The Agreement: How Federal, State and Union Regulations Are Destroying Public Education in Maryland

About the Author

George W. Liebmann, J.D.

George W. Liebmann is a practicing lawyer in Baltimore City. He is the author of two books, The Little Platoons: Sub-Local Governments in Modern History (Praeger, 1995) and The Gallows in the Grove: Civil Society in American Law (Praeger, 1997). He has also authored numerous articles on constitutional and administrative law.

He has been a lecturer at the Johns Hopkins University, the University of Maryland Law School and the University of Salford, in England. He is a Simon Industrial and Professional Fellow at the University of Manchester, England, and a visiting fellow at Wolfson College, Cambridge University.

Executive Summary

When Baltimore attorney George Liebmann approached me to ask if the Calvert Institute might be interested in publishing a study he was writing on teachers’ union contracts in Maryland, I took one look at the draft manuscript and realized I had found a winner. Just getting possession of all 24 union contracts currently operative in the state had been a task in itself, for the unions do not lightly divulge such information.

Liebmann shines the spotlight on one of Maryland’s most closely guarded secrets – just how little county school boards actually require public-sector teachers to do. Based on a working year of 10 months or under, all the contracts contain extraordinarily modest provisions for extracurricular duties. For the most part, faculty meetings are restricted to about one hour a month. No county requires more than seven hours a month for such meetings.

Likewise with parental meetings, surely an indispensable component of a teacher’s duties. Though a considerable number of teachers may themselves take this responsibility seriously, this is certainly not the result of contractual obligations. Quite the reverse, it is a matter of individual initiative; it must be, for in 10 counties, the contracts appear not to demand any such meetings at all. For the other counties, generally no more than a couple of hours are required per year – that is per year, not per month. Wicomico and Worcester counties go out on a limb by requiring teachers to commit to parent meetings for 10 hours annually. This is the most any district demands.

The question naturally arises, why are school boards so lenient with the unions? The reason is that they have nothing to lose, for they are not truly answerable to the electorate. Liebmann describes the selection process for school board members in each subdivision, finding this process to be most undemocratic, for the most part. Half the local school boards are appointed, usually by the governor. Among the 12 districts where school-board elections do occur, accountability is reduced by the common practice of at-large representation, rather than subdistrict representation. Only one jurisdiction, Baltimore City, has a provision permitting an advisory board to assist the school board, and even this relatively unimportant body is skewed in membership in favor of special interests.

Liebmann also finds the teacher-certification process to be dominated by union interests. Regulations pertaining to certification are determined by the Professional Standards and Teacher Education Board (PSTEB). Fourteen of its 25 members are drawn from the ranks of the education establishment. Interestingly, the PSTEB can veto state school board proposals by simple majority, but the school board can veto the PSTEB only by a three-quarters majority. Virtually the sole means of certification is the taking of education-major classes. Granted a monopoly on the certification of teachers, the education establishment is thus in a position to impede entry into the teaching profession by individuals not previously immersed in its mores at teachers’ school.

In like manner, the unions go out of their way to insure that the resourceful and diligent teacher is no more rewarded than the slothful time-server (the latter pays union dues, too, after all). Thus, merit pay is vigorously opposed by the unions. Other than some modest incentives for individual teachers in high-demand subjects, the notion of different classes of teacher receiving different pay remains unacceptable to union interests. So a second-grade elementary school teacher is placed on the same pay schedule as a twelfth-grade physics teacher.

Instead of merit pay, the unions insist upon longevity pay, with automatic pay increases based solely on length of service. Worcester County, the most extreme case, provides automatic longevity increases until the thirty-fifth year of service. This, coupled with the fact that it is just about impossible for principals to fire incompetent teachers, can scarcely be said to encourage educational entrepreneurship.

It is true that scores on the Maryland School Performance Assessment Program (MSPAP) test have improved slightly in recent years. Less commonly broadcast is the fact that, in many subjects, scores on the more basic “Maryland Functional Tests” have simultaneously declined. Meanwhile, social promotion appears to be rampant. For example, in Baltimore City, fewer than 14 percent of students attain the minimum “satisfactory” grade on the MSPAP test, yet over 93 percent are annually promoted to the next grade. But why be surprised? Under the Maryland code, “Each student who graduates from a public high school shall receive the same type of diploma or certificate.” As with teachers, as with students: identical rewards to all, regardless of merit.

To remedy these dismal findings, Liebmann makes various recommendations, including legislation to permit specialized unions (different unions for secondary and elementary teachers, for example). He suggests that each school should have its own citizen governing board, as in many other countries. He recommends that county school boards be made more democratic, by having them elected and subdistrict-representative (rather than chosen at large). He favors serious charter-school legislation, and also recommends that scholarships or tax credits be provided for low-income children to attend private schools, especially for the final two years of high school.

Education á la union has been tried. It has failed. Why not try something new?

- Douglas P. Munro, Editor

I. Introduction

“Sunlight is the best disinfectant; electric light, the best policeman.” – Louis D. Brandeis

This paper represents an effort to describe a number of the legal restraints on Maryland public education that have defined its present character, be they federal, state or union in origin. For this purpose, I undertake to describe a number of the less well known federal constraints, such as (a) those arising from provisions of the Code of Federal Regulations (CFR) purporting to implement federal civil-rights legislation and (b) those arising from federal legislation relating to special education. In addition, this paper reviews a number of provisions of the education article of the Maryland code, and the provisions of the Code of Maryland Regulations (COMAR) promulgated pursuant to it, relating to such matters as teacher qualifications and certification. Finally, I review each of the 24 county teachers’ union contracts currently in effect.1 (To avoid the necessity of endless bibliographical reference to the 24 union contracts within the text and the end notes, I instead provide a bibliography of all 24 in appendix I below.) Some surprising facts are revealed by this latter review. Under a 1982 ruling, Carroll County Educ. Assn. v. Board of Education of Carroll County (294 Md. 144),2 collective bargaining agreement-adoption sessions are within the purview of the state Open Meetings Act; despite this, the media have shown little interest in them – or in their results.

The study has a number of foci, the most salient of which I summarize in this introduction. County education authority rests with Maryland’s 24 local school boards. There is a serious democratic deficit in the selection process for these local education boards. In 12 of them, there is no semblance of democracy, with boards being selected by the governor and/or the mayor of Baltimore City. In the other dozen districts, there are elections but, in most cases, board members represent countywide districts at large; they would be more accountable if they represented specific subdistricts within the school district. Only one jurisdiction, Baltimore City, has a provision permitting an advisory board to assist the school board, and even it, the city advisory board, is skewed in membership in favor of special interests (i.e., plaintiffs in various court cases).

Meanwhile, the teacher-certification process is likewise dominated by special interests. Regulations pertaining to certification are determined by the Professional Standards and Teacher Education Board (PSTEB). Fourteen of its 25 members are drawn from the teachers’ unions or from education schools. Tellingly, the PSTEB can veto state school board proposals by simple majority, but the school board can veto the PSTEB only by a three-quarters majority. Virtually the sole means of certification is the taking of education-major classes. Alternative certification, such as in New Jersey, is almost unknown.

While scores on the Maryland School Performance Assessment Program (MSPAP) test have improved slightly in recent years, the untold secret is that, in many subjects, scores on the more basic “Maryland Functional Tests” have simultaneously declined. And social promotion appears to be rampant. For example, in Baltimore City, fewer than 14 percent of students attain the “satisfactory” grade on the MSPAP test, yet over 93 percent are annually promoted to the next grade. Perhaps this should not surprise us: Under section 7-205 of the education article of the Maryland code, “Each student who graduates from a public high school shall receive the same type of diploma or certificate.” There is little provision for any sort of honors or merit award.

As for merit pay for teachers, this always has been, and still is, vigorously opposed by their unions. The Maryland unions are no exception. Some counties permit modest incentives for individual teachers in high-demand subjects in particular schools. However, the notion of different classes of teacher receiving different pay remains anathema to the unions. Under the present scenario, a second-grade elementary school teacher is placed on the same pay schedule as a twelfth-grade physics teacher. Instead of merit pay, the contracts place great emphasis on longevity pay, with automatic pay increases based solely on length of service. The most extreme case is Worcester County, which provides for automatic longevity increases past the thirty-fifth year of service. This, coupled with the fact that it is almost impossible for principals to fire incompetent teachers, may hardly be said to encourage excellence in pedagogy.

My conclusions are presented in the final chapter. My recommendations are various, including legislation to permit specialized unions (different unions for secondary and elementary teachers, for example), which might encourage enhanced pay for upper-level science, mathematics and other high-demand teachers. I suggest that each school should have its own school board, as in Britain, Australia and New Zealand. I recommend that county school boards be made more democratic, by having each one elected and each one subdistrict-representative (rather than representative of the overall school district at large). I am in favor of the passage of serious alternative-certification and charter-school legislation. I suggest the elimination of grievance arbitration. I also recommend that scholarships or tax credits be provided to low-income children to attend private schools, particularly in the last two years of high school.

II. FederaI Regulations

In this section, I discuss a number of items of federal legislation and related court cases that have resulted in a considerable regulatory burden on Maryland public schools, especially as pertaining to civil rights and disabled students.

Civil Rights

Title VI of the federal Civil Rights Act of 1964 (42 U.S.C. § 2000d)3 prohibits discrimination in any program or activity receiving federal financial assistance. Under this rubric, actions have been brought requiring the busing of students and the transfer of faculty in Prince George’s County. This has been controversial for more than 25 years, having generating a multitude of rulings, many of which have been altered over time.4 The financial costs of busing programs in Prince George’s County are astonishing. In school year (SY) 1996-97, 90,566 of the 128,347 students enrolled were eligible for transportation. Transportation costs amounted to $60,869,309. The represented nearly $500 per pupil enrolled as against total current expenses per pupil of $6,370.5

Similarly, substantial changes were induced in pupil and teacher assignments in Baltimore City by the threat of federal-fund withholding under the civil-rights act. In 1975, about 40 percent of the total Baltimore City high-school student body was involuntarily reassigned, as well as 75 percent of the student body of the city’s junior high schools.6 Later in 1975, conflicting and vacillating federal demands led the city to institute an action for injunctive relief. This led Judge Edward Northrop of the federal district court to declare that federal officials “have overwhelmingly refused to negotiate in good faith, afforded scant specificity and guidance to assist the City, and repeatedly declined to pursue voluntary compliance. Rather, defendants [i.e., the federal officials] have sought to bludgeon compliance through initiation of unwarranted and premature enforcement proceedings.”7

At that time and since, an extremely vague federal regulation provided only that a school district would be deemed in compliance with the civil-rights act if it submitted a desegregation plan “which the responsible Department official determines is adequate to accomplish the purposes of the Act” (45 CFR § 80.4[c], now 34 CFR § 100.4[c]). Subsequently, by enactment of the Civil Rights Restoration Act of 1988 (P.L. 100-259), the negotiating position of the federal civil-rights authorities was further strengthened by allowing them to threaten the withholding of all federal funds allocated to a school district, not merely those allocated to the allegedly discriminatory program. Under this statute, the federal authorities for a long time asserted that the racial distribution of students and faculty within each school had to approach that of the district as a whole, a principle with especially devastating impact in a state like Maryland with large, countywide school districts. While subsequent U.S. Supreme Court decisions, along with de facto residential resegregation, have blunted the exuberance of the federal authorities for large-scale student busing, the influence of these regulations lives on in the practice of “balancing” faculty on an age, sex and race basis, irrespective of the principles that might otherwise apply. This is referenced in a number of the county union contracts reviewed below, including those of Montgomery, Wicomico and Worcester.

