Government Regulation of Private Schools

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

Many courts have held that the state has a legitimate interest in ensuring that its youth receive a competent education, and that this interest justifies “reasonable” governmental regulation of private schools. One court observed that “[n]umerous decisions of the Supreme Court of the United States over the years have clearly sounded the death knell” for the assertion that “the state is devoid of all power to promulgate and enforce reasonable regulations affecting the operation of nonpublic schools.”¹ To illustrate, the United States Supreme Court has affirmed that “[t]here 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.”² The Supreme Court also has observed:

[A] substantial body of case law has confirmed the power of the states to insist that attendance at private schools, if it is to satisfy state compulsory--attendance laws, be at institutions which provide minimum hours of instruction, employ teachers of specified training, and cover prescribed subjects of instruction . . . [and that] if the state must satisfy its interest in secular education through the instrument of private schools, it has a proper interest in the manner in which those schools perform their secular educational function.³

Many states in the exercise of their authority to provide for the competent education of their citizens have enacted laws applying directly to private schools. Many of these laws are part of a general compulsory attendance statute requiring that all children of prescribed ages attend a public or state--approved private school. State approval of private schools generally is based upon such criteria as teacher certification, length of school day and year, curriculum content, and compliance with health and safety laws. Such laws generally have been upheld by the courts. To illustrate, the state of North Dakota has a compulsory attendance law requiring that all children between seven and sixteen years of age attend a public school or a state--approved private school. To receive state approval, a private school must use only state--certified teachers, teach a minimum number of prescribed courses, and comply with all municipal and state health, fire, and safety laws. The state prosecuted two families who sent their children to a nonapproved church school for violation of the compulsory attendance law. The parents challenged the constitutionality of the state's compulsory attendance law as applied to church schools.⁴ In particular, the parents argued that the Bible commands parents to educate their children according to the Scriptures and to raise them in the nurture and admonition of the Lord, and thus parents have an obligation to send their children to a school where Christian values and beliefs can be taught without state interference.

The state countered by demonstrating that the school used a self--study curriculum that did not require the use of state--certified teachers, that the school had never sought approval for its program, and that the state had a significant interest in ensuring that all children receive a competent education and that this responsibility justified the state's approval of private schools.

In resolving the issue the court applied a three--pronged test formulated by the United States Supreme Court in the landmark case of Wisconsin v. Yoder.⁵

1. Was the activity with which the state interfered motivated by and rooted in a legitimate and sincerely held religious belief?

2. Was the right to the free exercise of religion unduly burdened by the state regulation, and if so, what was the extent of its impact on religious practices?

3. Did the state have a sufficiently “compelling” interest in the regulation to justify the burden on the free exercise of religion?

The court concluded that the activity interfered with by the state was motivated by and rooted in a legitimate and sincerely held religious belief, and assumed for the sake of argument that the parents' right to freely exercise their religion had been unduly burdened by the state's compulsory attendance law. However, the court concluded that the state did have a “compelling” interest in reasonably regulating private education that justified the burden on the parents' free exercise of religion:

Absent the approval requirement, the state would have virtually no assurance that children, who are not in attendance at a public school, are in fact attending either a private or parochial school, and, if so, are receiving and will continue to receive a good education in a safe, healthy environment.⁶

The court rejected the parents' contention that the state could fulfill its responsibility of providing a competent education for its youth through the less restrictive means of a standardized achievement testing program.

In a similar case, the Supreme Court of Nebraska upheld the constitutionality of a state compulsory attendance law requiring children between seven and sixteen years of age to attend either public schools or state--approved private schools.⁷ To receive state approval, a private school had to meet various requirements relating to curriculum, length of school day and year, and health and safety. In addition, private schools were required to file reports with the state and could employ only state--certified teachers. The State of Nebraska filed suit to halt further operation of a particular church school on the ground that it was not in compliance with the state compulsory attendance law. In particular, the state alleged that the school used a self--study curriculum “not unlike a correspondence course” that utilized noncertified teachers, and that state reporting requirements were not being followed. The church countered by arguing that its school was an extension of the church and thus the state had no authority to approve it. The church also maintained that the first amendment's guaranty of the free exercise of religion insulated its school from state regulation, and that the state was incapable of judging the quality of a religious school.

