The States have the power to reasonably regulate their schools, both public and nonpublic. In 1958, Beach and Will reviewed the basic right of nonpublic schools to exist by citing two landmark court decisions: the Dartmouth College v. Woodward case in 1819 and the Pierce v. Society of Sisters in 1925. In the latter case, it was noted that the U.S. Supreme Court made the following comment about the State's power to regulate schools:

No question is raised concerning the power of the State to reasonably 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 public welfare.

This chapter will paraphrase or directly quote the work of Beach and Will so that we may move quickly into the revised materials that constitute the purpose of this publication.1 Comments added in this revised work are placed in parenthesis in this chapter only.

Laws Regulating Nonpublic Schools

State laws regulate nonpublic schools through statutes that apply generally to all individuals or organizations conducting business or charitable undertakings, or through explicit laws applying to nonpublic schools as educational institutions. Building codes, fire regulations, health and sanitation codes, incorporation laws, motor vehicle codes, and child welfare regulations are examples of generally applicable statutes.

State responsibilities for regulating nonpublic schools are in laws dealing with incorporation of educational institutions (Incorporation of educational institutions rarely occurs in schools below the college level. No discussion of this function is included in this revision, as it deals exclusively with elementary and secondary schools.), State approval of educational institutions, compulsory education, public

Fred F. Beach and Robert F. Will, The State and Nonpublic Schools (U.S. Department of Health, Education, and Welfare, U.S. Office of Education, 1958), pp. 9-13.

support (or public aid), tax exemptions, and occupational licensing. (Many State laws now refer to proprietary trade schools rather than occupational licensing.)

State Approval

State approval of nonpublic schools, where it exists under law, may be required or it may be on an approval-upon-request basis. (For example, in Maryland, a church-related elementary and secondary school with grades through grade 12 may ask for approval. Once it offers the high school graduate course, it must be approved by the State Department of Education.) Beach and Will summarize this point as follows:

When nonpublic schools are required to obtain official State approval they usually are directed by law to obtain a license, a certificate of approval, or some other officially issued permit. Such evidence of official approval is usually conferred by a State agency after an inspection of the school to determine whether or not State standards can be met. Official approval is granted only for the educational program of the school at the time approval is conferred and is often limited to a prescribed period of time.

Nonpublic schools that voluntarily submit to State supervision and subsequently meet the standards established by the supervising State educational agency are known by various designations in the several States. They may be called approved schools, accredited schools, or recognized schools, but whatever their designation they are officially acknowledged as providing educational programs meeting the minimum standards enforced in public institutions of similar character.

Compulsory Education

Compulsory education laws generally have requirements that all children and youth within certain age limits shall attend school, and that the school attended shall provide at least the minimum education program required by the State for a full school term, as

defined by State law. Nonpublic schools must accept responsibility for the legal requirements, and in some States they may be required to keep records or make reports to State departments of education.

Public Support

(Considering the range of nonpublic schools from elementary through postsecondary institutions,) State laws provide a number of services and funds to the nonpublic schools or their students. (Constraints on aid to church-related schools, including court decisions, are covered in Chapters IV and V which deal with State constitutions and laws.) Public support areas include payments for operation of school programs or projects, instruction and other services, buildings, professional services, scholarship and tuition allowances, and textbooks. (Chapter V in this revision considers State

laws on aid to nonpublic elementary and secondary schools as well as their regulation and supervision by departments of education. Of course, such aid is considerably limited in terms of the type of public support provided by the States.)

Tax Exemptions

(Tax exemptions are covered in Chapter IV.)

Occupational Licensing

(Beach and Will listed occupations that required State licensing in that era. Chapter V includes some information dealing with the approval of proprietary schools; however, this study centers primarily on elementary and secondary education.)