Disabled Students

In 1975, Congress passed a well-intentioned piece of legislation called the Individuals with Disabilities Education Act, designed to “mainstream” handicapped students in regular classrooms. Large amounts of money were promised but not appropriated. Unfortunately, Congress carelessly defined “disabled” as including “emotionally disturbed” students (20 U.S.C. § 1415).

In 1987, a case under this statute, Honig v. Doe, reached the U.S. Supreme Court, which held that even in the case of dangerous students “the removal of disabled students could be accomplished only with the permission of the parents, or, as a last resort, the courts” (484 U.S. 592, 604).8 This would be after review proceedings which the Supreme Court acknowledged would be “long and tedious.” The only exceptions were that 10-day suspensions were allowed, and a student with guns could be suspended, but not for more than 45 days.

Congress considered legislation reauthorizing this act in 1997. A large coalition of parents and teachers of the authentically disabled lobbied, successfully, for additional federal funds. “Compromise” legislation was put together in committee which altered the discipline provisions, but only by (a) providing that drugs, as well as guns, could be the cause of a 45-day suspension and (b) allowing the transfer of students after a trial-type administrative hearing as well as by the courts, provided that 30 pages of procedural requirements were complied with. To this day, the regulations still include “emotional illness” (34 CFR § 104.3[2][i][B]), include drug addicts and alcoholics within the definition of “impaired person” (34 CFR § 104.61) and continue to provide that “during the pendency of any administrative or judicial proceeding, the child involved in the complaint must remain in his or her present educational placement” (34 CFR § 300.513).

Said Senator Slade Gorton (R-Wash.) during the debate on it, “The law, of all federal regulatory statutes, ranks fourth in the amount of litigation that it creates … the very disorder, the very violence in classrooms that is to be the subject of discipline, is found to be evidence of disability so that the discipline cannot be imposed.”9 Under the statute, teachers and school districts are subject to the threat of federal lawsuits, with attendant attorney fee awards under the Civil Rights Attorney’s Fee Act, for each instance of school discipline. For the last 14 years, Baltimore City has been enmeshed in a lawsuit captioned Vaughan G. v. Mayor and City Council (MSG 84-1911) in the United States district court, which has imposed litigation and compliance costs measured in the tens of millions of dollars.

As noted by Kalman Hettleman,

School systems have been robbing regular students to pay for special education students … special education spending per student is more than double the regular education amount, and between 1977 and 1994, special education enrollment soared 46% nationally (an increase of nearly 2 million students) while total enrollment decreased 2 percent … school systems are overburdened by draconian court-imposed procedures intended to achieve technical compliance with Byzantine federal regulations. In Baltimore City, compliance audits of individual special-ed cases involve 193 checklist items. If a single violation is found in a single file, every special-ed file in that school must be audited.10

In 1997, the 109,071 students in special education cost the state $609,763,123 in instructional costs; the remaining 721,273 enrolled students accounted for instructional costs of $2,525,818,923, a disparity in per capita instructional costs approaching 2-to-1. In exchange for these federal mandates, the state received at most $61 million in federal funds under the 1997 act.11

III. State Regulations

In this section, I turn to the burden of state legislation and regulation. In particular, I am concerned with rules for the selection of school boards, personnel rules, regulations in regard to student health and, finally, the question of student evaluation. Most of this analysis is drawn from the education article within the Maryland code.

Local School Boards

It has been observed that “politics is the process by which we establish our priorities. Labeling education nonpolitical and having schools managed by nonpartisan school boards and state departments of education has shielded public education and teacher unions from the kind of scrutiny accorded partisan and political issues.”12 By maintaining the fiction that the allocation of resources within the education realm is non-political, we as a state have in effect granted a monopoly to a narrow band of education professionals subject to little public-interest oversight. This is compounded in Maryland by a distinctly undemocratic approach to the selection of local public schools’ governing boards.

Under section 3-102 of the education article, Maryland school districts are co-extensive with counties, which is to say that school-district boundaries are identical to county boundaries. Maryland districts are therefore much larger than those in most states. There are approximately 15,000 school districts in the United States; if Maryland districts were of average national size, the state would have 300 districts, not 24. In 1940, before district consolidation got under way in earnest, there were 130,000 school districts in the United States; a similar distribution in Maryland would have required 2,500 districts. While there is still a strong tradition of local control of schools in many parts of the country, Maryland has never had such a tradition; its county districts, created in 1867, replaced an even more centralized state system created in 1864.

Under section 3-114 of the education article, there are elected county boards in Allegany, Calvert, Carroll, Charles, Garrett, Howard, Kent, Montgomery, Prince George’s, St. Mary’s, Somerset and Washington counties. In Allegany, Carroll, Charles, Howard, Kent and Washington counties, board members are elected at large, reducing local influence, and electoral control is additionally decreased in all these counties through the use of staggered terms (and in Kent County through the use of six-year rather than four-year terms). In Calvert, Garrett, Montgomery and St. Mary’s counties, there are hybrid boards, elected partly at large and partly from districts, all with staggered terms. Only in Prince George’s and Somerset counties are boards composed entirely of elected representatives from local districts, and in Somerset County alone are staggered terms not used.

In all the remaining counties – Anne Arundel, Baltimore, Caroline, Cecil, Dorchester, Frederick, Harford, Queen Anne’s, Talbot, Wicomico and Worcester – the governor appoints the members for five-year terms on an at-large basis, without staggered terms; except that in Anne Arundel and Baltimore counties some members are appointed by the governor by district for five-year terms.

The new Baltimore City board, created in 1997, is appointed jointly by the governor and the city’s mayor, at large, for three-year staggered terms. Four of the nine voting members are required to have been managers of a large entity, three are required to have expertise in education, one must be a parent, and one must have expertise in the education of the disabled. The selection method for all local school boards is shown in table 1.

Except for “shared space councils” in some counties,13 there are no state statutory provisions for advisory boards to county school boards, with one significant exception. Section 4-308 of the education article creates a so-called Parent and Community Advisory Board of 14 members for Baltimore City, with whom the district chief executive officer (i.e., the superintendent) is required to meet on a quarterly basis. The composition of this advisory group supplies a dramatic illustration of the degree to which Maryland school governance has been resigned into the hands of narrowly-based advocacy groups. This board is only advisory in capacity, yet, even on this board, special interests have secured control, for membership must be as follows:

It would truly be an understatement to say that there is a very large democratic deficit in the control of Maryland public education. Nevertheless, the benefits of democratic, elective boards are strikingly indicated by the experience of Prince George’s County. There, pressures from the elected representatives of black parents led to the reining in of the busing remedies urged in their supposed interests by advocacy groups, first in favor of “magnet” schools and then in favor of neighborhood schools.

In Baltimore City, by contrast, advocacy groups have been allowed to proceed unchecked. The city’s appointed – not elected – boards first abolished all centers of excellence in the schools, then turned their faculties into patronage sinks by proliferating untrained teachers’ aides (whose appointment under section 4-103[b][2] of the education article was not even under the authority of the school board until 1997). Such aides make up 13 percent of the instructional force in Baltimore City as opposed to nine percent statewide.14 Finally, in contrast to the Prince George’s board, the city board voluntarily adopted sweeping busing plans for the purpose of racial balance in schools. This simply produced an exodus from the city of both the black and white middle classes, together with large portions of the tax base.

Personnel Regulations

Section 4-201 of the education article requires county superintendents of schools “to have completed two years of graduate work … including public school administration, supervision and methods of teaching.” This requirement is further extended to deputy, associate and assistant superintendents under COMAR (section 13A.12.04.03). This operates to exclude persons not indoctrinated in ways of the public-education establishment. By way of illustration, if a former chairman of the military’s joint chiefs of staff or a former president of the Massachusetts Institute of Technology were willing to head a Maryland school district, he would be disqualified by this provision (which was, significantly, omitted from the recent legislation relating to Baltimore City schools).

Provisions relating to certification of teachers and principals are subject to action of a Professional Standards and Teacher Education Board (PSTEB) created by section 6-701 of the education article. The standards board can veto certification rules proposed by the state board of education. Perversely, the latter can veto rules proposed by the PSTEB – but only by a three-fourths majority. The PSTEB has 25 members. Predictably, its membership is stacked in favor of education special interests, as follows:

The 14 nominees of the first two groups are sufficient to insure that such programs as currently exist for the alternative certification of liberal arts graduates who have not taken large numbers of education courses are not expanded further. The PSTEB seems constituted to institutionalize a closed shop.

This has the effect of discouraging talented people who might be interested in (a) becoming teachers after working in other fields of endeavor or (b) teaching early in life before moving to another career. Says Myron Lieberman, a former teachers’ union activist, “The courses required for teacher certification do not enhance job prospects outside of education … highly talented individuals choose not to go into teaching.”16 Under Maryland regulations, there is little room for outside subject matter in a would-be educator’s training. Principals are required to have three academic years of teaching experience and 18 graduate credits in education (COMAR 13A.12.04.04). Teachers must have 18 credits in education courses, a reduction from the 30 credits required in 1993 (COMAR 14.12.02.40).

Under section 6-102 of the education article, county superintendents are required to classify teachers every two years by granting them either first-class or second-class certificates, based on “scholarship, executive ability, personality and teaching efficiency.” While this sounds like a rational and commendable scheme of professional evaluation, as we shall see when we examine county teachers’ union contracts, in most counties there is no difference in the status or compensation of first-class and second-class teachers, save for that resulting from section 6-301 of the education article denying salary increments based on experience to second-class teachers. Moreover, “passing ratings on teacher evaluations [are] virtually automatic. A 1983 survey of 20,000 teachers in Philadelphia, Montgomery County and Baltimore [City] revealed that a mere 0.3 percent received less than a satisfactory rating during the previous year.”17

The evaluation process is frequently encumbered by provisions of union contracts, such as those in Anne Arundel and Howard counties, declaring that test results are not to be used as the primary basis of evaluating or rating teacher performance; that of Harford, providing for evaluation only every five years; that of Worcester, allowing an evaluated teacher the right to strike one observation from his file; or that of Allegany, allowing adverse material not relating to abuse or harassment to be stricken from the file after two years.

The Prince George’s County contract provides that “with the exception of the official teacher evaluation, no school-based written data in a teacher’s file may be transferred to another school.” Given that transfer is one of the very few ways a school can get rid of an incompetent teacher, this provision conveniently denies the new school any serious knowledge about its newly transferred in teachers. The Dorchester County contract provides that “whenever the rating of a second-class certificate is being considered, the appropriate supervisor must be utilized as the second-opinion evaluator.” Meanwhile, so that low-quality teachers will not be taken by surprise, the Prince George’s contract requires that “one of the observations of probationary classroom teachers will be announced at least two days prior to the observation.” The validity of these contractual regulations pertaining to reclassification procedure is questionable, given judicial holdings that reclassification plans are not arbitrable.18

Section 6-106 of the education article further restricts non-professionals from involvement in public education. While permitting the use of volunteer aides, it circumscribes their activities by stating that such aides “may not be used to supplant educational personnel but shall be used to assist regular employees in their assignments.” The effect of this provision is to reserve coaching and extracurricular activity positions to unionized teachers and to reduce interaction between the school and community.

Section 6-107 of the education article allows the engagement of student teachers. However, a number of union contracts encumber the use of such teachers by providing that union members cannot be required to supervise them.

