State and Federal Regulation of Faith-Based Schools

• In Event: Catholic Education in the United States: Historical and Legal Perspectives

Abstract

Objectives or purposes

The purpose of this presentation is to describe the state of play—both historically and at present—regarding state and federal regulation of faith-based schools.

Perspective(s) or theoretical framework

The authority of states to regulate education is implied in the Tenth Amendment of the U.S. Constitution and was reinforced in Pierce v. Society of Sisters by the Supreme Court. The current inquiry traces the implications of this decision and the states’ various interpretations of government regulation of religious schools.
Methods, techniques, or modes of inquiry. An exhaustive review of case law regarding state regulation of religious schools was conducted. A chronological and conceptual synthesis of these legal arguments was then derived.

Data sources, evidence, objects, or materials

Over 40 exemplars of relevant jurisprudence contributed to the data corpus for this project. In addition, key touchstones include several federal statutes such as the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Equal Pay Act, Family and Medical Leave Act, the Civil Rights Act, and the Uniform Services Employment and Reemployment Act. Also considered are scholarly treatments of relevant jurisprudence found in sources such as Education Law Reporter and the International Journal of Law & Education.

Results and/or substantiated conclusions or warrants for arguments/point of view

Many religious schools in the 1970s and 1980s challenged the efforts of state departments of education and local school districts to impose upon them the same statutes and regulations used for public schools. Generally, the success of these challenges varied among the states and frequently devolved into a discussion of reasonableness of the regulations. Confrontations between the state and religious schools diminished beginning in the late 1980s as state legislatures intervened and enacted laws freeing nonpublic schools from many of the more onerous state requirements. Generally though, legal issues have moved on to other contentious areas, especially those related to a) participation of religious schools in state athletic associations; b) regulation of home schooling; and c) application of federal nondiscrimination statutes to religious schools.

Scientific or scholarly significance of the study or work

An understanding of the historical trends surrounding state regulation of religious schools is critical. Moreover, a working knowledge of the legal discourse and the most prominently litigated areas involving religious schools is imperative. Engaging with these foundational questions is critical, for to penalize a religious organization’s practice of its belief system, however much a court may disagree with it, is to threaten the very purpose and vitality of that organization. The balance between religious belief and practice is fragile and, unless courts are vigilant, those with the most distinctive and different religious beliefs can find their beliefs gradually eroded by the irresistible press for compromise. When militancy of religious beliefs are reduced to an egalitarian common denominator, those who believe the most will have to accommodate themselves to those who believe the least.

Author

• Ralph Mawdsley, Cleveland State University