State Regulation Of Private Schools: State Regulation of Private Schools Exceeds Acceptable Limits

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Before I built a wall I'd ask to know What I was walling in or walling out ...
So wrote Robert Frost. The authors of state regulations for private schools seem to feel no similar need to justify their wall-building. Their regulations seldom reflect any defensible rationale, specifying the good things to be walled in and the bad things to be walled out. As one frequent result of this confusion, the regulations encourage what should not be encouraged, discourage what should not be discouraged, punish people who deserve no punishment, and create much avoidable animosity.

To be sure, one can identify a reputable rationale for state regulation of private schools--to ensure that these schools provide children with the preparation they need to be responsible adults in this society, but to do so without unnecessarily hampering the liberty of parents to direct the upbringing of their own children, and the freedom of educators to depart from conventional forms of schooling.

This rationale for regulation was enunciated by the U.S. Supreme Court in three early cases. In the 1923 case Meyer v. State of Nebraska, the Court said it did not question "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." The state could prescribe a curriculum "for institutions which it supports," but not in any extensive form (the Court implied) for schools which it does not support.

In Pierce v. Society of Sisters (1925), the Court referred back to this "doctrine of Meyer v. Nebraska," which condemned intervention that "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control." Some matters, however, could be regulated in all schools: The state could require "that certain studies plainly essential to good citizenship must be taught, and that nothing be taught that is manifestly inimical to the public welfare."

In Farrington v. Tokushige (1927), the Court struck down regulations that "would deprive parents of fair opportunity to procure for their children instruction which they think is important and we cannot say is harmful. The Japanese parent has the right to direct the education of his child without unreasonable restrictions."

To demand what is plainly essential to good citizenship and forbid what is clearly harmful to the general weal--that objective seems straightforward and defensible. Why, then, is there so much controversy over state regulation of private schools? Most controversy of this nature arises when the regulations in question considerably overreach the limits discussed above. Sometimes the regulations reflect the view that the state's power to regulate private schools is as plenary as its power to regulate public schools. At other times,states acknowledge that their power to regulate private schools is limited, but nevertheless adopt a mode of regulation that unnecessarily intrudes upon the freedom of parents and educators to depart from educational methods that state officials happen to favor. In both instances, the writers and enforcers of the regulations appear to have a particularly jaundiced view of private schools and their patrons.

Some state regulations appear to reflect the view that private schools not only provide an education essential to good citizenship, but must follow whatever modus operandi the regulation writers happen to favor. What is favored is arbitrary, differing from time to time and from state to state. Regulations written in the era of James B. Conant's pronouncements about high schools demand certain minimal enrollments and physical facilities. Regulations written in the era when "community action" programs were popular tend to demand extensive community participation in virtually every phase of school affairs, ignoring the fact that the constituencies of some private schools are scattered over large areas. And regulations written when "behavioral objectives" were in vogue demand their extensive development and use. At times, these regulations become ludicrous, as when Ohio demanded that all rooms in a school be entirely free of odors, and that every school have at least one water fountain "with a stream of water coming out on a slant.''

Iowa, somewhat similarly, threatened to disapprove a Friends boarding school near the town of West Branch because the school chose to teach the "practical arts" by having students participate in every phase of maintaining the school buildings, grounds, cattle, and crops, rather than taking formal courses.

While this is not the place to consider in detail the motivations of people who write and enforce such overreaching regulations, a few possibilities deserve brief mention. The historical context makes clear that fear of "foreign elements," such as German-speaking ethnic enclaves around the end of World War I, had a lot to do with extreme regulations. More recently, Saul Cohen, professor of education at the University of California at Los Angeles, argues persuasively that the mental-health movement was a powerful force behind the spread of the idea that schools should bear responsibility for the "global personality development" of children. Public officials who assented to that view could easily have slipped into the assumption that the state must require all schools, public and private, to make the same "mental-health" contributions to children. (A basic problem here, of course, is widespread disagreement as to the school conditions that are healthful mentally.)

I suspect that extreme regulations for private schools often come about because, on the one hand, teachers' organizations, composed primarily of public-school personnel, seek to minimize threats posed by unconventional private schools (through regulations that in effect outlaw the truly unconventional), while, on the other hand, opposition to the regulations on the part of politically influential private-school groups is often neutralized.

The opposition often seems neutralized by the unwillingness of highly reputable (generally expensive) private schools to associate with the unconventional schools currently under attack, and by the tendency of Catholic-school leaders to exhibit a "cooperative" stance toward public authority in an effort to secure tax support. Whatever the causes of the extreme, overreaching state regulations, they have been struck down in several cases, beginning as early as the Farrington case and including rather recent instances in Ohio and Kentucky. However, the limits of state authority to regulate private schools have not been established unambiguously in case law.