Most prohibitively, section 6-202 of the education article provides tenure for teachers after a probationary period of just two years. This section provides that they may be dismissed only for immorality, misconduct in office, insubordination, incompetence and wilful neglect of duty. Dismissal for incompetence is no easy matter. Rules for tenure determinations of probationary teachers are not the subject of collective bargaining under a 1982 case, Board of Education of Carroll County v. Carroll County Educ. Assn. (55 Md. App. 355).19 In all subdivisions, there is to be a hearing on discipline of a non-probationary teacher before the county board, with an appeal to the state board of education – provisions supplanted nearly everywhere by elaborate grievance procedures (see below). In nine subdivisions, a record may be made before a hearing examiner, with argument before the county board. This applies in the more populous subdivisions, including Anne Arundel, Baltimore, Harford, Howard, Montgomery and Prince George’s counties as well as Baltimore City and Calvert and Charles counties. As for initial hiring, section 6-201 provides for appointment of teachers by the county board.

The provisions of the statute establishing the new Baltimore City system required a “Master Plan” to identify actions to implement from among the recommendations made within the 1994 and 1995 reports of a consulting firm, MGT of America, Inc. The thirty-fifth MGT recommendation called for devolving employee hiring, evaluation and termination to the schools. This idea was quickly scotched, however. The city schools’ 1998 summary of the Master Plan states firmly: “Based upon the advice of counsel concerning the requirements of Maryland labor laws [sic, actually the education article], the Board is unable to completely delegate employee hiring, evaluation, and termination to the individual schools.”20

All told, the effect of these provisions is to preclude school-based management by denying particular schools the right to appoint principals and by denying principals the ability to hire and fire teachers.

Somewhat more positively, section 5-401 of the education article, enacted in 1984 in connection with an increase in state aid to local schools, introduced a non-prescriptive system of accountability reporting designed to insure that increased aid was not used for increased administrative costs (rather than for reducing class sizes or increasing teacher pay). Two other permitted uses were stated to be “a classroom teacher award program” and “a master teacher or career ladder or any other appropriate teacher incentive pay program,” but only when provided for in collective-bargaining contracts. However, few teachers’ union contracts make provision for such programs. This has been the state’s only step toward merit pay for teachers, a concept strenuously opposed by the unions.

Student Health

While students are required to have physical exams upon entry into the school system, failure to present evidence of an exam does not result in exclusion. A health appraisal is required six months after entry, including a hearing and vision screen and an exam for curvature of the spine, scoliosis (COMAR 13A.05.05.07). There are also provisions for physical exams for inter-scholastic sports (COMAR 13A.06.03.02), but none for drug testing despite the effect of drug involvement on student welfare and accomplishment. (See appendix II below for further discussion of this topic.)

The education article authorizes searches of students “upon a reasonable belief that the student has in his possession” prohibited drugs.21 The Maryland State Department of Education (MSDE) is given rule-making authority with respect to permitted searches. Use of the “reasonable belief” standard is valid.22 No effort has been made to apply this authorization to drug testing of students upon reasonable suspicion. Statements made by students to staff for purposes of drug treatment are not admissible in any proceedings by reason of section 7-412 of the education article.

The only step the state has taken is a pilot program at Woodbrook Senior High School in Baltimore. This provides for a nurse practitioner to concentrate on early identification, health counseling and referral for, among other things, drug abuse, according to the education article (at §§ 7-415 though 7-418).

Evaluation of Student Performance

Section 7-203 of the education article establishes the Maryland School Performance Assessment Program (MSPAP), which is supposed to bring accountability to public education in Maryland. The state was effectively required to devise its own tests and to avoid any possibility of interstate comparison of the performance of particular schools by an education article provision stating that “national standardized testing may not be the only measure for evaluating educational accountability.” The implementing regulations provide for the appointment of “school improvement teams” where MSPAP standards are not met (COMAR 13A.01.04.06). Such teams are to include a principal, a parent, a community member and a secondary student, and provide for comment by parents and local government on reconstitution plans. It is not clear why this sort of community involvement is required only in extremis, only when schools fail to meet MSPAP’s less than rigorous standards. Furthermore, the MSDE has no idea what the rate of parent participation is in Maryland. The MSDE states that, with respect to the goal of parent participation, “at this time no accurate measure is available, though many local school systems involve parents.”23 By contrast, in Britain, Ireland, Australia and New Zealand, all schools are required to have their own boards including parents, teachers and community members.

It is true that since implementation in 1993, there has been an improvement in MSPAP test results, from a composite score of 31.7 to 41.8 percent.24 (These figures represent the statewide percentage of pupils in the third, fifth and eighth grades achieving a “satisfactory” score on the test.) But this has been attributed by some to “teaching to the test.” Statewide non-MSPAP results on the very basic “Maryland Functional Tests” showed declines during the period 1993-1997 in ninth-grade writing, eleventh-grade math and citizenship, and in the percentage of students passing all tests25 Similar but more dramatic declines in these results appeared in the Baltimore City functional tests – 75.5 to 64.3 in ninth-grade writing, 86.4 to 79.5 in eleventh-grade math, 89.6 to 80.9 in eleventh-grade citizenship, and 78.0 to 66.5 in the percentage passing all tests.26 (See figure 1.)

At the same time, social promotion is endemic. The percentage of students in grades K-12 promoted was 96.9 percent in SY 1996-97. Even in Baltimore City, with a pitiful composite MSPAP score of 13.8 percent in SY 1996-97, the June 1997 promotion rate was 93.3 percent.27 Section 7-202 of the education article contains a provision that non-retarded students in grades 3, 7 and 9 through 11 must meet minimum reading levels. But the consequence of failure to meet such standards seems to be limited to “enrollment in an appropriate reading assistance program.” There is a further provision that reading failure “may not be the sole reason for withholding grade advancement more than once in grades 2 through 7.” In short, not only is there no sanction against students failing to pass basic literacy tests, but the law in effect severely impedes the ability of educators to hold students back, even if the teachers were so inclined.

In similar vein, section 7-205 of the education article effectively precludes the award of honors diplomas or diplomas like the Regents’ Diplomas in New York State predicated on passage of examinations. The Maryland article provides that “each student who graduates from a public high school shall receive the same type of diploma or certificate, regardless of the high school attended or course taken.”

The state board of education has established a little-known Maryland High School Certificate of Merit predicated on a 3.0 grade point average together with completion of four years of English and three years each of a foreign language, science, social science, and math including algebra, and various other requisites (COMAR 13A.03.02.02B). This is hardly common knowledge, however.

IV. Union Contracts

In this chapter, I undertake a comparative examination of the 24 local teachers’ union contracts currently operative in Maryland. This analysis has not been achieved without difficulty. Repeated verbal and written requests, the payment of fees and the assignment of reasons for wanting copies of contracts were required by some subdivisions, despite the fact that all these documents are supposed to be publicly available, regardless of union reluctance to divulge details.

School Day and Year

There are only minor variations in the provisions pertaining to the length of the work week and year for Maryland teachers. Most contracts provide for a 190-day school year for experienced teachers; except that the year is 187 days in Caroline, Garrett and Queen Anne’s counties; 188 days in Cecil, Frederick and Worcester; 189 days in St.Mary’s and Talbot; and 191 days in Baltimore and Montgomery counties.

The school day was 7 hours and 30 minutes with a 30 minute lunch period in all jurisdictions except Baltimore City (7 hours, 5 minutes with 45 minutes for lunch unless reduced to 30 minutes by an unlikely three-fourths secret ballot vote of school faculty), Caroline County (7 hours, 15 minutes with 30 minutes for lunch), Howard County (7 hours, 35 minutes with 30 minutes for lunch), Kent County (7 hours, 20 minutes with 30 minutes for lunch), Baltimore County (7 hours with 30 minutes for lunch) and Anne Arundel County (6 hours, 45 minutes with 25 minutes for lunch and an additional weekly obligation of 1 hour, 45 minutes). Given the fact that many teachers are women with children at home, it is hard to quarrel with the shortness of the work day. But the school-day provisions are further cut down by more dubious provisions in most contracts for “preparation time,” i.e., free periods. The provisions for elementary and secondary teachers respectively are shown in table 2 in minutes per week.

A 30-minute lunch period, except where student lunch periods are shorter, is a minimum mandated by section 6-105 of the education article. What is more questionable is that the latter provision requires the teachers’ lunch periods to be “duty free.” Many local contracts interpret this as precluding any requirement that teachers dine in the student cafeteria. The effect of this, where security personnel or teachers’ aides are not employed, is to convert cafeterias into virtual “free fire” zones and to limit opportunities for informal interchange between teachers and students. Many contracts also provide for separate faculty dining rooms or for faculty rights to leave school during the lunch period.

Virtually all the contracts – the exceptions being those of Garrett and Washington counties – impose requirements for additional work time in connection with faculty meetings and other post-school activities other than parents’ meetings. In most subdivisions, these requirements are very modest. Table 3 shows hours on a monthly basis.

Parent Conferences

All the union contracts, save in a few counties, contain extraordinarily modest requirements for the devotion of time to parent meetings and parent/teacher association (PTA) meetings, notwithstanding the central role that most recent studies of primary and secondary education, including the Plowden report in England28 and the Coleman report in the United States,29 assign to parental involvement. Table 4 shows the annual requirement for PTA and parent conference hours beyond the normal work week. In 10 counties there appear to be no requirements at all.

The Howard county contract contains a remarkable provision declaring that “teachers need not discuss student problems with parents away from the school site.” The Kent contract provides that “teachers shall arrange for conferences with parents when it appears that better understanding and more cooperative support from home is needed for a pupil’s success in school.” The Somerset contract states, “Parent conferences will be scheduled at mutually acceptable times, when it involves after-school hours.” The Worcester contract by contrast contains the refreshing provision that “when a parent requests a conference, it is the responsibility of the teacher to schedule and conduct the conference in a timely fashion.” This sort of language is a rarity, unfortunately.

Grievance Procedures

State law (referenced above) accords each county board the power to dismiss teachers, with an appeal to the state board and subsequent judicial review under the Administrative Procedure Act. Nonetheless, discipline in all but three counties is no longer really the prerogative of the county board. Authority over it is reposed by collective bargaining agreements in outside arbitrators, serving on a one-shot basis, with no continuing responsibility for the schools. This is despite the fact that such arbitrators are “responsible to no one in the school district,” as Lieberman points out.30 Binding arbitration is expressly authorized for certified teachers by section 6-408(a)(2) of the education article, though in 1994 the Court of Special Appeals held that the state board might withdraw from collective bargaining grievance procedures for non-certified employees, under Livers v. Board of Education (101 Md. App. 160, cert. denied 336 Md. 594).

The basic procedure provides for three stages: (a) the principal, (b) the superintendent or a delegate of the superintendent and then (c) third-party arbitration. This is the pattern in Allegany, Calvert, Carroll, Dorchester, Frederick, Garrett, Howard, Kent, Prince George’s and St. Mary’s counties. Caroline County is alone in not providing for third-party arbitration (but only for the statutory procedure providing for dismissal by the county board). In Queen Anne’s County, the arbitration result is a recommendation only and final decision rests with the board. A similar principle applies in Talbot County with respect to assignment and discipline matters, though not other matters arising under the contract.

The remaining counties, however, provide in their union contracts for a cumbersome four-step procedure including intermediate appeals to both an assistant superintendent and the superintendent, rendering discipline virtually impossible. Such counties include Anne Arundel, Baltimore, Charles, Harford, Montgomery, Washington and Worcester counties. Somerset and Wicomico provide a four-step procedure in which the county board or the board president is included after review by the local superintendent and before arbitration.

True to its reputation as the most bureaucratic subdivision in the state, in Baltimore City a five-step procedure obtains: principal, area supervisor, superintendent, board of education, arbitration.

