Private Schools—and Why They Aren’t

The greatest uproar came from supporters of religious freedom. Statistics alone prove that any threat to private schools in America is primarily a threat to schools with religious affiliations. People for whom religion is the central part of their lives are understandably outraged when they see an assault upon the First Amendment guarantee of free exercise of religion.

There is an even broader reason for the extent of opposition to the guidelines proposed by the IRS. It is that virtually everyone involved in any way with private education realized that this was no isolated instance. What the IRS was trying to do was simply part of a growing conflict between private education and government control. One reason why that conflict is increasing at the present time is simply that private education itself is aggressively growing.

Recent estimates by the National Center for Education Statistics show that 17 percent of elementary and secondary schools in America are private and that they enroll over ten percent of all school children. That is a lot of children, and the evidence is that the number will continue to climb.

There are several obvious reason for a swing toward private schools. Most of them have to do with the increasingly clear failures of the public schools. Many parents are literally afraid for their children’s safety, and recent studies of juvenile delinquency in the public schools show that their fear is well founded. In addition, there has been an increasing flood of evidence of the academic decline of public schools. The drop in College Board scores suggests this, as does the widespread opposition to minimum proficiency requirements for graduation from high school. No one would object to such requirements if he thought the schools were giving children even a minimum level of education. Still another indication is the large non-Catholic enrollment in parochial schools in black neighborhoods. The parents of these children are motivated not by religion but by their dissatisfaction with the public schools.

There is another reason for the growth of private schools. It is that the basic atmosphere in public schools has become morally offensive to a very large segment of the American population. One man who was jailed for refusing to send his children to school described the public schools as “cesspools.” Many parents share his assessment. They regard public schools as breeding grounds for drug use, sexual activity and what they regard as a generally immoral and anti-religious approach to life.

The fact that such moral and religious values are a major basis for the growing disillusionment with public education is evidenced by the sectors of the private school movement which are growing the fastest. Almost all observers agree that the greatest growth right now is among “Christian schools,” a phrase which refers primarily to schools associated with conservative protestant denominations outside of the Catholic, Episcopal and Lutheran school systems which have traditionally dominated the field. A close second appears to be the Hebrew Day School movement, which has been accelerating not only in numbers of schools but also by spreading outside its traditional Orthodox base to include many Conservative and even a few Reformed schools. Ironically, the public school system, which speaks incessantly about “character-building” and “good citizenship,” seems to appeal the least to people who emphasize such spiritual values the most.

It is also within the very spiritually-oriented Christian school movement that the most dire view of the gov­ernment’s intentions is to be found. It was evident at the IRS hearings last December that many of the fundamentalist preachers and school administrators who gave testimony saw the present conflict as part of an all-out war. But from their point of view, the war is not of their making. Rather, they believe that the government has already launched a determined, organized, step-by-step campaign to destroy private education in America.

The basic logic of this apparently extreme view has a certain plausibility. Its proponents state that the govern­ment is aware of the increasing disillusionment with public schools and sees the rapid growth of the Christian school movement as a serious threat to the whole public school system. They claim that currently about two and a half new Christian schools are opening every day and project this rate of growth to conclude that by 1990 half the school children in America could be attending Christian schools. Even if the validity of that projection seems dubious, it is entirely believable that the public education establishment must view with alarm the fact that private, religiously affiliated schools are proliferating with lightning speed in such populous states as California and Ohio. To expect the government to use its diverse regulatory powers to counter such a threat is only to expect it to do to the private sector in education what it has been doing to the private sector as a whole ever since the New Deal.

Whatever the government’s specific intent in regard to private education may be, it is no coincidence that church-related schools are in the forefront of the growing conflict. About 95 percent of all private elementary and secondary schools in America have some sort of religious affiliation and this fact inevitably makes religious freedom a central issue in any debate over government control of private education. The First Amendment guarantees the right of “free exercise” of religion, and clergy, school administrators and parents have all argued forcefully that the policies of schools with religious affiliations belong under the heading of the exercise of religion.

