NON-STATE ACTORS IN EDUCATION
2.2 Non-state education provision
3.1 Regulations by distinct levels of education
- Early childhood care and education (Entry/Establishment ○ Financial operation ○ Quality of teaching and learning ○ Equitable access ○ Quality assurance, monitoring and accountability)
- Primary and secondary education
- Tertiary education (Entry/Establishment ○ Financial operation ○ Quality of teaching and learning ○ Equitable access ○ Quality assurance, monitoring and accountability)
3.3 Supplementary private tutoring
The profile takes examples from 10 states in the United States (US), namely: Alabama (AL), California (CA), Florida (FL), Illinois (IL), Kansas (KS), Kentucky (KY), Massachusetts (MA), New York (NY), Texas (TX), and Utah (UT) for analysing the non-state sector in education. The states were selected according to population size and ratio of public, charter, and private schools.
The Elementary and Secondary Education Act of 1965 (as amended by the Every Student Succeeds Act) is the national education law for kindergarten to grade 12 (K12) in the US. The law generally distinguishes between “public schools” (state schools) and “non-public schools” (non-state schools), the latter of which include private schools, religious schools, and home schools. Private schools and religious schools are understood to be owned and operated by an “individual, association, agency, organization, or other entity”. The public school system includes traditional public schools, magnet schools, and charter schools.
At the higher education level, the Code of Federal Regulations defines an institution of higher education as a “public or private non-profit educational institution”. A non-profit institution is an institution that is “owned and operated by one of more nonprofit corporations or associations, no part of the net earnings of which benefits any private shareholder or individual; and is legally authorized to operate as a nonprofit organization by each State in which it is physically located”.
2. Typology of provision
2.1 State education provision
Most education (75% of all schools, 90% of enrolments) in the US is provided by state schools (public schools) at kindergarten, primary (elementary), and secondary education levels. Many states include kindergarten within their primary and compulsory education. Each state has its own free and compulsory education law. Depending on the state, students are required to attend school for as few as 9 years and up to 13 years. In most states, free education is offered from the age of 5 up to the age of 21. See the Compulsory school attendance laws, minimum and maximum age limits for required free education, by state: 2017 or the 50-State Comparison: Free and Compulsory School Age Requirements for more information on free and compulsory education laws in each state.
While the settings vary by state, public schools can mainly be categorized into (1) traditional public schools, (2) magnet schools, and (3) charter schools. Traditional public schools are often established and managed by local school districts and funded by local taxpayers with support from federal and state grants.
Magnet schools are a type of public school (officially included within the “traditional public school” category) that is designed to attract students from different backgrounds by focusing on specific subjects or themes (such as performing arts or science). They are typically established and operated by school districts, a group of districts or a state. They are under the same administration and school board as traditional public schools and subject to the same laws and standards. They are prohibited from operating for-profit and are free of cost to attend for students. Magnet schools were initially developed to help districts voluntarily reduce racial isolation by attracting students of different racial and ethnic backgrounds from different areas of a region to a specialized program or school. According to the Elementary and Secondary Education Act of 1965, “magnet schools are a significant part of the Nation’s effort to achieve voluntary desegregation in our Nation’s schools” and are often referred to (along with charter schools) as part of public school “choice”. Each school typically focuses on individually themed curricula, which include Science, Technology, Engineering, and Mathematics (STEM), Fine and Performing Arts, International Baccalaureate, International Studies, Career and Technical Education, and World Languages (immersion and non-immersion). They attract students of various socioeconomic backgrounds, ethnicities, and academic achievement levels and often collaborate with companies, cultural institutions, universities, and community organizations to create a vibrant learning environment with hand on practices. Due to high demand, most magnet schools determine student acceptance by a lottery system.
In academic year 2017/18, there were approximately 98,500 public schools in the US, consisting of about 91,300 traditional public schools (including magnet schools) and 7,200 public charter schools. 93% of all public schools were traditional public schools, while 70% of all schools (public, public charter, and private) were traditional public schools. Approximately 50.7 million students were enrolled in public schools in 2018, accounting for 90% of total enrolments. Between the academic years 1999/2000 and 2017/18, the percentage of all public schools that were traditional public schools decreased from 98% to 93%, while the percentage of charter schools increased from 2% to 7%.
