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The Publicization of the Private School

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After a hiatus of some 10 years, educational vouchers have again emerged as a major public-policy issue. A voucher would defray much of the expense of enrolling a student in a private school. Vouchers are necessary, it is asserted, to provide parents with the means of escape from failing public schools and, in so doing, stimulate government-run schools to improve. As a former private-school headmaster, I have long expressed concern about the impact vouchers would have on the autonomy of private schools. I fear that in the headlong rush to embrace this potential new source of money, private-school officials have overlooked the negative consequences of receiving public money. Research I have been conducting on state regulation of private schools, the federal public-housing program, and private schools serving special-education students underscores my concern.

In 1925, the U.S. Supreme Court ruled in Pierce v. Society of Sisters that private schools have a right to exist and parents have a right to choose them as alternatives to public schools (but the Court did not say that the state had to finance the choice). At the same time, the Court also observed that "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."

In response to the "right to regulate," most states over the years have imposed regulations of varying intensity on private schools. These regulations generally pertain to length of the school day and year, certification of teachers and administrators, curricular specifications, and compliance with health and safety regulations. Private schools have occasionally challenged the regulations as overly intrusive. Most of the challenges have come from religiously affiliated schools, which represent the vast majority of private schools. Their claim is that state regulations interfere with school and parent religious freedom.

This was the argument made by the Faith Christian School in its challenge a decade ago to the Nebraska Board of Education's private-school regulations. The school offered a fundamentalist religious program through a series of Bible-oriented booklets. The state regulations specified a list of subjects and goals to be taught, including use of materials and equipment, length of the school day and year, and health and safety requirements. The regulations also required certification of professional staff and the filing of periodic reports. The school refused to comply, and the state sought its closure.

Noting the compelling interest of the state in furthering the education of children living in an open political system and for becoming self-reliant and self-sufficient, the Nebraska Supreme Court ruled against the school in State v. Faith Baptist Church. "The refusal of the defendants to comply with the compulsory-education laws of the State of Nebraska as applied in this case is an arbitrary and unreasonable attempt to thwart the legitimate, reasonable, and compelling interests of the state in carrying out its educational obligations, under a claim of religious freedom," the court said.

The Nebraska high court's ruling has become a leading precedent. Since 1981, there have been many reported decisions that, with very few exceptions, similarly support state regulation of private schools. Despite the regulation, most private-school officials, I think, would agree that state regulations for their schools have not been overly burdensome. What is important about the pattern of regulation is not that it has had limited impact on private-school autonomy but that it has occurred in the absence of any significant flow of public money to private schools.

What happens when public dollars flow to private organizations? If the federal low-income public-housing program is any indication, the answer is increased regulation. Under Section 8 of the Housing and Urban Development program, the Secretary of HUD is empowered to enter into contracts for rental assistance with local housing authorities, and they, in turn, may contract with private-rental-unit owners to provide low-rent housing. The statute establishing the so-called certificate program is highly intrusive. It strictly regulates who may rent units from private owners, the monthly rent, the amount of assistance, the terms of contracts with local public-housing authorities and with tenants, and types of housing. The federal regulations implementing the statute are even more intrusive: They specify, among other provisions, anti-discrimination requirements, quality standards for rental units, and good cause for lease termination. More recently, HUD has implemented a housing-voucher program that gives eligible families wide choice among private housing vendors and allows the negotiation of rental payments over and above the amount of the voucher. Most of the regulations applying to the certificate program also apply to the voucher program.

Several federal circuit courts have found the housing-certificate provisions so comprehensive that the lease agreement constitutes a constitutionally protected property right. [See, for example, Swann v. Gasionia Housing Authority (Fourth Circuit, 1982, Holbrook v. Pitt (Seventh Circuit, 1981), and Ressler v. Pierce (Ninth Circuit, 1982).] Two recent federal-district-court decisions and one state-court decision have also reached this conclusion. Thus the privatehousing owner must comply with due-process procedures before a lease is terminated, and, according to one of the decisions, even in the process of tenant selection. In effect, the private owners have become an arm of the state and must, like state agencies, comply with the terms of the 14th Amendment to the U.S. Constitution. That amendment specifies that no state or state agency may deprive a person of life, liberty, or property without due process of law, or deny to any person the equal protection of the laws.

