Why the definition of “private schools” matters for education choice

• H.B. 467 Utah Fits All Scholarship Program Modifications sparked a conversation about the definitions and regulations of private schools in state law.
• Utah should pause before creating a restrictive definition of private schools in law and instead find ways to leave its education choice program definitions open for innovation.

Utah’s recently concluded legislative session sparked debate about the definition of “private schools” in state law.

H.B. 467 Utah Fits All Scholarship Program Modifications went through several versions or substitutions (called “subs”) as lawmakers and interested stakeholders worked through issues, including the definition of “private school.”

How we define words in law matters and has downstream effects on other policies.

Lawmakers should thoroughly study the impacts of changing this definition before making any future changes.  

What is Utah’s definition of a private school for the Utah Fits All Scholarship?

Prior to the passage of HB 467, Utah code defined a private school as “a full-time, tuition-bearing educational institution where the student receives the majority of the student’s academic instruction.”

After its passage, there is now language that says a private school “does not include: an entity that distributes, rebates, or passes through to families any portion of enrollment-based funding received by an LEA; shares common ownership, management, officers, or directors with an entity described in Subsection (15)(b)(i); or is structured to circumvent Subsections (15)(b)(i) or (ii).”

This addition is aimed at preventing misuse of scholarship funds, which is an appropriate goal. But changing the definition of a private school can affect both education entrepreneurs and families in the education choice space, which is why it ought to be done carefully.

Utah lawmakers proposed and weeded out several other provisions in the private school definition this session. For example, earlier language included language that a private school provides “a student’s primary educational setting,” “delivers a comprehensive curriculum across core academic subjects,” “maintains daily instructional schedules and provides consistent oversight of student learning,” “requires regular in-person attendance at a physical location,” “functions as the primary sources of education for enrolled students rather than as a supplementary or part-time services,” “is not primarily an online or virtual school.”

Other legislative language ultimately not adopted included a requirement for schools to be accredited, through the novel creation of an “Accreditation Work Group,” which would approve a list of accrediting organizations to perform that work. Another unsuccessful proposal would have added to the definition that a private school “holds current accreditation from, is an associate member of, has applied for candidacy with, or is actively working toward accreditation with [a list of different accrediting bodies].”

Many of these would create new restrictions that complicate the program for families. This is especially true of provisions that would have prohibited any online schools from being considered private schools within the scholarship program, or required accreditation, before being considered a private school within this section of code.

In the future, changes to the private school definition for the scholarship program should be made with careful consideration and caution, so as not to unduly restrict parents’ options, or not made at all.

Features of private school definition across the states

To explore this issue further, we analyzed how private schools are defined across the country. Unsurprisingly, most states have a definition of private schools (sometimes called nonpublic or independent schools) in their state codes.

Because state code is divided into sections (e.g., tax, education, or higher education), definitions may be specific to a given topic. Likewise, definitions are sometimes found in administrative rules, which have the force of law and are created pursuant to a statute that requires a more specific definition or set of regulations. Most states have requirements in their laws for private schools beyond their definitions, but this review focuses specifically on definitions.

In general, definitions of private schools across the states are fairly broad. Here are some interesting takeaways from reviewing state definitions of private schools that might be useful as policymakers continue to discuss how to define private schools.

Several states prohibit or limit state funding in their definition

Several states include a prohibition or clarification on government funding in their definitions. For example, Alaska, New Jersey, and Oklahoma prohibit private schools from receiving state funding. Colorado, South Carolina, and South Dakota say that these schools need to be primarily supported by funds other than public funds. An administrative rule in Utah says the same. Louisiana’s law has rules governing nonpublic schools’ receipt of state funds. Utah’s new definition is now unique in prohibiting rebates or funding pass-throughs within its private school definition.

Many laws clarify that private schools are established outside the public education system

Many states clarify that private schools are established, maintained, or overseen by entities other than the state or public school system. For example, Indiana, Michigan, Mississippi, New Hampshire, New Mexico, South Carolina, South Dakota, Texas, and Utah (in administrative rules) all defined private schools by their placement outside the state’s education establishment or agency. This doesn’t mean the state legislature can’t make laws regarding them, but they exist outside of the public education system.

Very few states build accreditation into the definition of a private school

Accreditation is built into some state definitions of private schools, like in Iowa and Tennessee, but notably very rarely. Still, several states require their private, or nonpublic, schools to be accredited somewhere in their law. Utah does not yet require accreditation for these private schools and should avoid doing so in the future, since accreditation can reduce the number of schools available to parents.

Conclusion

The fact that states generally define private schools broadly, including Utah, is a good thing for education choice policies. Other important issues or questions of regulation – such as misuse of funds or fairness – can be addressed elsewhere in law, but should still aim to create a policy landscape that offers private schools as much autonomy as possible. Utah’s approach to defining private schools for this program should maintain, or seek, a broad definition that allows for maximum future innovation.

Sutherland Institute policy intern Sydney Willis contributed research for this article.