Non-state managed, state schools
Charter schools are semi-autonomous public schools that are owned and funded by the state, but managed by non-state actors, such as non-profit or for-profit organizations, parents, and community groups. They are primarily funded by per-student allocations from the chartering agency (usually the public school district) equal to the per-student allocations made to public schools. Depending on the charter school law of the state, charter schools can operate either as for-profit or non-profit entities. They don’t charge fees for tuition and are generally subject to open enrollment, nondiscriminatory, and nonsectarian educational policies. Charter schools operate under a written contract (or charter) with an authorizer which exempts the school from most state laws and regulations affecting traditional public schools in exchange for increased accountability and meeting specific educational outcomes. Authorizers are organizations that provide charter school oversight and can include local school boards, state chartering boards, private entities, and higher education institutions. The charter details how the school will be organized and managed, what students are expected to achieve, and how success will be measured. While charter schools are considered to be part of the public school system, state law often exempts them from adherence to state requirements, with the degree of independence depending on each state. State charter school laws and policies tend to vary widely, with differences in the number of schools that can be established and their degree of autonomy. Requirements for charter school applicants, teachers and accountability criteria also vary from state to state. The first law allowing for the establishment of public charter schools in the US was passed in Minnesota in 1991. This system has proliferated across the country to the extent that most states have established a charter school law. As of 2020, charter school legislation had been passed in 44 states and the District of Columbia. School districts, namely New Orleans in Louisiana, utilized charter schools to promote public school innovation and reform following the impact of Hurricane Katrina. The states in which public charter school legislation has not been passed are Montana, Nebraska, North Dakota, South Dakota, Vermont, and West Virginia.
In 2018, approximately 7% of all public schools were charter schools, accounting for 5% of all schools in the US. Between 2000 – 2018, the percentage of charter schools increased from 2% to 7%, with enrolments nearly doubling from 1.6 million students in 2009 (3%) to 3.3 million students in 2018 (7%). Out of the 45 jurisdictions that allow for charter schools to be established, the District of Colombia had the highest percentage of public school students enrolled in charter schools (45%). The state with the highest percentage in charter school enrolments was Arizona (18%), with an additional 8 states having 10% or more public school students enrolled in charter schools (California, Colorado, Delaware, Florida, Louisiana, Michigan, Nevada, and Utah). In Alabama, Iowa, Kansas, Kentucky, Mississippi, Virginia, Washington, and Wyoming, less than 1% of public school students were enrolled in charter schools.
There are also virtual charter schools, also known as cyber charters. These are public schools that function under the same state rules and regulations as traditional charter schools but deliver all of their courses online.
Non-state funded, state schools
Information not found.
2.2 Non-state education provision
Independent, non-state schools
Private schools are established, owned, and operated by an individual or organization other than a government entity and are not primarily supported by public funds. They mainly receive funding from non-public sources, such as tuition payments and other private sources, such as foundations, religious bodies, alumni, or private donors. However, the federal grant system includes private schools within the nation-wide educational equity and quality law (see Multi-level regulations below). Most private schools in the US are religious schools, with many affiliated with a religious faith, denomination, or local church. Private schools without a religious identity or affiliation, (referred to as nonsectarian schools) are designed to prepare students for college (preparatory schools), while others are based on a particular educational philosophy or learning approach (such as Waldorf or Montessori schools), have a special needs focus, or have a subject specialty (such as science and technology or the arts).