Some difficulties arise, as has already been noted, because state regulations reflect the apparent view that government power to regulate private schools is pervasive. Other difficulties arise when state regulations, while ostensibly based on a recognition of limited state power, unnecessarily intrude upon the freedom of parents and educators to adopt methods and goals that public officials do not happen to favor.

A recent federal case in Maine (Bangor Baptist Church v. Maine), still undecided at the time of this writing, is a good example of the latter tendency. In this case, the most controversial element of the state's regulatory scheme for private schools was the demand that all teachers be state-certified. The state of Maine acknowledged that its purview over private schools was limited; it was not attempting to assert unlimited power. The state argued, however, that the minimum educational essentials for good citizenship could be ensured only by demanding a certified teacher in every classroom. The alternative, proof-of-the-pudding approach of determining whether every private-school product could read, write, cipher, and comprehend the basics of our form of government--this approach was rejected by the state as too costly, bureaucratically complex, and intrusive upon school autonomy.

Testifying in the Maine case, I argued that the bugaboos of testing dramatically emphasized by the state's expert witnesses could be avoided if one concentrated on the basic understandings and skills plainly essential to good citizenship, and if testing were kept simple and straightforward. To determine whether a child could read, for instance, one could hand the child a book, say, "Please read out loud," and listen to the results. If the results seemed reasonable, one could ask a few questions to test comprehension. It should not be a drastic intrusion upon the autonomy of a school to determine whether its students at some level of instruction could read. Nor should such an approach be bureaucratically and fiscally unmanageable. The judge himself observed in the courtroom that society managed to test everyone licensed to operate a car.

Thus, the assumption that society cannot determine (without overwhelming cost and machinery) whether fundamental learning has occurred does seem unwarranted. What, then, of the assumption that these learnings can be assured by putting a state-certified teacher in every classroom?

The idea of requiring teachers to be certified appeals to many people, for they are accustomed to assume that they are protected against incompetent physicians, attorneys, accountants, engineers, architects, and other professionals by similar demands for certification or licensure. Incompetent and unscrupulous professionals slip into these occupations regardless, but some significant screening, at least, has occurred. Physicians, for instance, undergo long periods of formal instruction, and work under the scrutiny of senior colleagues for extended periods of time before practicing on their own.

What is generally forgotten is that schoolteaching is characterized by "eased access." Almost anyone can get into the occupation. Training programs for would-be teachers lack rigor, are often largely irrelevant to the classroom world that teachers later encounter, and lack a reliable knowledge base. There is extensive evidence that such training programs do not "take." Teachers develop instructional strategies in response to exigencies encountered in classrooms, in ways that fit their personal needs and dispositions. Operating largely in isolation, behind classroom doors, teachers develop pretty much along the lines that appeal to them.

Moreover, teachers generally exhibit weak career commitment. They are discouragingly anti-intellectual. They resist change habitually. People who enter teaching often do so as a second choice, because they are incapable of succeeding in their first-choice careers. Recent evidence suggests that the ability level of teachers-in-training is lower than ever and continuing to decline.

Consequently, one may demand teacher certification as much as one wishes, but schools of education, needing students to survive, will continue to admit candidates regardless of their inferior, declining ability; school systems, needing warm bodies to manage classrooms, will continue to hire teachers from the available pool; and training programs, lacking a firm knowledge base, will often have negligible effect.

Considering the lack of evidence for teacher-certification requirements, one wonders what motives make those requirements increasingly popular. (More and more states are demanding certification in private schools.) One motive may be that teachers know the certification demand will curtail competition by keeping at least some people out of the occupation. These may prove to be the most competent people, whose active, independent minds will not tolerate some experiences required for certification. Another motive may be to ensure that schools of education remain in business. (Certification requirements are probably the major force channeling students into their classrooms.) In the latter context, the certification demand may force all would-be schoolteachers to undergo whatever training programs happen to be popular in schools of education at the moment, including, as was observed earlier, some based on hasty, ill-conceived assumptions.

This forced standardization of teacher training is exactly what many private-school leaders fear when they oppose teacher-certification requirements. They do not want their teachers trained exactly as public-school teachers are trained. Since there is no evidence that certification is critical to student acquisition of skills essential to good citizenship, it seems unjustifiable to rob private-school leaders of the freedom to use teachers with unconventional backgrounds.

The demand for certified teachers is just one example of a pervasive tendency in state regulations--the tendency to assume that educational quality depends primarily upon the technical aspects of schooling, such as formal teacher qualifications, physical facilities, and pupil-teacher ratios. It is difficult to see the logic on which these regulations are based, because there is no evidence to substantiate the need for them. Consequently, the only approach that does seem defensible is for states to try to determine not how education occurs but whether education has occurred.

Vol. 03, Issue 10, Page 24, 19

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