Charter school operators file suit seeking to declare state law requiring union neutrality ‘invalid’
Three charter school organizations filed a lawsuit in federal court Tuesday, alleging a 2023 amendment to the Illinois School Code interferes with federal labor law and the charter school operators’ free speech and property rights, according to the complaint.
The amendment, which requires charter school operators to include a “union neutrality clause” in new proposals and renewal agreements, should be declared “invalid,” plaintiffs Intrinsic Schools, Montessori School of Englewood and advocacy group the Illinois Network of Charter Schools allege in the complaint. The group of charter operators and advocates are asking the court to bar the state statute from being enforced.
Effective immediately upon its signing last year, the amendment to the School Code defines a union neutrality clause as including an agreement not to express anti-union positions, nor “threaten, intimidate, discriminate against, retaliate against, or take any adverse action” against employees based on union representation. The statute also mandates that charter schools provide labor organizations access to employees, to discuss their right to union representation, and it sets forth a union recognition process.
The complaint was spurred by a draft renewal document that Chicago Public Schools sent all charter schools requiring they comply with the terms of the amendment, said Andrew Broy, president of the Illinois Network of Charter Schools. “We’re making sure that that does not apply — and there’s still a process through which teachers at a school can join a union,” he said.
“The federal labor law already has a protection against threatening or retaliating. The point here is that the state law is much wider. It prohibits any communication about whether joining a union is good, bad, or indifferent and therefore amounts to a gag order,” Broy said.
Union neutrality agreements are used frequently in labor law, according to Ashley Stead, chair of the Chicago Bar Association’s Employment and Labor Law Committee. “There’s plenty of benefits, pros and cons as to why private actors would voluntarily enter into these,” she said, noting criticism tends to focus on alleged censorship.
Currently a labor and employment attorney at a private practice in Chicago, Stead worked on a previous iteration of the bill in 2022, as former senior counsel in the Office of the Illinois Senate President.
She said the legal questions raised by the suit entail pre-emption, a legal doctrine that prevents states from regulating areas of law over which a federal statute presides. The National Labor Relations Act regulates labor relations in the private sector across the country. But, Stead noted there are exceptions — when state money is involved — in which a state has a hand in private-sector labor relations.
It’s common for the state to apply conditions in the renewable energy sector, for example, said Stead. “If there is a state tax credit being offered or grant funding or some kind of state monies, then a condition of receiving that state money would be a requirement that you have a project labor agreement,” she said.
According to the National School Boards Association, charter schools in Illinois receive at least 97% or the same per-pupil funding of traditional public schools in their sponsoring district and charter schools may apply for the same grants administered by the Illinois State Board of Education.
Regardless of public funding, Broy said he believes there’s “abundant federal precedent” that state law should not apply to charter school labor relations.
Regarding the free speech concerns raised in the suit, Stead said of the National Labor Relations Act, “There is a very fine line of where employers can essentially express their beliefs on maybe why unionization wouldn’t be beneficial to that employee, but they can also easily cross into a territory where it’s become unacceptable and it’s unlawfully discouraging unionization.”
Under federal law, employers can make factual statements, for instance regarding union dues, as long as those statements are truthful and not misleading, coercive or intimidating. Employers can also express their opinions. “But that’s really where that gray area is. Those opinions cannot contain any covert threats. There can’t be any kind of promise of benefits or punishment. There can’t be implied negative consequences,” Stead said.
“None of our member schools retaliate,” Broy said. “We do preserve the right, though, to have communications about what could happen. For instance, a collective bargaining contract … could change the way charter schools operate and that’s something schools, teachers should know if they’re going to join a union,” he said. The suit also claims charter schools are being censored from “honestly communicating with their stakeholders … on significant political and ideological issues.”
A bill awaiting Gov. J.B. Pritzker’s signature could potentially affect whether workers can freely opt out of such talks. The Worker Freedom of Speech Act, passed by the General Assembly in May, forbids employers from taking any adverse employment action against an employee for declining to attend an employer-sponsored meeting or receive or listen to communications promoting the employer’s opinion about religious or political matters.
The charter operators’ suit names the Chicago and state boards of education and Illinois Attorney General Kwame Raoul as defendants. The Chicago Board of Education granted the Montessori School of Englewood a three-year renewal in January, expiring in 2027. The CPS charter agreement for Intrinsic Schools’ Irving Park campus expires in 2026. A second Intrinsic school downtown is authorized by the Illinois State Board of Education, said Broy.