In 2018, there were approximately 32,500 private schools in the US that had enrolled about 5.7 million students, with private schools accounting for 25% of all schools and 10% of total enrolments in the country. This number includes schools with pre-kindergarten and kindergarten level. According to the Results from the 2019/20 Private School Universe Survey conducted by the National Center for Education Statistics (NCES) of the US Department of Education, private schools (including kindergartens) are mainly categorized into (1) Catholic schools (21% of private schools, 37.5% of private school enrolment), (2) other religious schools (45% of private schools, 39% of private school enrolment), and (3) nonsectarian (non-religious) schools (34% of private schools, 24% of private school enrolment). Catholic schools include parochial (7% of Catholic schools; 11% of enrolment), diocesan (10% of Catholic schools; 18% of enrolment), and private schools (4% Catholic schools; 9% enrolment). Other religious schools include conservative Christian (12% of other religious schools; 13% enrolment), other affiliated (10% of other religious schools; 12% enrolment), and unaffiliated schools (23% of other religious schools; 14% of enrolment). Finally, nonsectarian schools include regular (16% of nonsectarian schools and enrolment), special emphasis (11% of nonsectarian schools; 5% of enrolment), and special education schools (6% of nonsectarian schools, 3% of enrolment). Most private schools (62%) operate at elementary/middle level, accounting for 43% of total private school enrolments. See Table C-2 for the percentage of different religious orientations (including, among others, Roman Catholic, African Methodist Episcopal, Amish, Baptist, Calvinist, Christian, Greek Orthodox, Islamic, and Jewish schools).
When comparing private school numbers and enrolments between different states, California had the highest number of private schools in 2020, followed by Florida and Pennsylvania. The same applies for enrolment, although New York had the third highest enrolment rates in private schools. Alaska had the lowest number of private schools, followed by North Dakota and the District of Colombia.
State-funded (government-aided), non-state schools
Private schools may be offered federal grants and tax exemptions, but this is not their primary source of funding (see Multi-level regulations).
Contracted, non-state schools
No information was found.
2.3 Other types of schools
Homeschooling has been legal in all 50 states since 1993, with different homeschooling laws depending on each state. Students are considered to be homeschooled if their parents report them being schooled at home instead of at a public or private school, if their enrollment in public or private schools does not exceed 25 hours week, and if they are not being homeschooled due to a temporary illness. Homeschooled students include children aged 5-17 with grades equivalent to kindergarten through grade 12. Parents cite several primary motivations for selecting homeschooling for their children. These include, among others, concerns about the environment of other schools (including safety, drugs, and negative peer pressure); religious and moral beliefs; and dissatisfaction with academic instruction at other schools. Parents or tutors may teach homeschooled children in their home, or through virtual online programs. Educational materials are prepared by parents or use ones produced by companies specialized for homeschooling. Accountability for homeschooling is coordinated with the state in which the family resides. To start homeschooling, most state policies require applications either to the state or the school district by meeting the respective conditions.
Homeschooling can include home study (a complete academic curriculum course in the home), private instruction (instruction provided on a regular basis based on a recognized or accredited program of study), or virtual schooling (either synchronous or asynchronous instructional delivery). The Department of State may provide education allowances to assist employees in defraying the costs necessary to obtain educational services (grades K-12) that would normally be free of charge in the US. There is a separate education allowance for children with special needs under the Individuals with Disabilities Education Improvement Act (IDEIA).
Following the enactment of the Coronavirus Aid, Relief and Economic Security Act (CARES), distance learning, remote learning, hybrid learning, and virtual schools were mandated at different phases and spread rapidly. With the COVID-19 pandemic, many families turned to private schools and to home learning. The National Association of Independent Schools mention an increase of 58% of its schools from the previous year despite costs of $50,000. Families also started creating what came to be known as “pandemic pods”, where small groups of students gathered outside formal school settings for in-person instruction. According to a poll conducted by the National Federation of Children at the end of May 2020, 40% of families reported more likely to homeschool or enroll their children in a virtual school after the pandemic, while 23% of parents who were not homeschooling before the pandemic that they are “very likely” to do so after the lockdown.
