Derek W. Black

The Education Power

Public officials are increasingly warring over the power to set fundamental education policies. A decade ago, disputes over Common Core Curriculum and school choice programs produced a level of acrimony between policymakers not seen since school desegregation. Recent fights over critical race theory and COVID-19 policies are even worse. The disputes are so intense that some officials assert power that they do not possess—power that state constitutions often reserve exclusively for state superintendents and boards of education.

Political polarization contributes to the problem, but the issue runs deeper. Judicial precedent regarding education powers is so grossly underdeveloped and contradictory that it invites conflict. This Article identifies two steps for bringing substantive coherence to the field. First, courts should apply the principles that they have already articulated in the school funding context when adjudicating questions of education power. School funding precedent sets forth constitutional duties in education, which necessarily alter certain aspects of education powers analysis. Second, courts should recognize that the constitutional offices of state superintendents and boards of education entail inherent powers that constrain legislatures’ and governors’ authority in education.

Building on this analysis, this Article offers the first comprehensive framework for analyzing the constitutional balance of power in education. It surveys existing precedent and constitutional text, identifies the key principles for analyzing education powers, articulates the scope of those powers, and applies them to recent controversies. This analysis will be an essential resource for courts and policymakers as they navigate current and future disputes.

Introduction

Over the last decade, public education has increasingly taken center stage in culture wars and partisan ideology. Not since Brown v. Board of Education1 1.347 U.S. 483 (1954).Show More has education policy been as polemic. The battles are so intense that, like southern resistance to Brown, political actors are willing to overreach their legal authority and seize power from others.2 2.The first direct divestment of State Executive Officer power was in P.J. Willis & Bro. v. Owen, 43 Tex. 41, 55–56 (1875). The most notable power grabs, however, followed Brown v. Board of Education, 347 U.S. 483 (1954), when legislatures seized power over assigning students to schools, displacing local authorities’ powers. See, e.g., Griffin v. Cnty. Sch. Bd., 377 U.S. 218, 221–22 (1964) (summarizing Virginia’s constitutional changes and legislative action to subvert school desegregation); Cooper v. Aaron, 358 U.S. 1, 17 (1958) (striking down the Arkansas governor and legislature’s attempts to prevent local district from complying with school desegregation order).Show More State constitutions provide structural firewalls that should ward off some of this behavior,3 3.See, e.g., Mich. Const. art. VIII, § 3 (vesting “[l]eadership and general supervision over all public education” in a state board of education). See generally Powers v. State, 318 P.3d 300, 323 (Wyo. 2014) (holding that the legislature cannot eliminate or transfer the inherent powers of the state superintendent).Show More but they are failing. Politics and expediency are, quite simply, overtaking poorly understood constitutional principles.

Most state constitutions vest substantial public education authority in state superintendents and state boards of education—hereinafter “state executive officers” (“SEOs”).4 4.See infra notes 33–41.Show More In states with constitutional SEOs, governors typically have very little, if any, direct authority over education.5 5.Governors appoint SEOs in several states, but those officers do not necessarily report to the governor. Moreover, in many states, the governor lacks appointment power of the board, the superintendent, or both. See Vincent Scudella, State Education Governance Models, Educ. Comm’n of the States 2–3 (2013), https://www.ecs.org/clearinghouse/01/08/70/10‌870.pdf [https://perma.cc/KR4L-7ZZA] (charting different models, though not distinguishing between constitutional and statutory systems).Show More Legislatures, by contrast, have important exclusive powers in this area—such as school funding—but those powers do not extend to all aspects of education.6 6.See, e.g., Ohio Const. art. VI, § 2 (directing the legislature to tax for the support of education); Mich. Const. art. 8, §2 (directing the legislature to maintain and support schools).Show More Federal officials have no constitutional authority over public education.7 7.See United States v. Lopez, 514 U.S. 549, 567–68 (1995) (holding that Congress’s attempt to regulate schools pursuant to the Commerce Clause was unconstitutional).Show More Yet federal officials, governors, and legislatures are asserting unilateral power over everything from school curricula to daily operations.

