Evie Hudak Colorado State Board of Education

a strong voice for kids 2nd Congressional District

WHO’S REALLY IN CONTROL OF EDUCATION?

As people consider recent Colorado education legislation, the federal No Child Left Behind Act (HR-1 of 2002), and occasional ballot issues, the question comes up as to who is really in control of education – the voters, the local school boards, the Legislature, the State Board of Education, the federal government, the Governor, the President, or the Commissioner of Education? The answer is really all of the above, and possibly even others! It is a confusing and chaotic picture, and advocates for a good public education system need to “do their homework” to know where and whom to lobby.

Because the U.S. Constitution says nothing about education, the responsibility for it is generally considered to fall to the states. In fact, Colorado’s Constitution says: “The general supervision of the public schools of the state shall be vested in a board of education whose powers and duties shall be prescribed in law.” The “board” referred to is the State Board of Education. However, since the SBE’s powers and duties must be “prescribed in law,” the General Assembly (State Legislature) determines what the State Board can do in its role of “general supervision.”

The state Constitution further says: “The general assembly shall, by law, provide for organization of school districts of convenient size, in each of which shall be established a board of education, to consist of three or more directors to be elected. Said directors shall have control of instruction in the public schools of their respective districts.” The power of these school boards is commonly referred to as “local control,” which includes hiring teachers, setting curriculum, and building school buildings. It also includes selecting textbooks, since the state Constitution also says: “Neither the general assembly nor the state board of education shall have power to prescribe textbooks to be used in the public schools.”

The State Legislature has considerable control of education, since the state Constitution also states that “the general assembly shall provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state.” A good example of how the Legislature governs education without violating local control is HB 93-1313. This legislation requires all school districts to have content standards in 12 academic areas and give the CSAP tests – but it does not mandate curriculum. It requires the State Board of Education to determine the standards that the local districts must “meet or exceed” when adopting their own standards, and it requires SBE to provide the CSAP tests that assess the extent to which students have met these standards. Since districts want their students to perform well on the CSAPs, their choice of curriculum is strongly driven by what the content standards and CSAPs include, even though, technically, it is not mandated by state law or by the State Board of Education.

At the same time, since Congress has the legislative authority for the entire country, it also has the power to enact laws regarding education, as long as they don’t violate the state’s authority. It has done this by establishing a U.S. Department of Education and by passing education legislation, such as the Individuals with Disabilities Education Act (IDEA), which was a reauthorization of the landmark legislation requiring that “handicapped” or “disabled” students have a civil right to receive educational services in the “least restrictive environment.”

In HR-1, which is a reauthorization of the Elementary and Secondary Education Act (ESEA), Congress requires that states adopt educational standards in Reading, Math, and Science and that state assessments are given in these content areas. Congress does not mandate what the standards or assessments should include specifically, since it is not their authority to do so. Congress also cannot mandate that states comply with HR-1, but by allowing states to receive huge amounts of money for educational programs if they do, it is virtually unthinkable for states not to comply. Colorado, like the other states, depends on federal money to fund most of its state department of education. (All federal education programs include an appropriation for “administration,” which pays for most of the state education department staff.)

Since both the state and federal governments have the same basic structure of legislative and executive branches, the State Legislature is subject to the Governor’s influence and the Congress to the President’s. This is what happened with both SB 00-186, the state’s Educational Accountability Act, and HR-1, the federal No Child Left Behind Act – which are very similar pieces of legislation. In both cases, the executive branch and the majority of the legislative branch were controlled by the same political party (Republican), giving the Governor and the President the ability to “propose” the legislation and affect its outcome. Even when the executive branch is not from the same political party as the legislative majority, the power of the veto can be sufficient to affect legislation.

The voters obviously play a role in determining who are the members of the State Legislature, the Congress, and the State Board of Education, as well as who the Governor and the President are. But there are times in Colorado when the voters exert more direct control over education – that is when there are referenda or initiated amendments on the ballot. Recent examples of this are initiatives such as the proposed penny sales tax for education in 1992 and the tuition tax credit in 2000. Neither of these nor any other education-related initiatives have passed in recent history, but back further in Colorado’s history, several did. [As of this writing, the 2002 election has not occurred, so the outcome on Amendment 31 is not known; please excuse the inaccuracy of the previous sentence if it did pass.]

The Commissioner of Education, who is appointed by the State Board of Education and serves in the Governor’s cabinet, is one non-elected person who has some control of education. There are state laws that direct the Commissioner to make certain decisions and take certain actions. Also, state law gives the Commissioner the power the “interpret” legislation when implementing it. An example of this last power occurred in 2001 when Commissioner Moloney decided that several “alternative” schools could be exempted from receiving ratings on the School Accountability Report.

There are several other types of non-elected people who have a tremendous influence on education – those who put tremendous pressure on legislators or create a groundswell of public opinion. First are lobbyists, who can be extremely effective at times in proposing, changing, saving, or killing legislation. For example, many times I have heard it said that CEA (Colorado Education Association) caused a bill to fail. The second group is the media, who, by focusing attention on a bill or by issuing an editorial opinion, can cause enough public outcry to sway legislators. Finally, there are the organizations who get their members to hold press conferences and demonstrations or to barrage the Legislature or Congress with phone calls, faxes, etc.

Clearly, in this great democracy of ours, many different people play a role in the control of education. Even though that makes the process confusing, it’s probably a very good thing!