With few exceptions, public schools have delivered instruction using only those teachers who are employees of the district. State regulations continue to reflect this traditional delivery model. Many state policies, while not prohibitive, nevertheless are ambiguous when it comes to the legal authority of school districts to contract for instruction.

Two surveys, both conducted in the Spring of 1994, sought information on the legal authority of school boards to contract with private providers for education services. The American Association of Educators in Private Practice (AAEPP) surveyed the state departments of education.17 Senn Brown, director of legislative services for the Wisconsin Association of School Boards, surveyed state associations of school boards. Table 2 shows the composite of responses to both surveys. A total of 44 states responded to one or both surveys.

Nearly every state responding to the survey had some provision for contracting with a private provider, although the contracting option frequently was limited to specific populations or programs such as special education, vocational education, or driver's training. Roughly a quarter of survey respondents indicated that their states grant broad powers to school boards--thus implying that school boards would have the authority to contract for instruction generally, as long as such an action would not conflict with other state or local rules and regulations. But again, further clarification is needed.

Brown advises readers to consult legal counsel for expert opinions regarding a state's laws and not depend solely on the survey results presented in Table 2.

Perhaps a better indication of the authority of school boards to contract with private providers is to look at the states where this activity is already occurring in the public schools. Berlitz Jr. has successfully negotiated contracts with public-school districts in the states of California, Colorado, Florida, Illinois, Indiana, Maryland, Massachusetts, Michigan, New Jersey, New York, North Carolina, Ohio, Pennsylvania, and Wisconsin18

A number of survey respondents suggested that school boards indeed did have the authority to contract, but that no formal opinions had been issued by the state education department, attorney general's office, or the courts. When the laws are silent or ambiguous on the authority of school districts to contract for instruction--as they often are--school decision-makers may want to seek clarification from legal counsel.

Nancy Lavelle, president of the Institute for the Redesign of Learning, a California company providing education, training, and counseling services to at-risk youth under contract with 30 public schools, discovered the pitfalls of unclear authority firsthand. Her company, in partnership with the California Department of Education, and the Department of Rehabilitation, spent one year planning a program to serve at-risk youth, which would have involved the use of some federal funds. Just before the program was to be implemented, the contract office of the Department of Rehabilitation said it would not authorize the contract because, according to one Department of Rehabilitation official, "While there are no restrictions, there is nothing in federal regulations that expressly permits state agencies to contract with private providers to implement the use of Vocational Rehabilitation funds."19

Says Lavelle, "It is one of those Catch-22 situations. There's no restrictions, but there's nothing that actually allows it, so they [the Department of Rehabilitation] don't do anything about it."20

States wanting to encourage contracting for instruction in the public schools should include statutory language in the state education code expressly authorizing school boards, or other governing authorities, to do so. (See Appendix II for model statutory language.) In addition, local collective-bargaining agreements, discussed below, should make clear the authority to contract. In some states, certain issues relating to contracting out for services may be a mandatory subject for negotiation by collective-bargaining units.