State Regulation Of Private Schools: The State Can and Should Regulate Private Schools

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The states can and should reasonably regulate all schools, public and private, in order to achieve the best possible balance between the democratic goals of political and civic cohesion on one hand, and religious, intellectual, and cultural freedom on the other.

The welfare of the country rests upon an educated citizenry, and whether they attend public or private schools, all children must be prepared for the responsibilities of citizenship. Thus, education for citizenship is a primary goal of all schools, and parents have an obligation to see that their children receive such education by sending them to school for some specified period of time.

During the past century and a half, most Americans came to believe that the best guarantors of an educated citizenry were state systems of free, universal, common schools that were public in purpose, public in access, public in control, and public in support. To safeguard the religious conscience in an increasingly pluralistic society, however, the predominant view came to be that public schools should not promote religious belief, but should leave religious instruction to families, religious institutions, and private schools. Public schools should be basically secular, as the First Amendment requires government itself to be.

Of course, private schools with both educational and religious missions can and should serve the function of providing education for citizenship. But the emergence of these schools has led to the question: What control should secular governments have over religious and other private schools in order to foster citizenship education?

My view is that parents have the right to meet their obligation to educate their children for citizenship by sending them to private schools if they wish. But because of the importance of this function, the states' regulations for public schools in this realm should also apply reasonably to private schools. The states cannot be indifferent to the quality of education for citizenship provided in private schools.

States have the competence and the responsibility to require school attendance by all children in order that they acquire a basic education for citizenship. In addition, regulations outlining the general guidelines and framework for curricula and the necessary qualifications and education of teachers fall within the realm of what the state may require.

This is not to say that all present regulation of private schools by all states is reasonable and justifiable. States go too far when they try to blanket private schools with the whole range of detailed regulations (encompassing such factors as school hours and library and textbook content) that they apply to public schools.

The goal must be to arrive at fair and reasonable arrangements whereby both private and public schools are expected to carry out their obligation to prepare successive generations of citizens--regulations to this end should be applied even-handedly to both public and private schools.

The phrase used by the recent report of the Twentieth Century Fund when it defined the federal government's role in fostering educational excellence aptly paraphrases our problem here: State regulation should be a "firm but gentle goad" to private schools to provide excellent civic education for their students.

This general guideline by no means provides an easy solution when it comes to particular questions involving curriculum, textbooks, and the qualifications and certification of teachers, but the emphasis on civic education gives us a key to simplifying and rationalizing state regulations to the satisfaction of both sides. A clue can even be found in the long and complicated history of court disputes on the matter.

Two U.S. Supreme Court cases in the 1920's--Meyer v. Nebraska and Pierce v. Society of Sisters--are usually regarded as the principal constitutional charters of the rights of parents to send their children to private schools in order to meet compulsory-attendance requirements.

These cases represent sound public policy as well as sound constitutional doctrine. Note, however, that both Meyer and Pierce affirmed the power of the state to compel all children to attend some school and to regulate all schools. In Pierce, the Court said:

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.

These cases guaranteed parents the liberty to guide their children's education, but this right was hedged by the state's legitimate authority to legislate and regulate reasonably regarding studies "plainly essential to good citizenship."

In the cases of the 1940's on the issue of whether the schools could require a flag salute and oaths of allegiance, Chief Justice Harlan Fiske Stone made a distinction, which the Court affirmed in the case West Virginia v. Barnett, between efforts to coerce affirmation of belief contrary to religious conviction (which public schools could not do) and efforts to require all students to study "our history and structure and organization of government, including our guarantees of civil liberty."

The distinction between requiring study and compelling belief holds good for private schools as well as for public schools. Private schools may indeed try to compel or coerce beliefs of a religious nature, but they still must give instruction and require study of those subjects "plainly essential to good citizenship." Such studies include not only such "basics" as the Three R's, but the subjects of English, history, civics, and government.

State regulations should ensure that the quality of such instruction in private schools is equivalent to that required in public schools.

Even in the landmark 1972 case, Wisconsin v. Yoder (in which the Court exempted Amish children from attending school beyond the 8th grade on the basis of their parents' religious convictions), Chief Justice Warren Burger emphasized that parents could exercise their freedom to guide the religious education of their children so long as they, in the words of Pierce, "prepare [them] for additional obligations." These words must be read to include the "elements of good citizenship." Neither parents nor private schools are exempt on the basis of their religious convictions from the obligation to provide their children with an education for good citizenship.

In the decade since the Yoder decision, the clamor has grown to revise or even eliminate some of these historic policy and constitutional agreements. Some lawyers are trying to interpret the First Amendment to mean that any state regulation of private schools is an unconstitutional invasion of private belief and values, whether religious, social, or intellectual. Others propose lowering, loosening, or doing away with compulsory-attendance laws. Still others propose abolishing the public-school system itself as an unconstitutional infringement of the private rights and beliefs of parents and private schools.

These appeals to "parental or family sovereignty," or to "consumer sovereignty," or to "religious sovereignty" are often coupled with proposals for the use of public funds to support these private sovereignties by voucher systems, tuition tax credits, or tax exemption. Such proposals should be rejected. To deregulate private schools and then to support them with tax benefits would make for doubly bad public policy and worse constitutional law.

In recent years, proponents of Christian fundamentalist schools have also begun to rely upon the ideas of religious sovereignty to argue against state regulation on the grounds that, because their schools are integral parts of their religious ministries, they should not be subject to any state authority. They insist such authority would amount to unconstitutional licensing of their ministries. The rapid growth of these schools in the past decade has led to increased litigation in the courts and much debate in state legislatures.

Several state courts, notably in Kentucky, Ohio, and Vermont, have ruled that their state regulations violated the religious convictions of the parents and thus decided in favor of deregulation. Conversely, cases in Nebraska, North Carolina, and North Dakota have reaffirmed the states' right to impose reasonable regulations on private schools. The future direction of judicial opinion remains unclear.

Again, I would not defend the present practices of all states in their efforts to ensure good education for citizenship, but I think there are models that should be carefully considered by other states, such as the History/Social Science Framework adopted by the California State Board of Education in 1981. This framework, which provides general outlines for local boards and committees to follow when they set the details of their own curricula, says students in California should be studying the basic underlying values of our constitutional system.

But, above all, I agree in principle with the report by the Carnegie Foundation for the Advancement of Teaching, which recommends that a core of studies including English, history, civics, and government be required of all students. Such proposals are good for public schools and should also apply reasonably to private schools.

Furthermore, all teachers who are delegated to prepare youth for citizenship should have solid academic grounding in English, history, and other humanities, and in the political and social sciences.

In the summer 1983 issue of Daedalus, the editor and historian Stephen Graubard wrote that the crisis in education applies to private as well as to public schools. He called for a desperately needed intellectual debate on the question: "How can we revive our schools, all our schools?" The intellectual debate on the methods for improving both private and public schools should indeed take place throughout the nation; and I hope that the civic purposes of both private and public schools will be given a prominent place in this debate.

To that end, a reassessment of the role of state regulations for public as well as private schools is crucial. It should be informed by the best scholarship that can be mobilized from the colleges and universities in the fields of the humanities, law, and the social sciences, by the expertise of the education profession, and by the deliberative and reasoned judgment of public and private officials. It is essential that the results of such debates be formulated into state regulations that are "reasonable" for both public and private schools, thus fostering an improved citizenship education for all American children and youth.

Vol. 03, Issue 10, Page 24, 18

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