Are schools religious organizations?

In apparent recognition of the tre­mendous implications of the free exercise clause, the government has generally attempted to deny that church-related schools are themselves religious organizations. The trouble with that argument is that it flies in the face of the virtually unanimous view of churches themselves, many of which consider their school systems to be essential means of propagating the faith. Fortunately, this fairly obvious fact is receiving strong support from the courts. In fact, the principle of religious freedom is emerging as by far the most effective basis for challenging government regulation of private education.

A signal case in Kentucky in 1978 produced a sweeping judicial denunciation of any state interference in the policies of a group of Catholic schools, excepting only health and safety regulations. The decision was a virtual libertarian manifesto, both in its general theory and in its specific points. Judge Henry Meigs of the Kentucky Circuit Court upheld the basic principle that the operation of the schools was an “exercise of religion,” and as such was protected in its entirety by the First Amendment. Furthermore, he specifically denied the state the right to prescribe textbooks or insist that teachers be state-certified. He underscored the latter point with a statement which should put fear into the hearts of everyone in the public school establishment: he declared that the amount of training received by teachers has absolutely no demonstrable effect on “student academic achievement.”

The Kentucky case is not an isolated example. In some ways the 1979 decision of a U.S. district court in a case involving the IRS is even more radical, if less broad in scope. The IRS had attempted to deny a tax exemption to the fundamentalist-oriented Bob Jones University because it forbids interracial dating and marriage. The court held that this policy is a basic part of the institution’s religious practice and that the IRS therefore had no right to interfere. Ironically, the decision came while the IRS was still trying to develop viable guidelines for denying tax exemptions to schools which practice racial discrimination.

Because of the preponderance of religiously affiliated schools, no government regulation of private schools can avoid raising the question of religious freedom at least indirectly. However, several current issues pertain very directly to this issue and raise explicit questions concerning the separation of church and state.

A key confrontation which pertains specifically to the issue of religious freedom is the present effort by the National Labor Relations Board to force parochial schools to engage in collective bargaining with their lay teachers. The legal power of the NLRB to force collective bargaining has stood the test of time and the courts for more than forty years. No court is now interested in even hearing cases challenging that power. Therefore, the only reason there is any controversy over this issue is that the particular employers in question are religious organizations claiming that government regulation of their hiring practices constitutes interference with the free exercise of religion. Another reason for the great importance of this confronta­tion is that the NLRB’s main target is the Catholic school system. This time the government is taking on not a few independent fundamentalist schools but a truly formidable challenger: the Catholic Church. That probably comes as close as possible to the government actually picking on someone its own size.

It will be a major battle. The first round has already reached the Supreme Court, which has awarded a conspicu­ously qualified victory to the Church. In National Labor Relations Board v. Catholic Bishops of Chicago, the court barred the NLRB from forcing Chicago parochial schools to engage in collective bargaining with teachers. But in the best tradition of a bench that has hold of something too hot to handle, the ruling avoided the basic First Amendment question altogether. Instead of determining whether or not forced collective bargaining for parochial schools would violate freedom of religion, the court merely declared that Congress had not expressed an “affirmative intention” that the Roman Catholic schools involved were to be covered by the collective bargaining requirement. Justice Brennan clearly thought that was a chicken-hearted approach to the case. The word he actually used in the minority opinion was “irresponsible.”

Irresponsible or not, the ruling was a clear and open invitation to ask Congress for clarifying legislation. Al Shanker, the powerful president of the American Federation of Teachers, quickly announced that he will do just that: unless some other case gets a more meaningful decision out of the Court, round two will be fought on Capitol Hill.

Meanwhile, the Department of Labor is attacking from another direction by trying to extend the coverage of unemployment compensation programs to include religious-school employees. Using recent federal law changes as its authority, Labor is claiming that federal funds can be withheld from states which do not extend their unemployment benefit laws in this way. So far, the schools’ claim that their employees are for practical purposes church employees and therefore need not be covered by unem­ployment compensation is being supported by various state agencies. It seems possible that the ultimate showdown on this one will be between federal and state government rather than directly between church and state.

