State Regulation of Religious Schools

Although ‘‘state’’ can refer to any level of government, for ‘‘state regulation of religious schools,’’ ‘‘state’’ refers to any one of the fifty states to local governmental entities. The Fourteenth Amendment to the Constitution guarantees that ‘‘No state shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.’’ The United States has a uniquely decentralized educational system; it gives individual states the primary responsibility of balancing ‘‘fundamental divergence of views concerning the role of the family, the function of the state, and ultimately, the origin and nature of man.’’ Every state has some form of compulsory education law. In all states, attendance at a private school is permitted as an alternative to public school attendance.

Approximately 80 percent of America’s private schools are religious institutions. A parent’s right to choose a private education is reflected in the statutes of the fifty states; where its well established that the states have the power to regulate these institutions. Under the auspices of the Religious Land Use and Institutionalized Persons Act of 2000, the Senate explicitly states that ‘‘[t]he right to build, buy or rent such a space [for religious exercise] is an indispensable adjunct of the core First Amendment right to assemble for religious purposes.’’ Those purposes extend to encompass social, charitable, and educational programs.

Under the law of the United States, religious education is forbidden in public schools, except from a neutral, academic perspective. For a teacher or school administrator to endorse one religion is considered an infringement of the ‘‘establishment clause’’ of the First Amendment. However, the U.S. Constitution gives parents the fundamental right to direct the education of their children. In 1925, the Supreme Court recognized that ‘‘liberty’’ protected by the Fourteenth Amendment includes the right to choose a private education. Confronted with an Oregon statute mandating public school attendance, the Supreme Court ruled the statute unconstitutional. In the words of the Court, ‘‘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’’ (Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 1925). In Wisconsin v Yoder, the Court defined the government’s interest in compulsory education as that ‘‘degree of education . . . necessary to prepare individuals to be self-reliant and self-sufficient participants in society.’’ In Runyon v McCrary, the Court limited the Pierce holding by asserting that the Pierce’s holding ‘‘simply affirmed the right of private schools to exist and operate.’’ And in Employment Division v Smith, the Supreme Court determined that a neutral, generally applicable law that ‘‘incidentally’’ burdens religion is evaluated under the ‘‘rational basis’’ test. The ‘‘rational basis’’ test, asserts the state need only demonstrate that the regulation in question is rationally related to, or reasonably designed to, accomplish a legitimate governmental objective. Challenges to government regulation of private religious schools tend to focus on the test initiated in Lemon v Kurtzman 403 U.S. 602 (1971), the so-called ‘‘Lemon test.’’ Under the Lemon test government regulation violates the establishment clause if it fails any of the following three requirements. First, the regulation must have a ‘‘secular purpose.’’ A regulation motivated, in part, by a religious purpose may be upheld as long as it is ‘‘not motivated wholly by religious considerations.’’ However, the ‘‘mere existence of some secular purpose’’ will not satisfy the test if the policy or practice is ‘‘dominated by religious purposes.’’ The second requirement is that the primary effect of the regulation in question must not be either to advance or inhibit religion. The third part of the test requires that the regulation in question not result in excessive entanglement of the government in matters of religion.

The Supreme Court has upheld a New Jersey statute that made transportation equally available to both public and private education; upheld a New York statute providing free textbooks on loan to parochial school students; and upheld placement of public school teachers in parochial schools to provide remedial education services under a federal program. Twenty-seven states and the Virgin Islands have provisions permitting public funding of transportation; Idaho law dictates that the costs must be recovered. Seventeen states have the power or duty to loan free textbooks to private school students. Although some states provide significant assistance for health needs such as immunization, vison/hearing services and diagnostic testing. Actual regulation of private schools remains the prerogative of state governments. Successful challenges to governmental regulations usually implicate both a Free Exercise claim and an alleged violation of another constitutionally protected right this is the so-called hybrid claim.


References and Further Reading

  • Cookson, Peter. School Choice: The Struggle for the Soul of American Education. New Haven, CT: Yale University Press, 1994.
  • DeGraff, Eric A., State Regulation of Non-Public Schools: Ties that Bind, BYU Education and Law Journal 386 (2003).

Cases and Statutes Cited

  • Lemon v. Kurtzman, 403 U.S. 602 (1971)
  • Myer v. Nebraska, 262 U.S. 390 (1923)
  • Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925)
  • Wisconsin v. Yoder, 406 U.S. 205 (1972)


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