The court concluded that the state had a “compelling” and critical interest in the quality of the education provided its youth that justified reasonable regulation of nonpublic religious schools. Accordingly, the court upheld the validity of the compulsory attendance law, including the requirement that private school teachers be state--certified. The court observed:

We are not suggesting as an absolute that every person who has earned a baccalaureate degree in teaching is going to become a good teacher, any more than one who has obtained the appropriate training and education will become a good engineer, lawyer, beauty operator, welder, or pipefitter. However, we think it cannot fairly be disputed that such a requirement is neither arbitrary nor unreasonable; additionally, we believe it is also a reliable indicator of the probability of success in that particular field. We believe that it goes without saying that the State has a compelling interest in the quality and ability of those who are to teach its young people.⁶

The court, in rejecting the church's contention that the state's legitimate interest in providing quality education could better be served by annual comparative testing, observed that the “problem with testing is that it comes too late. If the deficiency of the education being afforded is not discovered until the end of the year, the child has wasted that year.”⁷

The Supreme Court of Hawaii upheld the constitutionality of a state law requiring private church schools to be licensed.⁸ The court, applying the three--part Yoder test,⁹ concluded that the license requirement promoted a compelling state interest and did not unduly burden sincerely held religious beliefs.

The Supreme Court of New Mexico ruled that

the state may impose minimum scholastic and training standards, including qualifications for teachers, for both public and private nurseries, kindergartens and elementary schools. Above and beyond such minimum standards the private institution may furnish a better curriculum if it desires to do so. But the state has a preeminent interest in basic or minimum standards.¹⁰

The Supreme Court of Massachusetts concluded that a church--operated school may not avoid state regulation by characterizing itself as a part of the church, and that a state law requiring private schools to report the name, age, and residence of every student did not violate the church school's first amendment right to freely exercise its religion and did not interfere with any privacy rights.¹¹ In determining whether the state law violated the first amendment's free exercise clause, the court applied the three--pronged test formulated by the United States Supreme Court in the Yoder case.¹² The court reasoned that the school satisfied the first element of this test, but concluded that the second and third elements were not satisfied since an application of the state reporting law to private religious schools had only an incidental burden on the right of such schools to practice their religion and was justified by the state's compelling interest in providing a quality education for all its youth. The court emphasized that the law in no way interfered with a church school's right to teach religious doctrine. Finally, the court rejected the school's claims that the state law constituted an impermissible “establishment of religion” since it inhibited religion and created an excessive entanglement between church and state, and that the law unconstitutionally burdened the first amendment right of association. With regard to the latter contention, the court observed that “the state's interest in compulsory education is so compelling and the information sought so relevant that it justifies the burden on the [school's], the parents', and the children's right to freedom of association.”¹³

The Vermont Supreme Court ruled that a state law requiring church--operated elementary and secondary schools to comply with various state regulations did not violate the constitutional right of parents to freely exercise their religion.¹⁴ The Vermont compulsory education law requires all children between seven and sixteen years of age to attend either a public school or “a reporting private school.” All that is required of a “reporting private school” is that it file an annual report with the state department of education agreeing to offer certain courses, state its purposes, state the days and hours the school is in session, provide a list of students, and agree to notify the state when a student leaves. Monitoring whether or not a private school is offering the minimum course of study prescribed by state law is left up to the parents and not the state. A church that operated a private school refused to comply with these reporting requirements. As a matter of religious principle, it could not accept state control over the education of its children. The state criminally prosecuted two parents for violating state compulsory attendance law by sending their son to a non--reporting private school. The parents argued that their prosecution violated the constitutional guaranty of religious liberty. A trial court rejected this claim, and the parents appealed.