The numbers reflect this growing trend clearly. The percentage of students who were homeschooled has been increasing rapidly, particularly following the outbreak of COVID-19 in 2020. From 1999 to 2016, the percentage of students who were homeschooled increased from 1.7% to 3.3%. During the outset of the pandemic in spring 2020 (April/May), the percentage had grown to 5.4% and rapidly increased to 11% in the fall (September/October). The change represents an increase of 5.6% percentage points and a doubling of US households that were homeschooling at the start of 2020/21 compared to the previous year. In 2021, rates of homeschooling nationwide had peaked to 19.5%. Consequently, in just one year’s time, the percentage of homeschooled households more than tripled. Some states witnessed much larger increases in homeschooling rates for the 2020/21 academic year. For example, Massachusetts jumped from 1.5% to 12%. Similar trends were reported in Alabama (5 – 12%), Florida (5 – 18%), Kansas (2 – 10%), New York (1 – 10%), Texas (4.5 – 12%), and Utah (6 – 11%). Other states did not report an increase, with California remaining at 8% and Kentucky decreasing from 7.7 – 6.5%.
Market contracted (Voucher schools)
Vouchers are part of what tends to be referred to as private school “choice” in the US. They are state-funded scholarships that allow students to attend a private school instead of a public school through state funds. The state provides parents or schools a certain amount of money (the amount of which depends on each state) that is typically based on the state’s per-student amount. State policy determines whether to allow or restrict the participation of religiously-affiliated schools in voucher programs. Many state voucher programs are specifically designed for students with documented disabilities of who meet certain household income guidelines, with states typically requiring participating schools to adhere to certain provisions (such as accreditation or teacher certification).
The first voucher program was started in Milwaukee (Milwaukee Parental Choice Program) in 1989, with students beginning to attend private schools under the program in 1990/91. Since then, the number of voucher programs has increased. There are currently 25 voucher programs in 14 states and the District of Colombia, including 2 “town tuitioning” programs in Maine and Vermont. When creating voucher programs, states typically create provisions around eligibility, accountability and funding.
In many states (including Illinois, Kentucky, New York, Texas, and Utah), private schools, religious schools, and/or boarding schools are not required by law to be recognized, accredited or registered by any state or federal agency, with many schools operating unregistered from the state. For more information, see Entry/Establishment in Multi-level regulations.
3. Governance and regulations
The United States (US) has a large, decentralized education system that is primarily governed and regulated by states and local districts. The federal government has a very limited role in administering education at any level. The US Department of Education administers federal level policies and laws which mainly operate federal financial assistance programs. The Department of Education does not have jurisdiction over private primary and secondary schools unless they are direct recipients of federal financial assistance from the Department; nor does the Department have jurisdiction over home schools. The regulation of private and home schools is primarily the responsibility of state and local governments. The Department of Education Organization Act expressly prohibits the Department from exercising “any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system…except to the extent authorized by law.”. Historically, education has been led by the local initiatives from the 17th centuries and the Tenth Amendment (1791) of the US Constitution (1787) reserve education to states and people’s control.
At primary and secondary education levels, state policies and regulations are determined by a State Board of Education (SBE) and carried out by a State Department of Education (SDE). Private kindergartens are governed and regulated similar to private schools, while the governance of early childhood care and education (ECCE) under the age of 5 varies according to state, with multiple agencies overseeing several programs (such as childcare, pre-kindergarten, preschools, and more). Across the country, these services are housed in a collection of agencies, including the departments of education, children and families, health/public health, human/social services, economic/workforce, developmental/rehabilitation, welfare, nonprofit organizations, postsecondary entities, and myriad consolidated and newly created agencies. These generally fall under three main categories: agencies created by the state to oversee ECCE components, agencies or programs consolidated by the state into one entity, or the state coordination of various agencies that provide programs and services. See the 50-State Comparison: Early Care and Education Governance for more information on each state. For tertiary education, states have their own rules and establish specialized agencies, while some are governed by the SBE. The members of the SBE are appointed by the legislator or governor, or popularly elected, and the Chief State School Officer (the title varies with the state) who leads the SDE are mostly appointed by the SBE or governor, while some are directly appointed by the people.
Each state is divided into local administrative districts called school districts with extensive authority and responsibility to establish and regulate public schools. Most states also give school districts considerable authority on non-state education, such as authorizing charter schools and private schools, and budget distribution. School districts are governed by a board of education (or called local school boards) whose members are generally elected by the citizens, while some are appointed by government officials. The board of education selects and hires the district superintendent who is responsible for implementing policies and managing daily operations.
