Local Government Powers: Privatization

• Stepping back: – Sources and limitations on local government powers– Choices by state in how to provide services/regulate

through particular (governmental?) means

• But…– Can local (or state) governments then allocate power

to “private” entities?– What rules apply and what issues arise?

• Common examples:– Privatization of jails– Use of charter schools

Privatization of Jails: Tulsa• History of civil rights problems due to jail conditions• New approach

• County commissioners… • establish “public trust” (TCCJA) to manage funds

from new sales tax… • to pay private entity (CCA)… to manage and

operate county jail… • under contract... • subject to state statutory & administrative

requirements that apply to county jails and privately operated jails…

• relating to security, inmate discipline and employment, food, clothing, housing

Jail Privatization: Key Questions• Separation of powers & “delegation”

– Why worry about delegation?– What is being delegated & is delegation permissible?– How are concerns addressed in the structure here?

• Authority of TCCJA– Where does authority come from and how interpret?

• Relation to constitutional role of sheriff?– Is this modification? Or de facto abolition?– Must sheriff be the one to privatize?

• Special legislation concerns?

Privatization & Charter Schools

• State Constitutional provisions (NJ)– Legislature to “provide for the maintenance

and support of thorough & efficient system of free public schools”

– Historically, public school districts with public schools

– New models: “charter schools” with public funding where special charter and independent governing board

– Implications (and for whom)?

Charter schools: Legal Issues?

• Statutory structure (NJ)– Procedure for establishment & operating

guidelines (admission, enrollment, transport)– Funding: district of residence pays per pupil

amount to charter school (as set by state commissioner, but presumptively 90% of local budget for grade level)

– State “guidelines” to prevent segregation, including grade level and school comparisons

Charter Schools: Analysis

• Segregation risk? – Will charter schools affect racial balance in

public school district from which it draws pupils?

• Economic impact– While charter schools draw resources that

prevent school district from providing viable, “thorough & efficient” education for others?

• Court’s response: Initial flaw? Interpretative stance? Why?