Schools and School Districts

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School districts are quasi-municipal corporations created and organized by state legislatures and charged with the administration of public schools within the state. A quasi-municipal corporation is a political body created for the sole purpose of performing one public function. States divide up their school systems into districts because localized administration and policy making are more efficient and more responsive to community needs than one state-level bureaucracy.

A school district encompasses a specific geographical area with defined boundaries. In most areas, the head of the school district is called the superintendent. Each school district contains at least one school. Typically, a school district includes primary schools, also called grade schools, middle or junior high schools, and high schools. A school district's boundaries may be the same as the boundaries of a city. Multiple school districts may exist within larger cities, and in rural areas, a school district may encompass several towns.

Each state has numerous laws pertaining to public schools and school districts, but state statutes do not cover every educational concern. State legislatures delegate many aspects of public education to school districts. School districts have the power to fashion curricula and make rules and regulations that apply to the schools, school employees, and students within the district. School districts also have power over such matters as arranging for the construction and maintenance of educational buildings and facilities in the district. School districts may, in turn, delegate some of their powers to individual schools.

State and federal revenues pay for only about half of all educational costs. The rest of the burden for construction, maintenance, and improvement of school facilities, salaries, and other educational costs is borne by local government. Most states give school districts the power to levy local taxes for educational purposes. This taxing power is limited by the state legislature. If a school district wants to raise taxes beyond what the legislature allows, it may seek approval from the voters in the district in a referendum or proposition vote.

Most state legislatures require that school districts be governed by a school board, board of education, or similar body. School boards govern the school district's actions and can also take action on their own. School boards appoint superintendents, review important decisions made by the district's administrators, and fashion educational policies for the district. Most school boards are comprised of several members elected by voters who live within the boundaries of the district. In some states, school board members may be appointed by a state or local governing body or a designated government official.

School boards hold regular meetings that are open to the public. A school board must give notice to the public prior to the meeting. Notice generally is given through mailings or by publishing the time and place of the meeting in local newspapers. School board meetings give the public an opportunity to express opinions on educational policy.

Private School Vouchers: Church vs. State

The specifics of school tuition voucher systems vary from program to program, but generally such systems offer parents of schoolchildren a taxfunded voucher that is redeemable at the educational institution of their choice. The vouchers are issued yearly or at some other regular interval, and they pay for a certain amount of tuition fees each year at nonpublic and alternative charter schools. The most controversial programs allow parents to use the publicly funded vouchers to pay tuition at a sectarian, or religious, school.

Private school vouchers implicate at least two provisions in the U.S. Constitution: the Establishment and Free Exercise of Religion Clauses in the first amendment. According to the U.S. Supreme Court, the Establishment Clause prohibits the federal government and the states from setting up a religious place of worship, passing laws that aid religion, and giving preference to one religion or forcing belief or disbelief in any religion (Everson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711 [1947]). Private school vouchers have been challenged under the Establishment Clause because they involve a form of governmental support that may be used for religious-oriented activities.

Critics of private school vouchers have charged that taxpayer support for religious schools is a patent violation of the Establishment Clause. Critics also note that because vouchers do not cover the entire amount of tuition at a private school, the option of private school remains out of reach for the lowest-income students. Opponents of private school vouchers further claim that vouchers rob public schools of funds because funding is based in part on student enrollment. Finally, critics maintain that vouchers implicate other constitutional provisions, such as the equal protection clause of the fourteenth amendment, because they provide taxpayer funds to institutions that may discriminate on the basis of race, religion, disability, or socioeconomic status.

Supporters of private school vouchers have argued that voucher systems are actually protected by the First Amendment. According to advocates, the First Amendment, with its guarantee of the free exercise of religion, protects vouchers because they give devoutly religious parents the same rights as less devout parents: public funding for the education of their children. In this view, educational systems without private school vouchers violate the First Amendment by discouraging religion and placing devout parents at a disadvantage. Supporters contend that vouchers merely provide some balance of rights between devoutly religious parents and less devout or nonreligious parents.

Other supporters of private school vouchers focus on the aspect of choice. Whereas public schools are increasingly perceived as inadequate and dangerous, private schools are viewed by many as offering safe, high-quality education. In response to these perceptions, legislators have offered private school vouchers as a means of escape from public schools. Supporters of private school vouchers assert that they offer potential benefits for impoverished children. Under some proposals, private school vouchers would give a limited number of low-income families another choice for their children's schooling.

Proponents of private school vouchers cite such intellectual stalwarts as john stuart mill, thomas paine, and Adam Smith as early advocates of school vouchers. Mill, Paine, and Smith did in fact argue that the fairest and most efficient way to fund public education would be to give parents money that they could spend on tuition at a school of their choice. Detractors counter that these views received no attention until 1955, the year after the Supreme Court outlawed racial segregation in public schools in brown v. board of education of topeka, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954). According to many voucher opponents, the real driving force behind private school vouchers is an effort to facilitate the flight of white persons from city schools that have large nonwhite student populations.

