The New York State Court of Appeals, the state's highest court, today ruled (here) in a 5-to-2 decision that prevailing wage mandates do not apply to charter schools. This concludes three years of litigation to turn back the state Department of Labor's unlawful edict to impose such high-cost mandates on charters. The NY Charter Schools Association issued a press release on the case.

In September 2007, then-Commissioner, Patricia Smith (who is now an Assistant U.S. Secretary of Labor), ordered charter schools to start paying so-called "prevailing wages" for all building and service contracts. Prevailing wage is defined by the state to equal the union wage scales in a given region in the state, which are higher than average pay levels. Commissioner Smith not only ignored the plain language of state education law, she didn't even bother with any regulatory process to impose her agenda. Rather, she simply sent a letter to the New York Charter Schools Association and other parties to inform them that her Department would begin enforcing this mandate.

Overcoming Dictatorial Agency Edict
I cannot recall a state agency acting in such lawless, dictatorial fashion as Commissioner Smith did by doing her vicarious Catherine-the-Great imitation. Why do some people holding appointed office act this way? Because they can -- most of the time -- unless someone has the temerity to push back. Ms. Smith's boss, then-Gov. Eliot Spitzer, earlier that year sought to satiate the labor unions by attempting unsuccessfully to get the state legislature to mandate prevailing wage on charters when he doubled the charter cap (this latter triumph a very good thing, obviously). When the legislature refused to enact prevailing wage, however, his Labor Commissioner, being impervious to the rule of law, proceeded anyway with the stroke of a pen.

The Brighter Choice Foundation, Albany Preparatory Charter School and NYCSA brought a lawsuit to block Commissioner Smith's order. A separate lawsuit was brought by the Foundation For A Greater Opportunity, which supports the Icahn charter schools, that was subsequently joined with the Brighter Choice Foundation case.

After three years and three court cases, the Court of Appeals affirmed the April 2009 ruling by the Appellate Division that struck down the Labor Department's mandate and reversed the trial court ruling in May 2008. A happy and just outcome, indeed.

Mandatory Prevailing Wage v. Educating Children
It's unfortunate that it took such an effort to uphold the plain language of the Charter Schools Act in education law. The Act clearly exempts charter schools from all laws, rules, regulations or policies that govern public schools except those affecting health, safety, civil rights or student assessment, unless the Act itself applies it (such as the Open Meetings law or Freedom of Information law). The Appeals Court today cited this provision, and other factors, in deciding in favor of the charter schools' position. Incredibly, the court's dissenting opinion, written by Chief Judge Lippman, completely ignored this crucially relevant statute.

This favorable outcome will save each charter school thousands of dollars annually in building and maintenance expenses by enabling them to negotiate a mutually agreed-upon and affordable price with a contractor. That means less charter money having to be diverted from the classroom and the needs of students in order to put--and keep--a roof over their heads. Since charter schools still do not get facilities funding, this favorable court ruling is all the more critical.

NYSUT Sides with Construction Workers Over Teachers
It's one thing for the construction trades, who were serving their own pecuniary interests, to oppose charter schools in this litigation. Fair enough. But, as a reminder, the New York State United Teachers (NYSUT) also opposed charters by taking the side of their construction union brethren. This "solidarity" routine may sound idyllic, but it actually flies in the face of the union's pretentions that it has the best interests of schoolchildren. Rather than advocating for more resources in the classroom for students and teachers, NYSUT cared more about outside construction workers than students and teachers.

Being against a prevailing wage mandate on charter schools makes one pro-charter; not anti-laborer, or anti-union. Charter schools are free to negotiate with contractors, union and non-union alike, to pay what is reasonable and affordable, which may or may not be a union scale. That freedom is essential for charter schools, whose priority must be maximize resources to improve outcomes for children, not adults.

Charter schools prevailed in court - again - in spite of the heavy hand of the state government, and the unions.

Peter Murphy
for The Chalkboard
Twitter.com/petermurphy26
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