The Legal Boundaries of Educational Governance

Abstract

This chapter describes and analyzes the legal boundaries of educational governance. At bottom, these boundaries are determined by federal and state constitutional law, which in turn establish limits on federal and state authority. Described functionally and most simply, the basic legal structure of educational governance consists of two complementary rules. First, through the use of its spending powers, the federal government at the moment has almost unfettered discretion to direct the education policies of states. Second, the states, because of their constitutional status vis-a-vis political subdivisions, have even more authority over local school districts. To be sure, neither the federal government nor the states need to exercise the authority they possess nor control all facets of education. They can and have delegated or devolved authority. Nonetheless, the important point to recognize is that the legal rules that serve as the foundation for educational governance effectively allow these two levels of government to decide how much they wish to delegate and how much they wish to control. This in turn renders the legal boundaries of educational governance remarkably porous, manipulable, and unstable.

Indeed, it is perhaps most helpful to recognize that there are no hard and fast legal boundaries of educational governance. That is, there are no state or federal constitutional rules that apportion clear and inviolable spheres of responsibility for education among local, state, and federal governments. Instead, the foundational legal rules render the boundaries primarily a matter of politics and policy choices. In addition to explaining how these rules operate, this chapter also considers whether they are likely to be or should be altered.