Proposals for private school voucher systems have been rejected by courts and defeated at the polls, but voucher advocates have been unrelenting. In 1998, in an 8–1 ruling, the U.S. Supreme Court refused to hear a challenge to the Wisconsin school voucher system, which was upheld as constitutional by the Wisconsin Supreme Court in Jackson v. Benson, 218 Wis. 2d 835, 578 N.W.2d 602 (1998). While the Court's action set no national legal precedent, it signaled a willingness by the Court to permit vouchers.

Wisconsin had been using a voucher system since 1989, but, in 1995, the Wisconsin legislature amended the law. The original voucher plan allowed up to 1.5 percent of Milwaukee public school students to attend any private nonsectarian school of their choice. The new program allowed use of the vouchers for enrollment in sectarian private schools, and it increased allowable student enrollment to 15 percent. But most significant was the mandate that monies would no longer be paid directly to the chosen schools. Instead, a state check would be paid to the student's parent or guardian, who would endorse the check and forward it to the school of choice. Opponents challenged the new law, claiming that it violated the Establishment Clause. The Wisconsin Supreme Court disagreed. It concluded that the statute did not promote religion, but rather provided parents with a "religious-neutral benefit."

The U.S. Supreme Court took up vouchers again in Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002). The Court, in a 5–4 decision, upheld the constitutionality of a voucher program established for Cleveland, Ohio. The voucher program pays scholarships based on family income, with a maximum annual payment of $2,250 per child. The parents are sent a check which may be used to pay tuition at private and parochial schools. For the 1999–2000 school year, approximately 3,700 children enrolled in the program, with 60 percent of the children from families at or below the poverty level. Of the 56 schools that participated, 46 were church-affiliated and actively taught Christian doctrines; 96 percent of the scholarship students attended the religious schools. The curriculum of these schools intertwined religious beliefs and secular topics.

After a parent filed suit in federal court challenging the law, the district court ruled the voucher program unconstitutional. The Sixth Circuit Court of Appeals upheld this decision, basing its ruling on a 1973 Supreme Court decision, Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973). The Court in Nyquist struck down a New York tuition reimbursement plan that provided low-income parents with partial reimbursement for sending their children to private elementary and secondary schools only.

The Supreme Court overturned the Sixth Circuit decision. Chief Justice william rehnquist, in his majority opinion, ruled that the program did not violate the Establishment Clause. Rehnquist stated that the "program is entirely neutral with respect to religion" because "it provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district." The law "permits such individuals to exercise genuine choice among options, public and private, secular and religious."

Proponents of vouchers saw Zelman as a major victory. They believed that the decision cleared the way for similar voucher programs throughout the United States. Opponents reiterated their concerns that voucher programs would take away public education dollars from school systems and divert them to private schools. As of 2003, only a handful of states had enacted some type of school voucher program. A number of states, however, including Louisiana, Texas, and Colorado, had legislation in the pipeline.

further readings

Bolick, Clint. 2003. Voucher Wars: Waging the Legal Battle Over School Choice. Washington, D.C.: Cato Institute.

Frieden, Terry. 2002. Supreme Court Affirms School Voucher Program. Law Center. Available online at <> (accessed September 5, 2003).

Moe, Terry M. 2001. Schools, Vouchers, and the American Public. Washington, D.C.: Brookings Institution.

State statutes set forth minimum qualifications for public school teachers. Most states require full-time teachers to have a four-year degree from a college or university and to have completed a student teaching program. States may add other prerequisites, such as physical and psychological examinations and drug tests. Upon completing all the prerequisites, a teacher may obtain the license or permit necessary to teach in a particular state.

States require public school teachers to complete a probationary period before they receive tenure. In the context of employment, tenure is a status that carries with it certain rights and protections, the most important of which is the protection from summary dismissal. A teacher who has gained tenure status may not be terminated from a teaching position without the benefit of a lengthy procedure. The termination process may include a detailed account of reasons for the termination, an opportunity for the teacher to correct any problems, a hearing with school district administrators, review and judgment by school district administrators, and, finally, a meeting with the school board, which votes on whether the teacher should be dismissed. Teachers who have not attained tenure

have no recourse for a firing. In any case, a public school teacher can only be terminated for cause, or some substantial, articulable reason.

A teaching license may be revoked if the teacher engages in conduct that demonstrates unfitness to teach. The prohibited conduct varies with different states, school districts, and school boards. A criminal conviction that involves moral turpitude, such as a conviction for theft, dishonesty, or sexual assault, generally is a valid ground for revocation of a teaching license.