Educational power disputes lie at the heart of nearly all of the last decade’s major controversies. Beginning in 2011, the U.S. Secretary of Education demanded that states immediately adopt college- and career-ready standards—the Common Core Curriculum.8 8.See Derek W. Black, Federalizing Education by Waiver?, 68 Vand. L. Rev. 607, 652–59 (2015) (detailing federal administrative attempts to force states to adopt policy positions that had previously failed in Congress).Show More The Secretary persisted even when state officials indicated that state officials lacked the unilateral power to change academic standards.9 9.See, e.g., Miker Wiser, Feds Deny Iowa No Child Left Behind Waiver, Waterloo-Cedar Falls Courier (June 21, 2012), http://wcfcourier.com/news/local/govt-and-politics/feds-deny-iowa-no-child-left-behind-waiver/article_ee035d3a-bc09-11e1-9db6-0019bb2963f4.html [https://perma.cc/AKB6-XXJX]. Legislatures and governors later attempted to reverse this coerced adoption of Common Core. See, e.g., Brandi M. Haskins, State Discretion Over Subject Matter Standards: The Rise and Fall of Common Core in Oklahoma, 39 Okla. City U. L. Rev. 441, 460–61 (2014); Andrew Ujifusa, S.C. Governor Signs Bill Requiring State to Replace Common Core, Educ. Week (June 4, 2014), https://www.edweek.org/policy-politics/‌s-c-governor-signs-bill-requiring-state-to-replace-common-core/2014/06 [https://perma.cc/C‌94A-GS3V]. Congress mooted such disputes when it passed legislation that effectively rescinded and precluded the Secretary’s actions. See Derek W. Black, Abandoning the Federal Role in Education: The Every Student Succeeds Act, 105 Calif. L. Rev. 1309, 1311–13, 1336–38 (2017).Show More At the same time that federal officials were forcing curriculum on schools, some governors were attacking public education itself, pursuing privatization and antiteacher agendas.10 10.See Derek W. Black, Schoolhouse Burning: Public Education and the Assault on American Democracy 19, 43–44 (2020) (discussing gubernatorial efforts to undermine public education in Arizona, Wisconsin, and New Jersey).Show More One of the strategies for achieving their goals was to strip state superintendents of their authority.11 11.See, e.g., Coyne v. Walker, 879 N.W.2d 520, 525–27 (Wis. 2016) (discussing 2011 legislation that gave the governor the ability to veto SEO’s rulemaking); Pence Signs Bill Stripping Ritz of Education Authority, Indy Star (May 7, 2015, 5:30 PM), https://www.indy‌star.com/story/news/politics/2015/05/07/pence-signs-bill-stripping-ritz-education-authority/‌70966236/ [https://perma.cc/49CJ-6PSZ] (discussing governor’s attempt to take power from superintendent); Deborah Yetter & Mandy McLaren, Kentucky Education Board Members Voted to Oust Commissioner, but Few Willing to Explain, Courier J. (Apr. 19, 2018, 6:22 AM), https://www.courier-journal.com/story/news/2018/04/18/kentucky-education-boa‌rd-stephen-pruitt-ouster-explained-matt-bevin/528536002/ [https://perma.cc/36QZ-HS78] (discussing how the governor orchestrated the removal of the education commissioner).Show More