While all the contracts allow employees individually to adjust grievances, many of the contracts go quite far in reserving to the union the right to invoke many of the stages of the formal grievance procedure. In all the subdivisions save Queen Anne’s, only the union may invoke arbitration. In Frederick County, only the union may formally file a grievance at any level. In Anne Arundel, Carroll, Cecil, Harford, Howard and Montgomery counties, only the union may carry a grievance beyond the first stage. In Baltimore City, the last two of the five stages require union support.

In all but two jurisdictions, arbitrators are chosen by American Arbitration Association procedures. In Baltimore City, the Federal Mediation and Conciliation Service furnishes the arbitrator. In Somerset County, each party designates an arbitrator and the chairman is provided by the Somerset County Bar Association.

School Management

The contracts characteristically omit completely or contain only rudimentary provisions for school-based management rather than system-level management. Faculty advisory councils at the school level are provided for in Anne Arundel, Baltimore, Carroll, Cecil, Kent and Prince George’s counties; and there are school-level “school improvement teams” in Baltimore City and Baltimore, Calvert, Queen Anne’s and St. Mary’s counties. The teams in Baltimore City must include two teachers and a paraprofessional. The new Montgomery contract provides for “quality management councils” – each including two parents – in 25 of 185 schools with authority over some staff, schedule and budget matters. There is a vague reference to “shared decision making” in the Cecil contract.

Most of the contracts, however, assume that such advisory functions will be carried out exclusively within the existing public-sector framework, within the parameters established by union contracts. No deviations from contract provisions are authorized for particular schools except for the handful of somewhat charter-school-like “Enterprise Schools” in Baltimore City. The Carroll County contract allows the waiver of provisions, but only with the consent of a faculty advisory committee, which may well be predisposed to frown upon principals’ experimental urges. The Charles County, Prince George’s County and Montgomery County contracts allow functions to be privatized, but, in the case of Prince George’s, the contract guarantees job security where contracting out is resorted to, while the Montgomery contract requires any subcontracting to be discussed with the union. There is thus no scope for creation of “charter schools,” other than in Baltimore City and Carroll County, without renegotiation of the contract.

Meanwhile, none of the contracts provides for, or even contemplates, any participation whatsoever in the governance of particular schools by parents or community representatives. The major premise of each contract is a professional monopoly on school governance. It should be noted that section 4-112 of the education article permits – but does not require – the creation of advisory committees for individual schools; such a provision might provide a means for a determined superintendent to create embryonic boards for each school. Rather than the powerful parent associations on the French model,31 the recent Master Plan for the Baltimore City system provides only for parent/community advisory boards32 and for conventional PTAs, which have traditionally been subordinate to the teachers’ unions.33

Recent contracts reveal some effort to enhance union involvement in decisions traditionally reserved to the local board of education (though this has not been extended to parent or community involvement). Thus, the Kent contract provides for teacher input with respect to decisions on staffing, curriculum, class composition, daily schedules, teaching assignments, selection of textbooks and establishment of goals; the contract also provides for union representation on committees revising evaluation procedures. The Allegany and Caroline contracts provide for teacher participation in textbook selection. For its part, the new Baltimore City contract likewise provides that half the members of committees for the selection of textbooks be appointed by the Baltimore Teachers’ Union (BTU, an affiliate of the American Federation of Teachers or AFT), with said texts “to reflect the contribution and presence of diverse ethnic and cultural groups.” The Cecil and Prince George’s contracts insure teacher involvement in building construction and renovation decisions. The Prince George’s contract also contains elaborate provisions for reduction in the size of classes with more than 25 students, if these classes exceed by more than 10 percent the average size of classes in their respective disciplines.

Except for the issue of class size, the validity of these provisions is dubious. The Court of Appeals has stated that “a local board is either required to agree to negotiate a particular subject or is not permitted to negotiate that subject; this section leaves no room for subjects that a local board may but need not agree to negotiate” (Montgomery Educ. Assn. v. Montgomery County Board of Eduction, 311 Md. 303 [1987] and Washington Co. v. Washington County Board of Education, 97 Md. App. 397, cert. denied 333 Md. 201 [1993]).

Merit Pay

Notwithstanding the gesture in favor of merit pay made by the General Assembly when it allowed added funds to be used for this purpose in 1984, provisions for such pay in union contracts are rudimentary at best – even though 14 years have passed. This is not surprising. The National Education Association (NEA), parent union to 23 of the 24 Maryland local unions (all save Baltimore City), is stridently opposed to merit pay. It maintains that salary schedules should be “based upon preparation, academic degrees, experience, professional growth, responsibilities and full length of service” and that such schedules should “provide and maintain structural integrity through the use of an index or percentage guide for experience increments and levels of academic preparation.”34

All the same, a number of Maryland subdivisions do offer modest amounts of additional pay for department chairmen, team leaders or administrative trainees, as shown in table 5, though this can hardly be said seriously to separate the wheat from the chaff.

Although the recent Baltimore City reform legislation contemplated implementation of the 1995 MGT recommendations, the Master Plan vitiates MGT recommendation number 34, which calls for “a system for rewarding outstanding employee performance.” The Master Plan provides only “incentives for high performing and improving schools.”35

Other than this modest provision in the city, the only concessions made in favor of pay differentiation are the appointment of committees on the master-teacher concept in the Baltimore City and Baltimore County contracts and a provision of the Montgomery contract agreeing “to consider proposals for differentiated pay plans which originate with local school faculties after the school has successfully implemented a differential staffing plan for at least two full school years.” This said, there are also provisions denying master teachers any supervisory functions over other teachers, a transparent device to keep them in the bargaining unit.

The Baltimore County contract allows negotiated waivers “to solve the educational problems of a particular school,” provided that a majority of teachers in the school vote for a waiver and that it is separately negotiated with the union. The Talbot County contract allows newly hired teachers, who ordinarily may not be credited with more than five years of experience on the salary schedule, to be credited with up to 15 years of experience “in areas of critical need.” This allows extra pay of up to $8,400 for teachers with bachelor’s degrees ($40,600 rather than $32,200) and up to $10,400 for teachers with master’s degrees ($44,000 rather than $33,600). The Allegany and Prince George’s contracts allow “exceptions approved by the superintendent in the employment of teachers in critical areas.” The Somerset contract has an ambiguous provision that “teachers shall be placed on the salary schedule according to academic preparation if the requirements of the position held require additional academic preparation.”

These are virtually the only salary differential authorities granted to any Maryland school board that might be significant in recruiting new teachers or teachers in scarce disciplines. The Kent contract is the most explicitly anti-merit pay. It emphatically declares, “The total salary for each teacher will be based exclusively on the degree and certificate held, its appropriateness for the teaching assignment, total years of teaching experience and whether or not the teacher is eligible for a military service stipend” [emphasis added].

It has been observed that “union leadership must satisfy a majority and avoid internal conflict that weakens group solidarity. This is why single salary schedules are an NEA/AFT imperative. The teacher unions oppose higher salaries for math teachers even where there are severe shortages of math teachers and large pools of qualified candidates in other subjects…. The unions adamantly oppose merit pay as a sham to avoid paying higher salaries to most teachers. The reality is that the absence, not the presence, of high salaries for the few depresses teacher salaries. Because teaching offers so few opportunities for risk-takers and entrepreneurs, individuals who can raise the productivity level of the education industry enter other professions.”36

The single salary schedule applying equally to second-grade reading teachers and twelfth-grade physics teachers has been taken to extremes rarely seen in industrial union contracts, let alone those of craft or professional organizations. As a consequence, in some places, half the physics teachers, one-third of the math teachers and one-fifth of the science teachers do not have degrees in their subject matter.37 This is the price society pays for making it impossible to attract qualified people at suitable, demand-related salaries. For salary purposes, all teachers are treated as fungible. It would be as though the Bethlehem Steel contract recognized but a single work category, “steelworker,” a practice unheard of in industrial union contracts in private industry. The salary structure applicable to our children’s teachers is one more appropriate to an organization of sweepers in a meat-packing plant.

In the early 1960s, the NEA proposed separate bargaining units for senior high, junior high and elementary teachers in New York City. Had it prevailed in the representation election, there might well have been a return to the earlier practice of separate schedules for elementary and secondary schools.38 The lack of such differentiation may be as important as any factor in contributing to the perceived inadequacy of American high schools, whose teachers have neither the dignity nor the economic rewards of many of their foreign counterparts. In 1972, the average American secondary-school teacher received about $2,000 a year more than his elementary-school counterparts ($32,757 as opposed to $30,775). By 1991, union pressure for uniformity has caused even this modest differentiation to erode; the comparative figures for that year, using constant dollars, were $33,701 (secondary) and $32,448 (elementary).39

One effect of the flat salary schedules is that teaching has limited appeal to primary wage-earners, contributing to the feminization of the teaching force, which is only about one-fourth male in most counties, except for Allegany (one-third) and Anne Arundel and Somerset (one-fifth).40 This may not be a desirable consequence in a period in which, because of the rising divorce rate, increasing numbers of children are being raised by a single parent, usually the mother. The absence of a father, or at least of a male figure in some sort of position of authority, has repeatedly been correlated with juvenile delinquency among teenage males.41 Over the period 1986-1988, 86.2 percent of U.S. primary teachers were women, the highest proportion in the developed world except for Italy (89.8 percent). This contrasted with the figures for West Germany (79.6 percent), the United Kingdom (78.1 percent), Canada (68.1 percent), Sweden (68.1 percent), France (67.0 percent) and Japan (56.6 percent).42

Pay Structure

Essentially, there are only three ways for a classroom teacher financially to advance in a Maryland school system: (a) by doing graduate work, including graduate work in education courses, which do not improve his knowledge of subject matter, (b) by the passage of time, provided the teacher manages to avoid a second-class rating or (c) by becoming an administrator. The balance between the first two factors differs from system to system. Table 6 shows, first, the difference a master’s degree makes to a teacher with ten years experience vis á vis the holder of a bachelor’s degree with similar experience and, second, the difference that five years’ experience between the tenth and fifteenth year makes to the holder of a master’s degree. In other words, the figures in the first column reflect the salary differential between a 10-year veteran with a master’s degree and a 10-year veteran with no master’s. The second column represents the pay difference between two M.A.-holding teachers, one with 10 years’ experience, the other with 15 years’ experience.

Tuition reimbursement programs exist in all subdivisions. Although most counties require prior authorization by an administrator, only Caroline County restricts reimbursement to non-education courses (i.e., courses useful for furthering subject-matter expertise). A minimum grade of B is required in Anne Arundel, Carroll, Dorchester, Montgomery, Talbot and Washington counties and in Baltimore City. Charles and Harford require a B for graduate courses. An altogether more modest C grade is required in Calvert, Cecil, Garrett, Queen Anne’s, St. Mary’s, Somerset, Wicomico and Worcester counties; Charles and Harford require a minimum C for undergraduate courses. Allegany, Kent and Prince George’s counties impose no minimum grade requirements whatsoever. The result is that teachers can go back to school, courtesy of the taxpayer, stock up on a series of low-stress, low-skill education courses, earn themselves a master’s and then receive a pay raise, again courtesy of the taxpayer – while also rendering themselves eligible for administrative positions requiring education degrees. These administrative positions carry with them departure from the unpleasantness of the classroom and also significant pay increases. Thus, the incentive to take education-major rather than subject-matter courses is enormous.

Baltimore City formerly provided exceptional rewards for longevity between the tenth and fifteenth years. The result in Baltimore City was a salary scale in which the pay of teachers with 15 or more years of experience was about average for the state while the pay of teachers with 10 years experience was the lowest in the state. This has now been corrected.