The state supreme court began its opinion by observing that the constitutional guaranty of religious liberty is violated only if a state law burdens a sincerely--held religious belief, and the law does not serve a “compelling state interest” in the least restrictive way. The court readily agreed that the parents' right to freely exercise their religion was “burdened” by the state compulsory attendance law. However, the court concluded that this burden was outweighed by the state's “compelling interest” in the education of its citizens. It quoted an earlier decision of the United States Supreme Court: “Education is perhaps the most important function of state and local governments. It is the very foundation of good citizenship. In these days, it is doubtful that any child may reasonably be expected to succeed in life . . . denied the opportunity of an education.” The court noted that a state's compelling interest in education “has been overwhelmingly sustained” by both state and federal courts. It observed: “[T]here have been extensive challenges to state regulation of home education or private schooling based on assertions of religious liberty. With only isolated exceptions, neutral and reasonable state regulations affecting home schooling and private education have been upheld against free exercise [of religion] challenges.”

Further, the court concluded that the state's minimal reporting requirements were the “least restrictive means” of accomplishing its compelling interest. The court observed in conclusion that when a state establishes minimum education standards, “compliance with them falls within the ambit of the fundamental contract between the citizen and society. It need scarcely be said that each of us, in order to enjoy membership in an organized social order, is pledged to adhere to a number of minimum norms. Of these, one of the most central is society's duty to educate its children. The nature and extent of education remains largely a matter of personal choice. But there are basic minimums and, this being true, it is up to the people as a whole to set them. One way they have done this is to enact compulsory education statutes.”

Two federal appeals courts have upheld state laws regulating church--operated schools despite the claim that such regulation violates the constitutional guaranty of religious freedom. The federal appeals court for the 8th circuit (includes the states of Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) rejected a challenge by two fundamentalist church schools to the constitutionality of Iowa's compulsory education law.¹⁵ The state law required that church--related schools file annual reports with the local public school district listing pupils' names, ages and attendance record, texts used, and teachers employed. In addition, the law required that church schools provide “equivalent instruction” using state--certified teachers. The court concluded that the “burden on [parents'] religious beliefs—if one exists at all—is very minimal and is clearly outweighed by the state's interest in receiving reliable information about where children are being educated and by whom.” In rejecting the claim that standardized testing be used to evaluate the quality of education at the schools instead of requiring certified teachers, the court observed that “certification is the best means available today to satisfy [the state's] interest in the education of its children.” The court also ordered that the state's attorneys' fees be paid since the lawsuit was “vexatious and unreasonable,” and was based on arguments that had been rejected in the past by numerous courts.

In the second case, the federal appeals court for the 1st circuit (includes the states of Maine, Massachusetts, New Hampshire, and Rhode Island) ruled that the constitutional guaranty of religious freedom did not exempt a fundamentalist Christian school from state approval.¹⁶ The Massachusetts compulsory attendance law requires children to attend schools (public or private) that have been “approved” by the state. Private schools are approved if their educational program is comparable (in thoroughness and efficiency) to public education. A Baptist church claimed that it was a sin to “submit” its private school to secular authority for approval, and accordingly that the law subjecting the school to state approval violated the constitutional guaranty of religious freedom. Specifically, the church's religion taught that “God is the sovereign and the final authority in all human conduct [and that] to submit [the church's] educational ministry for the prior or continued approval of secular authorities would violate the sovereignty of Christ over his church and would, therefore, be a sin.” To help resolve the controversy, the church proposed that its students voluntarily take standardized tests to assure the competency of the school's educational program, and the test results be shared with the state. A federal trial court agreed with the church, and found that requiring state “approval” of the school violated the church's constitutional rights. The state of Massachusetts appealed, and a federal appeals court reversed the trial court's decision and ruled in favor of the state.

