Chapter 4 -- Governance of Public Schools

I.                    Introduction

A.    Courts have consistently held that the power over education is an essential attribute of state sovereignty of the same order as the power to tax, to exercise police power, and to provide for the welfare of the citizenry.

B.     The broad power of the state extends to provision for education generally within its boundaries and not merely to the public schools alone.

C.    Certain minimal quality of education is acquired in public or private schools.

D.    Most precedents indicate that the legislature has the prerogative to govern by the democratic legislative process, which requires action by both the legislative and executive branches of government.

E.     The legislature has plenary power to set up public schools, the maintenance of common schools is a concern of the state and legislature, or a uniform system of public schools is exclusively within the province of the legislature.

F.     The division of the territory of the state into districts, the conduct of the schools, the qualifications of teachers, the subjects to be taught therein, are within the state's control.

G.    The power of the state to control education has sometimes been characterized as emanating from the state's police power which encompasses all the elements vested in state sovereignty.

H.    Courts maintain that the state's authority over education is not a distributive one to be exercised by local government but is a central power residing in the state.

I.       The state legislature has both the power and the responsibility to enact laws to govern education.

J.       State legislatures have plenary power and may pass any act that is not expressly or impliedly forbidden by the state constitution.

K.    Strictly speaking, the term "plenary," meaning complete, absolute and unqualified, should be used with proper qualification.

II.                 State and Local Education Agencies

A.    States and the federal government have networks of administrative agencies that have been created to implement and administer statutes.

B.     Duly elected school boards is of practical necessity because the legislature could not itself conveniently or efficiently attend to the details of establishing, maintaining, and operating the public schools.

C.    The state legislature has created agencies that handle the administrative functions necessary to properly implement legislation.  Inmost states this is a state board of education (elected or appointed)

D.    Legislatures may also delegate powers to local school districts.

E.     The local school district is a state agency that simply operates at the local level.

F.     Because local school boards are state bodies, it follows that school board members are state, not local officials.

G.    The courts commonly divide the administrative functions of the local school board into two categories, discretionary and ministerial.  Discretionary powers is those acts that require judgment on the part of the board.

H.    The  operation of school districts is based upon the express or implied authority of statute.

I.       Functions of education agencies (both state and local):

1.      Delegation of legislative powers

a.       Legislative functions of the state agency include the promulgation of rules and regulations made pursuant to and within the scope of statute.

b.      Exclusive powers of the legislature should not be delegated to subordinate agencies

2.      Executive Functions

a.        Legislative functions are usually vested in a state board of education, the executive functions in a chief state school officer and his staff, and the quasi-judicial functions may be found within the authority of either or both.

b.      Distinction between legislative and executive acts can be expressed as the difference between the general and the particular.

c.       Activities of the education agency that may be executive are declaring and enforcing policy as well as advising and supervising implementation of policy.

d.      "Ministerial" refers to those required duties performed by the administrator for which no exercise of judgment is permitted.

e.       "Discretionary" functions are judgmental and represent exercise of substantial administrative prerogative.

f.        An official can pass on to a subordinate ministerial functions but not discretionary functions.

g.       Local school boards cannot delegate discretionary functions but may delegate ministerial functions.

3.      Quasi-Judicial Functions

a.        Administrative agencies hand down many more decisions affecting individuals than do the formal courts.

b.      Authority for decisions by educational tribunals may be found at federal, state, and local levels.

c.       Statute often vests the U.S. Commissioner of Education with quasi-judicial authority to render decisions in disputes over federal grant processes and procedures.

d.      At the state level, quasi-judicial authority may be given to state boards of education, to state superintendents, or to other legislative authorized bodies.

e.       Determinations by these tribunals are binding on the parties involved.

f.        Fairness may be roughly equated to reasonableness and good faith.

g.       The objective is for justice to be rendered by tribunals whether they are courts of law or administrative agencies.

h.       The equal application of laws is guaranteed not only by common law but by constitutional provisions guaranteeing due process.

J.       Cases

1.      Horton Joint School District No. 1 v. Hortonville Education Association (1976) à In the Absence of Bias, a school board may sit in its quasi-judicial capacity in judgment of a case to which it is a party.

2.      Fremount RE-1 School District v. Jacobs (1987) à Delegation of authority must be accompanied by specific standards.