Normally, the 14th Amendment applies only to the actions of government. But in three 1982 decisions, the U.S. Supreme Court articulated the narrow conditions under which a private party may be said to have become a state actor. Basically, this requires that there be such a close nexus between the state and the challenged action that the action may be treated as that of the state. In the housing context, that nexus was sufficiently close to convince the courts that the private owner had become clothed with the authority of the state. Court opinion is not unanimous, however. Several federal courts of appeals have found the nexus insufficient. [Miller v. Hartwood Apartments Ltd. (Fifth Circuit, 1982) and Hill v. Group Three Housing Development (Eighth Circuit, 1986).]

A closer analogy to the education context is the experience of private schools offering special-education services to public school districts. Under the federal Individuals with Disabilities Education Act, private schools accepting special-education children are subject to extensive government regulation. Under the N.D.E.A., the school district remains responsible for ensuring that a child placed in a private school receives an appropriate education. Federal regulations detail the conditions private schools must meet: no discrimination, the nature of the academic and nonacademic setting, placement and evaluation procedures, and procedural safeguards including confidentiality of records. Further, the private school must meet the same standards as the public schools and must provide the handicapped child with all of the same rights as a handicapped child served by a public agency.

While the case law is not well developed, at least one federal court has recognized that a private school for handicapped students may become a state actor under the 14th Amendment and must accord personnel due process of law prior to termination. [Ross v. Allen (Southern District of New York, 1981).] Several state courts have issued rulings recognizing the accountability of these schools to state regulators. For example, in Council of Children With Special Needs v. Cooperman, a New Jersey superior court in 1985 refused to set aside the state's stringent bookkeeping and accounting requirements, stating that "private schools that choose to receive handicapped public-school pupils... must... relinquish some of the privacy and control over their affairs that they otherwise would have .... "

This pattern of encroaching regulation is also apparent in voucher-like government educational-subsidy programs overseas. Estelle James, professor of economics at the State University of New York, Stony Brook, has for many years conducted research on educational-funding programs in foreign countries. She notes that the greater the subsidy to private schools, the greater the amount of regulation. In addition to regulations regarding facilities, organizational functioning, and reporting, the high-subsidy schools are subject to regulations pertaining to curriculum, skimming of the best students, equal access for all income groups, and discrimination against minorities. The regulations encompass such personnel matters as teacher credentials, teacher salaries, hours, conditions of work, and hiring/firing procedures. Ms. James cites examples in Holland, France, and, to a lesser extent, Belgium. In the case of Australia, private-school teachers have unionized to protect their interests in what has become a civil-service system. Admissions and selection are so controlled in high-subsidy countries that there often remains little difference in the socioeconomic mix between public and private schools.

In a paper delivered last May to the U.S. Education Department's Conference on the Economics of Private Schools, Ms. James cautioned that "vouchers introduce a new set of problems for the private-school sector, in the form of complex regulations and bureaucratization that change its very nature. These unintended consequences may not be apparent at first, but I believe they are inevitable, given the political logic and supporting empirical evidence from other countries."

The flow of public money to private schools is thus likely to be accompanied by intrusive regulations designed to assure uniformity and accountability to the general public. The state's long involvement in the establishment and operation of a public school system augers for its continued strong presence to assure that public purposes will be served. The fact that a major portion of a state's budget is devoted to education also promotes substantial financial oversight. One need only consider the savings-and-loan scandals and the high rate of student-loan defaults resulting from abuses of proprietary trade schools to understand the need for accountability measures.

The more intrusive the regulations, the more likely that at least some aspects of private-school operation will be found to constitute state action under the 14th Amendment, thus requiring private schools to recognize that amendment's provisions regarding liberty and property rights, due process, and equal protection of the laws. Whether private schools receiving public money should be exempt from such basic civil-liberties requirements is itself a major public-policy issue.

The most effective way to limit regulation of the private sector is to curtail the legislature's ability to legislate via a constitutional amendment. There is now an effort in California to place on the November 1992 ballot a choice program that includes restraints on legislative oversight. Whether taxpayers will accept for long the unregulated expenditure of large amounts of public money in private educational institutions remains to be seen.

Educational choice can be a powerful engine for change within schooling. But private schools may be better off opting out of a government-financed choice plan. If experience elsewhere is any indicator, accountability measures will accompany any substantial flow of money to private schools. The resulting intrusion on the autonomy and independence of the private sector threatens its uniqueness as an alternative to public schools. The publicization of private schools serves neither the schools, their clients, nor American education in general.

Frank R. Kemerer is Regents Professor of Education Law at the University of North Texas, Denton, Tex.

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