Regulation of Non-Public Schools (HB 1432, 2018)

Cornerstone opposes HB1432 for several reasons. HB 1432 attempts to regulate nonpublic schools by imposing specific background checks and nondiscrimination requirements.  We are concerned about the religious liberty implication of HB 1432, since this regulation would be most restrictive on religious schools. In fact, we suggest that HB 1432 is both unnecessary and burdensome to those schools.

If we cherish religious liberty, we should embody this freedom in our laws.  If religious education establishments can demonstrate that their students learn as much as their public school counter-parts, the state should limit its regulatory role.  Only compelling evidence should trigger additional regulations by the state, and there currently is no compelling evidence of insufficient background checks or what Courts call “invidious” discrimination that supports additional regulations.

Religious schools may hire teachers based on teachers’ religious convictions as well as their academic qualifications. They receive a modest salary and believe they are fulfilling a religious mission. Parents are also actively involved in running religious schools.  Because there is such a strong parental influence in these schools, it can be argued that they are already heavily self-regulated so there is no need for additional state interference.

The authority of the state to enforce regulations on private schools is subject to reasonableness standards. In Runyon v. McCrary, the Supreme Court noted:

While parents have a constitutional right to send their children to private schools and…to select private schools that offer specialized instruction, they have no constitutional right to provide their children with private school education unfettered by reasonable government regulation.

So the Supreme Court has allowed the right of the state to impose reasonable regulations on private schools. But it gets a little difficult to determine what is considered a reasonable versus unreasonable state regulation.

Is HB 1432 a reasonable regulation? It would require all private schools to follow federal non-discrimination laws.  However, HB 1432 would be a state regulation based on state tax dollars.  

(Incidentally, the sponsors erroneously identify K-12 scholarships funded by tax credits as public funds. The funds distributed from the education tax credit scholarship program never leave the state budget, nor do the tax credits come through the state budget. When we donate to our favorite charity and take a tax deduction, that money is not considered public funds.)

The Free Exercise clause prohibits the government from unnecessary interference in religious practices, and prohibits excessive government entanglement with religion. Government regulation which burdens the free exercise of religion is unlikely to withstand a constitutional challenge unless it represents “the least restrictive means to achieve some compelling state interest.” (Thomas v. Review Board)

The sponsors need to present clear and convincing evidence that HB 1432 does not unnecessarily restrict religious liberty. I would expect that every religious school in New Hampshire would recognize that the regulations imposed by the bill would be unnecessary and unduly restrictive.

The establishment clause requires that the additional regulation must avoid excessive governmental entanglement with religion.” (Committee for Public Education and Religious Liberty v. Nyquist)

In Surinach v. Pesquera de Busquets, the First Circuit stated:

“In the sensitive area of First Amendment religious freedoms, the burden is upon the state to show that implementation of a regulatory scheme will not ultimately infringe upon and entangle it in the affairs of a religion to an extent to which the Constitution will not countenance.”

The bill before you is just such an infringement. We do not agree with the sponsors that this regulatory scheme is the least restrictive means to achieve a legislative goal. It is instead an overly-burdensome regulation on religious schools. For these reasons we urge you to vote “inexpedient to legislate” on HB 1432.

(testimony presented by Ann Marie Banfield, Cornerstone Education Liaison)