K.    Judicial Review of Education Agency Actions

1.      Courts agree that school boards or officials may exercise those powers expressly granted by statute, and those fairly and necessarily implied.

2.      Aggrieved parties are required by the courts to exhaust their administrative remedies before they are allowed to bring an action before the courts.

3.      Courts do not penalize a state agency for possible error in the exercise of discretion where judgment or opinion or the public officials is in contest.

4.      The court is concerned with whether the judgment rendered by the board id founded on "rational, legal and factual" information, not whether the court, viewing the same situation and evidence, would have reached a contrary decision.

L.     Cases

1.      State Ex Rel. Clark v. Haworth (1890) à Regulation of common schools is within the power of the legislature.

2.      McGilvra v. Seattle School District No. 1 (1921) à School districts can exercise only those powers fairly implied or expressly granted by statute.

3.      Clark v. Jefferson County Board of Education (1982) à County board of education has implied authority to establish day care centers.

4.      Hennessey v. Independent school District No. 4, Lincoln County (1976) à School board regulations must be reasonable.

III.               School Officers

A.    XA school officer is one who possesses a delegation of sovereign power of the state.

B.     Characteristic to distinguish an office from an employment is that the duties of an office must involve an exercise of some part of the sovereignty; there are powers and duties conferred by the legislature or the constitution.

C.    Other characteristics:  continuity of office, oath of office, procedure for removal fixed by statute, employees may exercise only ministerial powers.

D.    Public officers are not allowed to hold two offices that are in conflict.

E.     Some state constitutions may say that a person cannot hold two lucrative offices regardless of whether one is subordinate to the other.

F.     A conflict of interest may be in the form of nepotism.  Nepotism can be prohibited by common law, statute, or state constitutional provision.

G.    Nepotism is the bestowal of patronage by public officers in appointing others to positions by reason of blood or marital relationship to the authority.

H.    Officer must have the consent of the governing power before he can resign.

I.       To be valid a resignation must be accepted.

J.       Statutes provide the procedure to be used for the removal of public officers.

K.    A public officer cannot be removed during a term of office, when the term is fixed by statute, unless for cause.

L.     Cases:

1.      Smith v. Dorsey (1988) à Constitutional prohibition of nepotism is violated where school board enters into teaching contract with spouse of board member.

IV.              School Elections

A.     Until 1962 the courts prevailed representation throughout a state was a matter for only the legislature to determine.

B.     It became clear that the problems of appointment would not be corrected by the legislators themselves.

C.    In 1962 the court found that the Equal Protection Clause was violated by the resulting discrimination against some voters, which was not reasonable or rational but instead was arbitrary and capricious.

D.    This case has had bearing on school district elections in the same manner as it has influenced statewide elections; if officials are elected by popular vote, then the constitution assures "that each person's vote counts as much, insofar as it is practicable, as any other person's."

E.     Cases:

1.      Hadley v. Junior College District of Metropolitan Kansas City, Mo. (1970) à Equality of voting power is required in local district elections.

V.                 School Board Meetings

A.    A fundamental rule of school board meetings is that the meeting must be held within the geographic boundaries of the school district.

B.     The courts have traditionally been rather lenient concerning the procedure used by boards of education in meetings.  Unless the rules of procedure are prescribed by statute, a board of Ed may establish its own rules.

C.    Courts will not insist on a specific set of rules.

D.    Action taken (Promises given) separately or individually by board members outside a board meeting has no validity.

E.     Cases:

1.      Aldridge v. School District of North Platte (1987) à Allegation that board had made decision prior to official meeting not sustained by facts.

VI.              Open Meetings and Public Record Laws

A.    In recent years, state legislatures have sought to make public board meetings more open and public records more accessible to the public.

B.     Much new litigation has transpired that endeavors to interpret the meaning of the statutes.

C.    New laws narrowly define the purposes and procedures for the conduct of closed or executive sessions.

D.    Most sunshine laws require both deliberations and actions to be taken in public.

E.     The underlying purpose of both open meeting and public records laws is to display to the public marketplace and subject to public appraisal the truth about official acts of public servants.

F.     Cases:

1.      Rhode Island Affiliate, American Civil Liberties Union, Inc. v. Bernasconi (1989) à School committee's closed-session discussion and approval of drug search was exempt from open meetings law.

2.      Hovet v. Hebron Public School District (1988) à Citizen may review teacher's personal file under authority of state public record law.

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