NAIS - Independence Under Fire

Independent schools educate only a tiny fraction of the school-age population (slightly over 1 percent of the entire school-age population, 10 percent of the 10 percent of kids who go to private schools). The essential distinction between independent schools and other private schools is independence itself, essentially independence in governance and in finance: i.e., independent schools own, govern, and finance themselves, as opposed to government (public) and other private schools (parochial/diocesan) where the state or the church owns, governs, and finances the school. The National Association of Independent Schools (NAIS) believes that the very success of its member schools and their unique contributions to the mix of American precollegiate education are related to the freedoms that derive from independence.

The Roots of Independence

In 1819, the Dartmouth College case declared that state charters establishing private schools and colleges were essentially inviolate. Charters, said the U.S. Supreme Court, were contracts, protected by the Constitution, and could not be unilaterally dissolved by the state. Thus, the independence and freedom of action of our schools were guaranteed. One hundred and six years later, in July, 1925, an equally important case was decided by the Supreme Court, when the Society of Sisters of the Holy Names and the Hill Military Academy brought suit against Walter Pierce, the Governor of the State of Oregon, known as Pierce v. the Society of SistersIn November, 1922, in a wave of anti-Catholic sentiment, the voters of Oregon had adopted, through initiative, the Compulsory Education Act of 1922, which required every parent or guardian to send children between 8 and 16 years of age to a local public school. Failure to do so constituted a misdemeanor punishable by fines and/or imprisonment. In a now famous ruling, Justice McReynolds delivered the opinion of the Court: "We think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.... The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." The Court also held that enforcement of the Compulsory Education Act would do irreparable harm to the business and property of private schools. Thus, it was declared null and void. While Dartmouth established the right of private institutions to exist in perpetuity, Pierce asserted the right of parents to choose the educational setting for their children. State power was curbed by forbidding the erection of a monolithic educational system that all must attend. Upon these two critical decisions rests most of the constitutional protection private schools still enjoy.¹

A Definition of Independence

Independent schools within the NAIS membership share certain fundamental characteristics of purpose, structure, and operation — such characteristics being the defining factors of their independence. NAIS-member schools are "independent" in that they have....

Independent incorporation as not-for-profit institutions with clearly stated educational goals and non-discriminatory policies in admissions and employment. ¥ Individually developed missions and philosophies, which in turn become the basis for the schools' programs.
Self-perpetuating boards of trustees whose roles are to plan for the future, set overall policy, finance the school (largely through setting tuition and generating charitable giving), and appoint and evaluate the head of school.
Administrations free to implement the missions of the schools by designing and articulating their curriculum, by hiring and developing capable and qualified faculty, and by admitting those students whom the school determines it can best serve.
A commitment to continuous institutional growth and quality manifested by participation in the rigorous and comprehensive evaluation and accreditation process of state or regional accrediting bodies (whose accrediting processes are recognized and endorsed by NAIS).

The Four Fundamental Freedoms that Independence Grants

Independence, in terms of governance and finance, affords independent schools four fundamental freedoms:

To define the school's mission without dictates from the government or diocese.
To admit and retain just those students the mission indicates the school should serve, since enrollment in independent schools is a privilege, not a right. ¥ To hire faculty based on the school's own criteria for excellence, as opposed to state or union stipulations regarding education degrees or certification.
To articulate a curriculum and program as an individual school sees fit, without being tied by the state (or any other outside agency) to a particular program, set of texts, or achievement assessment instruments.

The freedom and accountability embodied within these concepts of the independent school are the source of the schools' greatest strengths and their most important contribution as a model for education.

Threats to Independence

At NAIS, we believe that the organization must assume a higher profile in protecting the above freedoms because the schools' independence is under increasing threats from governmental intrusion and from constituencies unfamiliar with or unsupportive of the principles of independent school governance. These threats are increasingly manifest in a more intrusive stance taken by the states and by the "boundary-crossings" of various constituencies within independent schools.

To wit, governmental incursions....

In Ohio, mandated state proficiency testing of students of all public and private schools, despite the independent schools' strong protests that the testing they already do is more appropriate and more rigorous than that of the state, and that taking a week to prepare for and administer the state tests is constitutionally improper and educationally counterproductive.
New York legislation dictating that all public and private schools must teach a unit on the "true causes of the Irish potato famine," opining, when challenged, that legislators are particularly well-situated to offer curricular guidance.
The Kansas Board of Education's mandate that all public schools must now teach "intelligent design." (Fortunately, a federal court judge in Pennsylvania ruled that it was unconstitutional for a local school district to require the presentation of intelligent design as an alternative to evolution in science classes.)
The Iowa State Department of Education's attempt to close down the single-sex middle school classes in math and science at a coeducational NAIS-member day school, arguing that the school's decision to structure part of its program by separate gender is in violation of state law.
A Pennsylvania locality's attempt to collect millions of dollars in real estate taxes from an independent school, arguing that, since it was historically an all-boys school, its status was a violation of the state constitution's prohibition against discrimination, thus voiding the school's tax-exempt status.

NAIS believes that we will increasingly need to call upon independent school family members with influence in state legislatures and local town or city councils to vigorously protest such unacceptable interference with the freedoms we cherish, to teach as we see fit. We know that, increasingly, we will have to secure funds to litigate against such incursions, to protect the very freedoms that make us strong.

As voucher experiments proliferate, especially when there are significant dollars on the table ($7,500, for example, in the case of the Washington, DC Voucher Initiative promoted and funded by the federal government), schools will have to consider carefully whether the money (and the increased access to the school it brings for lower- and middle-income families) is ultimately worth the potential risk that the government will regulate away the freedoms that make the school strong in the first place. As the old saying goes, "He who sups with the devil should bring a long spoon."

And boundary-crossings...
We also know that NAIS must take on more governance training to mitigate the dangers from our own internal constituencies who, in some cases, do not understand or appreciate the various roles and boundaries of governance in our independence model. We are increasingly confounded by....

Board members who attempt to micromanage day-to-day operations or intervene in school decisions, not understanding their role to be strategic rather than operational.
Parents who see themselves as "stockholders" rather than "stakeholders," attempting to expropriate and influence institutional decision-making in inappropriate ways.
Faculty and administrators who fail to remember that parents are partners with the school, with valuable knowledge about their own kids and strong opinions, often, about the agenda of schools.

We believe NAIS will increasingly need to educate the board, head, faculty, and parents about their separate "job descriptions." These constituents need to understand the proper boundaries and respect them — to know the difference between appropriate challenges or criticism and inappropriate crossings of the line. Ultimately, they need to learn the appropriate ways to partner for a common goal: excellent schools graduating successful students.

Ironically and providentially, it is the very threat to this core value, independence, that has motivated schools to collaborate with NAIS and each other increasingly over recent years, manifesting a complementary core value, interdependence. Without both, we are lost.

Note

1. Frederick C. Calder, NYSAIS Bulletin, #226, March 23, 1998.