OCCASIONAL PAPER #6
LEGAL ISSUES INVOLVING EDUCATIONAL PRIVATIZATION AND ACCOUNTABILITY

Frank R. Kemerer
August 2000

National Center for the Study of Privatization in Education
Teachers College, Columbia University
www.tc.columbia.edu/ncspe

ABSTRACT

While the U.S. Supreme Court accords states considerable authority to regulate traditional private schools, accountability measures for the most part have been modest. Proponents of expanded educational privatization through sub-contracting, charter school, and publicly funded voucher programs hope to continue this hands-off approach. Opponents seek to impose many, if not most, of the same accountability measures that apply to traditional public schools. This paper explores the accountability issue from a legal perspective. First, the paper examines the considerable authority the state has to regulate all schools, whether public or private. Then, the paper focuses on constraints that state constitutions impose on the ability of the state to delegate its responsibility and funding for public education to private actors without accompanying accountability measures. Best labeled "unconstitutional delegation law," the doctrine is evident in the first charter school litigation to reach a state supreme court. Next the paper examines how privatization in corrections, the federal Section 8 public housing voucher program, and contracting out of special education services has affected the autonomy of private organizations. These analogies shed some light on possible future patterns in education. In addition to constitutions, accountability measures emanate from state statutes, administrative agency regulations, charters, and contracts. The paper studies how this is so in three states with extensive educational privatization: Arizona, Massachusetts, and Michigan. As will be evident, only Arizona approaches a pure market-approach to accountability. The last part of the paper reviews accountability issues in publicly funded voucher programs. Interestingly, private schools participating in the Milwaukee and Cleveland voucher programs operate relatively autonomously. But an expanded voucher program raises a dilemma for the state. Too little accountability raises unconstitutional delegation concerns. Too much raises issues of unreasonable regulation of private schools and interference with parent rights contrary to U.S. Supreme Court precedent and, for religious schools, triggers concerns about interference with free exercise of religion. The challenge for states is to navigate this narrow policy making channel by developing accountability measures that satisfy legal requirements but do not intrude significantly on institutional autonomy. The paper concludes that in the absence of judicial precedent and empirical research, it would be unwise for private entities to assume that they will be able to operate public schools or participate in publicly funded voucher programs without surrendering some of their autonomy.