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JUDICIAL REVIEW OF TEACHER-SCHOOL BOARD GRIEVANCE ARBITRATION:
AN EXTENDED EMPIRICAL ANALYSIS
Perry A. Zirkel*
© 2023
In recent years, the overall state law framework for teacher-school board collective
bargaining has undergone limited revisions. The basic distribution has been that approximately
two-thirds of the state laws authorize collective bargaining for public school teachers, with the
remaining state laws either silent or prohibitive.1 During the past fifteen years, a few states have
curtailed or eliminated their applicable laws, with the leading respective examples being
Wisconsin and Tennessee, and at least one state, Virginia, shifting in favor of collective
bargaining.2
The courts have added few direct revisions.3 The Supreme Court's ruling that agency
shop provisions in public sector collective bargaining agreements (CBAs) violate the First
Amendment poses an indirect effect in terms of teacher union membership.4
The majority of these state laws that provide for teacher-board collective bargaining
include grievance procedures as mandatory subjects of bargaining.5 Yet, despite its importance
as the culminating, binding, and third-party step in the grievance process under CBAs, teacher-
* Perry A. Zirkel is University Professor Emeritus of Education and Law at Lehigh University and a long-time
member of the National Academy of Arbitrators.
1. E.g., Alyssa Rafa et al., Teacher Employment Contract Policies: Does State Policy Allow Collective Bargaining?,
EDUC. COMM'N OF THE STATES, https://reports.ecs.org/comparisons/teacher-employment-contract-policies-09 (Jul.
29, 2020).
2. E.g., JOHN E. SANCHEZ & ROBERT D. KLAUSNER, STATE & LOC. GOv'T EMP. LIAB. § 16.2 (2022) (reporting
Wisconsin's curtailment and Tennessee's elimination of collective bargaining for teachers in 2011 and Virginia
initiating this right in 2020).
3. Laborer's Loc. 236, AFL-CIO v. Walker, 749 F.3d 628 (7th Cir. 2014) (ruling that Wisconsin's legislation
curtailing teachers' collective bargaining rights did not violate First Amendment petition and association clauses or
Fourteenth Amendment equal protection); State ex rel. Ozanne v. Fitzgerald, 798 N.W.2d 436 (Wis. 2011) (rejecting
challenges to same state legislation that curtailed teachers' collective bargaining rights); Am. Fed'n of Tchrs v.
Ledbetter, 387 S.W.3d 360 (Mo. 2012) (ruling that the state constitution requires school boards to collectively
bargain in good faith with the teachers' union).
4. Janus v. AFSCME, 138 S. Ct. 2448, 2486 (2018); see also Ysursa v. Pocatello Educ. Ass'n, 555 U.S. 353 (2009)
(ruling that state law that banned dues deduction does not violate First Amendment). For the effect, see Daniel
DiSalvo & Michael Hartney, Teachers Unions in the Post Janus World, 20 EDUC. NEXT 46 (2020),
https://www.educationnext.org/teachers-unions-post-janus-world-defying-predictions-still-hold-major-clout/
(predicting the membership losses will be modest and slow based on buffering state law revisions in various affected
states).
5. See Emily Workman, State Collective Bargaining Policiesfor Teachers, EDUC. COMM'N OF THE STATES,
https://www.ecs.org/clearinghouse/99/78/9978.pdf (Dec. 2011). Much of the text in the introduction and in the
Legal Backdrop section has been republished from the most recent of the two successive predecessor articles.
Perry A. Zirkel, Teacher-School Board Grievance Arbitration in Court: Updated Facts and Figures, 73 DISP.
RESOL. J. 67, 72-73 (2018) [hereinafter Zirkel 2018].](ViewImageLocal?handle=hein.journals/anlwrvw14&div=1&collection=&method=preview&ext=.png&size=3)
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