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Over the past 150 years, the choices have been government run schools or private schools – double tuition for parents.  Today we have other options available but those are not without problems.  

Choice Programs and Legal Challenges

Various school choice proposals include public vouchers and tax-credit scholarships. 

The federal Establishment Clause of the First Amendment has been used by opponents to attack school choice.  However, in 2002 they were defeated in the lawsuit, Zelman v. Simmons-Harris.  The Supreme Court ruled that tuition support can be given to parents for use at private schools, including those run by religious orders. 

Since then school choice opponents have been targeting states and state constitutions’ religious clauses as their primary legal means to discourage states from passing school choice legislation and challenging those states that have. That tactic is meeting with failure also. 

The Heritage Foundation (Daily Signal) reported in December, 2014 that the teachers’ unions filed two lawsuits challenging the Florida’s Tuition Tax Credit Scholarship program.  The unions charged that the Florida Constitution was violated when students took the aid to private and religious schools.  The unions lost when the court ruled in favor of the parents. 

In Texas, both vouchers and tax credits options are available under the state constitution.  The Texas Constitution permits parents to take financial aid to their choice of schools, including private and religious. 

Choice Programs Regulatory Effect on Private Schools

There is concern that voucher programs will tie private and religious schools to government mandates.  Indeed, research shows that some voucher programs may increase the regulatory burden imposed on private schools.  Some school principals cite this concern as reason for not participating in a choice program. There is also concern of regulatory creep with all school choice programs. 

Andrew Coulson published a 2011 study in the Journal of School Choice, reporting that individual tax credit or tax-credit scholarship programs have five times fewer regulations than voucher programs.  These findings have been corroborated by a Thomas B. Fordham Institute study. 

A 2010 study by CATO, “Do Vouchers and Tax Credits Increase Private School Regulation,” concluded that vouchers, but not tax credits, impose a substantial additional regulatory burden on private schools. 

The Friedman Foundation believes that as long as the parent -- not the school -- receives the voucher, the government cannot regulate the private schools.  Others, including Hillsdale College, believe that public vouchers are a Trojan horse, that it is inevitable the government will use vouchers to control private schools. 

Overlooked by the public is the unpleasant fact that states can and do impose substantial regulatory burdens on private schools even in the absence of state assistance in school choice programs.  The states believe this regulation is justified because they are delegated the responsibility of education under the 10th Amendment of the U.S. Constitution. 

Private schools must comply in every state with a wide array of regulations including health and safety and federal nondiscrimination policies. 

Other state regulations of private schools include accreditation, registration, licensing, approval, teacher certification, curriculum requirements, and reporting requirements.  Three states have only minimal regulation.  Utah and New Mexico have a reporting requirement while Texas has reporting and teacher certification requirements. 

If private school students receive state assistance, states tend to impose additional regulation on the schools.  Those regulations vary widely among the voucher programs.  

School choice opponents have tried for two decades to increase regulations for those private schools that participate in school choice.  Parents and supporters raised their collective voices and usually defeated the measures.   

As public support for school choice ramps up to a fever pitch, there will be a slew of legal challenges to keep the state legislatures from passing choice programs and to increase burdensome regulations. It is critical that parents and supporters maintain vigilance to prevent additional regulations from being placed on participating private schools.  And they must be watchful for regulatory creep. 

Unless private schools maintain freedom and independence from government control, they will lose the ability to operate and innovate as they deem necessary and fit.  If they lose that right, then private schools will be no different from government schools. 

Copyright ©2015 Carole Hornsby Haynes, Ph.D. All rights reserved.

 

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