The COVID-19 pandemic has brought additional fights. In 2020, President Trump and the U.S. Secretary of Education sought to force schools to resume in-person instruction.12 12.See, e.g., Peter Baker, Erica L. Green & Noah Weiland, Trump Threatens to Cut Funding If Schools Do Not Fully Reopen, N.Y. Times (July 24, 2020), https://www.nytimes.com/2020/‌07/08/us/politics/trump-schools-reopening.html [https://perma.cc/Q2VS-8BRJ].Show More When their lack of authority quickly became obvious,13 13.See, e.g., Edwin Rios, Trump and DeVos Say They’ll Withhold Money From Schools For Not Reopening. Can They?, Mother Jones (July 8, 2020), https://www.motherjones.com/‌politics/2020/07/trump-devos-schools-reopening/ [https://perma.cc/K9LX-JWSV]; Libby Cathey, Education Secretary Faces Backlash After Demanding Schools Reopen Full-Time Amid Pandemic, ABC News (July 13, 2020, 2:00 PM), https://abcnews.go.com/Politics/‌education-secretary-faces-backlash-demanding-schools-reopen-full/story?id=71752468 [https://perma.cc/TW7G-7W53] (noting that DeVos did not cite authority for her plan).Show More governors intervened and attempted to force schools to reopen.14 14.See, e.g., Ariel Gilreath, SC Superintendent and Teachers Push Back on Governor’s Direction for In-Person Classes, Greenville News (July 15, 2020, 4:14 PM), https://www.‌greenvilleonline.com/story/news/2020/07/15/sc-education-superintendent-pushes-back-gove‌rnors-direction/5442495002/ [https://perma.cc/V48P-EJ9Z] (describing how governor instructed superintendent of education to reject school plans that did not include physical reopening); Mary Ellen Klas, Gov. Ron DeSantis Doubles Down on Schools Reopening Full Time in August, Tampa Bay Times (July 9, 2020), https://www.tampabay.com/florida-politics/buzz/2020/07/09/gov-ron-desantis-doubles-down-on-schools-reopening-full-time-in-august/ [https://perma.cc/53L5-7YAD] (reporting on executive order to reopen schools).Show More Yet governors’ power to reopen schools was uncertain as well.15 15.See, e.g., Alexa Lardieri, Florida Teachers Union Sues DeSantis Over Order to Reopen Schools, U.S. News (July 20, 2020), https://www.usnews.com/news/education-news/articles/‌2020-07-20/florida-education-association-sues-gov-ron-desantis-over-order-to-reopen-scho‌ols [https://perma.cc/Q5U7-AMVX]; Andy Brack, Brack: Don’t Use Pandemic, Schools for Foghorn-Leghorning, Statehouse Rep. (July 17, 2020, 10:42 AM), https://www.statehouse‌report.com/2020/07/17/foghorn-leghorn/ [https://perma.cc/ZH5P-33FH] (explaining the possibility of a constitutional crisis with competing positions on school reopening).Show More The power struggle did not end there. A year after the school reopening debacle, governors and legislatures sought to eliminate mask mandates.16 16.See Katie Reilly, As Some Governors Forbid Mask Mandates, Schools Are Pushing Back, Time (Aug. 11, 2021, 5:07 PM), https://time.com/6089640/schools-masks-covid-19/ [https://‌perma.cc/DWP6-ZDHT]. South Carolina’s Superintendent resisted the usurpation of her office. Jamie Lovegrove, SC Superintendent Disagrees With Governor, Says Schools Should Be Able to Mandate Masks, Post & Courier (Aug. 17, 2021), https://www.postandcourier.‌com/politics/sc-superintendent-disagrees-with-governor-says-schools-should-be-able-to-man‌date-masks/article_b82556c6-ff72-11eb-bb82-ffc3f4d5c826.html [https://perma.cc/23E5-M9‌EZ]. After making a forceful show of power, Florida’s governor later appeared to reverse course. Jeffrey S. Solochek, DeSantis Overrules Lawmakers, Rejects Penalties for School Mask Mandates, Tampa Bay Times (June 2, 2022), https://www.tampabay.com/news/‌education/2022/06/02/desantis-overrules-lawmakers-rejects-penalties-for-school-mask-mand‌ates/ [https://perma.cc/S6U2-AZEA].Show More Following that, the claim that schools were teaching critical race theory triggered multiple controversies.17 17.Because legislatures, governors, and SEOs have often aligned on the issue of critical race theory, the more salient issue has been whether the bans violate students’ and teachers’ constitutional rights. See Jennifer Schuessler, Bans on Critical Race Theory Threaten Free Speech, Advocacy Group Says, N.Y. Times (Nov. 9, 2021), https://www.nytimes.com/‌2021/11/08/arts/critical-race-theory-bans.html [https://perma.cc/BN3H-4B3D].Show More Virginia’s governor, for instance, purported to ban critical race theory on his first day in office.18 18.Oliver Laughland, Glenn Youngkin Attempts to Ban Critical Race Theory on Day One as Virginia Governor, Guardian (Jan. 16, 2022, 12:59 PM), https://www.theguardian.com/us-news/2022/jan/16/virginia-governor-glenn-youngkin-sworn-into-office-critical-race-theory [https://perma.cc/Z7EB-VZ9U].Show More Similarly, Florida’s governor has played a major, if not the lead, role in purging the state’s curriculum of materials he deems objectionable, including rejecting an Advanced Placement course on African American studies in January 2023.19 19.Aaron Navarro, DeSantis Defends Rejecting AP African American Studies Course, Says It’s “Indoctrination,” CBS News (Jan. 23, 2023, 2:36 PM), https://www.cbsnews.com/news/‌ron-desantis-ap-african-american-history-florida-press-conference-today-2023-01-23/ [https://perma.cc/63RV-EC7Z].Show More

The immediacy of these controversies is overshadowing the dangerous long-term implications of invading the authority of constitutional education officers. Exercising illegitimate or uncertain power erodes the rule of law, provokes confrontations between constitutional branches of government, and undermines predictability.20 20.See Steven Levitsky & Daniel Ziblatt, How Democracies Die 8–9 (2018) (arguing that executive power must be exercised with restraint to maintain healthy democracy); Joseph Fishkin & David E. Pozen, Essay, Asymmetric Constitutional Hardball, 118 Colum. L. Rev. 915, 927 (2018) (“[C]onstitutional hardball lends itself to retaliation and escalation.”).Show More Political power grabs are particularly corrosive in public education. Public education has long stood as a foundational pillar of the nation’s republican form of government that,21 21.See, e.g., George Washington, Eighth Annual Message to Congress (Dec. 7, 1796), in Presidential Speeches, Univ. of Va. Miller Ctr., https://millercenter.org/the-presidency/pres‌idential-speeches/december-7-1796-eighth-annual-message-congress [https://perma.cc/N9G‌V-3UKK] (last visited Feb. 4, 2024); Kara A. Millonzi, Education as a Right of National Citizenship Under the Privileges or Immunities Clause of the Fourteenth Amendment, 81 N.C. L. Rev. 1286, 1286 (2003); Ross J. Pudaloff, Education and the Constitution: Instituting American Culture, in Laws of Our Fathers: Popular Culture and the U.S. Constitution 23, 26–27 (Ray B. Browne & Glenn J. Browne eds., 1986) (“By a necessary definition, a republican education was a mass education.”); Proceedings of the Constitutional Convention of South Carolina 692, 696 (J. Woodruff ed., 1868) (emphasizing education’s necessity in a republican form of government); see also Derek W. Black, The Fundamental Right to Education, 94 Notre Dame L. Rev. 1059, 1097–99 (2019) (explaining the early connection between a republican form of government and public education).Show More like the judiciary, should stand outside the normal political process. For that reason, all state constitutions guarantee public education,22 22.Derek W. Black, Reforming School Discipline, 111 Nw. U. L. Rev. 1, 10 (2016).Show More and most attempt to insulate education from political pressure through various nuanced proscriptions and power structures.23 23.See, e.g., 2 Debates of the Convention to Amend the Constitution of Pennsylvania 388 (1873) [hereinafter Pennsylvania Debates] (emphasizing the superintendent should be free “from all the contaminating influences of political manipulation and management”); Derek W. Black, The Constitutional Compromise to Guarantee Education, 70 Stan. L. Rev. 735, 808–16 (2018) (detailing southern constitutional conventions’ mechanisms to shield education from manipulation and politics); Colo. Const. art. IX, § 1 (providing for the appointment of the superintendent by the state board, which is elected, rather than by the governor).Show More Nonetheless, political contests and breaches of education power are becoming the rule rather than the exception.