Schools and school districts have a great deal of control over public school students. Rules and regulations can vary from school to school and range from restrictions on appearance and hair length to prohibitions on electronic transmission devices, or beepers. Schools may not implement unreasonable rules, however. Before a student can be suspended from school for a lengthy time period, the school must give the student notice of the intent to suspend and an opportunity to be heard by school officials. Students may not be forced to pray in school or to pledge allegiance to the U.S. flag. Teachers may inflict corporal punishment to control, train, or educate a student but may use only such force as is necessary for those purposes. The amount of force that is permissible varies according to the situation, with careful consideration given to the student's age and maturity. A teacher may use more force on an older, physically mature high school student than on a younger, less mature student. Despite the general acceptance by the courts of some measure of corporal punishment, the threat of litigation makes corporal punishment a potentially risky behavior.

Beginning in the 1990s, school boards adopted zero tolerance polices towards drugs and weapons on school grounds. Violations of zero tolerance policies typically lead to suspension or expulsion from the school. The federal Drug Free School Act and Gun Free School Act require the expulsion and arrest of students who bring illegal drugs and firearms to school. At the heart of these policies and laws is the desire to protect students and teachers and to prevent illegal activities from taking place on school district property.

However, school districts have broadened zero tolerance to include an array of infractions, including the wearing of clothing associated with gangs and threats directed at other persons. Zero tolerance policies have attracted critics, who contend that overly rigid interpretations of the rules, coupled with severe punishments, can lead to disproportionate results. In 2001, the american bar association (ABA) issued a statement in which it criticized zero tolerance rules for failing to take into account the individual circumstances of each case or the individual student's history. The ABA called for the end of such rigid policies. Nevertheless, the courts generally support school district zero tolerance policies, especially when drugs or weapons are the issue.

School districts have the right to require students to take drug tests if they wish to participate in athletic and extracurricular activities. The Supreme Court, in Board of Education, Pottawatomie County v. Earls, 536 U.S. 822, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002), concluded that the drug-testing program was reasonable under the fourth amendment because it furthered the school district's "important interest in preventing and deterring drug use among its schoolchildren." Moreover, the Court found that violation of student privacy interests was minimal.

School districts are also not bound by rigid rules of privacy when it comes to having students grade each others papers and tests. The Supreme Court, in Owasso Independent School District No. I-011 v. Falvo, 534 U.S. 426, 122 S.Ct. 934, 151 L.Ed.2d 896 (2002), reviewed the scope of the federal Family Educational Rights and Privacy Act of 1974 (FERPA) 20 U.S.C.A. § 1232 (g), which regulates the release of student education records. The Court rejected the claim that peer grading violated FERPA. To rule otherwise would "force all instructors to take time, which otherwise could be spent teaching and in preparation, to correct an assortment of daily student assignments." The Court concluded that Congress would never have meant to "intervene in this drastic fashion with traditional state functions."

Charter Schools: The Educational Petri Dish

Most families think that they have only three choices for the education of their school-age children: a sectarian school or other form of private school that charges tuition, a free public school, or home schooling. In many states there is a fourth option: a charter school. Charter schools do not have a religious agenda and are free of cost, but they differ from the typical public school. Although charter schools are governed by the public school district in which they are located, they are free of many of the constraints imposed on other public schools in the district.

Charter schools are created to be innovative and experimental in nature and to serve as models for future changes in ordinary public schools. The classes offered by charter schools may differ in substance from classes in public schools, and the teachers may use new, alternative approaches to education. Charter schools represent an opportunity to experience a form of experimental, alternative schooling that was previously open only to students who could afford alternative private schools or who could be educated at home. Parents also like charter schools because they have a say in the school's administration.

Charter schools usually are run by a board comprised of the teachers in the school and a few of the students' parents. The board makes its own decisions on-site. Unlike other public schools, a charter school does not have to seek approval from the school district or school board before it can take action. To teach English literature, for example, the teachers at a charter school might discard the traditional texts prescribed for other public schools and assign only contemporary poetry. They might even decide that their students should study poetry by attending open poetry readings or by setting up their own regular poetry readings.

The first charter school legislation was passed in Minnesota in 1991 (Minn. Stat. Ann. §§ 120.064, 124.248 [West 1996]). Since 1991 approximately half of the states have enacted some form of charter school legislation. The details vary, but the programs share the basic goal of creating a limited number of schools where teachers may experiment with a variety of learning techniques. The schools have a high degree of independence, but they are all results oriented. Thus, each school must show a state or local governmental education agency that its students are making satisfactory progress. A state may, for example, require that students in charter schools pass a yearly achievement test to prove that they are receiving a well-rounded education.

