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LEGAL BASIS OF STATE RELATIONS TO NONPUBLIC SCHOOLS
Kent M. Weeks

STATE ADMINSTRATIVE SERVICES IN EDUCATION
Stephen B. Lawton

STATE BOARDS OF EDUCATION
Michael D. Usdan

STATE GOVERNMENTS IN HIGHER EDUCATION
Houston D. Davis

LEGAL BASIS OF STATE RELATIONS TO NONPUBLIC SCHOOLS

In the United States' federal system, states carry out the function of providing for the education of their citizens. The U.S. Constitution does not specifically identify education as a federal obligation and the Tenth Amendment to the Constitution reserves to the states those areas not specifically delegated to the federal government. Historically, since the early nineteenth century, towns and villages provided education and this practice continues in the early twenty-first century with local governance by school boards and similar entities.

In the early twenty-first century, states provide for compulsory education of children, typically through age sixteen. State governing boards make policy and promulgate regulations for public and nonpublic schools within a framework established by state law and state and federal constitutional requirements.

State Regulation and Parental Choice

Although states gradually assumed more responsibility for providing public education, nonpublic schools also formed in order to carry out the particular areas of emphasis. In the twentieth century, as the country strove to assimilate diverse populations, states sought to impose restrictions upon nonpublic schools. A series of court decisions provided the legal framework for the right of parents to choose schools appropriate for their own children.

Robert Meyer, a teacher in a nonpublic parochial school challenged his conviction in 1920 under a Nebraska statute that prohibited the teaching of German to elementary school age children until they had passed the eighth grade. The purpose of the statute was to "Americanize" Nebraska's increasingly diverse population. In Meyer v. State of Nebraska (1923), the United States Supreme Court ruled the statute unconstitutional since it effectively deprived the parents of a liberty right–the right to chose their children's school–in violation of the U.S. Constitution Fourteenth Amendment due process clause. The Court affirmed the right of states to regulate education even to the point of requiring that the instruction be carried on in English: "The power of the state to compel attendance at some school and to make reasonable regulations for all schools, including a requirement that they shall give instructions in English, is not questioned." The Court also ruled, however, that there was no adequate foundation for the statute: "No emergency has arisen which renders knowledge by a child of some language other than English so clearly harmful as to justify its inhibition with the consequent infringement of rights long freely enjoyed. We are constrained to conclude that the statute as applied is arbitrary and without reasonable relation to any end within the competency of the state." The Court opinion was grounded on the constitutionally protected liberty interests of the parents and the teacher. "His right thus to teach and the right of parents to engage him so to instruct their children, we think, are within the liberty of the amendment."

When the state of Oregon enforced a statute compelling every child between the ages of eight to sixteen years of age to attend public schools, the U.S. Supreme Court affirmed the right of parents to chose nonpublic schools. In 1924 in Pierce v. Society of Sisters, the court upheld the right of the Society of Sisters and another private school challenger to operate their schools and affirmed the right of the state to regulate nonpublic schools. The court again reaffirmed the right of the state to regulate private schools.

No question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise, and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.

Parents, however, have rights.

The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

Several years later, parents challenged a Hawaiian statute that prohibited attendance at foreign language schools until after the second grade and limited attendance to such schools to six hours per week and specified the curriculum. The schools were regulated in order that the Americanism of the pupils may be promoted. In Farrington v. Tokushige, 1927, the U.S. Supreme Court held the law was unconstitutional because its enforcement according to the court "would deprive parents of fair opportunity to procure for their children instruction which they think important and we cannot say is harmful."

Types of Nonpublic Schools

Most states recognize three types of nonpublic schools: private schools without religious affiliation, religiously affiliated private schools, and home schools. According to the U.S. Department of Education, the total nonpublic school student population in 1999 was about 5.2 million and represented about 10 percent of the total U.S. elementary and secondary school population, a percentage that had not changed significantly in the preceding years. Religious schools represented about 80 percent of the total nonpublic schools. Home schools represented a new and rapidly growing option although they did not educate a significant percent of the total school population. Estimates suggest that the home school population is growing about 10 percent to 15 percent per year.

State Regulation

States can regulate nonpublic schools under their police powers relating to health and safety. Further, because education is compulsory, states possess the authority to promulgate requirements concerning areas such as teacher qualifications, time spent in class, and curriculum. A balance is involved. States may encounter legal challenges if their regulatory activities are determined to be so intrusive as to obliterate the mission of the nonpublic schools, if the regulation is found to be arbitrary, or if the regulation represents an unconstitutional intrusion into religion. Challenges to state regulation of nonpublic schools are typically based on the principles of parental choice, free speech, or religious freedom.

Wisconsin v. Yoder (1972) is a classic case in which Amish parents objected to a state requirement that their children must attend school until they were sixteen, a requirement in conflict with Amish parents' tradition of training their own children after the eighth grade. The U.S. Supreme Court ruled that given the particular nature of the Amish religion and its documented record of beliefs, this regulation violated the free exercise rights of the Amish. The Court, however, again reaffirmed the right of the states to regulate education: "There is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education."

In State v. Whisner (1976), Tabernacle Christian School, a school affiliated with a fundamentalist Christian church, objected to certain minimum standards required for Ohio schools that included, as the Ohio Supreme Court found, "the content of the curriculum, the manner in which it is taught, the persons who teach it, the physical layout of the buildings, the hours of instruction, and the educational policies intended to be achieved." The Court particularly examined the rule requiring that four-fifths of the total instructional time per week must be devoted to language arts, mathematics, social studies, health, citizenship, and optional foreign language, and one fifth to physical education, music, art, special activities and optional applied arts. The school argued that these requirements precluded the teaching of other subjects such as additional instruction in religion.