The nearly two decades which have elapsed since the first printing of a report on the State and nonpublic schools have witnessed notable action on the part of the U.S. Congress in providing needed programs and services to improve the educational system of this Nation. Beginning with the National Defense Education Act of 1958 and up to the 1974 Education Amendments to the landmark Elementary and Secondary Education Act of 1965, a growing emphasis has been placed on improving the learning opportunities of all children. It has resulted in the passage of laws which focus on programs and projects designed to meet the needs of educationally deprived children; services to provide for school library resources, textbooks, and other instructional materials; provisions for improving health and nutritional standards; and expansion of educational opportunities for the handicapped.

This trend has been motivated by educational theories that center on the principle of providing benefits or services which meet the needs of the school child-benefits or services which would only incidentally serve the school. Such theories have been a determining factor in the growing inclusion of nonpublic school students in Federal programs, as States have been required to administer and control programs which provide services and benefits for children and not schools.

Commencing with a brief description of some of the decisions of the U.S. Supreme Court which have affected nonpublic education, this chapter will present and summarize those provisions of Federal law which mandate the participation of nonpublic elementary and secondary schools.

The Constitutional Issue

The constitutional issue of public aid for nonpublic schools has been a major concern in the creation and formulation of Federal programs to meet the increasingly diverse needs of this country's educational system. As the last century saw the concept of free public education become increasingly widespread, the religious character of the schools, established and maintained over the first hundred years of the republic, gave way to the secular. Religious freedom guaranteed by the First Amendment was not abused by the resulting separation of church and state in the schools, but as popular support for the doctrine of the use of public funds to benefit all children has grown, there has evolved the complex question of what constitutes direct support or aid to sectarian and other nonpublic

schools. This complexity is compounded by the undeniable principle of equal educational opportunities for all children and the right of free choice by parents in determining the situation in which their children are to be educated.

In 1925, the Supreme Court struck down the State of Oregon's efforts to compel parents to send their children to public schools. (Pierce v. Society of Sisters, [268 U.S. 510 (1925)]). In subsequent decisions the Court has continued to uphold this privilege, and it served as the basis for a recent ruling in favor of Amish parents in Wisconsin to terminate their children's formal education after the eighth grade because it is consistent with their religious beliefs.1

The High Court seemed to reflect the theme of the benefit theories mentioned earlier when, in 1947, a New Jersey law to provide tax-supported transportation to public and nonpublic school children was upheld (Everson v. The Board of Education, [330 U.S. 1 (1947)]). Again in 1968, the Court ruled in favor of a New York statute authorizing the loan of publicly owned secular textbooks to children in public and nonpublic schools (Board of Education of Central School District No. 1 v. Allen, [392 U.S. 236 (1968)]). Other provisions benefiting nonpublic school children which have been deemed constitutional include school lunch programs and public health services.

In the early 1970's, a series of Supreme Court decisions brought into focus permissible and unconstitutional government aid to church-related schools. In 1970, the Court upheld State tax exemptions for real property that was owned by religious groups and used for religious services. Walz Walz v. The Tax Commission [397 U.S. 664, 674 (1970)] introduced the test of "excessive entanglement of government in religion" to the "primary purpose and primary effect" tests used by the Court for Establishment of a Religion clause of the First Amendment. This new test was applied to Pennsylvania and Rhode Island aid laws which were found unconstitutional in 1971. At the same time, the Court ruled constitutional a Federal education law that provided aid to private colleges and universities as well as to public institutions.

The following comments by the Court relative to these three cases may serve to foster a better understanding of aid to nonpublic schools in light of the First Amendment.2

1 Wisconsin v. Yoder et al., 406 U.S. 205 (1972).

2

Citations are taken from the Lemon-DiCenso [403 U.S. 602 (1971)] and Tilton [403 U.S. 672 (1971)] cases.

Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable.... Fire inspections, building and zoning regulations, and state requirements under compulsory school attendance laws are examples of necessary and permissible contacts....

