The Distinction Between Public and Private Education
By Richard R. Hammar, J.D., LL.M., CPA
© Copyright 1991, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m65
It often is crucial to ascertain whether a particular school is a public or private institution since the applicability of several constitutional and statutory provisions turns upon this distinction. To illustrate, the due process clause of the fourteenth amendment to the United States Constitution provides that no state or state instrumentality shall deprive any person of life, liberty, or property without the procedural safeguards implicit in the notion of due process. Public schools are state instrumentalities, and hence they are subject to the due process clause. Thus public schools may not, for example, discipline or discharge students without following the procedures mandated by the courts, for to do so would be to deprive such students of liberty without due process. Such procedures typically include an evidentiary hearing, an impartial arbiter, the right to confront opposing witnesses, the right to counsel, and the opportunity to present evidence. Similarly, public schools may not discharge tenured schoolteachers without due process. Private schools that are not state instrumentalities are not subject to the due process clause.
Many other constitutional limitations are imposed on state instrumentalities. Virtually the entire Bill of Rights has been judicially “incorporated” into the due process clause of the fourteenth amendment and thereby made applicable to states and state instrumentalities. As a result, public schools and other state institutions may not impair such rights as speech, press, assembly, association, free exercise and nonestablishment of religion, freedom from unreasonable searches and seizures, and protection from cruel and unusual punishment, without following judicially mandated procedural safeguards. Several state and federal statutes contain provisions incorporating the public--private distinction.
In summary, the characterization of a religious school as being either public or private is of fundamental importance. But how is such a school to be characterized? It can safely be said that most if not all religious schools are private institutions beyond the reach of the kinds of constitutional and legislative provisions summarized above. To illustrate, in one case a court rejected the claim of a student who had been discharged from a private religious school that his constitutional right to due process had been violated by the school's summary expulsion procedure.1 The court concluded that the requirements of due process did not apply since the school was a private and not a public or state institution. This conclusion was not affected by the fact that the school received governmental aid:
The federal judiciary is nearly unanimous in holding that financial assistance to a private university or professional school, without more, does not render the actions of the educational institution state action . . . . In several of these cases, the governmental contribution was quite substantial. For example, in [one case] federal aid constituted 25% of the school's budget; in [another case] public funds contributed to 40% of . . . total revenues. Yet despite the significant input of governmental aid, state action was not present. The percentage contribution in the instant case is but a fraction of those indicated above.2
The court also rejected the student's claim that regulatory oversight of private schools by the state transformed them into state entities since “the state has minimal control over private educational facilities” and is concerned “only with sanitation, qualifications of teachers and minimum course requirements.”3
In another case, a court ruled that the expulsion of two students for violation of a school disciplinary rule regarding absence was not governed by the due process clause. The students had argued that the school was a “public” agency subject to the due process clause because the state regulated course and curriculum materials in private schools to a limited extent, students of private schools could use public transportation, most private schools participated in the school lunch program, and a private school desiring to obtain a certificate from the state board of education had to meet more extensive state requirements.4
For related information on this topic see the following articles:Incorporation and Tax Exemption of Private Religious Schools
Proof of Nondiscrimination in Private Schools
Right to Attend Private Schools
Discharge and Discipline of Students of Private Schools
Discharge and Discipline of Teachers
Application of Federal Labor and Discrimination Laws to Private Schools
Government Regulation of Private Schools
Zoning Laws and Private Schools
Safety and Health Regulations for Private Schools
Taxation of Private Religious Schools
Child Abuse Reporting Requirements for Private Schools
Legal Liability for Student Injuries