Eroding norms and polarized politics surely contribute to the trend,24 24.See, e.g., Daphna Renan, Presidential Norms and Article II, 131 Harv. L. Rev. 2187, 2189–90 (2018) (emphasizing the important role that norms play in shaping presidential power); Clare Foran, An Erosion of Democratic Norms in America, Atlantic (Nov. 22, 2016), https://www.theatlantic.com/politics/archive/2016/11/donald-trump-democratic-norms/508‌469/ [https://perma.cc/QW6C-C6QJ] (discussing the erosion of presidential norms in the face of political polarization).Show More but they do not fully explain it. Case law, which would normally clarify the lines of power in these struggles, has created a vacuum. The jurisprudence on education powers is so grossly underdeveloped that it invites conflict and power grabs. As a practical matter, governmental actors simply cannot be certain who holds power because few state supreme courts have given education powers the serious analysis they deserve.25 25.This uncertainty is, in part, belied by the abundance of requested opinions of state attorneys general. This Article identifies seventeen relevant attorney general opinions, ten of which were issued between 1963 and 1978. See infra Table 1.Show More The precedent that exists is often thin and contradictory, regularly ignoring or misunderstanding the constitutional dimensions of education power.26 26.See, e.g., Pack v. State, 330 P.3d 1216 (Okla. 2014) (per curiam) (two paragraph decision); Becker v. Bd. of Educ., 138 N.W.2d 909, 912 (Iowa 1965) (presuming the constitutionality of the statute); State ex rel. Bd. of Educ. of Whitehall City Sch. Dist. v. Bd. of Educ. of Columbus City Sch. Dist., 179 N.E.2d 347, 349 (Ohio 1961) (distinguishing precedent on constitutional issues); see also G. Alan Tarr, Of Time, Place, and the Alaska Constitution, 35 Alaska L. Rev. 155, 155 (2018) (suggesting that “knowing when and where a state constitution originated” is necessary for interpretation).Show More For instance, even when education agencies are creatures of constitutional text rather than statutes, courts tend to treat them no differently than any other executive agency.27 27.See, e.g., Koschkee v. Taylor, 929 N.W.2d 600, 605–06 (Wis. 2019) (applying general administrative agency rules); Bd. of Educ. of Cmty. Consol. Sch. Dist. No. 59 v. Ill. State Bd. of Educ., 740 N.E.2d 428, 432 (Ill. App. Ct. 2000) (treating state board the same as other administrative agencies that “possess no inherent or common law powers”).Show More The result is a constitutionally suspect body of law.

Poor timing is also to blame. The specific constitutional provision that establishes an SEO’s office is the starting point for any analysis, but those provisions must be read in conjunction with the larger education articles and clauses that require states to ensure a system of education that delivers adequate and equal educational opportunities.28 28.See infra notes 64–72 and accompanying text.Show More Most state supreme courts, however, did not fully elucidate those Education Clauses until the late 1980s and 1990s.29 29.See generally Joshua E. Weishart, Transcending Equality Versus Adequacy, 66 Stan. L. Rev. 477, 499–507 (2014) (surveying school funding cases).Show More Three-quarters of SEO litigation preceded that era.30 30.See Derek W. Black, Database on School Education Officer Precedent (Apr. 21, 2022) [hereinafter Database I] (on file with author).Show More As a result, SEO precedent rests on premises that no longer hold true—most notably the notion that legislatures possess full, unfettered discretion in education policy.31 31.See, e.g., Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 209 (Ky. 1989) (explaining constitutional limits on legislature); Pauley v. Kelly, 255 S.E.2d 859, 874 (W. Va. 1979) (rejecting unbounded legislative discretion). But see Comm. for Educ. Rts. v. Edgar, 672 N.E.2d 1178, 1185 (Ill. 1996) (noting that framers “did not intend to otherwise limit legislative discretion”).Show More