Though the Department of Education does not have a direct office to administrate non-state education, the Office of Non-Public Education (ONPE) serves as a liaison to the non-state primary and secondary school community by representing the Department and supporting their community. States may also have distinct departments responsible for non-state education, such as the New York State Office of Religious and Independent Schools (SORIS) or the North Carolina Division of Non-Public Education.
Vision: Across the US, an evolving “school choice” landscape reflects changes in the accessibility and desirability of a variety of education options, including traditional public schools, magnet schools, charter schools, private schools, and homeschooling. There are generally two categories of school choice programs: public and private. Charter schools (like magnet schools) are considered “public schools of choice”, whereas the public funding of education options in the private sector through vouchers, education saving accounts and scholarship tax credits is referred to as “private choice”. State policies have been increasingly adopting more “choice” policies (which critics tend to view as the “privatization of education in the US”), namely the implementation of voucher systems and charter schools. Following the outbreak of the COVID-19 pandemic, the education choice movement was further expanded through what supporters were calling “empowering parents” and the “year of school choice”, by increasing number of families moving to homeschooling, and more states adopting school choice programs. In 2021/21, 16 states passed bills to “fund students instead of systems”. For example, New Hampshire became the fifth state within the year to pass a new Education Savings Account (ESA) program, while additionally expanding voucher programs and tax-credit scholarship programs. States such as Arkansas, Florida, Indiana, Kansas, Montana, and South Dakota created or expanded tax-credit scholarship programs, while Georgia, Florida, Arkansas, Indiana, and Maryland expanded existing voucher programs. In Pennsylvania, lawmakers approved a $40 million infusion to provide an additional 13,000 scholarships for students seeking a private education.
3.1 Regulations by distinct levels of education
Early childhood care and education (ECCE) in the US comes in a variety of forms, including day care, nursery school, preschool, pre-kindergarten (pre-K), and kindergarten. The age groups covered in each of these categories vary according to state, with kindergarten generally considered to cover ages 5-6 (before entry into primary school) and the rest mainly catering to ages below 5. “Early learning” is generally considered to cover birth through third grade. In many states, kindergarten is regulated similar to private schools, while others explicitly include preschool/pre-kindergarten in their private school laws. According to the National Center for Education Statistics, most of the states require school districts to offer a full-day or half-day kindergarten program from age 5, with some states including kindergarten in compulsory education. The National Center for Education Statistics considers kindergarten and preschool as part of “formal schooling”. See Multi-level regulations for information on kindergartens and (some) preschools.
Half of 3 to 4 years old attend preschool or kindergarten, with just over half (57%) enrolled in publicly controlled institutions. At kindergarten level, the large majority (87%) of 5-year-olds attend public preschool or kindergarten, with high public enrollment continuing in primary and secondary education. In 2020, 35% of 3-year olds and 19% of 4-year olds were enrolled in private ECCE.
Registration and approval: The registration and licensing of centre-based care and family childcare homes is regulated at the state level, with each state establishing the minimum standards necessary to protect the health and safety of children in care. Each state has their own definition of “child care”, and usually requires any service that falls within that definition to be licensed with the relevant state department, with certain listed exceptions. State licensing requirements are regulatory requirements, which include registration or certification requirements established under state law which are necessary for providers to legally operate and provide childcare services. While the federal government does not establish legal minimum standards for registration and/or licensing, there are various federal guidance documents that states are encouraged to adopt. This includes the Caring for Our Children Basics: Health and Safety Foundations for Early Care and Education 2015, which summarizes federal guidance on minimum health and safety standards across child care and pre-K programs. This is not a federal requirement, but “represents the minimum health and safety standards experts believe should be in place where children are cared for outside of their homes” and includes child-staff ratios, infrastructure standards, and health and safety standards. The National Health and Safety Performance Standards: Guidelines for Early Care and Education Programs represents a collection of national standard guidelines.
At the state level, there are specific regulatory requirements for natural or legal persons to establish ECCE services. See the National Database on Childcare Licensing Regulations for state information about childcare licensing regulations, agency policies, and requirements for licensed childcare centers, family childcare homes, and group childcare homes for all 50 states.