Our decisions from Everson to Allen have permitted the State to provide church-related schools with secular, neutral or nonideological services, facilities, or materials. But transportation, school lunches, public health services, and secular textbooks supplied in common to all students were not thought to offend the Establishment Clause.

The Pennsylvania statute, moreover, has the further defect of providing state financial aid directly to the church-related school. This factor distinguishes both Everson and Allen, for in both cases the court was careful to point out that State aid was provided to the student and his parents-not to the church-related school.

The case [Tilton] is distinguished from Lemon v. Kurtzman: (a) there is less danger here than in churchrelated primary and secondary schools dealing with impressionable children that religion will permeate the area of secular education, since religious indoctrination is not a substantial purpose or activity of these churchrelated colleges (the four colleges involved in the case), (b) the facilities provided here are themselves religiously neutral with correspondingly less need for government surveillance, and (c) the government aid here is a one time single-purpose construction grant, with only minimal need for inspection.

The simplistic argument that every form of financial aid to church sponsored activity violates the Religion Clauses was rejected long ago in Bradfield v. Roberts (1899). There a Federal construction grant to a hospital operated by a religious order was upheld.

In 1973, the Supreme Court ruled unconsitutional several New York laws with provisions for: direct grants to nonpublic elementary and secondary schools for the maintenance and repair of school facilities and equipment; tuition reimbursements and tax benefits to parents of nonpublic school children; and aid to nonpublic schools for "mandated services," such as expenses for health examinations and tests and for the maintenance of pupil health services in nonpublic schools. The Court found that these laws had a primary effect of advancing religion. A Pennslyvania law granting tuition reimbursement to parents of nonpublic school children was also ruled unconsitutional. On the same day, June 25, 1973, the Court ruled in

favor of a South Carolina statute that established an authority for the issuance of revenue bonds which benefited a church-related college. Another case involving State responsibility to nonpublic schools under Federal education laws was the Wheeler v. Barrera [417 U.S. 402 (1974)] decision of June 10, 1974. The Supreme Court upheld the claim of nonpublic school parents in Missouri for services to their children which were comparable to those provided to public school children under Title I of the Elementary and Secondary Education Act. The Court said it could not reach the issues over two points: whether Title I required the assignment of publicly employed teachers to provide remedial instruction during regular school hours on the premises of a nonpublic school; and, if there was such a requirement, whether it would contravene the First Amendment. Since there was no order requiring on-premises parochial school instruction, the Court did not rule on the constitutionality of public school teachers providing services on nonpublic school premises. More definitive opinions concerned the relationship between Federal and State law. The correct rule, according to the Court, is that Title I of ESEA is not to distrub or interfere with existing State laws. However, a State must provide comparable, but not identical, services to nonpublic school children if the State elects to participate in a particular Federal program under Title I.

It must be concluded that no clear definition of what constitutes direct aid has yet been established. But legal developments over the past several years have focused heavily on equal rights, and this is the principle that is likely to guide the Congress and perhaps the Courts over the years ahead.

Federal Legislation

The demand for federally supported programs at all levels of the Nation's educational system stimulated much Congressional legislative activity during the 1960's. State and local agencies were not able to meet the needs of the rapidly growing school-age population of that period. Nonpublic schools were experiencing nearly as rapid a growth in enrollment as their public counterparts, and it became apparent that some form of support was necessary if these schools were to remain an available alternative. As a result, certain Federal educational programs, established and designed to aid children and not to interfere with State and local administration of school systems, have provided for the participation of nonpublic school children.

Elementary and Secondary Education Act of 1965

The Elementary and Secondary Education Act of 1965 (ESEA) was the first Federal education law directly to include nonpublic school children in its programs, particularly in the areas of services for educationally deprived children, school library materials, and textbooks. This law also mandated for the first time in Federal legislation the involvement of nonpublic school representatives in the

planning of local programs. The Education Amendments of 1974 (PL 93-380) serve to broaden the participation of nonpublic schools in these areas, as well as to introduce new programs aimed at the enrichment of educational opportunities for all children. Moreover, the Education Amendments of 1974, as did prior elementary and secondary education legislation, mandate that each State either give assurances in its State plan that the requirement relating to nonpublic school students will be met, or provide certification to the U.S. Commissioner of Education that such requirements would contravene the existing laws of the State. The following is a brief description of ESEA provisions as amended by PL 93-380 which will affect nonpublic school children.