This Article is the first to provide a comprehensive framework for analyzing the constitutional balance of power in education.32 32.Education law handbooks devote some attention to state officials’ power, but their treatment is relatively cursory. See James A. Rapp, Education Law § 3.02[4], LEXIS (database updated Sept. 2023); Kern Alexander & M. David Alexander, American Public School Law 103–05 (6th ed. 2005); 78 C.J.S. Schools and School Districts § 107 (2023). These works also unfortunately collapse statutory and constitutional authority of SEOs. The only scholarly articles on education power address individual states or cases. See, e.g., Andrew Owens, North Carolina’s Superintendent of Public Instruction: Defining a Constitutional Office, 4 Charlotte L. Rev. 103, 129, 138–39 (2013) (describing North Carolina’s approach); Jonathan Zasloff, Taking Politics Seriously: A Theory of California’s Separation of Powers, 51 UCLA L. Rev. 1079, 1136 n.258 (2004) (analyzing an SEO separation of powers case); Miriam Seifter, Understanding State Agency Independence, 117 Mich. L. Rev. 1537, 1574 n.232 (2019) (citing cases where courts refused to allow the legislature to eliminate the core functions of a constitutional office); Michele L. Harrington, Note, State v. Whittle Communications: Allowing Local School Boards to Turn On “Channel One,” 70 N.C. L. Rev. 1929, 1929–30 (1992) (summarizing case where the North Carolina State Board of Education passed a rule preventing local school boards from subscribing to a commercially sponsored video news program).Show More This framework brings much-needed coherence to the field and offers crucial guideposts for state supreme courts, state superintendents of education, state boards of education, and legislatures as they navigate future disputes. First, this Article identifies the powers of state superintendents and state boards of education as they currently exist in constitutional text and precedent. Second, drawing on additional sources, this Article theorizes the principles for identifying SEOs’ core constitutional powers. Third, those principles provide the basis to articulate the full scope of SEOs’ explicit power of supervision, inherent powers (including rulemaking), and shared powers with the legislature. This Article concludes by applying this framework to recent controversies regarding mask mandates and critical race theory, paving the way for similar future analyses regarding school accountability, student discipline, campus safety, and more.

Two general caveats should be noted. First, this Article addresses only those states that have constitutionalized either a state board or state superintendent. When state constitutions do not establish one of those offices, the analysis is simple: virtually all power rests with the legislature. Second, because the most important line of contested power is between the legislature or governor and SEOs, this Article does not analyze potential disputes between superintendents and boards of education.

This Article proceeds in five Parts. Part I focuses on constitutional text, identifying the thirty-five state constitutions that refer to an SEO, the explicit powers that the constitutions extend to the SEO, and the larger constitutional contexts in which SEO power rests. Part I also traces the genealogy of SEO provisions from 1835 to today. Part II provides an analysis of nearly two hundred final court opinions regarding SEO powers, systematically evaluating them based on eras, outcomes, analytical depth, and reoccurring doctrinal approaches. It finds an overall lack of depth and consistency.

Part III aims to fill existing precedential gaps and resolve contradictions by identifying the key principles necessary for analyzing SEO powers: the adequacy and equity mandate in Education Clauses; the constitutional independence of SEOs; the intersection of SEO independence and legislative prerogative; the inherent powers of constitutional officers; and the unique separation of powers context in which SEOs operate.

Based on that framework, Part IV details the full scope and limits of SEOs’ constitutional powers. First, it analyzes SEOs’ explicit and exclusive power to supervise public education and all its logical components, including rulemaking and other discrete powers. Second, it demonstrates how the nature of the office creates a vast area of shared power with the legislature. Third, it articulates legislatures’ exclusive powers in education as a limiting principle for SEO power.

Part V applies this Article’s theory of constitutional education powers to recent and ongoing controversies, examining mask mandates and critical race theory disputes as illustrative examples. It demonstrates that the precise manner in which a legislature or an SEO exercises power is important, as their primary areas of power are distinct yet overlap in certain respects. Part V also briefly explains the federal constitutional and statutory provisions that place limits on both legislative and SEO action regarding masks and the curriculum.

