Nonpublic Schools and the Courts

Published September 1, 2003
David W. Kirkpatrick
School Reform News is pleased to welcome back David W. Kirkpatrick as a contributing editor. Kirkpatrick is a senior education fellow with the U.S. Freedom Foundation, for which he writes a weekly education column.

Long active in the school reform movement, Kirkpatrick is the author of two books on school choice. He served as executive director of Pennsylvania’s REACH school choice alliance. He was also an active voice for reform in the teacher union. As president of the 88,000-member Pennsylvania State Education Association, he publicly called for school vouchers at the 1970 National Education Association convention in San Francisco.

When the U.S. Supreme Court ruled on June 27, 2002 that using vouchers at religious schools did not violate the First Amendment of the U.S. Constitution, critics editorialized that the decision “removed a brick” from the wall for separation of church and state. But the brick was never there in the first place. The court has never found a violation of the U.S. Constitution when public funding assists students at religious schools if such aid is part of a general program.

But even if nonpublic schools do not receive public funds, the court has ruled they can be regulated.

At one time, it was common for schools in the United States to be operated by religious or other groups and to receive funding from the government. That chapter in American history was gradually rewritten, so that by the twentieth century the practice had largely died out, and newly discovered constitutional restrictions on such aid had been put in place.

The U.S. Supreme Court was drawn into the controversy as early as 1908 when, in Quick Bear v. Leupp, it allowed federal funds being administered for Native Americans to be applied to salaries and maintenance costs of a parochial school for their children.

“A declaration by Congress that the government shall not make appropriations for sectarian schools does not apply to Indian treaty and trust funds …” the Court explained. The Court also upheld the practice because Native Americans were using their own money, even if it was administered by the government.

Pierce Decision

The fundamental case came in the 1920s, Pierce vs. the Society of Sisters. An initiative backed by the Ku Klux Klan and approved by Oregon voters on November 7, 1922 would have required all schoolchildren in that state to attend public schools beginning in 1926. The issue was promptly taken to court by the Society of Sisters and the Hill Military Academy. In 1925, a unanimous U.S. Supreme Court struck down the law.

“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,” ruled the Court. “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.”

The Court thus made it clear the government has no right to compel children to attend a public school as long as they are otherwise being educated, whether in a religious or secular nonpublic school, by tutors, through home schooling, or by some other means. For those who are concerned about schools being started by witches or fanatics, the Court also said the government had the right to reasonably regulate nonpublic schools and limit anything inimical to the public interest.

“Reasonably Regulate”

The Supreme Court soon made it abundantly clear that when it said “reasonably,” that’s what it meant. In Farrington v. Tokushige, in 1926, the court overturned an intrusive Hawaii law setting teacher qualifications and textbook content for private schools. The law also required teachers to pledge to “direct the mind and studies of pupils in such schools as will tend to make them good and loyal citizens.”

The Court said enforcement of that law would deprive parents of the opportunity to procure the kind of instruction they believe important for their children.

These major decisions still stand. Thus, nonpublic schools can be reasonably regulated, even if not receiving public funds, but parents also have a constitutional right to direct the education of their children.

Permissible Aid

While the Supreme Court has not said public funding must be provided to assist parents choosing a nonpublic education, it has said such aid is permissible.

For example, in Mueller v. Allen the U.S. Supreme Court upheld a 1955 Minnesota law allowing parents income tax deductions for tuition, textbooks, and transportation expenses. In 1986 it ruled in favor of Washington State’s financial aid for blind students, even including one attending a religious institution. Seven years later, in a 1993 case from Arizona, the court decided public funding of a sign-language interpreter for a deaf child attending a religious high school was not unconstitutional.

David W. Kirkpatrick is a senior education fellow with the U.S. Freedom Foundation. His email address is [email protected].