Their specific relevance to the principle of religious freedom is what makes compulsory unemployment com­pensation and collective bargaining issues of special concern to church-related schools. There are many other areas of government interference which theoretically affect religious and secular schools about equally, although virtually all of them actually have a greater total effect on religious schools simply because there are so many more religious schools. Especially important is a whole range of rulings and proposed legislation concerning charitable giving, charita­ble deductions and tax exemptions. Even non-religious private schools are usually tax-exempt, and their very survival almost always depends upon voluntary contri­butions. To tax them, either directly or by taxing funds which donors choose to contribute to them, would almost certainly mean closing the doors of many schools which are already desperately struggling to withstand the competition of tax-supported public schools.

Even the rare private school which is not concerned with religious freedom and which could survive taxation still faces a broad spectrum of state controls. These vary widely from state to state. Not all states insist that private schools be accredited or even licensed in any way. But those which do typically establish minimum requirements for curricula, libraries and teacher qualifications.

Compulsory schooling—the ultimate regulation

And even states which do not officially regulate private schools actually do so in a de facto manner. The basic school regulation, found in virtually every state, is the compulsory school attendance law. This law is beautiful from the state’s point of view, because by requiring children to go to school the state inevitably authorizes itself to define what a school is. And the basic definition, whether explicit or implicit, is that a school is a place like a public school. A state such as New Jersey can refrain from licensing private elementary and secondary schools and yet require that they provide “instruction equivalent to that provided in the public schools.” Thus, without stating any official standards for private education at all, the state actually establishes every characteristic of its public schools as a standard by which to judge private schools. And a child attending a school which does not meet those standards in the opinion of the local school district officials can be forced to go to a public school instead.

Despite the onerous nature of compulsory school attendance laws and other state legislation dealing with education, private schools would be in a comparatively better situation if those were the only regulations with which they had to contend. As it is, they are faced with a host of tangential problems which emanate from a vast web of federal, state and local laws and agency regulations not even specifically aimed at education.

A fine example is the recent proliferation of laws requiring facilities for the handicapped in “public buildings.” Following typical statist logic, this category of course includes private schools. It would be hard to find a school administrator who wants to discriminate against handicapped children. But when a small private school is struggling to scrape up enough money for a new building in order to add a few grades to its program, the requirement to install an elevator on the hypothetical chance that it might sometime in the future have a student in a wheelchair is not just inconvenient; it is a real financial burden. If you don’t believe it, price an elevator.

Laboratory facilities cost a lot too. And even in states which do not force private schools to meet licensing or accreditation requirements, building codes nevertheless impose countless requirements for various categories of buildings, including schools. This is a real Catch-22. You can operate your school however you want but you cannot build it in the first place unless you meet building code requirements. These sometimes include specifications for lab facilities. They always include countless complicated and costly details.

Schools are faced not only with state building codes but also with all sorts of local regulations. There are, for example, runoff, sewage-capacity and road-access regulations. (The latter tend to be based on some bureaucrat’s estimate of the future growth of the school’s enrollment rather than on the school’s own plans.) And at the federal level, decisions made in the Departments of Agriculture, Energy and Transportation all affect the practical operation of private schools—as does the hottest new game in the regulatory field: environmental impact. Environmental codes hit you even before you start building. You need permission to move dirt.

But in surveying the ways that the government controls private education, we must not look only at the stick. There is also the carrot. An especially subtle threat to private schools lies in the increasing amount of government funding available to them. It is commonplace for school districts to provide textbooks and transportation to private-school children within their boundaries. Of course, the textbooks usually have to be approved, and transportation to school brings to the forefront the question of what is or is not a school. The more money that private schools accept from any level of government, the less autonomy they will retain. So far, the most extreme case of government financing of private education is in the area of schools for handicapped and emotionally disturbed children. Recent federal legislation requires all states to provide appropriate schooling for all their children. Since none of them have adequate special education facilities in their public school systems, the states have to place children in special private schools and then pick up the tab. Since many of these schools are extremely expensive residential treatment facilities which few families can afford out of their own pockets, the availability of public funding has greatly changed their character over the last few years. For most practical purposes, they are now really public, with the state paying the tuition for almost all their students and determining which schools are eligible for funding. After all, he who pays the piper calls the tune.