In Alabama, child day care centers can legally operate as “licensed” or “license exempt” entities. Preschool programs that are part of a local church ministry or religious nonprofit primary school (and are recognized in the church or school’s documents) are exempt from being licensed by the State Department of Human Resources. All centers that require a license must be licensed by the Department of Human Resources, which prescribes specific performance standards for licensing approval. Services are specifically required to meet the Minimum Standards for Day Care Centres and Nighttime Centres: Regulations and Procedures 2019 and the regulations for Day Care for Children, which include standards on infrastructure, staffing, administration, and staff-child ratios. The regulations cover day care, nursery schools, and kindergartens. California requires childcare facilities enrolling children younger than age 4 years and 9 months to be licensed by the Department of Social Services, Community Care Licensing Division. Services are subject to the California Child Day Care Act 2020 and the Child Care Centre General Licensing Requirements 2019, that ensures that child care facilities operate in accordance the state’s health and safety code and meet the required infrastructure, operation, and staffing standards. There are also child-care center staffing ratios set for preschool, infants, toddlers, and school-age children. In Florida, licensing requirements are included in the Child Care Facility Handbook 2019 and Florida Statutes, with any child care program meeting the statutory definition of “child care” required by law to be licensed. Requirements similarly include general infrastructure standards, staff-child ratios according to age, and health, safety, and sanitation standards. Illinois mandates day care services to meet standards in health, safety and infrastructure in the Licensing Standards for Day Care Centres and Child Care Act under the Department of Children and Family Services. In Kansas, eligible ECCE services below kindergarten are required to apply for a license with the Department of Health and Environment, subject to the Kansas Laws and Regulations for Licensing Preschools and Child Care Centers 2020, Child Care Licensing Laws 2019, and Regulations for Licensing School Age Programs 2019. Minimum standards include site approval, health and sanitation requirements, child-staff ratios, and infrastructure standards. Kentucky regulates providers through the Child Care Center Licensure 2020, Child Care Facility Health and Safety Standards 2018, and Kentucky Preschool Regulations, which similarly include staff-child ratios, group size, and health and safety standards eligible services are legally subject to. In Massachusetts, childcare centers known as day nurseries, nursery schools, kindergartens, day care centers, and preschools are required to be licensed by the Department of Early Education and Care, subject to the Early Childhood Program Standards for 3 and 4 Year Olds and ECCE Licensing Regulations. In New York, the Office of Children and Family Services licenses child care centers through various Child Care Regulations and Policies, while nursery schools and kindergartens fall under the Office of Early Learning (New York State Education Department). Childcare centres in Texas are licensed by the Texas Health and Human Services Commission, subject to the Minimum Standards for Child-Care Centres 2021, which include standards in classroom ratios, staffing requirements, group size, health and safety, and infrastructure. Moreover, the Texas Prekindergarten Guidelines 2015 guide prekindergarten providers. In Utah, the Utah Child Care Licensing Act 2019 regulates childcare services, which are under the jurisdiction of the Department of Health.
License: The licensing of eligible ECCE services by the responsible state departments is a legal requirement for states for services falling under their definitions of “childcare” that requires licensing. Information on licensing can be found in the section above (Registration and approval), as it is considered a form of registration in most states. Licenses are usually subject to renewal within a specified timeframe and, in some states (such as California and Utah), licensing fees.
Profit-making: Profit-making in non-state ECCE services under the age of 5 is not regulated at the federal or state level, allowing services to be established as for-profit entities. While most states do not refer to profit-making in their regulations, in its definition of a “child-care facility”, Texas explicitly includes establishments regardless of “whether or not the establishment operates for profit or charges for its services”.
