Nonpublic Schools

Reasonable Regulation

What is a reasonable regulation of nonpublic schools has been well tested in the courts. Regulations frequently come in the form of compulsory school attendance laws, in which states mandate that all children of set ages attend either public or nonpublic schools. Most prominent is the requirement for teachers to have state teaching certificates. Courts consistently upheld teacher certification requirements for nonpublic schools as well as other regulations such as mandatory registration with the state education agency.

Administrators in religiously affiliated nonpublic schools are typically nervous about governmental attempts to regulate their operations, particularly worrying that such outside control might interfere with the religious aspects of their schools' missions. The courts recognize the dual role nonpublic schools play in having both religious and secular goals. Moreover, while the courts give religious schools much latitude in their operations, they acknowledge the state's compelling interest in the proper education of all children who reside within the state.

The Supreme Court of Nebraska upheld rigid, comprehensive regulations in State of Nebraska v. Faith Baptist Church of Louisville (1981). The regulations, which included a requirement for state-certified teachers, were, in the eyes of the court, “minimal in nature” and necessary for the state to carry out its compelling interest. Further, the Court took a dim view of the claim by the church that such regulations interfered with its religious freedom. The case generated so much negative publicity that the legislature enacted an exemption for parents whose “sincerely held religious beliefs” would have been violated by compliance with the regulations.

There are limits to the regulations state government may impose on nonpublic schools. The Supreme Court of Ohio, in State of Ohio v. Whisner (1976), struck down that state's minimum standards in finding that they went beyond the reasonable regulations that nonpublic schools may be required to meet. The regulations, which were so intrusive as to blur the distinction between public and nonpublic schools, would have interfered with the teaching of religion in religiously affiliated schools. The courts seem to have struck a balance between protecting the legitimate interest of the government to ensure an educated population and the interest of nonpublic schools in maintaining some degree of freedom from overly restrictive regulation by government. Insofar as education is a state concern under the American federal system of government, regulations affecting nonpublic schools vary from one jurisdiction to the next.

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