For Every Action…

More than 30 states currently offer some form of ‘educational choice’ programming that includes private schools. Some states offer school vouchers. Some have gone a step farther by funding education savings accounts whose proceeds can be used to pay for private school tuition and other qualifying education expenses. Other states offer various education tax credit arrangements affording tax advantages for individual and/or corporate donations to nonprofit school tuition organizations that disperse the funds in the form of private school scholarships.

The geography of contemporary educational choice in the United States is illustrated in an online map provided by EdChoice. As can readily be seen, California draws a blank. This may be about to change, albeit in a manner that few are likely to have anticipated.

California is, of course, a deep blue state. With a Democratic governor, Democratic super-majorities in both houses of the State Legislature, and a powerful consortium of organized labor interests in which teachers unions play a prominent role, there’s little reason to anticipate the enactment of education choice programs of any sort, anytime soon. But legislation need not present the only route to the expansion of educational opportunities for children. What lawmakers may desist from enacting, the courts may impose by judicial fiat. In California, legal action is now underway to expand access to a type of private school with which some readers may not be familiar.

In the Golden State, a Nonpublic, Nonsectarian School (NPS) is a private school into which children with special needs of such a nature that they cannot be adequately met by a public school are placed and paid for by an agency of the state – usually the public school district in which the student resides. Because these schools receive direct funding from the state, they are subject to laws, regulations, and standards that don’t apply to other private schools. An NPS school must, for example, undergo annual certification by the state, must employ teachers in possession of state-issued special education credentials, and are subject to inspection by local public school district superintendents.

As their name indicates, these schools must be nonsectarian, meaning they must possess a secular orientation and may neither teach, nor practice anything of a religious nature. Such a requirement comports with Article IX, Section 8 of the California Constitution – a so-called Blaine Amendment – which reads as follows:

“No public money shall ever be appropriated for the support of any sectarian or denominational school, or any school not under the exclusive control of the officers of the public schools; nor shall any sectarian or denominational doctrine be taught, or instruction thereon be permitted, directly or indirectly, in any of the common schools of this State.”

But wait! In the U.S. Supreme Court’s ruling in Espinoza v. Montana Department of Revenue, Chief Justice John Roberts wrote: “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” (For good measure, the same declaration was reiterated in the High Court’s 2022 ruling in Carson v. Makin.)

Nonpublic Nonsectarian Schools are private schools. Their very name denotes as much. Moreover, these schools file the annual private school affidavit required by California law. Based on the Court’s ruling, it stands to reason that if California is subsidizing Nonpublic Nonsectarian Schools, it may not withhold funding from “Nonpublic Sectarian Schools.” To do so would run afoul of religious liberty protections enshrined in the First Amendment of the U.S. Constitution.

This, in essence, is what a group of parents, joined by two Los Angeles Jewish day schools in which their children are enrolled, are arguing in Loffman v. California Department of Education. On the face of it, it’s hard to see how plaintiffs would not prevail if the matter makes its way to SCOTUS. Moreover, the case has been taken up by the Becket Fund for Religious Liberty, a nonprofit, public interest firm with a most impressive track record when it comes to arguing cases before the U.S. Supreme Court.

In this amateur pundit’s estimation, plaintiffs will prevail and a modicum of expanded educational choice will come to California. The word ‘nonsectarian’ will be struck from Nonpublic Nonsectarian Schools, and parents of children with the most challenging types of disabilities will have the option of enrolling their children in a special category of private religious schools at state expense. This, of course, assumes that private religious schools will be willing to enroll such students and become subject to the additional legal and regulatory requirements to which today’s Nonpublic Nonsectarian Schools are subject.

But there’s more to consider. The scenario I envision will not play out in a political vacuum. Organized interests that oppose the expansion of educational choice to include private schools, led by the teachers unions, will view the development as a disruption to the status quo in which California’s private schools receive no state funding, but are permitted to function in an environment that is largely free of state regulation.

Think about it. The only legal requirement California private school teachers must meet is that they be “persons capable of teaching.” For private schools, the state specifies no minimum number of annual days of instruction, or minimum number of hours of instruction in a school day. Private schools need not be accredited. Not only are California’s private schools not required to administer the state assessments, they’re prohibited from doing so. When it comes to curriculum and instruction, the California Education Code requires only that private schools “offer instruction in the several branches of study required to be taught in the public schools of the state.” No agent of the state inspects private schools, and no agency of the state regulates them.

For California’s private schools, the freedom to operate in a political environment that’s mostly free of state regulation is the silver lining that comes with a virtually complete lack of state funding. Of course, the flip side of that coin is that there’s room aplenty for additional regulation.

We all know Isaac Newton’s Third Law of Motion: For every action, there is an equal and opposite reaction. Unfortunately, Newton’s equation doesn’t apply to the politics of education, where every incremental expansion of access to private schools is met with an outsized opposing reaction from the teachers unions and their allies. Which is to say that if and when the Loffman plaintiffs should prevail, it will be more than a relative handful of private schools that will become subject to additional state regulation. The entire enterprise may well find itself in the crosshairs of the unions and the legislators they’ve helped place in office.

Is that to suggest that the Loffman plaintiffs should stand down? Certainly not! For one, it seems clear that the law is on their side. For another, in the contemporary political landscape, little is likely to be gained free of risk, struggle, and perseverance. Loffman v. California Department of Education may be the opening shot in a long and arduous battle. Those leading the charge, as well as those who follow, should proceed with eyes wide open.

Ron Reynolds

Note: The commentary expressed in this article is that of the author, and does not necessarily represent the views of the California Association of Private School Organizations, or its members.


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