Washington teachers walked off the job in May of this year to protest the states underfunding of public schools.
The Seattle Times editorial board has called teachers strikes "illegal," but it turns out the law says very little about this kind of strike at all. Ansel Herz

The first day of school is scheduled for tomorrow, but it's still unclear as to whether teachers will strike. Bargaining updates from the Seattle Education Association (SEA)—the union made up of 5,000 teachers, paraprofessionals, and administrative workers—and Seattle Public Schools (SPS) say the two sides still don't have a tentative agreement in place. Last week, SEA unanimously voted to strike on the first day of school if a deal isn't reached.

SPS has recommended that parents have alternate child-care plans in place if bargaining fails and teachers strike. SPS superintendent Larry Nyland has also called the possible strike "unlawful" and threatened to take the union to court, according to an SPS memo that was circulated last night and reported by KIRO. The Seattle Times editorial board, which has argued that the teachers are asking for too much, agreed that teachers strikes are "illegal."

Putting aside the actual issues on the bargaining table (which you can read about here, here, and here), calling a teachers strike illegal is misleading. A Seattle teachers strike occupies more of a legal gray area according to labor lawyers I spoke to today, and much of the outcome depends on a judge's discretion about whether the strike harms students.

Unlike the legal thinking applied to private sector employees, conventional wisdom holds that public employees don't have the right to strike, explains Kathleen Barnard, a Seattle labor lawyer. But striking is not explicitly illegal for teachers. That's because there are two types of public employees, Barnard says. Some public employees, like police officers, have processes called interest arbitration if there's a dispute in collective bargaining. That kind of process rules out the option to strike. Teachers, on the other hand, don't have the interest arbitration option. If they come to an impasse over a bargaining dispute, they have little recourse.

Right now, there's no statute on the books that says a teacher strike violates the law. But there's also no statute that protects teachers if they do strike, according to Jim Cline, a labor lawyer who often represents public safety unions. The Educational Employment Relations Act doesn't say anything about striking.

"The statute is silent, or agnostic, on whether the strikes are legal or illegal," Cline says. "What the statute doesn't do is give employees affirmative protection. So they could be fired, but it doesn't necessarily mean the strike is illegal."

Not everyone agrees. In 2006, former Washington State Attorney General Rob McKenna wrote an opinion that teachers did not have a legally protected right to strike. In August of this year, McKenna—now out of office—issued a "reminder" that teacher strikes are illegal. Still, case law has "danced around the question" of whether the lack of a legally protected right to strike means a strike would then be illegal, Barnard says. In an interview on KIRO Radio, McKenna acknowledged the statute doesn't clarify the issue one way or the other.

SPS's threatened legal action is the same strategy used by school districts all over the country when teachers prepare to strike, says Jonathan Knapp, SEA president. "The district will do the same thing with us that another employer would do even if it was illegal," Knapp told me. "That is, they would come at us with a court order for a temporary restraining order saying we're doing irreparable harm to the kids and the judge should force us back to work."

If a judge grants the temporary restraining order, then the union would have to decide whether to abide by it or act in defiance of the court order. The court could then levy fines or hold teachers in contempt. But a temporary restraining order isn't a final ruling on whether teachers have the right to strike at all. A temporary restraining order expires in 14 days and could be replaced by a preliminary injunction, which would hold until a full trial on the merits and a final ruling is issued, Barnard says.

A judge might also want to stay out of the bargaining process (this according to Knapp, SEA president), though judges tend to eventually issue orders for teachers to go back to work.

But court penalties wouldn't necessarily end the dispute. When a Pierce County judge ordered striking Tacoma teachers to go back to work in 2011 and they defied the order, former governor Christine Gregoire stepped in and had her office handle negotiations.

Just before midnight last night, SPS offered the union a $62 million package that included wage increases and additional staff for special education, but still added up to less than half of the $172 million in proposals for which SEA has asked.

"While we moved closer on some issues through the course of Monday's bargaining, including on evaluations, the school board's 11 p.m. package proposal still insisted on a 30-minute longer school day without a commitment to pay for that time," SEA's latest bargaining update, which was posted just before noon, reads. "The district administration's wage proposal barely budged from previous offers: 2 percent this year, 3.2 percent next year, and 3.75 percent the following year, when certificated staff would begin working 30 minutes longer. The SEA pay proposal is 6 percent a year."

Right before SEA published today's update, Knapp sounded hopeful about continued negotiations. "We're ready to keep knocking and have some new ideas," Knapp said. "Hopefully that will break the logjam and keep things going."