How many schools will be dancing to that tune in the future? Perhaps all of them. With the growing demand for some form of tax relief for parents of private-school children comes the unavoidable danger that under such a system all private schools might become functionally public in the same way as have the schools for the handicapped. Vouchers or tax credits would only be available to parents sending their children to schools which the government recognized as schools. Maverick schools which failed to meet whatever criteria were imposed for such recognition would no longer be competing at a disadvantage only against tax-supported schools; they would now also be competing at a disadvantage against tax-favored schools. Parents might gain the freedom to choose between public and private schools at the cost of a reduced range of choices within the private school spectrum.

Growing without schooling

Here is one thing which is already tougher than exercising free choice over the type of school one’s children will attend. That is choosing against school altogether. Educating children at home is really the ultimate form of private education, and it meets with the strongest opposition from the government.

Although state laws generally allow for the theoretical possibility of parents educating their own children, the standard continues to be equivalence to public education. This is quite a catch. First of all, public school officials like to argue that there is some inherent educational advantage in having a lot of other children around. Under that notion, it is of course impossible for education at home to be equivalent to education at school. The same conclusion results from the modern tendency to evaluate education with a cash register. If quality is proportional to the amount of money spent on

In private schools, which can only retain their student customers by keeping them (and their parents) happy, small classes, lower student-teacher ratios, and an atmosphere of affection and support are much more common.

lab equipment, gym equipment and audio-visual equipment, few private homes can hope to measure up.

The real problem, however, is that most parents who keep their children out of school don’t want their education to be equivalent to what goes on in public schools. They think the methods of the public schools stink. Many of them think education in any school is virtually impossible, and take their children out of school precisely to give them something entirely different. As radical as this notion may seem, it is becoming increasingly popular and enjoys the vigorous support of no less distinguished an educator than John Holt. This movement is obviously an even greater threat to the education establishment than is the Christian school movement. And that establishment is fighting back with proportional zeal. Parents have actually gone to jail for refusing to send their children to school.

Often the decision as to whether parents are providing equivalent instruction resides with the local school district, whose superintendent thus becomes supreme dictator over the lives of both parents and children. Experience has shown that parents can often keep their children out of school successfully if they enlist the school district’s support by offering to use the same textbooks, curricula and general educational approach that the public schools use. But if they admit that they don’t want anything to do with the public schools’ materials and have no use for their approach to education, they may soon discover that hell hath no fury like a superintendent scorned.

No matter what type of private education we examine, we see the public school system breathing down its neck and threatening it with extinction. The only safe way to meet that threat is to conform to the standards and methods of public schools. Private schools which do that are not shut down, but they are private in only a very limited sense. And as they accept more and more government money, ultimately they may cease to be private in any meaningful sense.

In the final analysis, the very existence of public education provides the government with a standard for controlling all education, whether public-school, private-school or non-school. And compulsory school attendance laws create the power to enforce that standard. As long as we have public schools and compulsory schooling, the proponents of autonomous private education will be marching on a treadmill. In theory, the way to get off that treadmill is simply to abolish compulsory schooling. It would not matter whether the government approved of a given school if no one had to go to school. Parents could send their children there anyway and call it a camp or a club or whatever. But in today’s society, compulsory schooling is not something separate from the public school system. It is that system’s enforcement mechanism, and it is in the very nature of any governmental institution that it have an enforcement mechanism. The only real way to challenge compulsory school attendance is to challenge public education itself. Although that institution has long been the major American sacred cow, the escalating disillusionment with its product suggests that the time for such a challenge may be approaching rapidly. Only then would there be any chance of truly freeing private education from government interference.

Lee Schubert is a Libertarian Party activist and the editor of Galatians Seven: A Christian Libertarian Newsletter.