By virtue of their experimental nature, charter schools are highly individualistic. Some schools focus on a particular area of study, such as computers, the environment, the arts, or aeronautics. A school that emphasizes computers, for instance, will have a large number of personal computers and many teachers who specialize in computer education. Other schools are designed for certain types of students, such as teenage students who have dropped out before earning their high school degree.

further readings

Ericson, John, et al. 2001. Challenge and Opportunity: The Impact of Charter Schools on School Districts. Washington, D.C.: Office of Educational Research and Improvement, U.S. Dept. of Education/GPO.

A school board has power only over the public schools within its school district. Private schools must comply with generally applicable federal, state, and local laws, but they are privately owned and operated and are not obligated to follow the rules and regulations of the school

district in which they are located. Private schools are not governed by the U.S. Constitution and state constitutions in the same way that public schools are. Constitutions are designed mainly to protect persons from the actions of government. Public schools are funded by governments and so must answer to constitutions, but private schools are not funded by public monies, so their actions are not deemed governmental in nature.

Public school districts have little involvement with private schools for another reason: the Establishment Clause of the first amendment. Under the Establishment Clause, Congress may not make any laws respecting the establishment of, or prohibiting the free exercise of, religion. The Establishment Clause has been made applicable to the states by the U.S. Supreme Court, which has interpreted the clause to mean that public schools should be free of religious influences. This does not mean that public schools can have no connection with private schools. In many school districts, public schools share buses and textbooks with private schools, and these arrangements have not been declared unconstitutional. In 1997, in agostini v. felton, 521U.S. 203, 117 S. Ct. 1997, 138 L. Ed. 2d 391, the Supreme Court reversed its decisions in Aguilar v. Felton, 473 U.S. 402, 105 S. Ct. 3232, 87 L. Ed. 2d 290 (1985) and School District of the City of Grand Rapids v. Ball, 473 U.S. 373, 105 S. Ct. 3216, 87 L. Ed. 2d 267 (1985), and held that a public school teacher may teach disadvantaged students in a private school classroom if the legislation authorizing such activity contains safeguards that prevent the teacher from advancing religion.

Many states have set up programs that challenge the limits of the Establishment Clause. Voucher programs are an example of education-related legislative experimentation with the Establishment Clause. Under a voucher program, the state provides taxpayer money to parents and guardians of public school students to be used to send the students to religious or private schools. The Supreme Court, in Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002), upheld the constitutionality of an Ohio program that provided low-income Cleveland parents tax-supported vouchers worth $2,250 per pupil, which they could use to transfer a child to a participating private school of the family's choice. The Court stated that "Cleveland's pilot program permits individuals to exercise genuine choice among options public and private, secular and religious." The decision cleared the way for other states to adopt voucher programs.

School districts do not have power over sectarian private schools, but they do have authority over home schools. Home schooling is a form of education provided by parents or guardians.

Schools and school districts continually adapt their policies, rules, and regulations to keep pace with societal changes and to meet the needs of students and the community. Curricula, grades, attendance requirements, and age standards vary from district to district and even from school to school.

The federal government imposed new requirements on local school districts when it enacted the No Child Left Behind Act of 2001 (NCLB). The act, which was proposed by President george w. bush, contained sweeping reforms for the U.S. public school system and was centered on four basic principles: increased accountability by school districts, increased flexibility and local control, expanded options for parents, and an emphasis on proven teaching methods. States must develop learning standards for students and must institute annual testing to ensure that the standards have been met. Schools that fail to perform up to expectations are to be held accountable. States that do not comply with the act risk the loss of federal aid. The NCLB, though only in its infancy, promised major changes for public education.

further readings

Green, Preston C., and Julie F. Mead. 2003. Charter Schools and the Law: Establishing New Legal Relationships. Norwood, Mass.: Christopher-Gordon.

Heubert, Jay P. 1997. "Schools without Rules? Charter Schools, Federal Disability Law, and the Paradoxes of Deregulation." Harvard Civil Rights–Civil Liberties Law Review 32 (summer).

Loeb, Harlan A., and Debbie N. Kaminer. 1996. "God, Money, and Schools: Voucher Programs Impugn the Separation of Church and State." John Marshall Law Review 30 (fall).

Sugarman, Stephen D., and Emlei M. Kuboyama. 2001. "Approving Charter Schools: The Gate-Keeper Function." Administrative Law Review 53 (summer).

U.S. Department of Education. "No Child Left Behind." Available online at <> (accessed August 26, 2003).

Zirkel, Perry A. 2003. "Does 'For-Profit' Mean 'Re-failing' Students?" Journal of Law and Education 32 (April).


Abington School District v. Schempp; Brown v. Board of Education of Topeka, Kansas; Civil Rights; Education Law; Engel v. Vitale; In Loco Parentis; Integration; School Desegregation.