In a December 2003 decision, a Colorado trial court judge invalidated the state's new school voucher program. The decision was unusual in that the court relied not on traditional separation-of-church-and-state concerns, but instead on a provision of the Colorado state constitution that vests control over public education in local school boards. The court held that by failing to give local school boards any "input whatsoever into the instruction to be offered by the private schools" that accepted voucher students, the state had violated the constitutional provision that grants local boards "control of instruction in the public schools of their respective districts."
The ruling in Colorado Congress of Parents v. Owens, which has already been appealed, illustrates the longstanding tension in American education law between two competing models of the relationship between states and local school boards. The dominant approach has treated school boards as legally subordinate to their states, recognizing that most state constitutions explicitly assign responsibility for and authority over public education to the state government. While the states' nearly unlimited authority has been repeatedly affirmed by the courts, there has been intermittent legal recognition of the de facto autonomy enjoyed by local school boards in the day-to-day operation and management of their schools. Moreover, as the Colorado decision indicates, courts have occasionally recognized--and even celebrated--the powerful tradition of local control in American education.
However, the Colorado case is the rare example of local control's successfully trumping state action. Overall, the tradition of local control has not constrained the states' role in education. On the contrary, local-control arguments have been most successful in court when the states themselves have wielded them as a means of resisting new obligations, such as equalizing spending between wealthy and poor districts. In other words, local control is primarily a matter of state policy rather than a constraint imposed by federal or state constitutional law on the states' role in education. States assert the principle of local control when it is convenient for them to do so, without yielding much authority to local school boards.
"Arms of the State"
The roughly 15,000 local school districts in the United States account for more than one-sixth of all American local governments. Of these districts, more than 90 percent are legally and politically independent of their surrounding counties or municipalities; the vast majority are governed by elected boards. (However, a number of states have recently authorized the mayors of big cities, such as Cleveland and Detroit, to appoint some or all of the members of their school boards, while New York gave the mayor of New York City the power to appoint a commissioner of education to run the city's schools.) In some states, local school boards also enjoy fiscal independence, including the power to levy taxes. In most states, however, school boards are fiscally dependent on other local governments.
The legal status of school boards flows from two key factors. First, school districts are local governments and thus, like all other local governments, are subordinate to their states. Second, unlike counties and municipalities, school districts have a single function--the provision of public education--that is considered a state responsibility. Virtually every state constitution requires the state legislature to provide for a system of free public education. The existence of such a mandate is an unusual departure in American constitutionalism--which has traditionally been focused on limiting government power, not creating obligations to provide a public service--and is a tribute to the central role of public education in American culture. Thus, as units specializing in public education, school districts are often seen as agencies of the state--sometimes, rhetorically, "arms of the state"--for the implementation of the state's education mandate. …