All subdivisions except Montgomery County continue longevity increases beyond the twentieth year. In Worcester County, a longevity increase is provided in the thirty-fifth year! It is hard to believe that these gestures of respect for the elderly reflect enhanced energy and performance. To the extent that their effect is to depress the rewards of 30-year-old teachers with family responsibilities (while rewarding older teachers with fewer family responsibilities), the policy is one of killing the seed corn by driving younger teachers with family support needs out of the system. Says Lieberman, “Teachers nearing retirement often want the union to bargain for salary increases at the high end of the salary scale. Such increases would increase their retirement benefits which are based on their terminal salaries.”43 He continues, “When salaries go up, teachers considering retirement often continue to teach in order to raise their pensions.”44 In table 7, I present the salaries of teachers with bachelor’s degrees and advanced professional certificates after the tenth, fifteenth, twentieth, twenty-fifth, thirtieth and thirty-fifth year of service.

The salary scales in all counties provide major incentives to leave teaching and enter administration. Statewide, the average salary of an assistant principal is $60,609 as against an average teacher’s salary of $41,321.45 Baltimore City appears to have a system that is top heavy with administrators. The comparison shown in table 8 of the five largest systems reveals the ratio of enrollment to various types of employee. The columns show (a) enrollment, (b) instructional employees, (c) non-instructional professional employees and (d) superintendents and their deputies and assistants. It is certainly not clear why Baltimore City needs 14 superintendents and deputies, while the larger Prince George’s County system needs only nine.

Leave Provisions

The contracts are characterized by quite generous leave provisions. The minimum annual sick leave is 10 days, which can be accumulated virtually without limit and, in some counties, partially converted to cash on retirement at the final salary rate. “If leave does not accumulate, there is no incentive not to use it; hence use becomes rampant. If payment for unused leave is introduced, use goes down but costs go up. Sick leave banks eliminate concern that sick leave will be exhausted, which in turn reduces incentives to save leave days for future emergencies,” notes Lieberman.46 There are sick leave bank provisions in the Anne Arundel, Baltimore, Carroll, Cecil, Frederick, Harford, Kent, Montgomery, Prince George’s and Washington county contracts and in the Baltimore City contract.

Sick leaves are not convertible to cash on retirement in Allegany, Calvert, Caroline, Charles, Dorchester, Garrett, Howard, Queen Anne’s, St. Mary’s, Talbot, Wicomico, Somerset and Worcester counties. The other counties have varying provisions, the most generous being that of Baltimore City (25 percent in the current year and 25 percent at retirement). A number of counties provide leave for longer periods than 10 days, namely, Anne Arundel and Worcester (11 days), Dorchester (12 days, including three days’ personal leave), Garrett (12 days), Harford (12.5 days), Talbot (13 days), Prince George’s (10-15 days, depending on length of service), and Allegany County and Baltimore County and Baltimore City (15 days).

Personal leave allowed is three days in all counties except for Anne Arundel, Frederick, Howard, Somerset, Talbot and Worcester, where two days are allowed, and Baltimore City, which allows one day.

The contracts contain extraordinarily complex provisions for bereavement leave, evidently a throwaway item during contract negotiations. Little is left to the common sense and compassion of school principals; instead, elaborate prices are put on the heads of different relatives in a fashion that would be fascinating to the cultural anthropologist were it not so obvious that the source of the bereavement pricing is negotiation impasse.

All the subdivisions allow four to five days’ leave as of right when a parent, child or spouse dies. Beyond that, provisions vary widely. The usual provision for siblings is four to five days, except that Baltimore County allows only one day. For grandparents, provisions vary from five days in Cecil, Harford, Howard and Talbot counties to zero in Charles County and one day in Baltimore and Prince George’s counties. For aunts and uncles, Anne Arundel and Dorchester counties allow four days, two counties allow three days, five counties allow two days, eight counties allow one day, while Carroll, Charles, Harford, Montgomery, Prince George’s and Talbot counties allow none. For nieces and nephews, Anne Arundel and Dorchester allow four days; Calvert, Cecil, Garrett, Kent and Queen Anne’s, two days; eight other counties, one day; and eight counties, none. Most counties allow four to five days for parents-in-law, but Baltimore County allows one day, Calvert two, and Allegany and Washington three. Equally erratic patterns apply to brothers- and sisters-in-law, grandparents-in-law, grand-children and step- and foster parents. Wicomico and Kent counties provide a day of paid leave as of right for the death of a first cousin, and Allegany a day for any cousin. Cecil provides five days for great-grandparents.

By way of comparison, the state avoids this pricing situation with respect to its own employees by encompassing bereavement leave within sick leave, for which 15 days are allowed under sections 9-501 and 9-502 of the state personnel article. Also encompassed within sick leave under the state personnel system are family illness leave, maternity leave and adoption leave, all of which are the subject of elaborate separate provisions in teachers’ union contracts.

Layoffs and Transfers

Among the most debilitating provisions in the teachers’ union contracts are the provisions which limit involuntary transfers and require teachers to be laid off and rehired on the basis of seniority. Typically, involuntary transfers are grievable, discouraging principals from transferring inadequate teachers. And outright termination is very difficult. For example, out of a tenured teacher force of over 5,600, no more than two Baltimore City teachers were fired for cause per year between 1984 and 1990.47

Where transfers result from reduced need for teachers, virtually all the contracts require them to be carried out in reverse order of seniority even though the transferred teacher is not losing a place in the system. Layoffs likewise are in reverse order of seniority and recalls in order of seniority. The Montgomery County contract is unusual in allowing quality of job performance as well as seniority to be considered.

The overall effect is (a) that a shrinking system or school becomes a very elderly one and (b) that principals are denied the ability to recruit a team or to transfer the inadequate. In addition, says Lieberman, “Since most teachers prefer safer outlying schools, the inner-city schools employ a higher percentage of young, inexperienced teachers.”48

Restricted Activities

Virtually all the contracts restrict teachers from being assigned cafeteria duty or from being required to drive students or provide substitutes. The Baltimore City contract restricts them from playground duty, detention duty, lavatory duty, office duty, the accessioning of library books and the duplication of teaching materials; it also precludes the teaching in the same classroom of elementary-school students from different grade levels. The Anne Arundel contract precludes teachers from being required to undertake demonstration teaching or in-service presentations. The Calvert and Wicomico contracts preclude a prescribed format for lesson plans. The Caroline contract excludes coaching, ticket selling and chaperoning beyond the regular school day. The Cecil contract precludes field trips outside the regular duty day. The Frederick and Wicomico contracts preclude teachers from being required to fill out non-evaluative data on permanent record cards. The Frederick contract also precludes detention duty or bulk delivery of books to classrooms, while the Wicomico contract additionally precludes playground and nursing duty.

In Somerset, teachers are specifically excluded from concession stands. The Harford contract precludes participating in crowd control at school events for which admission is charged. The Howard contract precludes elementary-school teachers from lunch and recess duty and absolves them from being required to supervise student teachers. The Montgomery County contract similarly absolves reluctant teachers from supervising student teachers and from cafeteria and lunchtime duties. In tribute to Montgomery’s prosperity, its contract uniquely requires that classrooms and employee lounges be air conditioned; the contract in the similarly suburban Prince George’s County so provides with respect to faculty lounges only.

The Talbot contract requires teachers to be notified of HIV-positive students, absolves them from searching for head lice or contraband, and declares that teacher participation in extra-curricular activities is not to be used as an evaluation criterion. The Washington and Wicomico county contracts absolve teachers from maintaining pupil attendance records. The Washington County contract also precludes conducting monitoring duties or participating in uncompensated extra-curricular activities. Like the Caroline County contract, it also bars the use of part-time employees where a full-time employee is available, a disservice to women teachers with young children. By contrast, the Prince George’s and Allegany contracts expressly authorize job-sharing, an unusual nod to the needs of women teachers with young children. The Prince George’s contract is also unique in requiring that teachers “shall dress and conduct themselves in accordance with accepted professional standards.” It is worrying that this sensible provision is notably absent in the other 23 contracts. The Worcester contract uniquely declares that “teachers have a responsibility to promote a school environment that is free of drugs.”

Union Security

Section 6-407 of the education article of the Maryland code mandates what to all intents and purposes is a closed shop in regards to public-school teaching in eight subdivisions, permitting the collection and payment to the unions of compulsory “agency fees” from non-union members. Thus, in Allegany, Anne Arundel, Baltimore, Garrett, Montgomery, Prince George’s and Washington counties, along with Baltimore City, all teachers must financially support the union whether they like it not. In addition to the agency shop arrangements in these counties, all counties by contract agree to withhold dues where authorized to do so by employees. In Caroline, Cecil and Talbot counties, the authorization may not extend to state and national union dues. Payroll deductions for union political action committees, where authorized by the employee, are provided for in Allegany, Cecil, Dorchester, Kent and Washington counties and in Baltimore City.

More questionably, the contracting union is given exclusive access to the employee communication system in all counties save Charles, Frederick, Queen Anne’s, St. Mary’s, Talbot, Washington and Worcester. The unions’ purpose in insisting upon this extraordinary monopoly of in-school communication is to inhibit the development of other teachers’ organizations that might displace the established unions. The constitutionality of such restrictive arrangements was upheld in a 5-to-4 decision of the U.S. Supreme Court in 1983, in Perry Education Assn. v. Perry Local Educators Assn. (460 U.S. 37). In order to inhibit the development of specialized unions, such as associations of secondary-school or science teachers, section 6-404 of the Maryland education article provides that “there may not be more than two [employee bargaining] units in a county.” To avoid the possibility of pitching two rival teachers’ unions against each other, the usual pattern is for one unit for certified teachers and one for supporting staff (except that elementary and secondary school nurses in Baltimore County may have their own units).

What is never permissible, under any circumstances, is to have two unions in one jurisdiction competing for the same members. Even more pernicious is the effective prohibition of separate bargaining units for senior high schools, and the consequential devaluation of high-school teaching as a vocation.

Given that an open market for members is not permissible to the leadership of NEA affiliates or AFT affiliates, each fearing membership loss to the other, there are cumbersome procedures allowing county teachers to change unions if the current union proves unsatisfactory. Under the education article (§ 6-406), a decertification election may be held once every two years, but only on petition of 20 percent of employees. If the election fails to unseat the incumbent union, election instigators cannot leave. Disgruntled minorities within a bargaining unit are bound by the unit contract under a 1979 ruling, Offutt v. Montgomery County (285 Md. 557).

Non-Public Schools

State law does not go anything like as far as the U.S. Supreme Court allows in providing state aid to non-public schools. State assistance to private schools is anathema to the public-sector teachers’ unions, a politically powerful force in Annapolis.

For example, transportation for non-public students is required by state law only in Calvert County. This was confirmed in a court action in 1984, McCarthy v. Hornbeck (590 F. Supp. 93, D. Md.). The provision is now enshrined within the education article at section 7-801.

In 1971, a distinguished commission under the chairmanship of Dr. Otto Kraushaar of Goucher College in Towson recommended a program of scholarships for disadvantaged students.49 The commission’s recommended course of action was enacted by the General Assembly and petitioned to referendum, only to be defeated, largely with votes from Montgomery County. This approach, restricting the program to low-income pupils, would have met the contention that voucher and tax-credit programs disproportionately benefit upper-income students.

If now applied only to students beyond the school-leaving age of 16, such a plan would be as immune as the G.I. Bill from even far-fetched constitutional objections; might encourage some students to remain in school who drop out of inadequate public schools; and might ultimately encourage the creation of private and public sixth-form colleges like those in England which separately teach mature and willing students in an atmosphere less adolescent than that of the typical high school.

