ONPE’s publication regarding state regulation of private and home schools moves to a new format as state chapters are being revised. The interactive state regulations map provides access to those states whose revisions are now complete. Additional information is available in the previous version of the publication.
Selected U.S. Supreme Court Rulings Related to Private and Home Schools
For an annotated legal history of selected court cases from 1925 – 1997, see Appendix C: Legal History of the Regulation of Private Schools (2000).
In this case, the Court addressed whether federal discrimination laws apply to claims involving the employment relationship between a religious organization and its ministers. Specifically, the Court considered whether the First Amendment barred a lawsuit brought against Hosanna-Tabor Evangelical Lutheran Church and School by the Equal Employment Opportunity Commission (EEOC) alleging that a “called” teacher (i.e., a teacher regarded as having been called to their vocation by God) at a religiously affiliated school had been fired by the school for threatening to file an Americans with Disabilities Act suit. Citing the First Amendment’s guarantee of religious freedom, the Supreme Court formally adopted the “ministerial exception,” which provides that employment discrimination claims against religious institutions will be dismissed to avoid government infringement upon those rights guaranteed by the Free Exercise Clause. The Court went on to hold that, because the teacher was a religious leader at a religiously affiliated institution, the ministerial exception applied. As a result, the Court held that the First Amendment required dismissal of the employment discrimination suit.
With this case, the Court addressed whether plaintiff taxpayers had the right to challenge the constitutionality of an Arizona state law providing tax credits to donors to school tuition organizations (STOs). These organizations used the contributions to provide scholarships to students attending private schools, including religiously affiliated schools. Plaintiff taxpayers claimed the tax credits violated the Establishment Clause. The Court held that the taxpayers did not have standing to bring the suit because the case did not fall within the narrow exception to the general prohibition on taxpayer standing because it involved a tax credit and not an expenditure of government funds. The Court distinguished between governmental expenditures and tax credits, noting that the Arizona taxpayers that contributed to the STOs spent their own money, not money that the State collected from other taxpayers.Back to Top
Here, the Court addressed whether plaintiff taxpayers had the right to challenge the constitutionality of expenditures of the White House Office of Faith-Based and Community Initiatives and similar offices in various federal agencies. Through these offices, federal money was used to fund conferences to promote “faith-based initiatives.” The Court held that the Freedom From Religion Foundation, a taxpayer organization, did not have standing to sue, because the matter did not fall within the narrow exception to the general prohibition against taxpayer standing set forth in Flast v. Cohen, 88 S.Ct. 1942 (1968). In concluding that the plaintiff taxpayers did not have standing, a plurality of the Court expressed concern that, because almost all Executive Branch activity is funded by some congressional appropriation, allowing a group of taxpayers to sue over an Executive Branch activity would “effectively subject every federal action . . . to challenge by any taxpayer.” The plurality also noted that expanding taxpayer standing would raise serious separation of powers concerns because the judicial branch could be enlisted to rule on a wide range of activities of the Executive Branch.
In Locke v. Davey, the Court addressed the constitutionality of the Promise Scholarship Program, a Washington program designed to “assist academically gifted students with postsecondary education expenses.” Under the Program, students could pursue any area of study except for theology degrees. Because the state’s interest in refusing to fund theological instruction was to avoid establishment of religion, not to express hostility toward religion, the Court found the statute did not violate the Free Exercise Clause. The Court noted that this policy did not express an animus toward religion, as students were still able to use the public scholarships at religiously affiliated universities and take theology classes while pursuing a different major course of study. The Court recognized both that the state had a substantial interest in not funding religious pursuits and that the result of the policy placed a “relatively minor burden” on scholarship recipients. The Court held that the Program’s policy sufficiently fits between the respective purviews of the Establishment Clause and the Free Exercise Clause. That is, the policy is permitted by the Establishment Clause but is not required by the Free Exercise Clause.Back to Top
In this case, the Court addressed the constitutionality of the Pilot Project Scholarship Program, an Ohio school voucher program, which provided students in low-performing school districts operating under state control with (i) tuition to attend participating public or private schools and (ii) tutorial aid (for students remaining in public schools). A majority of these children’s parents chose to use the vouchers to enroll them in religiously affiliated schools. The Court concluded that the voucher program did not violate the Establishment Clause of the First Amendment because it was neutral with regard to religion and provided funds to “a broad class of private citizens” who ultimately decided where to direct the Program funds.
