grants are available under Title IV. A sample agreement on community schools can be found in Appendix 1.

ESSA’s community schools section includes a savings clause to ensure that the section’s implementation does not intrude on existing contractual or collective bargaining rights (see Title IV Section 4625(h)).

Key ESSA Bargaining Topics and Sample Correct Language

Transfer and Assignment

There is the concern that under the ESSA, some school districts may try to impose involuntary transfers under the guise of “school improvement” or improving equity. Attracting teachers to priority schools continues to be challenging for local associations and school districts, and goes beyond the ESSA. Your state bargaining law, if any, together with interpreting cases, will indicate whether and under what circumstances, transfer and assignment are mandatory subjects of bargaining. In addition, your current collective bargaining agreement may have language limiting the employer’s ability to impose involuntary transfers. Because of the collective bargaining “savings clause” in Section 1111(d) (4) that applies to improvement plans, associations would have a strong argument against involuntary transfers, for example, being unilaterally implemented.

Should the circumstances prompt the negotiation – with or without bargaining statutes – of an agreement relating to the assignment and transfer of members, it should include specific provisions that:

  • Define transfers and specify how voluntary transfers may occur.
  • Allow involuntary transfers only when there is a change in a school due to student enrollment, program, or redistricting.
  • Bar layoffs or involuntary transfers resulting from ESSA or provide parameters and limitations on transfers and layoffs.
  • Place limits on assignments outside a teacher’s certification.

You may also wish to incentivize transfers to hard-to-staff schools through the additional training and/or compensation.

NEA is developing additional resources to assist local associations in addressing the new school improvement and LEA staffing provisions of ESSA.

Performance-Based Compensation

The ESSA references, but does not require, a specific, or any, type of performance-based pay system. NEA’s position on performance pay is spelled out in NEA Resolution F-9 (Additional/Enhanced Compensation Models). See Appendix 2. NEA locals will need to determine what compensation alternatives, if any, they may wish to consider. NEA CBMA can provide resources and technical assistance on all options.

Professional Development and Advancement

Language relating to professional development and learning, collaboration time, mentoring and coaching, etc. is available on CBMA’s website (register at www.neacollectivebargaining.org). NEA will be developing additional resources specifically related to these issues in the ESSA context.

Evaluation

NEA has developed resources to assist affiliates and their members understand and bargain teacher assessment and evaluation. See the link below for existing materials:
http://www.nea.org/home/20511.htm

NEA will be developing additional resources regarding ESSA and teacher evaluation and assessment.

Class Size

In addition to typical class size language specifying maximum class sizes by grade level or student needs (available from CBMA), locals may want to work with their districts to get funding through ESSA to help with class size reduction. A local may also want to form a joint class size reduction subcommittee of their ESSA implementation steering committee to recommend class size limits.

Student-Centered Advocacy

Many provisions of ESSA can be aligned with the expansion of NEA’s student-centered advocacy agenda.

Student-centered advocacy fuses organizing, collective bargaining, and other collective action with community engagement and social justice activism to enhance student learning and improve educator working conditions. Student-centered advocacy does not supplant our traditional advocacy roles. Rather, it augments these roles, building a culture and implementing practices that place the needs of students at the forefront of our cause.

Across the country, we are seeing affiliates bargain over and advocate for the schools our students deserve. CBMA has highlighted numerous examples of student-centered advocacy in practice. These stories, along with suggested steps and resources can be found here:
https://www.nea.org/assets/docs/The_Road_To_Student_Success.pdf

Other Key Issues

CBMA and other NEA departments have developed language and resources that address many of the content issues included in the ESSA. Rather than including specific language, we are providing guidance as to the principles associated with each of these major areas. Resources on these issues can be found on CBMA’s website at www.neacollectivebargaining.org or by contacting the NEA ESSA Team at ESSAinfo@nea.org.

Conclusion and Next Steps

This document seeks to summarize those provisions of ESSA that provide mechanisms for local associations to participate in the ESSA implementation process. The following research and organizing steps will also facilitate a smoother transition:

  1. Find out from your state affiliate when they anticipate the state legislature may consider legislation related to ESSA. This will tell you if you need to prepare quickly or have a bit more time.
  2. Learn more about the provisions of the law, and how they relate to your state collective bargaining law – especially those that impact bargaining and advocacy at the local level.
  3. Review your contract for language on exclusive representation, joint committees, and association rights under the former ESEA, transfers, and other key provisions to ensure that where ESSA protects contractual and collective bargaining rights, the employer is not acting unlawfully in implementing the new statute. This review may also prompt your association to conclude that new language needs to be negotiated.
  4. Talk to educators in your local about the new law and find out what they hope to see and how they want to participate. Be sure to reach out to a diverse group of educators, including those who may be relatively new to the profession.
  5. Talk to parents and community partners and determine how you can work together to make sure ESSA is implemented in the best possible way for your students.
  6. Determine the most effective mechanisms for educator engagement in the ESSA implementation process and how, in bargaining states, this may intersect with collective bargaining.
  7. Assert your voice. Ensure that the school district knows that you know about the educator consultation requirements under ESSA and that you are ready to work with them on implementation.