V. The Way Forward

From this review, a number of conclusions flow, as outlined below. Adoption of these principles would significantly enhance the education of young Marylanders.

The General Assembly Should Open the Door to More Local and Specialized Unions.

The assembly should repeal the limitation on number of units in section 6-404 of the education article, should require that senior high schools be treated as separate units, and should require that all employee organizations, certified and uncertified, have equal access to employee communications.

The General Assembly Should Reclaim Discipline and Dismissal Powers for School Boards.

The legislature should restore disciplinary and dismissal powers to local schools boards by repealing the arbitration provisions of section 6-408(a)(2) of the education article. Such powers should be delegable to site managers, which is to say to school principals. It follows that sections 6-201 and 6-202 of the education article should be amended to allow appointment and removal to be carried out at the level of the individual school. Multiple potential employers in each county will vitiate the need for tenure provisions and elaborate protections against dismissal.

Local School Boards Should Be Made More Democratic.

Each county and Baltimore City should be provided, after a transition period, with its own elective board, elected from subdistricts in the larger districts overall, as opposed to the at-large representation that generally prevails currently.

Each School Should Be Provided with Its Own Board.

As in Britain, Australia and New Zealand, each school should have its own governing body with at least the power to hire and dismiss the principal and manage the maintenance and repair and student activities budgets and to make school rules. The board should include elected parents and teachers, as well as designees of the local board and persons co-opted by the board members for their expertise in accounting, construction and higher education. The county board should have a role in recruiting the co-opted members, and should have power to appoint additional board members for failing schools as in the United Kingdom.

Requirements for Graduate Education Courses for Principals and Superintendents Should Be Repealed in Favor of Experience Requirements and Examinations.

The alternate certification program for teachers in Baltimore City should be universalized by statute. The union-dominated Professional Standards and Teacher Education Board created by section 6-701 of the education article should be abolished. In short, the education profession should be opened to individuals of many talents, rather than being the sole purview of the indoctrinated. This might well result in a surge of enthusiasm from persons interested in teaching before moving onto another career, or from those considering teaching as a second career.

Provisions for Merit Pay and Added Pay for Special Disciplines Should Be Enhanced.

The provisions of section 6-408 of the education article should be amended expressly to declare that the salary schedules provided in negotiated agreements are minimum schedules and do not preclude board adoption, without union consent, of merit pay plans or higher schedules for specified disciplines or levels of instruction. Any additional state aid to public education should be earmarked for merit pay and similar plans, including enhanced pay for high school science and math teachers, a pressing need. Currently, new college graduates with expertise in these fields can make considerably more money annually in other professions. A 1993 survey by the U.S. Department of Education revealed that beginning teachers received salaries on a par with those in communications and social services, but $10,504 below the salaries for beginning computer scientists and $6,125 below those for first jobs in math and physical sciences.50

Serious consideration should be given to prohibiting by statute the use of state aid to fund (a) longevity increases beyond the fifteenth year of service or (b) any pay increments for classroom teachers for degrees and courses in disciplines other than that taught by the teacher (which would make it more difficult for teachers to give themselves a pay raise by taking education courses of doubtful merit).

Leave Policy Should Be Brought into Line with State Leave Provisions.

Consideration should be given to eliminating, by statute, leave provisions as a subject for collective bargaining and assimilating teacher leaves to those provided by statute for state employees.

Each School Should Have a Parents’ Association.

Parents’ associations, each with an elected council, should be established as in European countries. These should be separate from teachers’ organizations, thus broadening input for local education policy. Such associations have worked very well elsewhere; there is no reason to suppose that Maryland would not benefit accordingly by their introduction.

The General Assembly Should Pass Legislation Authorizing Charter Schools.

In the 1998 legislative session, tepid charter-school legislation was introduced. This watered down bill would have accomplished little. The bill (H.B. 999) was hopelessly skewed in favor of the status quo: It forbade existing private schools from converting to public charter status and tied charter schools to union pay scales. The bill permitted only current public school boards to serve as approving bodies for groups petitioning for charter status. The bill permitted no appeals process.51 H.B. 999 was eventually committed to summer study by a task force to insure that, upon reintroduction in 1999, it has sufficient provisions for charter-school independence to qualify for federal funds. This opportunity should be seized by education reformers in the assembly to lobby for serious legislation, including provisions giving all public schools the independent boards accorded to charter schools.

The State Should Provide Scholarships for Low-Income Children to Attend Non-Government Schools, at Least for the Last Two Years of High School.

The 1971 Kraushaar recommendations in regard to scholarships for low-income students should be implemented, at least for students beyond the school-leaving age, as a means of discouraging dropouts and introducing new models of school for mature and willing students.

Student Health-Appraisal Policies Should Include Narcotics Examinations.

School health provisions should be enhanced by the introduction of programs of drug testing and referral for treatment on the lines outlined in appendix II below. Coupled with provisions for the referral of students to schools for the disruptive, this measure would reduce the propensity for a few students to disrupt or indeed entirely destroy the educational opportunities for the majority of students in any given school.

Efforts Should Be Made to Eliminate Federal Interference.

The state should lobby hard to eliminate federal intervention in school discipline and to abolish mandates relating to special and bilingual education. Judicial remedies are now sufficient to address instances of racial discrimination; discretionary fund-withholding powers in the federal bureaucracy should be curbed or abolished. The Civil Rights Attorney’s Fee Act should be altered to eliminate the present incentives for suits against school districts.

Progress toward the model outlined will produce a teaching force which enjoys better pay prospects and which is open to more talented citizens; an administrative staff chosen for its competence in action rather than its possession of superfluous credentials; schools that are better repaired, better disciplined and better organized; a professional atmosphere in which individuals can make a difference; senior high schools whose faculties are accorded greater dignity and compensation and which are subject to competitive discipline from both within and without the public system; and an overall system in which parents and communities will have greater confidence and which therefore will be better able to enlist necessary financial support.

This is the way forward.

Appendix I: The Contracts

Allegany County Teachers Association, Inc. (ACTA), Agreement between the Board of Education of Allegany County and the Allegany Teachers’ Association, 1996-1999 (LaVale, Md.: ACTA, December 10, 1996).

Teachers Association of Anne Arundel County (TAAAC), Negotiated Agreement between the Teachers Association of Anne Arundel County and the Board of Education of Anne Arundel County, July 1, 1997 to June 30, 1998 (Annapolis, Md.: TAAAC, July 9, 1997).

Baltimore Teachers Union (BTU), Agreement between the Baltimore Teachers Union, American Federation of Teachers, Local 340, AFL-CIO, Baltimore City and the Board of School Commissioners, 1994-1996 (Baltimore, Md.: BTU, October 1994). Note that the tables in the text are based on the 1998 contract, which is not yet published.

City of Baltimore, Board of Estimates, “Memorandum of Agreement between the City of Baltimore and the Baltimore Teachers Union, American Federation of Teachers, Local 340, AFL-CIO: Agreement Covering all Paraprofessionals, Fiscal Year 1997.”

Teachers’ Association of Baltimore County (TABCO), Master Agreement between the Board of Education of Baltimore County and the Teachers’ Association of Baltimore County, Effective July 1, 1995 – June 30, 1998 (Towson, Md.: TABCO, [no date]).

_____, Supplement to the 1995-98 Master Agreement between the Board of Education of Baltimore County and the Teachers’ Association of Baltimore County, July 1, 1997 – June 30, 1999 (Towson, Md.: TABCO, [no date]).

Calvert Education Association (CEA), Agreement between the Calvert Education Association and the Board of Education of Calvert County: July 1, 1995 to June 30, 1999 ([no publishers' data]).

Caroline County Teachers Association (CCTA), Negotiated Agreement between the Board of Education of Caroline County and the Caroline County Teachers Association, 1996-1999 (Denton, Md.: CCTA, August 13, 1996).

Caroline County Public Schools (CCPS), Amendment to the 1996-1999 Negotiated Agreement, 1997-1998 School Year (Denton, Md.: CCPS, February 1997).

Carroll County Public Schools (CCPS), Master Agreement between the Board of Education of Carroll County and the Carroll County Education Association (CCEA), 1997-1998 (Westminster, Md.: CCPS, June 24, 1997).

Cecil County Classroom Teachers Association (CCCTA), Negotiated Agreement between the Board of Education of Cecil County and the Cecil County Classroom Teachers Association (no publishers’ data]).

Education Association of Charles County (EACC), Negotiated Agreement between the Education Association of Charles County and the Board of Education of Charles County for the Fiscal Year 1998 ([no place]: EACC, June 10, 1997).

Dorchester County Board of Education (DCBE), Agreement between the Dorchester Educators and the Board of Education of Dorchester County, FY 1998 – FY 1999 (Cambridge, Md.: DCBE, August 13, 1997).

Frederick County Teachers Association (FCTA), Negotiated Agreement between the Frederick County Teachers Association and the Board of Education of Frederick County, School Years 1996-1998 (Frederick, Md.: FCTA, August 19, 1996).

Garrett County Education Association (CCEA), Comprehensive Agreement between the Board of Education of Garrett County and the Garrett County Education Association, 1997-2000 (Oakland, Md.: GCEA, December 12, 1995).

Harford County Education Association (HCEA), Negotiated Agreement between the Board of Education of Harford County and the Harford County Education Association, 1996-99 (Bel Air., Md.: HCEA, [no date]).

Howard County Public Schools (HCPS), Master Agreement between the Board of Education of Howard County and the Howard County Education Association, Beginning July 1, 1997 and Ending June 30, 1998 (Ellicott City, Md.: HCPS, February 1997).

Kent County Teachers’ Association (KCTA), Agreement between Kent County Teachers’ Association and Board of Education of Kent County, 1996-98 ([no publishers' data]).

Montgomery County Public Schools (MCPS), Contract Agreement between the Montgomery County Education Association and the Board of Education of Montgomery County, Rockville, Maryland for the Schools Years 1996-1998 (Rockville, Md.: MCPS, [no date]).

Prince George’s County Educators’ Association (PGCEA), Negotiated Agreement between Prince George’s County Educators’ Association and the Board of Education of Prince George’s County, July 1, 1996 to June 30, 1999 ([no place], PGCEA, November 20, 1997).

Board of Education of Queen Anne’s County (BEQAC), Agreement between Queen Anne’s County Education Association, Inc. and Board of Education of Queen Anne’s County, July 1, 1997 – June 30, 1998 ([no place]: BEQAC, March 3, 1997).

Education Association of St. Mary’s County (EASMC), Agreement between the Education Association of St. Mary’s County and the Board of Education of St. Mary’s County, July 1, 1995 – June 30, 1998 ([no place], EASMC, March 29, 1995).

Teachers Association of Somerset County (TASC), Agreement between the Board of Education of Somerset County and the Teachers Association of Somerset County, 1997-1998 ([no place]: TASC, May 14, 1997).

Talbot County Education Association (TCEA), Comprehensive Agreement between the Board of Education of Talbot County and the Talbot County Education Association, July 1, 1997 – June 30, 2000 ([no place]: TCEA, March 19, 1997).

Board of Education of Washington County (BEWC), Negotiated Agreement between the Board of Education of Washington County and the Washington County Teachers Association, Inc., 1997-98 (Hagerstown, Md.: BEWC, January 20, 1998).

Wicomico County Board of Education (WCBE), Agreement between the Wicomico County Board of Education and the Wicomico County Education Association, 1992-1999 (Salisbury, Md.: WCBE, March 14, 1995).

Board of Education of Worcester County (BEWC), Master Negotiated Agreement between the Board of Education of Worcester County and the Worcester County Teachers’ Association, 1996-99 School Year ([no place]: BEWC, June 17, 1997).

