Safety and Health Regulations for 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
States and municipalities clearly have the legal authority to impose reasonable health, fire, and safety regulations upon private schools. The Supreme Court of Kentucky, in the same decision in which it invalidated a state law requiring private schools to use only state--certified teachers and state--approved textbooks, upheld the right of the state to require private schools to comply with health, fire, and safety regulations.1 In the Yoder2 case, the United States Supreme Court observed: “It is true that activities of individuals, even when religiously based, are often subject to regulation by the states in the exercise of their undoubted power to promote the health, safety, and general welfare . . . .”3
In one case, a municipality sued to prevent the continued operation of a church school in a church basement that failed to meet building code safety standards applicable to buildings used for educational purposes.4 The church contended that its school was substantially in compliance with the building code, that the alleged violations were highly technical and did not endanger the lives or safety of students, that prohibitively costly structural and mechanical modifications would be required to bring the school into full compliance with the code, and that the right of parents to freely exercise their religion by providing a Christian education for their children would be abridged by requiring strict compliance with the code. The Supreme Court of Washington State agreed that an “uncompromising enforcement” of the municipal building code would result in the closing of the school and that this would deny church members the right to guide the education of their children and to freely exercise their religion. However, the court also acknowledged that the municipality was responsible for the safety and health of school children. The court observed that when two legitimate and substantial interests collide, one may have to give way, and it is the courts' function “to balance the interests of the parties and if an accommodation can be effected, determine which interest must yield.”5 The court concluded that reasonable health, fire, and safety standards
will be enforced against religious schools when the state proves that the specific concerns addressed by the regulations are of sufficient magnitude to outweigh the free exercise claim, that the nonapplication of the regulations will threaten the public health or other vital interests, and that the state's interest could not otherwise be satisfied in a way which would not infringe on religious liberty.6
The court suggested that when a municipality, in the exercise of its power to promote the public health, safety, morals, or general welfare is confronted with rights protected by the first amendment, “it should not be uncompromising and rigid” but rather should approach the problem with flexibility since there should be “some play in the joints of both the zoning ordinance and the building code.”7 The court sent the case back to the trial court for reconsideration.
In a related case, a church operated a school on church premises that complied with applicable church fire and safety regulations. The state of Michigan maintained that since the property was used primarily as a school, the school fire and safety regulations applied. A state appeals court held that while a church school is an “integral part” of a church's ministry, the school fire and safety regulations must apply to a facility used primarily as a school.8 The court quoted Romans 13:1--7 and Matthew 22:19--21, and noted that “these verses clearly delineate a Christian's responsibility to obey his government, except where there is direct conflict with his obedience to God.” The court concluded that any burden on religious freedom under these circumstances was outweighed by the state's compelling interest in ensuring the safety of school children.
In 1986, Congress enacted the Asbestos Hazard Emergency Response Act (AHERA). The law required the Environmental Protection Agency (EPA) to develop regulations providing a comprehensive framework for addressing asbestos problems in public and private elementary and secondary schools. In 1987, the EPA published the Asbestos--Containing Materials in Schools Rule. This rule requires all public and private elementary and secondary schools to inspect for friable and non--friable asbestos, develop asbestos management plans that address asbestos hazards in school buildings, and implement response actions in a timely fashion. Schools must use accredited persons to carry out activities involving inspections, management plans, and response actions. By October 12, 1988, public and private (including church--operated) elementary and secondary schools had the following obligations: (1) have an accredited inspector complete an initial inspection to locate all asbestos--containing building materials (ACBM), and (2) have an accredited management planner develop and submit to a state agency (designated by the governor) an asbestos management plan that includes the results of the inspection. No later than July 9, 1989, schools had to begin implementation of their management plan. Churches having elementary or secondary schools should contact the nearest EPA office and obtain the helpful book entitled “Asbestos--in--Schools: A Guide to New Federal Requirements for Local Education Agencies.” This book provides very clear guidance as to the responsibilities of public and private schools under the new law. Note that the penalty for failure to conduct an inspection by an accredited inspector, or to develop and submit to the appropriate state agency an asbestos management plan by the same date, is potentially $5,000 per day per violation.
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
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
Government Regulation of Private Schools
Zoning Laws and Private Schools
Taxation of Private Religious Schools
Child Abuse Reporting Requirements for Private Schools
Legal Liability for Student Injuries