The Legal Impact of Emerging Governance Models on Public Education and Its Office Holders

Abstract

The idea that changing the formal structure of governance can lead to better schools is rooted in American political and intellectual history. Politicians, career educators, parents, business leaders, and investors continue to wrangle over the control of public schools all across the country. With these battles for control have come more lawsuits, more laws, and more administrative regulations dictating the governance structures of educational institutions. Indeed, one could argue that, in recent years, debates over how schools and school districts should be governed have subsumed the curriculum debates over how and what children should be taught. Leadership matters, and therefore stakeholders throughout the education community are experimenting with governance innovations as they attempt to dramatically improve student achievement and patron engagement.

Charter schools are the most ubiquitous example of the transformation, but states and districts are implementing a variety of other governance reforms ranging from the modest to the extreme. At the modest end, many school districts are decentralizing administrative control from the school board to individual schools and granting site-level autonomy over budgeting, personnel, curriculum and instruction. In the middle of the spectrum, the role of the school board itself is changing, with mayoral control over education policy and appointment power on the rise. While some states and communities are innovating through consolidation or division of school districts, others have eliminated local school boards altogether, by wresting control over the operation and management of schools under accountability measures, as seen most recently in Detroit. And at the extreme end, the school systems in New York, Chicago, Denver, Hartford, New Orleans and the District of Columbia have implemented a portfolio strategy, where public schools are run by multiple providers and governed by a myriad of entities. Regardless of the governance model pursued, stakeholders must be aware that a major challenge to the status quo model of traditional public schools operating under the direction of a locally elected school board is likely to come to a neighborhood near them very soon. This Article discusses some of these new education governance models and the emerging legal issues they present.

Keywords: educational governance, mayoral control, portfolio school district, no child left behind act, consolidation, detachment, site level autonomy, voting rights, state constitution, equal protection

JEL Classification: H10, H11, H52, H70, I21, I28