Ahead of the release of guidelines from the State Education Department regarding instruction at religious and other private schools, Avi Schick – a member of the Dentons’ Litigation and Dispute Resolution practice and attorney for PEARLS – wrote an op-ed recently published in the Wall Street Journal. In the piece, Avi argues that New York’s plan is not only inconsistent with the law, but may also have the unintended effect of requiring the State to provide billions of dollars in school aid annually to non-public schools.
by Avi Schick
Even ardent opponents of school choice accept that parents have the right to send their children to private schools. That may soon change in New York state, where education officials are preparing new guidelines to impose strict regulations on the instruction that religious and other private schools provide, while empowering local school districts to shutter those schools if they fail to meet state standards. The plan is not only ill-advised, it may end up costing the state billions in annual school aid to nonpublic schools.
Parents have had a legally recognized constitutional right to guide their children’s education for nearly a century. The Supreme Court’s 1925 decision in Pierce v. Society of Sisters established that children are “not mere creatures of the state” and that parents have the right to choose “schools where their children will receive appropriate mental and religious training.” Almost 50 years later, in Wisconsin v. Yoder , the court reaffirmed these rights, recognizing the “fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children.”
The trade-off has always been that parents, not the state, must foot the bill for private education. In New York the government saves billions annually because parents choose to send their children to religious or private schools. New York’s Jewish and Catholic schools alone educate 330,000 children, nearly 200,000 of whom attend New York City parochial schools.
Only a fraction of these savings finds its way back to New York’s nonpublic schools and students. Students are entitled to about $100 a year in loaned textbooks as well as library and computer materials. Private schools receive the equivalent of a few hundred dollars a student as reimbursement for providing certain mandated services. By contrast, New York City spends about $20,000 per public-school student and more than $14,000 per charter-school student. Charters, which are public schools, also get either free facilities or additional facilities funding.
In 1972, New York enacted a law to help pay for “secular educational services for pupils in nonpublic schools.” But the Supreme Court struck it down the following year, claiming it violated the First Amendment and would lead to excessive governmental involvement with religion. A kind of détente has reigned since; New Yorkers can choose where their children go to school, and the state can neither fund private and religious schools nor meddle in their affairs. The state Education Department requires nonpublic schools to provide instruction that is “substantially equivalent” to that of nearby public schools. The standard has worked well, inviting neither controversy nor legal challenges.
The new guidelines will upend the status quo by imposing additional instructional requirements and giving local school districts the power to shut down parochial and private schools deemed not to be “substantially equivalent.” Local officials will even gain the authority to initiate Family Court proceedings against parents whose children are enrolled in schools that don’t measure up.
Even worse, while current guidelines kick in only after “serious concerns” have been established about the instruction at a nonpublic school, the new regulations will mandate regular inspections of the offerings at private and parochial schools. State officers will review curriculum and instructional materials, sit in on classes, and interview teachers.
These new regulations signal the convergence of the nanny state and the secular state. The result will be a government with no inclination to defer to parental choice or acknowledge the religious values that lead families to parochial schools.
But New York can’t have it both ways. If providing reimbursement for secular educational instruction at nonpublic schools amounts to an entanglement of church and state, then so does a regime in which the state mandates, inspects and approves those schools’ curricula. And if a private school teaches a state-approved curriculum using state-loaned textbooks, administers state-mandated tests, and passes state-required “substantial equivalence” inspection, shouldn’t the state pay for what the school teaches?
A back-of-the-envelope calculation using the charter-school reimbursement rate of $14,000 per student suggests that New York City’s Jewish and Catholic schools could be entitled to up to $2.8 billion annually in state school aid. That doesn’t even account for other city private schools or parochial-school students in other parts of the state.
Albany bureaucrats are expected to issue the new guidelines in February. Before they do, they might want to consult their colleagues in the state Budget Division, who may soon have to write some very large checks.
Mr. Schick is a partner at Dentons, an international law firm. He previously served in New York state government as a deputy attorney general and as president of the Empire State Development Corp.