  1.  347 U.S. 483 (1954). ↑
  2.  The first direct divestment of State Executive Officer power was in P.J. Willis & Bro. v. Owen, 43 Tex. 41, 55–56 (1875). The most notable power grabs, however, followed Brown v. Board of Education, 347 U.S. 483 (1954), when legislatures seized power over assigning students to schools, displacing local authorities’ powers. See, e.g., Griffin v. Cnty. Sch. Bd., 377 U.S. 218, 221–22 (1964) (summarizing Virginia’s constitutional changes and legislative action to subvert school desegregation); Cooper v. Aaron, 358 U.S. 1, 17 (1958) (striking down the Arkansas governor and legislature’s attempts to prevent local district from complying with school desegregation order). ↑
  3.  See, e.g., Mich. Const. art. VIII, § 3 (vesting “[l]eadership and general supervision over all public education” in a state board of education). See generally Powers v. State, 318 P.3d 300, 323 (Wyo. 2014) (holding that the legislature cannot eliminate or transfer the inherent powers of the state superintendent). ↑
  4.  See infra notes 33–41. ↑
  5.  Governors appoint SEOs in several states, but those officers do not necessarily report to the governor. Moreover, in many states, the governor lacks appointment power of the board, the superintendent, or both. See Vincent Scudella, State Education Governance Models, Educ. Comm’n of the States 2–3 (2013), https://www.ecs.org/clearinghouse/01/08/70/10‌870.pdf [https://perma.cc/KR4L-7ZZA] (charting different models, though not distinguishing between constitutional and statutory systems). ↑
  6.  See, e.g., Ohio Const. art. VI, § 2 (directing the legislature to tax for the support of education); Mich. Const. art. 8, §2 (directing the legislature to maintain and support schools). ↑
  7.  See United States v. Lopez, 514 U.S. 549, 567–68 (1995) (holding that Congress’s attempt to regulate schools pursuant to the Commerce Clause was unconstitutional). ↑
  8.  See Derek W. Black, Federalizing Education by Waiver?, 68 Vand. L. Rev. 607, 652–59 (2015) (detailing federal administrative attempts to force states to adopt policy positions that had previously failed in Congress). ↑
  9.  See, e.g., Miker Wiser, Feds Deny Iowa No Child Left Behind Waiver, Waterloo-Cedar Falls Courier (June 21, 2012), http://wcfcourier.com/news/local/govt-and-politics/feds-deny-iowa-no-child-left-behind-waiver/article_ee035d3a-bc09-11e1-9db6-0019bb2963f4.html [https://perma.cc/AKB6-XXJX]. Legislatures and governors later attempted to reverse this coerced adoption of Common Core. See, e.g., Brandi M. Haskins, State Discretion Over Subject Matter Standards: The Rise and Fall of Common Core in Oklahoma, 39 Okla. City U. L. Rev. 441, 460–61 (2014); Andrew Ujifusa, S.C. Governor Signs Bill Requiring State to Replace Common Core, Educ. Week (June 4, 2014), https://www.edweek.org/policy-politics/‌s-c-governor-signs-bill-requiring-state-to-replace-common-core/2014/06 [https://perma.cc/C‌94A-GS3V]. Congress mooted such disputes when it passed legislation that effectively rescinded and precluded the Secretary’s actions. See Derek W. Black, Abandoning the Federal Role in Education: The Every Student Succeeds Act, 105 Calif. L. Rev. 1309, 1311–13, 1336–38 (2017). ↑
  10.  See Derek W. Black, Schoolhouse Burning: Public Education and the Assault on American Democracy 19, 43–44 (2020) (discussing gubernatorial efforts to undermine public education in Arizona, Wisconsin, and New Jersey). ↑
  11.  See, e.g., Coyne v. Walker, 879 N.W.2d 520, 525–27 (Wis. 2016) (discussing 2011 legislation that gave the governor the ability to veto SEO’s rulemaking); Pence Signs Bill Stripping Ritz of Education Authority, Indy Star (May 7, 2015, 5:30 PM), https://www.indy‌star.com/story/news/politics/2015/05/07/pence-signs-bill-stripping-ritz-education-authority/‌70966236/ [https://perma.cc/49CJ-6PSZ] (discussing governor’s attempt to take power from superintendent); Deborah Yetter & Mandy McLaren, Kentucky Education Board Members Voted to Oust Commissioner, but Few Willing to Explain, Courier J. (Apr. 19, 2018, 6:22 AM), https://www.courier-journal.com/story/news/2018/04/18/kentucky-education-boa‌rd-stephen-pruitt-ouster-explained-matt-bevin/528536002/ [https://perma.cc/36QZ-HS78] (discussing how the governor orchestrated the removal of the education commissioner). ↑
  12.  See, e.g., Peter Baker, Erica L. Green & Noah Weiland, Trump Threatens to Cut Funding If Schools Do Not Fully Reopen, N.Y. Times (July 24, 2020), https://www.nytimes.com/2020/‌07/08/us/politics/trump-schools-reopening.html [https://perma.cc/Q2VS-8BRJ]. ↑
  13.  See, e.g., Edwin Rios, Trump and DeVos Say They’ll Withhold Money From Schools For Not Reopening. Can They?, Mother Jones (July 8, 2020), https://www.motherjones.com/‌politics/2020/07/trump-devos-schools-reopening/ [https://perma.cc/K9LX-JWSV]; Libby Cathey, Education Secretary Faces Backlash After Demanding Schools Reopen Full-Time Amid Pandemic, ABC News (July 13, 2020, 2:00 PM), https://abcnews.go.com/Politics/‌education-secretary-faces-backlash-demanding-schools-reopen-full/story?id=71752468 [https://perma.cc/TW7G-7W53] (noting that DeVos did not cite authority for her plan). ↑
  14.  See, e.g., Ariel Gilreath, SC Superintendent and Teachers Push Back on Governor’s Direction for In-Person Classes, Greenville News (July 15, 2020, 4:14 PM), https://www.‌greenvilleonline.com/story/news/2020/07/15/sc-education-superintendent-pushes-back-gove‌rnors-direction/5442495002/ [https://perma.cc/V48P-EJ9Z] (describing how governor instructed superintendent of education to reject school plans that did not include physical reopening); Mary Ellen Klas, Gov. Ron DeSantis Doubles Down on Schools Reopening Full Time in August, Tampa Bay Times (July 9, 2020), https://www.tampabay.com/florida-politics/buzz/2020/07/09/gov-ron-desantis-doubles-down-on-schools-reopening-full-time-in-august/ [https://perma.cc/53L5-7YAD] (reporting on executive order to reopen schools). ↑
  15.  See, e.g., Alexa Lardieri, Florida Teachers Union Sues DeSantis Over Order to Reopen Schools, U.S. News (July 20, 2020), https://www.usnews.com/news/education-news/articles/‌2020-07-20/florida-education-association-sues-gov-ron-desantis-over-order-to-reopen-scho‌ols [https://perma.cc/Q5U7-AMVX]; Andy Brack, Brack: Don’t Use Pandemic, Schools for Foghorn-Leghorning, Statehouse Rep. (July 17, 2020, 10:42 AM), https://www.statehouse‌report.com/2020/07/17/foghorn-leghorn/ [https://perma.cc/ZH5P-33FH] (explaining the possibility of a constitutional crisis with competing positions on school reopening). ↑
