More Local, But How Democratic? Questioning Devolution

Gena Miller

There is a longstanding consensus that teacher quality is a significant – if not determinative factor- in educational quality.[1] Recently, lawsuits challenging tenure statutes in New York[2], Davids v. New York, and California,[3] Vergara v. California, have reinvigorated discussion about the role of the judiciary in addressing this issue.[4] Many of the legal commentators who have addressed the Vergara case, including Professors Eric Posner, Alexander Volokh, and Jonathan M. Zasloff, have argued that the thinly reasoned decision should be reversed on appeal because the state judiciary should not make the complex policy choices such a case presents. Though it doesn’t address the merits of any of the tenure cases, a recent article in the Harvard Law Review suggests that these cases do not challenge the democratic concerns of judicial competence because, if the complaint is successful, the court need only strike down the statutes. The state legislature can then draft new laws or if the legislature does not act, decision-making about these procedures will devolve to local school districts. Though school district authority is a lower level of government hierarchy, it is not necessarily more democratic.

The democratic responsiveness of any local school board is greatly dependent on its selection processes, which vary considerably across and within states.[5] A school board’s degree of democratic accountability thus depends on the locality. California and New York, the two states in which there are tenure proceedings, both have appointed school boards in their largest cities.[6] Appointed officials are less democratically responsive because their appointment is bundled with the rest of the mayor’s policies; presumably, a voter who disapproves of a mayor’s school board policies but likes her stance on policing might still vote for the mayor.

Even in the districts where school board officials are elected, these elections do not necessarily provide as much democratic voice as they do for statewide offices. Functionally, because local elections tend to have lower voter turnout, particularly when they are not held on the same date as other larger elections (particularly national elections), they do not provide as robust accountability.[7] Though most 2014 school board elections administered in California took place on the same day as the statewide races on November 4, Long Beach Unified School Districts, one of the largest in California, held its elections well before the statewide races on April 8, 2014. None of the school board races in New York took place on the same day as statewide elections.

Of course, local school boards have other accountability measures that may amplify the voice of local constituents as compared to the state legislatures. The physical proximity of school boards to their electorate may enhance their understanding of local conditions.[8] Local school boards are physically closer to the electorate than most other forms of government. Most school boards have procedures that allow constituents to offer oral and written comments for the board or even suggest agenda items. Some have meetings that are open to the public. The state legislature has these mechanisms too, but state capitals are less convenient for constituents than school board meetings. School board meetings may be more accessible to the general public.[9]

Throughout American history, local control has been one of the most powerful tropes in education law.[10] The call for localism is motivated in part by an underlying concern for enhanced constituent voice and democratic accountability.[11] A closer look at the diversity of selection procedures and access mechanisms of local school boards destabilizes this presumption.

[1] “All sides to this litigation agree that competent teachers are a critical, if not the most important, component of success of a child’s in-school educational experience.” Vergara v. California, No. BC484642, 2014 WL 6478415, at *4 (Cal. Super. Ct. Aug. 27, 2014).

[2] Davids v. State of New York, No. 110105/2014 (Richmond Cnty.July 22, 2014)

[3] Vergara v. California, No. BC484642, 2014 WL 6478415 (Cal. Super. Ct. Aug 27, 2014).

[4] See e.g. Noah Feldman, California’s Weak Case Against Teacher Tenure, BloombergView, Jun. 11, 2014, available at (arguing that the California tenure laws are not so foolish that they are unconstitutional and that it is a foolish expenditure of judicial resources to address this question); but see Laurence H. Tribe, Students Before Teachers, USA Today, Sept. 24, 2014, available at (Arguing that judicial intervention in teacher tenure matters is necessary to protect the citizenship rights of students).

[5] According to the National School Boards Association, 19 states contain districts where some local school members are appointed. See National School Boards Association, Selection of Local School Boards, 2009,

[6] In New York, a few large cities such as New York City and Yonkers have appointed school boards. Id. at 5. In California all school boards are elected except the Los Angeles County Board of Education. Id. at1.

[7] Mike Maciag, Voter Turnout Plummeting in Local Elections, Governing The States and Localities, October 2014, available at (describing a University of Wisconsin Study identifying a trend of lower voter turnout in odd year elections); see also Ann Allen & David N. Plank, School Board Election Structure and Democratic Representation, 19 Educ. Pol’y 510, 519 (2005) (finding in an empirical study of Michigan school board elections that consolidating elections increased voter turnout, particularly in minority communities).

[8] See Scott A. Gartner, Note: Strip Searches of Students: What Johnny Really Learned at School and How Local School Boards, 70 S. Cal. L. Rev. 921, 965 (1997)

[9] But see Allen & Plank at 521 (quoting a local mayor who noted that school board meetings functionally somewhat closed to the public because their meetings are held during the day, many decisions are made by committee, and it is unclear how much control the public has over agenda items).

[10] See e.g. San Antonio Indep. Sch. Dist. V. Rodriguez, 411 U.S. 1, 48-50 (1973) (finding that no area of social concern is better served by the multiplicity of viewpoints and diversity of approaches created by state rather than federal control than public education).

[11] See Michael Paris, Framing Equal Opportunity: Law and Politics of School Finance Reform, 46 (2009).