Testing for Drugs in Schools : The Constitutional Issues

George W. Liebmann, J.D.

Beginning in 1985, nearly five million members of the American military underwent routine drug testing, a program which continues, and which is credited with having virtually eliminated from the military the serious problems of drug abuse which afflicted it following the Vietnam war.1 That program is generally adjudged a successful one, though it has inspired remarkably little interest on the part of the mass media. In 1986, as a result of the new military program, 16 American high schools instituted random testing. Twenty-seven percent of American school principals were found to favor such testing.2

Yet, despite the fact that drug-associated homicides are now a leading, and in some places the leading, cause of death among young black males in the U.S., the movement for drug screening in the schools has gone no further. This discussion suggests that the time has come for another look at this subject, and attempts to address a number of relevant questions.

Questions and Answers

Conservatives and libertarians may differ about the necessity of the drug war. They should not, however, differ on the necessity of the rule of law. The law currently prohibits the use of illicit drugs. Enhancing adherence to the law should not thus be controversial.
Q. Why did the movement toward school drug testing stop?
A. Almost entirely because of litigation and the fear of litigation. In 1986, the Carlstadt school district in New Jersey instituted a program of drug screening for all entering students. This program was instituted in a year in which a national survey of high school students revealed that 25 percent had consumed marijuana and 10 percent cocaine within the preceding month. Within one week of inception of the program, without any adverse action having been taken against any student, suit was brought by the American Civil Liberties Union (ACLU). The ensuing adverse trial court decision, Odenhein v. Carlstadt School District (211 N.J. Super. 54; 540 A. 2d 709), was extensively publicized in two front-page articles in the New York Times. It was not appealed. In addition, the trial court ordered the school district to pay the ACLU $23,000 in counsel fees. This decision was referred to in the widely disseminated Bulletin of the National Association of Secondary School Principals in March 1987. So the word got out. A 1989 similar, lower-court decision in Arkansas was also extensively publicized, Anable v. Ford (653 F. Supp. 22). The only other relevant litigation on this issue has involved drug testing of student athletes, as to which the majority of decided cases support testing, including a decision of the federal 7th Circuit Court of Appeals, Veronia School District v. Acton (23 F. 3d 1517). This in 1994 expressly rejected the premise of the Carlstadt case. The 7th Circuit decision was in 1995 upheld by the Supreme Court (115 S. Ct. 2386).
Q. What has the U.S. Supreme Court said about this subject?
A. By a six-to-three majority, it has upheld drug testing of student athletes, using broad language which also supports general drug testing of students. One of the six majority justices, Justice Ruth Bader Ginsburg, wrote a separate concurrence dissociating herself from this broad language. Significantly, none of the other five majority justices joined her opinion. Several earlier decisions suggested that appropriate systems of screening or testing might be upheld. In the 1985 case, New Jersey v. TLO (469 U.S. 325),3 Justice Lewis F. Powell, Jr., for the court, applied a relaxed “reasonable suspicion” standard to school locker searches for drugs and weapons, and significantly noted: “We do not decide whether individualized suspicion is an essential element of the reasonableness standard…. [T]he Fourth Amendment imposes no irreducible requirement of such suspicion [where] other safeguards are available to assure that the individual’s reasonable expectation of privacy is not subject to the discretion of the official in the field…. [W]ithout first establishing discipline and maintaining order, teachers cannot begin to educate their students. And apart from education, the school has the obligation to protect pupils from mistreatment by other children and also to protect teachers themselves from violence….” In another case, Michigan Department of State Police v. Sitz (469 U.S. 343, n. 8), the breath testing of adult drivers at sobriety checkpoints was upheld, notwithstanding that fewer than one percent of those examined tested positively. In National Treasury Employees’ Union v. Von Raab of 1989 (489 U.S. 686) and Skinner v. Railway Workers’ Association of 1989 (489 U.S. at 688), the Supreme Court upheld drug testing for certain classes of federal employee and for railroad workers, noting that the program provided for “no direct observation of the act of urination” and that “the combination of EMIT and GC/MS tests is highly accurate”"(489 U.S. at 672).
Q. We have recently had two conservative, Republican administrations. Why didn’t they do anything in this field?
A. They preferred to begin with work-force testing, where there was no adverse lower-court case law. Then-Education Secretary William J. Bennett’s What Works: Schools Without Drugs noted that “the few courts that have considered this issue so far have not upheld urinalysis to screen public school students for drugs.”4 This may be, but few question the effectiveness of such testing. For example, the final report of a White House Conference for a Drug-Free America, published before Bennett’s book, noted: “Drug testing, as a deterrent, must be recognized as an effective mechanism for prevention. Drug testing also helps identify drug use much earlier than it can be identified through other means, and early identification means a greater likelihood of derailing drug use…. [S]ocial and peer disapproval must be brought to bear against the drug user.”5 Since April 1996, drug testing has been required on a periodic basis for the entire prison population in Britain.6
Q. Don’t the military and prisons have sanctions to apply that schools do not?
A. Of course. As General Colin Powell has noted, military personnel are voluntary enlistees, who do not want to lose their careers. By contrast, suspension or expulsion hold no terrors for many high-school students. This said, school programs are not without some teeth. These include: (a) peer pressure, which will increase as programs become established; (b) the threat of reporting to parents, some of whom, at least, will be ignorant of or disapproving of their children’s drug use; (c) the usual array of sanctions for non-cooperation in school, which have an impact on many, though certainly not all, students; and (d) the possible transfer of students not correcting their drug problem to schools for the disruptive or,7 in extreme cases, civil commitment to in-patient treatment programs.
Q. Isn’t it wrong to require testing where treatment may be unavailable?
A. Not necessarily, since the peer and parental pressure resulting from testing may have a deterrent effect. The provision of adequate drug treatment to the young ought in any case to be regarded as a first call on local and national revenues. Some forms of treatment – e.g., participation in Narcotics Anonymous – involve little or no cost and may be valuable in dealing with less firmly established addictions.
Q. Isn’t urine testing worthless if not done on a surprise basis, and aren’t there dangers of false positive results, dilution and substitution of samples, and gross intrusions on privacy?
A. All of these problems have been addressed in what are now the well-established testing programs of the military, the American federal work force and corporations. Recognized protocols exist. The most serious problem – that presented by the inability of urine testing to detect substances ingested more than a few days previously – may be obviated through increased use of hair testing, which has been found to be more reliable.8
Q. Isn’t hair testing uncertain and expensive?
A. According to George W. Andtadt, “Sample collection is easier than that for blood or urine, and is also less prone to substitution or alteration than urine…. [A] 1 1/4 inch sample of hair will permit the detection of drugs used any time in the previous 3 months.”9 Its cost in 1990 was said to be $28 to $65 per sample, and it was used in some company and parole system programs. By comparison, the cost of an EMIT urine test is $15 to $18.10 Hair testing obviates the concern expressed in 1981 by Justices Thurgood Marshall and William J. Brennan, Jr., dissenting in Doe v. Renfrew (451 U.S. 1022) that, since urination is “among the most private of activities,” testing involves “mass governmental intrusions upon the integrity of the human body.” Hair testing’s advent makes feasible many testing programs heretofore renounced, as the former drug czar in the Nixon administration, Robert Du Pont, recently pointed out.11 Discussions of the ethical problems associated with it makes clear that they are only variants of those surrounding urine testing; the main such argument, that its greater backward reach covers periods unrelated to work performance,12 is irrelevant in the school setting. Urine testing has also developed to the point that samples can be analyzed on site, without the delays attendant to use of a testing laboratory.13
Q. Aren’t there valid civil liberties concerns?
A. Certainly. As pointed out in the White House conference report, “[W]hen drug testing is conducted as part of a regular physical exam, for specific cause or as a random procedure, it should be done in a way that guarantees reliability, accuracy and confidentiality, and with a system to handle results properly.”14 There are three further concerns: (a) that results be confined to the educational system and not shared with law enforcement; (b) that they be used to refer students to treatment programs in the first instance, and to the disciplinary system or schools for the disruptive in the event of non-participation in treatment, and not used simply to detect occasions for punishment; and (c) that they not become part of a permanent record that will pursue the student later.
Q. Won’t students suffer prejudice from being identified to parents or fellow students as drug users?
A. Undoubtedly, though reasonable efforts should be made to preserve confidentiality so as not to use publicity as a form of punishment. Prejudice of this sort is the inevitable result of any sort of school discipline and may be a benefit to the student’s further development.
Q. Isn’t it overkill to inflict this on all schools and all students?
A. No one suggests that this be attempted where a system does not want it, and a case can be made for reposing discretion at the level of the school principal. As a practical matter, a period of experimentation would in any case be required; there should be no sudden leap into full system adoption.
Q. Doesn’t this overdramatize the whole subject of drugs?
A. In many schools, the subject cannot be overdramatized. Any dangers of this sort can be minimized by assimilating drug tests to the normal school medical procedures, such as hearing and vision testing and lead screening. This is particularly feasible if the need for surprise is eliminated by using hair testing.
Q. How will the government be able to afford this?
A. The more routine hair testing becomes, the lower its costs will be. Costs can be further reduced and deterrent values maintained by selecting students to be tested – either at random, by certain classes, on the basis of documented academic, truancy or disciplinary problems, or on the basis of documented, observed symptoms of drug abuse. It should be possible to draw protocols which avoid charges of discrimination.
Q. Isn’t the true answer that suggested by the ACLU and by libertarians, the decriminalization of drugs?
A. This is so only if one considers the problem as one of drug-related crime and homicide rather than drug addiction. Even if conflicts among drug sellers were eliminated and addicts were relieved of the need to commit crimes to raise money to purchase drugs, the physical and psychological effects of addiction would remain, and should be of great concern in any rationally conceived school health program. The repeal of prohibition did not abolish alcoholism. (Prohibition’s institution in 1919, however, did reduce alcoholism: In 1900, alcoholism caused 7.3 deaths per 100,000 people; by 1932, the last year of prohibition, this figure had been reduced to 2.5 per 100,000.)15
Q. Why hasn’t there been more public discussion of school drug testing?
A. David F. Musto, an historian of the narcotics problem, has observed, “The practical value of urine testing led observers to speculate that the drug tests would become a part of routine physical examinations – but that was in the 1970s, an era of drug tolerance and assumption of a right to bodily privacy with regard to drugs. In such an atmosphere, the tests did not become common.”16 More recently, however, two criminologists, Franklin Zimring and Gordon Hawkins, whose devotion to civil liberties is unquestioned, have observed, “Consider a program of universal compulsory urine testing for drugs in secondary schools patterned after the program currently in use in the U.S. military. A credible claim for public health justification based on finding out whether students are using any of a wide spectrum of legal and illegal substances and referring them to treatment and support programs that are avowedly non-punitive might pass constitutional muster, while a drug testing program aimed at suspending or expelling those with positive urine tests for illegal drugs could be viewed as overreaching either Fourth Amendment standards or the government’s obligation to protect the young.”17

Q. What should the response to this issue be in a representative large city ?
A. Simple. There should be a resolution of school authority, reading approximately as follows: “Drug screening of students in particular schools is hereby authorized, subject to the following conditions: Screening must be requested by the principal of the school, after he ascertains that a consensus for it exists and after giving 30 days’ notice of the request to all students and parents; schools will be screened in the order that requests are received, subject to limits of available funds, which may include private contributions; the superintendent shall appoint a screening coordinator qualified in the fields of medicine or public health, who need not be a municipal employee; the principal in agreement with the coordinator shall designate the persons to be screened, who may be chosen by classes, according to objective academic, attendance or disciplinary standards, or on the basis of observed and documented symptoms of drug abuse; the coordinator shall determine the method of testing; retesting of contested results shall be provided; no testing shall be conducted at a school until the principal and coordinator have identified treatment facilities including, at minimum, narcotics anonymous chapters, in reasonable proximity thereto; positive tests suggesting current drug consumption shall be reported to students and parents and counseling and references to treatment facilities given, and such students to be subject to retesting as determined by the coordinator; students may not be subjected to discipline for positive tests, but may be disciplined or transferred for failing to provide evidence of participation in drug treatment if a positive result is repeated on retesting; the coordinator, if qualified to do so under state law, may seek civil commitment of such students to treatment facilities subject to the limitations of state law; results shall not be disclosed to law enforcement authorities or made part of a student’s permanent record; the resolution shall expire in 18 months unless renewed.”