The Court noted several factors indicating the voucher program was constitutional. First, the program served the valid secular purpose of remedying the recipients’ education from a demonstrably failing school system. Second, the aid was provided directly to the students’ parents, who were private citizens with independent choice in where to enroll their children. Third, the recipients were chosen based on their failing school programs, not based on their religion. Fourth, there were no financial incentives that skewed the voucher program toward religiously affiliated schools. Finally, religiously affiliated schools were not the only option for voucher recipients, as public schools in adjoining districts and local non-sectarian private schools were also available for student enrollment and recipient of Pilot Project Scholarship Program funds.
Here, the Court addressed the constitutionality of Chapter 2 of the Education Consolidation and Improvement Act of 1981, under which federal funds were distributed to local educational agencies (LEAs) via state educational agencies (SEAs). In turn, these federal funds went toward lending educational materials and equipment to both public and nonprofit private schools. In evaluating the constitutionality of the program, the Court used a three-part test to determine whether the government aid had the effect of advancing religion. Specifically, the Court considered whether the government aid (1) results in governmental indoctrination, (2) defines its recipients by reference to religion, or (3) creates an excessive entanglement. Here, the Court found none of these factors and upheld the program. Notably, in so doing the Court found that, because the aid was allocated on the basis of neutral and secular criteria applied to both religious and secular schools, it did not define its recipients by reference to religion.Back to Top
Last updated July 28, 2013
APPENDIX C: LEGAL HISTORY OF THE REGULATION OF PRIVATE SCHOOLS (2000).
Under the United States Constitution, parents have a fundamental right to direct the education of their children. In 1925 the Supreme Court recognized that "liberty," protected by the Fourteenth Amendment, includes the right to choose a private education. Confronted with an Oregon statute mandating public school attendance, the Supreme Court ruled the statute unconstitutional. Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925).
In the words of the Court,
The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. (268 U.S. at 535)
Today, a parent's right to choose a private education is reflected in the statutes of all 50 states. The compulsory school attendance laws typically specify private education as an alternative or exception to public school attendance requirements.
It is also well-established that states have the power to regulate private schools. Based on the "high responsibility for education of its citizens, [a State] may impose reasonable regulations for the control and duration of basic education." Wisconsin v. Yoder, 406 U.S. 205, 213 (1972). See also Board of Ed. of Cent. Sch. Dist. No.1 v. Allen, 392 U.S. 236, 246-247 (1968). The state's interest in an informed and self-sufficient citizenry capable of participating in a democratic society is generally cited to support the regulation of private schools. Yoder at 221; Kentucky State Board v. Rudasill, 589 S.W.2d 877, 883 (1979).Back to Top
The right to regulate is not without limitations, however. Since 80 percent of America's private schools are religious institutions, any regulation of these schools must conform to the First Amendment's guarantee of the free exercise of religion. The principle is generally reflected in most, if not all, of the state codes. For example, special provisions are included for church-related schools, as in the laws of Alabama and Tennessee, or exemptions are provided for schools operated by religious organizations, as in the laws of Wyoming and Nebraska.
A state's excessive regulation may in fact eliminate a parent's right to direct the education of his or her child. In 1923, the Supreme Court struck down a Nebraska statute that prohibited the teaching of German to elementary school age children. The Court determined that the law unreasonably interfered with the power of parents to control their children's education. Meyer v. State of Nebraska, 262 U.S. 390 (1923). Similarly, in 1927, the Supreme Court held a Hawaiian law unconstitutional that regulated the teachers, curriculum, and textbooks of private language schools and placed control of the schools in public officers. "Enforcement," the Court said, "would deprive parents of fair opportunity to procure for their children instruction which they think important and we cannot say is harmful." Farrington v. T. Tokushige, 273 U.S. 284, 298 (1927).
