Reasonable Transparency?

Two weeks before the January 14, 2021 release of California’s new consolidated guidance governing the reopening of K-12 school campuses for in-person learning, a representative of Governor Gavin Newsom reached out to the state’s private school leaders. The Governor wanted to know the private school community’s thinking about the possible inclusion of private schools in a forthcoming “transparency and accountability” requirement. Under the new mandate, K-12 schools would be required to report their current operational status to the California Department of Public Health on a biweekly basis. CDPH would then use the data to create a web-based dashboard and interactive map enabling visitors to readily see which schools were operating in distance-learning-only mode, which in hybrid-learning mode, and which in on-campus, in-person mode.

Following consideration by members of the California Association of Private School Organizations’ Public Policy Committee and association officers, the following response was conveyed to the Governor’s office:

“If the information sought by the state is deemed essential to the preservation/promotion of public health, private schools should be included. If, however, the primary purpose of the information is to promote accountability and transparency, the state should adopt a posture that is consistent with its practice regarding the administration of assessments of academic achievement, in which case private schools should be excluded. (Not only does the state not administer such assessments to private schools; private schools wishing to participate in state assessments are barred from doing so.) An unfunded mandate of this nature should be imposed only in the presence of compelling need.

CAPSO’s position was entirely consistent with the Association’s longstanding policy of maintaining appropriate balance between two guiding principles established in the U.S. Supreme Court’s unanimous 1925 decision in Pierce v. Society of Sisters. It was in that landmark case that the High Court maintained that “the child is not the mere creature of the state,” and that a state may not “…standardize its children by forcing them to accept instruction from public teachers only.”

But in the very same decision, SCOTUS also held that:

“No question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.”

The key word in the above paragraph is ‘reasonably’. While there is no question that the state possesses the right to regulate private schools, any such regulation must be reasonable. Therefore, the decisive question attendant to any form of proposed state regulation of private schools is: Is it reasonable, given the circumstances?

It was in this context that CAPSO responded to the Governor’s recent inquiry about the inclusion of private schools in a state transparency and accountability dashboard relative to school operations. If the inclusion of private schools was deemed necessary to the preservation of public health, the mandate would be regarded as reasonable. If, however, the purpose of the mandate was merely to establish comparability between public and private schools, there would be no compelling reason to do so, rendering such a mandate unreasonable.

In the end, the Governor decided to include private schools in the required reporting. While his decision came as a disappointment to some, the language appearing in the mandate was clearly responsive to CAPSO’s view that the inclusion of private schools must be supported by the belief that such an action is necessary to the preservation of public health. The order says:

To be equipped to prevent and mitigate ongoing community COVID-19 transmission, it is necessary for CDPH and local health jurisdictions to have accurate information about which school sites are serving students in-person and to which degree such in-person services are being provided, especially in light of evolving epidemiological conditions.

Whether one agrees or disagrees with the inclusion of private schools in the mandate, one cannot claim the state failed to declare the policy necessary to the preservation of public health. One may quibble, but one can’t really grouse. Private school representatives were asked to express their view, and the state responded in a manner that demonstrated both an understanding of and responsiveness to that view. For that, there is cause for appreciation.

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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