The court conceded that the state's “approval” requirement violated the sincerely--held religious beliefs of the church. However, it concluded that the state law was supported by a “compelling” governmental interest that outweighed the church's religious convictions. It observed that “it is settled beyond dispute that the state has a compelling interest in insuring that all its citizens are being adequately educated.” The court cited with approval an earlier pronouncement of the United States Supreme Court: “A substantial body of case law has confirmed the power of the states to insist that attendance at private schools, if it is to satisfy state compulsory--attendance laws, be at institutions which provide minimum hours of instruction, employ teachers of specified training, and cover prescribed subjects of instruction. . . . If the state must satisfy its interest in secular education through the instrument of private schools, it has a proper interest in the manner in which those schools perform their secular educational function.”¹⁷

Finally, the court rejected the church's claim that the state's interest in competent education could be satisfied through voluntary standardized testing. It noted that “tests, at best, reveal what has occurred.” Further, can the state be certain that “good results reflect good teaching . . . rather than simply teaching the answers to questions the teachers believe will appear on tests?” The court acknowledged that some states allow mandatory standardized testing to monitor the quality of private education (it cited Alaska, North Carolina, South Dakota, and West Virginia). However, the court could find no state that uses voluntary testing to insure the adequacy of private education.

As noted in the previous subsection, the states clearly have the authority “to insist that attendance at private schools, if it is to satisfy state compulsory attendance laws, be at institutions which provide minimum hours of instruction, employ teachers of specified training, and cover prescribed subjects of instruction.”¹⁸ However, unreasonable state regulation of private education will not be tolerated. To illustrate, the Supreme Court of Ohio struck down the application to private religious schools of series of “minimum standards” promulgated by the Ohio State Board of Education.¹⁹ The minimum standards regulated the content of the curriculum, the manner in which it was taught, the physical layout of the educational buildings, the hours of instruction, the educational policies to be achieved, and the amount of instructional time to be allocated to the subjects offered. The minimum standards left no time for biblical or spiritual training, required a minimum number of students, required that all activities “conform to policies adopted by the board of education,” prohibited the release of child study information to parents, and required that “organized group life of all types must act in accordance with established rules of social relationships and a system of social controls.” The court concluded that these standards unduly burdened the first amendment right of parents to send their children to private religious schools since “these `minimum standards' overstep the boundary of reasonable regulation as applied to a nonpublic religious school.” The court also found that the right of parents to direct the upbringing and education of their children in a manner they deem advisable was also denied by the application of the “minimum standards” to private religious schools:

These standards are so pervasive and all--encompassing that total compliance with each and every standard by a nonpublic school would effectively eradicate the distinction between public and nonpublic education, and thereby deprive [parents] . . . of their traditional interest . . . to direct the upbringing and education of their children.²⁰

The Supreme Court of Kentucky ruled that the state cannot require nonpublic schools to comply with curriculum, teacher certification, and textbook standards because such requirements would violate Section 5 of the Kentucky Constitution which states: “[N]or shall any man be compelled to send his child to any school to which he may be conscientiously opposed.” The court added that if the state legislature wished to monitor the work of private schools in accomplishing the state's obligation to provide its youth with a competent education, “it may do so by an appropriate standardized achievement testing program.”²¹

The previous two decisions have been distinguished by some courts on the following grounds: (1) the regulations in the first case (Whisner) were so pervasive as to be unreasonable, (2) the second case (Rudasill) involved a unique state constitutional provision, and (3) both cases involved actual or threatened criminal sanctions that greatly increased the burden on religious practices.²²

A federal district court invalidated administrative regulations adopted by the Maine State Board of Education which attempted to institute a scheme whereby private schools could operate only if approved by the Board.²³ The court concluded that the Board's action exceeded the authority vested in it by the state legislature.