In 1976, the Ohio Supreme Court applied Farrington in a constitutional challenge to the state's "minimum standards" governing nonpublic schools. The state court determined that the standards were "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 these appellants of their traditional interest as parents to direct the upbringing and education of their children." Ohio v. Whisner, 351 N.E.2d 750, 768 (1976).Back to Top
The challenge to state legislators in regulating private schools, then, is to draft legislation that 1) respects the fundamental right of parents to direct the education of their children, 2) protects the state's interest in an informed citizenry but avoids interference with religious beliefs unless compelling interests are at issue, and then only in the least restrictive manner, and 3) avoids comprehensive regulation of private education that would deprive parents of any choice in education.
The public funding of private education is restricted under the United States Constitution. State statutes reflect the numerous decisions handed down by the Supreme Court on the matter. The Establishment Clause of the First Amendment prohibits "government inculcation of religious beliefs." Agostini v. Felton, 117 S. Ct. 1997, 2010 (1997). But there is no absolute prohibition against private school children, or even religious institutions, participating in government-sponsored social welfare programs. Bowen v. Kendrick, 487 U.S. 589, 609 (1988). The difficulty of applying these principles has produced a wealth of Supreme Court decisions.
The Supreme Court has upheld a New Jersey statute that made transportation equally available to both public and private school children, Everson v. Board of Education of Ewing Tp., 330 U.S. 1 (1947); upheld a New York statute providing free textbooks on loan to parochial school students, Board of Education of Cent. Sch. Dist. No. 1 v. Allen, 392 U.S. 236 (1968); invalidated Rhode Island and Pennsylvania provisions that paid salary supplements to nonpublic school teachers of secular subjects, Lemon v. Kurtzman, 403 U.S. 602 (1971); struck down a New York statute that reimbursed religious schools for teacher-prepared tests, Levitt v. Committee for Public Education, 413 U.S. 472 (1973); upheld an Ohio statute permitting diagnostic and therapeutic services to nonpublic school students but struck down the provision of instructional materials and field trip transportation left within the control of the nonpublic school, Wolman v. Walter, 433 U.S. 229 (1977); upheld a New York statute reimbursing nonpublic schools for state mandated recordkeeping and testing, Committee for Public Education & Religious Liberty v. Regan, 444 U.S. 646 (1980); upheld a Minnesota statue providing an income tax deduction for tuition, textbooks, and transportation that benefited parents of children attending public, sectarian and nonsectarian schools, Mueller v. Allen, 463 U.S. 388 (1983); permitted an Arizona school district under a federal program (IDEA) to place a publicly funded sign language interpreter in a sectarian high school to assist a disabled student, Zobrest v.Catalina Foothills School District, 509 U.S. 1, (1993); and, upheld placement of public school teachers in parochial schools to provide remedial educational services under a federal program. Agostini v. Felton, 117 S. Ct. 1997 (1997).Back to Top
The state statutes incorporate these Supreme Court decisions on the types of permissible public aid. Twenty-seven states and the Virgin Islands have provisions permitting public funding of transportation; Idaho law dictates that the costs must be recovered. Seventeen states have the power or duty to loan free textbooks to private school students. Some states provide significant assistance for health needs such as immunization, vision and hearing services, and diagnostic testing. (See e.g. the laws of Michigan, New Hampshire, and New Jersey.)
While the parameters of state regulation of private schools are to a large extent shaped by our federal constitution, it should also be noted that federal law on occasion directly influences the operations of private schools. For example, federal law prohibits discrimination in the admission policies of nonsectarian schools, (42 U.S.C. § 1981; Runyon v. McCrary, 427 U.S. 160 (1976)). And the relationship between state governments and private schools can be forged through federal grant statutes. For example, regulations implementing several federal funding grants direct that states and local educational agencies provide private school children with a genuine opportunity to participate, consult with private school officials and provide comparable benefits for the private school students. 34 C.F.R. 76.650 et seq., 299.6 et seq. But the actual regulation of private schools remains the prerogative of the state governments.Back to Top