Gathering Storm to Impact Private Schools by Unconstitutional Agreement by the Department of Education

In order to safeguard taxpayers’ stimulus money sent to bolster the nation’s education industry, the Obama administration announced a number of new rules. At least one of which could adversely affect private schools, and may very well prove unconstitutional.

On the third and final round of negotiations, on May 26th, 2010, attorney negotiators from several states responded to the section that dealt with validating high school diplomas to curtail the proliferation of diploma mills. These argued this was a federal issue because some of the commercial school management companies and private school systems transcend state borders.

This proposed regulation, FCR 668.16(p), would require institutions to develop and follow procedures to evaluate the validity of high school diplomas, if the institution or the Secretary has reason to believe that the diploma is not valid or was not obtained from an entity that provides secondary school education. If the legitimacy is questioned, that student’s request for federal aide would be referred back to the state for disposition. The state would then be required to validate the high school diploma as a condition of receiving Federal student aid.

In a compromise measure, the Dept of Ed’s negotiators agreed with state negotiators to create and maintain a list of schools they determine as valid. It is this list that stands as a possible violation of the U S constitution. The federal government is placing itself in the position of declaring private schools and home schools legitimate or not.

To begin the implementation of this agreement, the department agreed to add two questions to the FAFSA for the 2011-2012: (1) What is the name of the secondary school or entity that provided the student’s secondary school program of study? (2) What is the State that awarded the student’s high school diploma?

If the student does not provide the name of the secondary school, entity, or the State that issued the diploma, the Dept of Ed may select the student’s FAFSA for further review by the institution to determine if the student has a valid high school diploma before the student can receive any Title IV, HEA aid. Therefore, in cases where the student is selected for review because the Secretary questions the validity of his or her high school diploma (i.e., they are not on the list of valid schools), institutions are expected to determine the validity of the high school diploma.

Part of the concern is that most of the schools on the list will serve exclusively within the purview of a single state, thus the Dept of Ed has over-reached the application of the Constitution’s Article I, Section 8, Clause 3 on interstate commerce. It has become a regulatory body of an exclusively state -level private business.

The agreement would also impact religious schools. Opponents claim a branch of the federal government will become the arbiter of religion. They assert, if the Dept of Ed validates Episcopal and Catholic Schools, but rejects a Baptist or independent religious school, they are violating the First Amendment’s establishment clause.

Although the Dept of Ed may determine validity on what it determines as exclusively secular criteria; qualifications for graduation from private, religious schools are so closely entwined with their religious beliefs, that violations are bound to occur. For example, a school may require Bible coursework to graduate in place of World Literature. If the state or federal governments deny the school from being on the validated list because they do not have the requisite kind of literature courses, they have violated the school’s first amendment rights.