Drawing a Line

The California Association of Private School Organizations has registered support for AB 762, a bill currently pending in the California Legislature. Authored by Assemblymember Alex Lee (D. – Milpitas), the measure would require private schools to follow the same procedures as public schools when determining whether a would-be school site is located on, or proximate to a source of toxic substances. The association has gone on record describing the bill’s provisions as “sensible, reasonable, and practical.”

During a recent interview, a reporter seemed surprised to learn that private schools were supporting a measure that would increase the amount of state regulation to which they’d be subject. “Aren’t you concerned,” he asked, “that this could be one step down a road you’d rather not travel?” It’s a good question, inviting a response that helps to clarify the drawing of lines between reasonable and unreasonable state regulation, as well as public and private.

To wit, there’s a public dimension to private education. Private schools educate a certain percentage of the public. At no point do children enrolled in private schools, the instructors who teach them, or the parents who send them there ever cease being members of the public. Our jurisprudence has long established that private schools fulfill certain public purposes.

When we think of public health, we don’t tend to draw distinctions on the basis of school types. Prior to the COVID-19 pandemic, the most recent issue creating controversy around schools and public health was likely to have been  SB 277, the 2015 bill authored by State Senator Richard Pan that eliminated the personal beliefs exemption relative to required school vaccinations. For all the passion it ignited, the battle lines that formed in response to SB 277 had little, if anything, to do with school types. Yes, there was opposition from private school parents, but the same was true for public school counterparts. At issue was the authority of the state to limit individual liberty in service of public health. Though controversy continues to bubble up around mandatory school vaccinations, the issue doesn’t offer a particularly strong case for claims of excessive government regulation of private schools.

Neither, for that matter, does the state’s regulation of private schools over the course of the COVID-19 pandemic.  Here, too, the state began with the observation that a virus draws no distinction between public and private. To protect the public from the spread of the virus, state and local health authorities made all schools subject to the same public health requirements. Recognizing the blurring of boundaries between public and private in the midst of a public health crisis, the state even went so far as to equip private schools with personal protective equipment, as a public health measure.

That’s not to say that recent public health decisions made by state and local authorities should be immune from criticism. It’s a safe bet that policy making around the management of COVID-19 will be studied for decades to come. And whereas enhanced knowledge will almost certainly cash a harsh light upon various decisions and policies, it will also magnify the environment of uncertainty in which human decision makers were operating.

Against this background, AB 762 can hardly be regarded as controversial. Private school students, teachers, administrators and visitors to private school campuses are no more immune to the presence of nearby toxic substances than are their public school counterparts. To preserve the health of the public, it makes little sense for the state to draw a distinction between public and private schools when establishing safeguards against inadvertent exposure to hazardous substances. Where then, can a line between reasonable and unreasonable state regulation be drawn?

One example of what the state may not do is force private schools to adopt the Health Education Framework California’s public schools are required to follow. To do so would violate a key finding of the U.S. Supreme Court’s unanimous 1925 decision in Pierce v. Society of Sisters. In that landmark case, the nation’s High Court held that: “The fundamental theory of liberty upon which all governments of this Union rest excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.”

The preservation of pluralism in American education rests upon a mutual and reciprocal recognition of authority and restraint by public and private actors. Confusion among private school stakeholders about the legitimate role of government in preserving public health may prove to be as unsettling to the preservation of that delicate balance as confusion among government officials about the implications of our nation’s fundamental theory of liberty. Reasonable people can and should dispel any such confusion, if and when it arises.

Ron Reynolds

Note: The commentary and views expressed in this article are those of the author, and do not necessary represent those of the California Association of Private School Organizations, or its members.

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