  16.  See Katie Reilly, As Some Governors Forbid Mask Mandates, Schools Are Pushing Back, Time (Aug. 11, 2021, 5:07 PM), https://time.com/6089640/schools-masks-covid-19/ [https://‌perma.cc/DWP6-ZDHT]. South Carolina’s Superintendent resisted the usurpation of her office. Jamie Lovegrove, SC Superintendent Disagrees With Governor, Says Schools Should Be Able to Mandate Masks, Post & Courier (Aug. 17, 2021), https://www.postandcourier.‌com/politics/sc-superintendent-disagrees-with-governor-says-schools-should-be-able-to-man‌date-masks/article_b82556c6-ff72-11eb-bb82-ffc3f4d5c826.html [https://perma.cc/23E5-M9‌EZ]. After making a forceful show of power, Florida’s governor later appeared to reverse course. Jeffrey S. Solochek, DeSantis Overrules Lawmakers, Rejects Penalties for School Mask Mandates, Tampa Bay Times (June 2, 2022), https://www.tampabay.com/news/‌education/2022/06/02/desantis-overrules-lawmakers-rejects-penalties-for-school-mask-mand‌ates/ [https://perma.cc/S6U2-AZEA]. ↑
  17.  Because legislatures, governors, and SEOs have often aligned on the issue of critical race theory, the more salient issue has been whether the bans violate students’ and teachers’ constitutional rights. See Jennifer Schuessler, Bans on Critical Race Theory Threaten Free Speech, Advocacy Group Says, N.Y. Times (Nov. 9, 2021), https://www.nytimes.com/‌2021/11/08/arts/critical-race-theory-bans.html [https://perma.cc/BN3H-4B3D]. ↑
  18.  Oliver Laughland, Glenn Youngkin Attempts to Ban Critical Race Theory on Day One as Virginia Governor, Guardian (Jan. 16, 2022, 12:59 PM), https://www.theguardian.com/us-news/2022/jan/16/virginia-governor-glenn-youngkin-sworn-into-office-critical-race-theory [https://perma.cc/Z7EB-VZ9U]. ↑
  19.  Aaron Navarro, DeSantis Defends Rejecting AP African American Studies Course, Says It’s “Indoctrination,” CBS News (Jan. 23, 2023, 2:36 PM), https://www.cbsnews.com/news/‌ron-desantis-ap-african-american-history-florida-press-conference-today-2023-01-23/ [https://perma.cc/63RV-EC7Z]. ↑
  20.  See Steven Levitsky & Daniel Ziblatt, How Democracies Die 8–9 (2018) (arguing that executive power must be exercised with restraint to maintain healthy democracy); Joseph Fishkin & David E. Pozen, Essay, Asymmetric Constitutional Hardball, 118 Colum. L. Rev. 915, 927 (2018) (“[C]onstitutional hardball lends itself to retaliation and escalation.”). ↑
  21.  See, e.g., George Washington, Eighth Annual Message to Congress (Dec. 7, 1796), in Presidential Speeches, Univ. of Va. Miller Ctr., https://millercenter.org/the-presidency/pres‌idential-speeches/december-7-1796-eighth-annual-message-congress [https://perma.cc/N9G‌V-3UKK] (last visited Feb. 4, 2024); Kara A. Millonzi, Education as a Right of National Citizenship Under the Privileges or Immunities Clause of the Fourteenth Amendment, 81 N.C. L. Rev. 1286, 1286 (2003); Ross J. Pudaloff, Education and the Constitution: Instituting American Culture, in Laws of Our Fathers: Popular Culture and the U.S. Constitution 23, 26–27 (Ray B. Browne & Glenn J. Browne eds., 1986) (“By a necessary definition, a republican education was a mass education.”); Proceedings of the Constitutional Convention of South Carolina 692, 696 (J. Woodruff ed., 1868) (emphasizing education’s necessity in a republican form of government); see also Derek W. Black, The Fundamental Right to Education, 94 Notre Dame L. Rev. 1059, 1097–99 (2019) (explaining the early connection between a republican form of government and public education). ↑
  22.  Derek W. Black, Reforming School Discipline, 111 Nw. U. L. Rev. 1, 10 (2016). ↑
  23.  See, e.g., 2 Debates of the Convention to Amend the Constitution of Pennsylvania 388 (1873) [hereinafter Pennsylvania Debates] (emphasizing the superintendent should be free “from all the contaminating influences of political manipulation and management”); Derek W. Black, The Constitutional Compromise to Guarantee Education, 70 Stan. L. Rev. 735, 808–16 (2018) (detailing southern constitutional conventions’ mechanisms to shield education from manipulation and politics); Colo. Const. art. IX, § 1 (providing for the appointment of the superintendent by the state board, which is elected, rather than by the governor). ↑
  24.  See, e.g., Daphna Renan, Presidential Norms and Article II, 131 Harv. L. Rev. 2187, 2189–90 (2018) (emphasizing the important role that norms play in shaping presidential power); Clare Foran, An Erosion of Democratic Norms in America, Atlantic (Nov. 22, 2016), https://www.theatlantic.com/politics/archive/2016/11/donald-trump-democratic-norms/508‌469/ [https://perma.cc/QW6C-C6QJ] (discussing the erosion of presidential norms in the face of political polarization). ↑
  25.  This uncertainty is, in part, belied by the abundance of requested opinions of state attorneys general. This Article identifies seventeen relevant attorney general opinions, ten of which were issued between 1963 and 1978. See infra Table 1. ↑
  26.  See, e.g., Pack v. State, 330 P.3d 1216 (Okla. 2014) (per curiam) (two paragraph decision); Becker v. Bd. of Educ., 138 N.W.2d 909, 912 (Iowa 1965) (presuming the constitutionality of the statute); State ex rel. Bd. of Educ. of Whitehall City Sch. Dist. v. Bd. of Educ. of Columbus City Sch. Dist., 179 N.E.2d 347, 349 (Ohio 1961) (distinguishing precedent on constitutional issues); see also G. Alan Tarr, Of Time, Place, and the Alaska Constitution, 35 Alaska L. Rev. 155, 155 (2018) (suggesting that “knowing when and where a state constitution originated” is necessary for interpretation). ↑
  27.  See, e.g., Koschkee v. Taylor, 929 N.W.2d 600, 605–06 (Wis. 2019) (applying general administrative agency rules); Bd. of Educ. of Cmty. Consol. Sch. Dist. No. 59 v. Ill. State Bd. of Educ., 740 N.E.2d 428, 432 (Ill. App. Ct. 2000) (treating state board the same as other administrative agencies that “possess no inherent or common law powers”). ↑
  28.  See infra notes 64–72 and accompanying text. ↑
  29.  See generally Joshua E. Weishart, Transcending Equality Versus Adequacy, 66 Stan. L. Rev. 477, 499–507 (2014) (surveying school funding cases). ↑
  30.  See Derek W. Black, Database on School Education Officer Precedent (Apr. 21, 2022) [hereinafter Database I] (on file with author). ↑
  31.  See, e.g., Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 209 (Ky. 1989) (explaining constitutional limits on legislature); Pauley v. Kelly, 255 S.E.2d 859, 874 (W. Va. 1979) (rejecting unbounded legislative discretion). But see Comm. for Educ. Rts. v. Edgar, 672 N.E.2d 1178, 1185 (Ill. 1996) (noting that framers “did not intend to otherwise limit legislative discretion”). ↑