Appendix 1 – Sample Community Schools Agreement

Sample memorandum of understanding (modeling the agreement between Minneapolis Public Schools and Minneapolis Federation of Teachers):

WHEREAS, (District) and (Union) share the belief that every student and every school can succeed with the right conditions for learning; and
WHEREAS, the District and the Union recognize the need to operate in a collaborative relationship with families and school community to provide the best opportunities for Community Partnership Schools to succeed to deliver the vision that all students graduate from the District college or career ready; and
WHEREAS, the creation and development of Community Partnership Schools is a strategy to ensure student success, and create a foundation of teaching and learning that strengthens the entire school system;
NOW THEREFORE, BE IT RESOLVED that the District and the Union enter into this Memorandum of Understanding (MOU) to establish the conditions for creating Community Partnership Schools.

Purpose:
Community Partnership Schools will be established to meet the following purposes:

  • Help schools create clear understanding of expected results to meet the unique needs of their students and families.
  • Develop a site-based educational model that includes academics, the arts, physical and emotional health, engagement of youth, critical family resources and support, health and social services, community development and leadership.
  • Collaboratively develop a shared vision of positive academic results for every student.
  • Engage instructional programs organized around a challenging curriculum with high standards and expectations for students.
  • Provide motivational learning opportunities that take place in both school and community settings.
  • Create conditions where mutual respect is demonstrated by local decision making, effective collaboration, shared trust and meaningful relationships.
  • Recognize and nurture the basic emotional, physical, mental and intellectual needs of all students.
  • Create a safe, respectful, and supportive school environment that promotes interactive student, family and community engagement.

Autonomy and Flexibility:

Both the District and the Union agree that flexibility and meeting unique site and program needs is a core component of Community Partnership Schools. Therefore the parties to this MOU support the creation of Community Partnership Schools within the school district to provide innovative and site-focused experience for all students in the school.

Community Partnership Schools will have opportunities to take advantage of flexibilities from the District policies and procedures or specific items within the teachers’ collective bargaining agreement to achieve results for their students. Community Partnership Schools do not need to pursue all the flexibilities outlined below, but rather should be looking for the top areas needed to meet unique site needs. Any flexibility outlined below will not become operational until the school’s plan is reviewed and vetted by the Community Partnership Schools Advisory Committee (CPS Advisory Committee) recommended by the Superintendent, and approved by the Board of Education.

Community Partnership Schools will be able to hire, recruit and retain staff using year-round interview and select process and will have no forced placements unless by mutual agreement of the teacher and the site.

Flexibility options on the part of the District and/or Union will include the following, within legal requirements and budget capacity:

  • Curriculum design, including Focused Instruction.
  • Assessments of students to measure success.
  • Instructional time.
  • Academic interventions.
  • Design of academic plans.
  • Design of school days, weeks and school years up to two hundred and eleven (211) duty days.
  • Redesign of collaboration and preparation time.
  • Budget flexibility to meet the unique needs of the site as developed in their plan.

CPS Advisory Committee:

The parties will establish a Community Partnership School Advisory Committee (CPS Advisory Committee) to provide recommendations to the Superintendent and Board of Education. The CPS Advisory Committee will be comprised of equal representation from the District and the Union. The District and Union will mutually appoint two (2) community members to the CPS Advisory Committee. If the District and Union cannot agree on two (2) community members, each will appoint one (1) community member to the CPS Advisory Committee.

The CPS Advisory Committee will make recommendations related to the following:

  • Help to develop a clearly defined needs assessment process that involves self-assessment by the site to capture the voice of all affected stakeholders.
  • Review proposals for schools to participate in the needs assessment and eventually launching the schools.
  • Provide feedback on plans for newly created schools that include any of the flexibilities outlined above.
  • Review regular reports from Associate Superintendents on quality of implementation and design of school plans.
  • Actively participate in a process for school families and community to have a voice in the development of Community Partnership Schools.
  • Ensure Community Partnership School plans are developed by the site through a collaborative process to establish buy-in and commitment to the model.
  • Develop systems to ensure the CPS Advisory Committee process is efficient and effective.

Needs Assessment:
The District in collaboration with the Union will develop a Needs Assessment to review the potential capacity of each school as to whether they can utilize any of the outlined flexibilities.

The CPS Advisory Committee will ensure a clear process that includes buy-in from site staff and the school community. To measure staff buy-in, at least one indicator will be a vote of the licensed teaching staff of the site on the CPS plan. The results of the vote will be included in the report to the CPS Advisory Committee.

The results of the Needs Assessment will be submitted to the CPS Advisory Committee for their review and feedback.