The court reasoned that First Amendment free exercise protections and that parental rights placed a burden on the state that only could be met if the state could demonstrate a compelling need for the regulation. The state must demonstrate that the regulation is the only way the state could achieve its objective of providing a "general education of high quality."

The court ruled Ohio failed to meet this burden when it concluded that the standards were "so pervasive and all-encompassing that total compliance with each and every standard by a non-public school would effectively eradicate the distinction between public and non-public education," and therefore would deprive the parents of their "traditional interest as parents to direct the upbringing and education of their children."

States have broad jurisdiction in regulating non-public schools, leading to a wide variation in regulation and therefore the regulations of these schools varies among the states. States may not prohibit teaching certain subjects but they may prescribe a core curriculum. States often require instruction in the U.S. Constitution and the history of the United States. Some states require that nonpublic schools teach "patriotism" or "good citizenship."

State regulation of nonpublic schools can cover the following areas: record keeping, length of school year and day, teacher certification, curriculum, health, evidence of immunization, and safety, including fire prevention, guns prohibition, and child abuse reporting.

During the early years of the country's history most schooling occurred in the home. Over time, many states adopted legislation prohibiting home schooling. Since there is not any federal constitutional basis for claiming a right to home school a child, parents' efforts focused on obtaining enabling legislation at the state level. Currently, states permit home schools and state regulation is minimal, generally covering such areas as training of parents, hours and days of attendance, and required tests. There have been legal challenges to state regulation such as requirements that home-school teachers be certified, requirements that home-schooled students take nationally standardized achievement tests, and regulations regarding fire and health codes. An area of continuing litigation relates to efforts by home-schooled children to select certain benefits from the public school system such as participating in extracurricular activities, like athletics and music programs. Few state courts have sustained claims by home-schooled children to a right to participate in extracurricular activities.

Public Funding of Nonpublic Schools

Although many nonpublic schools eschew state regulation, some seek federal or state financing of certain educational components of their schools. The controversies arise when the aid is available to a sectarian school, or students in that school, raising issues related to the First Amendment establishment clause prohibition against government aid of religion and similar state constitutional prohibitions.

The U.S. Supreme Court approved public support of school bus transportation for both public and nonpublic students as early as 1947. Subsequently, the Court developed a three-part test to measure the constitutionality of public funding. In Lemon v. Kurtzman (1971), the court ruled that government action must satisfy the following requirements: (1) have a secular legislative purpose; (2) have a primary effect that neither advances nor impedes religion; and (3) avoid excessive government entanglement with religion. The decision led to a series of conflicting decisions that prohibited use of public school teachers in parochial schools to teach remedial education, sustained tax deductions from the state income tax for school expenses paid to a public or a nonpublic school, and allowed regular textbooks to be loaned to students who attended a nonpublic school.

Eventually, the U.S. Supreme Court moved away from the Lemon test and toward a "neutrality" principle that appears to sanction more government accommodation toward religion. The result is reflected in the overruling of some precedents and permitting a closer connection between public funds and religious schools and their activities. The court, in 1993, sanctioned public funds to employ a public school teacher to interpret for a hearing impaired student in a parochial school. In 1997, the court sustained use of public funds to pay for public school teachers to provide remedial education to disadvantaged children on the premises of parochial schools.

The constitutional battles will continue since the stakes are high for nonpublic schools and for the states as they try to steer through the constitutional maze of what is and what is not permissible under the religion clauses proscriptions.

The Public Nature of Nonpublic Schools

Although some nonpublic schools seek funding for various programs, others voluntarily submit to minimum state regulation in order to have their programs approved by the state. Benefits from such approval include the acceptance of courses and credits when students transfer to a public school, and teacher accrual of teaching experience for purposes of placement on the public school salary scale if they become employed by a public school. Such voluntary state regulation must not be intrusive or arbitrary and must be accomplished within constitutional proscriptions.

New challenges to state regulation may arise as states increase their accountability efforts by developing "high-stakes" end-of-course tests that students must pass in order to graduate. If states require nonpublic students to take these tests, challengers may argue that the state is effectively establishing curriculum and is intruding on the right of the non-public school to certify its graduates.

Other new areas of government policy will contribute to a further blurring of the line between public and nonpublic schools. For example, public models similar to some nonpublic schools may be established through choice programs that permit the establishment of public charter schools with more latitude in decision-making and resource allocation. If state voucher programs expand, recipients of voucher funds may be required to comply with additional state requirements that could contribute to a blurring of the distinction between public and non-public schools.

Through the litigation and legislative initiatives, states seem to have developed accommodations in regulating nonpublic schools by balancing the need to ensure that children receive adequate educational opportunities with the need to recognize legitimate religious claims and parental rights.

BIBLIOGRAPHY

BJORKLUN, EUGENE C. 1996. "Home Schooled Students: Access to Public School Extracurricular Activities," Education Law Reporter 109 (1), June 27.

NATIONAL CENTER FOR EDUCATION STATISTICS, U.S. DEPARTMENT OF EDUCATION. 2000. Education Statistics Quarterly 2:124.

KENT M. WEEKS

Rudolf Steiner (1861–1925) - Steiner's Pedagogical Approach [next] [back] St. John's College

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