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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 stare 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.


Education Law | Law | State and Local Government Law