  32.  Education law handbooks devote some attention to state officials’ power, but their treatment is relatively cursory. See James A. Rapp, Education Law § 3.02[4], LEXIS (database updated Sept. 2023); Kern Alexander & M. David Alexander, American Public School Law 103–05 (6th ed. 2005); 78 C.J.S. Schools and School Districts § 107 (2023). These works also unfortunately collapse statutory and constitutional authority of SEOs. The only scholarly articles on education power address individual states or cases. See, e.g., Andrew Owens, North Carolina’s Superintendent of Public Instruction: Defining a Constitutional Office, 4 Charlotte L. Rev. 103, 129, 138–39 (2013) (describing North Carolina’s approach); Jonathan Zasloff, Taking Politics Seriously: A Theory of California’s Separation of Powers, 51 UCLA L. Rev. 1079, 1136 n.258 (2004) (analyzing an SEO separation of powers case); Miriam Seifter, Understanding State Agency Independence, 117 Mich. L. Rev. 1537, 1574 n.232 (2019) (citing cases where courts refused to allow the legislature to eliminate the core functions of a constitutional office); Michele L. Harrington, Note, State v. Whittle Communications: Allowing Local School Boards to Turn On “Channel One,” 70 N.C. L. Rev. 1929, 1929–30 (1992) (summarizing case where the North Carolina State Board of Education passed a rule preventing local school boards from subscribing to a commercially sponsored video news program). ↑

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