Finally, in Wisconsin v. Yoder,²⁴ the United States Supreme Court ruled that the first amendment's free exercise of religion clause prevents a state from compelling Old Order Amish parents to send their children to school after graduation from the eighth grade. The Amish demonstrated that their religion was characterized by a fundamental belief that salvation requires life in a church community separate and apart from the world and worldly influence, and that formal education of Amish children beyond the eighth grade would expose them to unacceptable worldly influences and values such as intellectual and scientific achievement, self--distinction, competitiveness, material success, and social conformity. The Amish did not object to formal education through eighth grade because they believed that their children should have sufficient skills to read the Bible and to be able to deal with non--Amish people when necessary in the course of daily affairs.

The Court acknowledged the power of a state to impose reasonable regulations “for the control and duration of basic education.”²⁵ It added, however, that “a state's interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests such as those specifically protected by the free exercise clause of the first amendment, and the traditional interest of parents with respect to the religious upbringing of their children . . . .”²⁶

The Court formulated a three--pronged test for determining whether Wisconsin's compulsory attendance law was unconstitutional as applied to Amish parents. The test involved a determination of (1) whether the activity interfered with by the state was motivated by and rooted in a legitimate and sincerely held religious belief; (2) whether the Amish parents' free exercise of religion had been unduly and substantially burdened by the regulation to the extent of affecting religious practices; and (3) whether or not the state had a compelling interest in the regulation that justified the burden on the free exercise of religion and overrode the interest of the Amish parents in exercising their religious practices. This three--pronged test has been employed by a number of other courts in subsequent cases, and for many years was considered a general test for determining whether a particular state law or regulation could apply to private religious schools. In 1990, the Supreme Court indicated that the third element of this test is no longer necessary in the context of “neutral laws of general applicability.”²⁷ This will make it more difficult to prove that a state law violates the constitutional guaranty of religious freedom.

With respect to the first prong of the test, the Court concluded that the opposition of the Amish parents to formal secondary education was motivated by and rooted in legitimate and sincerely held religious beliefs. As to the second prong, the Court observed:

[T]he unchallenged testimony of acknowledged experts in education and religious history, almost 300 years of consistent practice, and strong evidence of a substantial faith pervading and regulating [the Amish members'] entire mode of life support the claim that enforcement of compulsory formal education after the eighth grade would gravely endanger if not destroy the free exercise of [their] religious beliefs.²⁸

The Court concluded that the State of Wisconsin lacked a compelling interest in requiring Amish children to attend school after graduation from the eighth grade:

It is one thing to say that compulsory education for a year or two beyond the eighth grade may be necessary when its goal is the preparation of the child for life in modern society as the majority live, but it is quite another if the goal of education be viewed as the preparation of the child for life in the separated agrarian community that is the keystone of the Amish faith.²⁹

The Court emphasized that the Old Order Amish are one of a very few religious groups that could successfully argue that the application of a state compulsory attendance law violated their first amendment right to the free exercise of religion.

In summary, it is the prevailing view that a state is responsible for providing a competent education for its citizens and that this responsibility justifies reasonable state regulation of private religious schools unless such regulation fails the Supreme Court's three--pronged test. Presumably, most state laws regulating private education will satisfy this test unless (1) they are so patently unreasonable and pervasive as to in effect obliterate any distinction between public and private education, as was the case in Whisner,³⁰ (2) they adversely affect in a substantial way the religious tenets of a church--operated school; or (3) a less restrictive means of accomplishing the purpose of the regulation is available to the state.

Incorporation and Tax Exemption of Private Religious Schools

Proof of Nondiscrimination in Private Schools

Right to Attend Private Schools

The Distinction Between Public and Private Education

Discharge and Discipline of Students of Private Schools

Discharge and Discipline of Teachers

Application of Federal Labor and Discrimination Laws to Private Schools

Tuition Refunds

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

Government Regulation of Child Care Facilities

“Homeschools”

Use of Public School Teachers in Private Schools