Taxes and subsidies: The federal government has various grant programs that support both state and non-state ECCE services, with evidence on the use of federal grants to support private provider programs, teachers, and promoting public-private partnerships from birth to third grade. Moreover, local education agencies that receive federal funds to provide equitable services to private primary and secondary schools (see Multi-level regulations) may also be directly funding private preschools and kindergartens, which are considered a part of primary education in several states. Some key federal investments in early learning include the Preschool Development Grant—Birth through Five (PDG B-5), which aims to “facilitate collaboration and coordination among early childhood care and education programs serving children from birth to age five in a mixed delivery system”, the Early Intervention for Infants and Toddlers with Disabilities, and the Preschool Grants for Children with Disabilities. In 2018, several non-state actors benefitted from the Preschool Development Grant, including community-based services (10%), private schools (3%), charter schools (2%), and faith-based private schools (1%). Public schools received the majority of preschool development grants, accounting for 73% of the total number of supported programs.
At the state level, many states have established various state-funded ECCE programs that fund providers (including public, private, community and faith-based services) to establish and/or operate ECCE under certain conditions. According to National Institute for Early Education (NIEE), at least 29 states allow for private providers to receive funding directly from the state for preschool and pre-kindergarten services. Moreover, at least 34 states allow for school districts or schools to subcontract with private providers for preschool-kindergarten services. In Alabama, the First-Class Pre-K Program is a voluntary grant program administered by the Office of School Readiness that fully funds preschool education for all 4-year-old children in a variety of settings including state schools, private centers, community organizations, and faith-based centers. State-funded providers are subject to additional minimum standards and operating guidelines which are outlined in the First Class Pre-K Guidelines, including staffing, accountability, program, and maximum class size. California’s State Preschool Program (which provides part- and full-day preschool to 3- and 4-year-olds) awards funding to a variety of providers through a competitive application process. Recipients include school districts, and private and faith-based agencies, while families are prioritized for full-day services if they have established at least one of the following: employment/seeking employment, education or vocational training, homelessness, or parental incapacity. In Illinois, the Preschool for All program similarly awards funding to state schools, private childcare services and faith-based centers on a competitive basis, with funded providers subject to the Preschool for All/Preschool Expansion Compliance Checklist. To be eligible for funded care, children must have at least two risk factors, such as low income, violence, abuse, history of family neglect, homelessness, exposure to drug or alcohol abuse in the family, or unstable housing. In Kentucky, state school districts may subcontract with private childcare centers and special education providers to offer preschool services under the Kentucky Preschool Partnership Grant. The program is “designed to incentivize cooperative public-private partnerships between public school districts and childcare providers to develop full-day, high-quality programs for at-risk children”. Massachusetts has launched a Universal Pre-Kindergarten initiative which serves children aged 2 years, 9 months to kindergarten age, with public schools, private childcare centers, family childcare, and faith-based centers all eligible to apply for the competitive grant program if they offer full-day services. Child eligibility is not based on income level, although programs must be willing to serve children from families at or below 85% of the state’s median income. In Utah, the Expanded Student Access to High Quality School Readiness (ESA) grant program provides grant funding to local education agencies and private providers with existing ECCE programs deemed high-quality. New York includes licensed day care centers operated by voluntary non-profit corporations or associations or private proprietary corporations/organizations or individuals within their “eligible providers” in receiving state funding to provide childcare services. However, private for-profit providers will only be eligible if they have been approved by the commissioner of the Office of Children and Family Services and “upon the demonstration by the social services district that conveniently accessible non-profit facilities are unavailable or unable to provide the required care”.