Mr. Liebmann practices law in Baltimore City.

End Notes

[Top] 1. Associated Press, “Drug Use in the Military Down 90% Since 1980, Study Finds,” (Baltimore) Sun, August 11, 1996, p. 5A.

[Top] 2. Education Week, Sept. 10, 1986, p. 19.

[Top] 3. The initials “TLO” are the initials of a juvenile defendant not otherwise identified.

[Top] 4. William J. Bennett, What Works: Schools Without Drugs (Washington, D.C.: U.S. Department of Education, 1986), p. 54.

[Top] 5. Bennett, What Works, p. 54.

[Top] 6. A. Hewitt, “Drug Tests in Prison,” Druglink, Vol. 11, No. 3, 1996.

[Top] 7. See the program described in W. James et al., “Adolescents and Substance Abuse Testing: Consideration of Treatment Models,” Drugs: Education, Prevention and Policy, Vol. 2, 1995, p. 295; also W. James et al., “Treatment of Chemically Dependent Adolescents in an Alternative High School Setting,” Alcoholism Treatment Quarterly, Vol. 12, 1995, p. 111.

[Top] 8. S. Magura et al., “Measuring Cocaine Use by Hair Analysis Among Criminally Involved Youth,” Journal of Drug Issues, Vol. 25, 1995, p. 683; also T. Feucht et al., “Drug Use Among Juvenile Arrestees: Comparison of Self Reporting, Urinalysis and Hair Assay,” Journal of Drug Issues, Vol. 24, 1994, p. 99.

[Top] 9. George W. Andtadt, “Hair Analysis in Drug Screening,” Journal of Occupational Medicine, Vol. 32, August 1990, p. 666.

[Top] 10. State of Maryland, General Assembly, Joint Committee on Welfare Reform, draft recommendations, 1996 interim [Annapolis, Md.: Department of Fiscal Services, December 1996], p. 2; also Laura W. Murphy, Washington National Office, American Civil Liberties Union, “ACLU Calls Proposal to Drug Test Welfare Recipients a ‘False Positive,”ACLU press release, dated May 22, 1996.

[Top] 11. Robert Du Pont, 7quotOperation Tripwire Revisited,” Annals of the American Academy of Political and Social Science, Vol. 521, May 1992, p. 91.

[Top] 12. John Strang, Joseph Black, Andrew Marsh and Brain Smith, “Hair Analysis for Drugs: Technical Breakthrough or Ethical Quagmire,” Addiction, Vol. 88, 1993, pp. 163-65, 295-300.

[Top] 13. H. Kranzler et al., “Evaluation of a Point of Care Testing Product for Drug Abuse: Testing Site as a Key Variable,” Drug and Alcohol Dependence, Vol. 40, 1995, p. 55.

[Top] 14. Bennett, What Works, p. 107.

[Top] 15. Mark E. Lender and James K. Martin, Drinking in America: A History (New York, N.Y.: Free Press, 1982), pp. 136-139, 147.

[Top] 16. David F. Musto, The American Disease: Origins of Narcotics Control (New York. N.Y.: Oxford university Press, 1987), p. 276.

[Top] 17. Franklin E. Zimring and Gordon Hawkins, The Search for Rational Drug Control (New York, N.Y.: Cambridge University Press, 1989), ch. 1.

[Top] 1. The term “county” is inclusive of the independent City of Baltimore, which is not part of the surrounding Baltimore County.

[Top] 2. I.e., Maryland Reports, Vol. 294, p. 144.

[Top] 3. I.e., United States Code, Vol. 42, § 2000d.

[Top] 4. See, for example, the 1972 case, Vaughans v. Prince George’s Board of Education (355 F. Supp. 1044, D. Md.) and its successor cases. (The abbreviation is for Federal Supplement, Vol. 355, p. 1044.)

[Top] 5. State of Maryland, Maryland State Department of Education (MSDE), Fact Book, 1997-1998 (Baltimore, Md.: MSDE, [no date]), pp. 22-23, 40-41.

[Top] 6. Benjamin L. Brown, Solicitor, Baltimore City, brief for Baltimore City in Marvin Mandel et al. v. U.S. Department of Health, Education and Welfare, No. 76-1493 in the United States Court of Appeals for the Fourth Circuit, filed August 16, 1976, p. 12.

[Top] 7. Mandel v. DHEW (411 F. Supp. 542). The decision was affirmed by an evenly divided appeals court (571 F. 2d 1273 [4th Cir.].) (The second abbreviation is for Federal Reporter.)

[Top] 8. I.e., United States Reporter, Vol. 484, p. 592.

[Top] 9. U.S. Congress, Congressional Record, Senate, daily ed., May 12, 1997, p. S4312.

[Top] 10. Kalman Hettleman, “Special-Ed Funding Isn’t Fair to All Students,” (Baltimore) Sun, May 17, 1998, p. L1.

[Top] 11. MSDE, Fact Book, 1997-1998, p. 21.

[Top] 12. Myron Lieberman, The Teacher Unions: How the NEA and the AFT Sabotage Reform and Hold Students, Parents, Teachers and Taxpayers Hostage to Bureaucracy (New York, N.Y.: Free Press, 1997), p. 263.

[Top] 13. “Shared space councils” are advisory bodies permitted to make recommendations on non-school uses of school buildings, such as community activities of various sorts.

[Top] 14. MSDE, Fact Book, 1997-1998, pp. 6-7.

[Top] 15. This is broken down further: six members selected by the Maryland State Teachers’ Association, affiliated with the National Education Association (NEA), and two selected by the Baltimore Teachers’ Union, affiliated with the American Federation of Teachers (AFT).

[Top] 16. Lieberman, The Teacher Unions, p. 215.

[Top] 17. Thomas Toch, In the Name of Excellence: The Struggle to Reform the Nation’s Schools, Why It’s Failing and What Should Be Done (New York, N.Y.: Oxford University Press, 1991), p. 194.

[Top] 18. See the 1987 case, Board of Education of Montgomery County v. Mont. Co. Educ. Assn. (66 Md. App. 729, subsequently affirmed, 311 Md. 303); also the 1992 case, Wash. Co. Educ. Assn. v. Board of Education of Washington County (97 Md. App. 397, cert. denied 333 Md. 201).

[Top] 19. I.e., Maryland Appellate Reports, Vol. 55, p. 355.

[Top] 20. Baltimore City Public Schools (BCPS), Summary of Master Plan (Baltimore, Md.: BCPS, March 15, 1998), p. 37.

[Top] 21. Education article §§ 7-201, 7-308.

[Top] 22. State of Maryland, Office of the Attorney General, Opinions of the Attorney General, Vol. 67, No. 147, 1982.

[Top] 23 MSDE, Maryland Reaches for the Goals (Baltimore, Md.: MSDE, 1994), p. 6.

[Top] 24. MSDE, “The 1997 Report Card: More Solid Gains,” MSDE Bulletin, Vol. 8, No. 24, Dec. 11, 1997, p. 1.

[Top] 25. MSDE, Maryland School Performance Report, 1993: State and School Systems (Baltimore, Md.: MSDE, Dec. 1993), p. 10; MSDE, Maryland School Performance Report, 1997: State and School Systems (Baltimore, Md.: MSDE, Dec. 1997), p. 8.

[Top] 26. MSDE, Maryland School Performance Report, 1993, p. 16; MSDE, Maryland School Performance Report, 1997, p. 14.

[Top] 27 MSDE, “The 1997 Report Card: More Solid Gains” and from data provided by MSDE.

[Top] 28. Central Advisory Committee on Education for England and Wales, Children and Their Primary Schools (London, U.K.: Her Majesty’s Stationery Office, 1968).

[Top] 29. U.S. Department of Health, Education and Welfare, Office of Education, Equality of Educational Opportunity (Washington, D.C.: Government Printing Office, 1966).

[Top] 30. Lieberman, The Teacher Unions, p. 231.

[Top] 31. George W. Liebmann, “When It Comes to Schools, the U.S. Lags Europe in Shrinking Government,” American Enterprise magazine, November/December 1997, pp. 75-76, at 75.

[Top] 32. BCPS, Summary of Master Plan, p. 18-19.

[Top] 33. Lieberman, The Teacher Unions, pp. 225-228, 262-263.

[Top] 34. National Education Association (NEA), “NEA 1997-98 Resolutions,” resolution no. F-9, Internet site (http://www.nea.org/resolutions/97/97f-9.html), downloaded June 27, 1998.

[Top] 35. BCPS, Summary of Master Plan, p. 37.

[Top] 36. Lieberman, The Teacher Unions, p. 214.

[Top] 37. Toch, In the Name of Excellence, pp. 194-195, 288, n. 18.

[Top] 38. Gene Geisert and Myron Lieberman, Teacher Union Bargaining: Practice and Policy (Chicago, Ill: Bonus Books, Inc., 1994), pp. 225-226.

[Top] 39. David C. Berliner and Bruce J. Biddle, The Manufactured Crisis: Myths, Fraud and the Attack on America’s Public Schools (New York, N.Y.: Addison-Wesley, 1995), p. 79.

[Top] 40. MSDE, Fact Book, 1997-1898, pp. 10-11.

[Top] 41. See Robert M. McCarthy with David D. Muhlhausen, “The Dissent: How the Townsend Report Fails to Address the Roots of Juvenile Crime and What to Do About It,” Calvert Issue Brief, Vol. I, No. 3, August 1997, passim.

[Top] 42. Berliner and Biddle, The Manufactured Crisis, p. 250.

[Top] 43. Lieberman, The Teacher Unions, p. 259.

[Top] 44. Lieberman, The Teacher Unions, p. 215.

[Top] 45 MSDE, Fact Book, 1997-1998, p. 19.

[Top] 46. Lieberman, The Teacher Unions, p. 224.

[Top] 47. [Matthew H. Joseph], Who Negotiates for the Children? The Importance of Teachers Union Agreements in the Quality of Education in Maryland’s Public Schools ([Baltimore, Md.]: Advocates for Children and Youth, Inc., June 1991), p. 18, table xiii.

[Top] 48. Lieberman, The Teacher Unions, p. 221.

[Top] 49. State of Maryland, Commission to Study State Aid to Nonpublic Education (CSSANE), Report to the Governor and General Assembly of Maryland (Annapolis, Md.: CSSANE, January 1971), pp. 27-34.

[Top] 50. U.S. Department of Education, Office of Educational Research and Improvement, National Center for Education Statistics (NCES), “Teacher Salaries – Are They Competitive?” NCES Issue Brief, IB-1-93, March 1993, p. 1, table 2.

[Top] 51. David A. DeSchryver, “Emily: What Strong Charter School Legislation Is a Must,” Calvert Institute Calvert News, Vol. III, No. I, Winter 1998, pp. 10-11, 18-19, at 11.

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