Process to Create Community Partnership Schools from Existing Schools:
A site seeking CPS status will develop a site plan, outlining which flexibilities outlined in paragraph 2(d) they request. The plan must explain in detail how these requested flexibilities will improve student achievement. The plan must also include detailed descriptions of the following:

  • Parent and community involvement in developing the plan.
  • Staff involvement in developing the plan.
  • Collaboration to establish buy-in and commitment to the model.
  • Any additional supports needed from the District and community to help carry out the plan’s objectives.

A site plan will be submitted to the CPS Advisory Committee. The CPS Advisory Committee will initiate the Needs Assessment. The completed Needs Assessment will be returned to the CPS Advisory Committee. The CPS Advisory Committee will then review the site plan and needs assessment report. The CPS Advisory Committee will have an opportunity to ask questions, seek clarification, and request additional information as needed to make an informed recommendation.

The CPS Advisory Committee will make a recommendation on a site plan to the Superintendent, who will then determine whether to submit the plan to the Board of Education for final approval or return it to the CPS Advisory Committee for more information.

The Board of Education will have final authority to approve a Community Partnership School plan.

Process to Create Community Partnership Schools from New Schools:
The District will develop a site plan in collaboration with the Union for a new school to be a Community Partner School, outlining those flexibilities outlined in the Autonomy and Flexibility clause they deem necessary. The plan must explain in detail how these requested flexibilities will improve student achievement. The plan must also include detailed descriptions of the following:

  • Parent and community involvement in developing the plan.
  • Collaboration to establish buy-in and commitment to the model.
  • Any additional supports needed from the District and community to help carry out the plan’s objectives.

A site plan will be submitted to the CPS Advisory Committee. The CPS Advisory Committee will initiate the Needs Assessment. The completed Needs Assessment will be returned to the CPS Advisory Committee. The CPS Advisory Committee will then review the site plan and needs assessment report. The CPS Advisory Committee will have an opportunity to ask questions, seek clarification, and request additional information as needed to make an informed recommendation.

The CPS Advisory Committee will make a recommendation on a site plan to the Superintendent, who will then determine whether to submit the plan to the Board of Education for final approval or return it to the CPS Advisory Committee for more information.

The Board of Education will have final authority to approve a Community Partnership School plan.

Site Performance Agreement:
After approval by the Board of Education, the District will create a site performance agreement based on the site plan detailing the expectations for success, and the specific flexibilities and components of the Community Partnership School Plan.
The CPS Advisory Committee will regularly review results relating to the site performance agreement, and make recommendations to modify the site agreement and or components of the site plan as needed to adjust to the needs of each individual school.

All Other Terms and Conditions:
All other terms and conditions of employment, including but not limited to compensation relating to additional time or work days, will be governed by the collective bargaining agreement between the District and the Union, unless a Community Partnership Schools plan includes some alternate form of compensation related to any extra duties or time related to the plan. In such cases, the District and Union will negotiate such alternate compensation.

Appendix 2 – NEA Resolution F-9

F-9. Additional/Enhanced Compensation Models

The National Education Association believes that the single salary schedule is the most transparent and equitable system for compensating education employees. The development of any additional/enhanced compensation system must include authentic representation and agreement from all stakeholders, especially those who will be directly affected by the plan. The design of such a system must be accomplished through the collective bargaining process; or in nonbargaining jurisdictions should be incorporated into legislation, employer policy, and/or other sources that establish the terms and conditions of employment for education employees using input from all affected stakeholders. In nonbargaining units, the plan should be agreed to by a 75% vote of the membership.

The Association also believes that the goals of any additional compensation model should be to–

  • Increase student learning opportunities
  • Increase salaries and fairly compensate all education employees
  • Contribute to improved professional practice, collaboration, and mentoring
  • Promote quality staff development and training
  • Attract and retain high-quality education employees
  • Increase support for public education

The Association further believes that any additional compensation model should–

  • Be fully funded without reprioritizing existing resources
  • Be funded in a sustainable manner
  • Be based on best practice research
  • Clearly define how one qualifies for the additional compensation
  • Be accessible, on a voluntary basis, to all education employees
  • Be maintained with the right to due process
  • Relate to the school’s educational objectives
  • Provide leadership opportunities for members of all employee groups
  • Be open to compensation for the acquisition of additional knowledge and skills
  • Be determined at the local level with involvement of those who will be directly affected

The Association believes that additional/enhanced compensation models should not diminish the professional status of those education employees who do not receive the additional compensation or in any way suggest that such education employees are not qualified for the positions that they hold.

The Association also believes that compensation conditioned on student attendance and/or outcomes (such as test scores) would be inappropriate. Test scores may provide valuable information to teachers and schools that can be used to inform curriculum and instructional decisions.

The Association supports regular employee evaluations to provide information for professional growth, although the highly subjective nature of evaluations makes them inappropriate for additional/enhanced compensation decisions (2001, 2011).