Title I (ESEA)

Contained in Title I of ESEA are provisions for special educational programs and projects for educationally deprived children, particularly those of low-income families. Part D of this title is changed in the Amendments of 1974 by adding a new section which is quoted here in part:

Participation of Children Enrolled in Private Schools SEC. 141A. (a) To the extent consistent with the number of educationally deprived children in the school district of the local educational agency who are enrolled in private elementary and secondary schools, such agency shall make provision for including special educational services and arrangements (such as dual enrollment, educational radio and television, and mobile educational services and equipment) in which such children can participate and meeting the requirements of clauses (A) and (B) of paragraph (1) of subsection (a) of section 141, paragraph (2) of subsection (a) of such section, and clauses (A) and (B) of paragraph (3) of subsection (a) of such section 141.

(b) (1) If a local educational agency is prohibited by law from providing for the participation in special programs for educationally deprived children enrolled in private elementary and secondary schools as required by subsection (a), the Commissioner shall waive such requirement and the provisions of section 141 (a) (2), and shall arrange for the provision of services to such children through arrangements which shall be subject to the requirements of subsection (a).

(2) If the Commissioner determines that a local educational agency has substantially failed to provide for the participation on an equitable basis of educationally deprived children enrolled in private elementary and secondary schools as required by subsection (a), he shall arrange for the provision of services to such children

through arrangements which shall be subject to the requirements of paragraph (a) and section 141 (a) (2) shall be waived.

(3) When the Commissioner arranges for services pursuant to this section, he shall, after consultation with the appropriate public and private school officials, pay the cost of such services from the appropriate allocation or allocations under this title.

Paragraph (b) (4) of section 141A contains a procedure commonly referred to as bypass. This is an administrative process exercised under statutory authority by the U.S. Commissioner of Education to assure nonpublic school participation where mandated. It may be used in cases where the Commissioner finds the State educational agency unable or unwilling to provide equitable services to nonpublic school children. The two conditions are separate: (1) where there is a legal prohibition in the State to provide nonpublic school children the program benefits; or (2) where the Commissioner finds substantial failure by the State to provide such benefits equitably. When bypass is invoked, the Commissioner reserves the State funds which would have been allocated for services to such children and contracts with another agency to provide them. Prior to the 1974 law, bypass procedures existed in Titles II and III of ESEA. In the Amendments of 1974, Congress extended bypass to ESEA Title I and to the Consolidation of Certain Education Programs in ESEA Title IV. The National Reading Improvement Program (Title VII) also contains bypass authority. The law presents clear language requiring the U.S. Commissioner of Education to give the State 60 days notice and a hearing before final bypass action is taken. In addition, the State may appeal the Commissioner's final action to a U.S. Court of Appeals.

Other Title I programs, which have as a condition of approval the provision of benefits to nonpublic school children, include programs for migratory children and neglected or delinquent children.

The New Title IV (ESEA)

Title II of ESEA, which legislates the apportionment of funds to State education agencies to acquire school library resources, textbooks, and other instructional materials, has been consolidated under Title IV by the Amendments of 1974. Also consolidated is Title III, providing for testing, counseling, and guidance services as well as assistance to the States in establishing supplementary centers and services to meet identifiable educational needs. Under the new Title IV, mandates for the participation of nonpublic school children in these programs are expanded. Part A contains the provisions requiring involvement of children enrolled in nonpublic schools and is quoted here in part:

SEC. 406. (a) To the extent consistent with the number of children in the school district of a local educational agency (which is a recipient of funds under this title or