Quality of teaching and learning
Curriculum and education standards: Program and curriculum standards depend on state requirements, with state-funded providers usually subject to additional standards. In Alabama, the Minimum Standards for Day Care Centres and Nighttime Centres: Regulations and Procedures 2019 generally regulate childcare programs, while state-funded providers under the First Class Pre-K Program are specifically required to adopt a curriculum that incorporates early learning standards aligned to kindergarten content standards and Teaching Strategies GOLD objectives. California and Illinois mandate that state-funded providers have their curriculum approved and supported by the state department. Moreover, in Illinois, state-funded providers under the Preschool for All program are required to provide instruction in the children’s home language if there are 20 or more English Language Learners with the same home language enrolled in a program. Language of instruction is determined locally if there are fewer than 20 English Language Learners with the same home language. The Licensing Standards for Day Care Centers also includes general program requirements for all licensed centers in Illinois, with special requirements for infants and toddlers and others for school-age children. In Kansas, preschool programs must meet the minimum requirements in the Kansas Preschool Program Requirements, while all licensed preschools and childcare centers are required to have a written program plan which includes daily learning experiences appropriate to the developmental level of the children, as stipulated in the Kansas Laws and Regulations for Licensing Preschools and Child Care Centers 2020. Kentucky mandates childcare centers to provide a daily planned program under the Child Care Facility Health and Safety Standards 2018, while preschools are subject to the Preschool Education Program for Four (4) Year Old Children. State-funded providers under the Kentucky Preschool Program must have their curriculum approved by the state department. Massachusetts includes guidelines on curriculum and assessment within its Early Childhood Program Standards for 3 and 4 Year Olds, with programs required to demonstrate that they are using the Guidelines for Preschool Learning Experiences based on the Massachusetts Curriculum Frameworks. Moreover, there must be evidence that program activities support and engage children through specific learning experiences, while state-funded providers must similarly to other states have their curriculum approved. If a prekindergarten program is registered in New York, its curriculum must include specific subject areas such as communication skills, literature, dramatic play, creative art, music activities, group projects, discussions, games, science and mathematical experience, and physical education. In Texas, the Minimum Standards for Child-Care Centres 2021 dictate that licensed childcare centres must have an age-appropriate curriculum that is “developmentally consistent with the chronological age of the child being served”. While there is no state-required prekindergarten curriculum, the Texas Prekindergarten Guidelines 2015 provide services with voluntary guidelines. In Utah, similar to other state-funded services, providers under the ESA grant program must have their curriculum approved by the department of health and adopt a program that is aligned with the state learning standards.
Teaching profession: States are responsible for regulations regarding the teaching profession at ECCE level. At the federal level, the Caring for Our Children Basics: Health and Safety Foundations for Early Care and Education suggests that all caregivers/teachers and staff in ECCE settings undergo complete background screenings upon employment and once at least every 5 years after. There are also guides on pre-service training and orientation, first AID and CPR training, continuing education, and prohibitive caregiver/teacher behavior. However, these are not a federal requirement.
Each state has specific requirements for teacher certification, professional development, qualification, and training in their regulations. Alabama includes the minimum qualifications and in-service training of staff in both state and private settings in their Day Care Centre Regulations 2019. For state-funded providers under the First Class Pre-K program, each classroom is required to have a lead teacher with a minimum of a bachelor’s degree in an early childhood-related field. In 2015, Alabama additionally introduced legislature that establishes pay parity for all First Class Pre-K preschool teachers, regardless of their teaching settings (i.e., private and public schools and childcare centers). Preschool teachers must be paid salaries comparable to K-12 teachers as the impetus for its new policy. California regulates teacher qualifications for fully qualified teachers, fully qualified infant teachers and school age teachers for all providers in their Child Care Center Provider Requirements. Teachers employed in state-funded settings under the State Preschool Program are additionally required to have California Child Development Associate Teacher Permits, and can receive grants for professional learning. Moreover, they must receive teacher specialized training and staff professional development. In Florida, the Child Care Facility Handbook 2019 mandates introductory training, early literacy training, and annual in-service training for all child care staff, with the exception of those who meet certain educational qualifications/credentials. Licensed childcare facilities are required to have a minimum of one credentialed childcare personnel for every 20 children, while screening must be conducted as a condition of employment. Teachers employed in Preschool for All programs must all be qualified with a BA, have specialized training, and undergo staff professional development. In Kansas, staff requirements for licensed preschools and childcare centers include staff qualifications, education requirements, dedicated health and safety training, and first AID and CPR certifications. Childcare centers and preschools are required to have qualified staff at all times when children are in care, with qualifications based on the number of children in care. Kentucky similarly regulates the qualifications and credentials of childcare staff, while teachers that are part of the Kentucky Preschool Program must have a teacher qualification (BA), teacher specialized training, and staff professional development. In Massachusetts, childcare staff must meet the required qualifications set out in licensing regulations according to group size, with the Minimum Hiring Requirement Policies for Educators designed to support programs in determining prospective employees’ qualifications to work in a licensed ECCE group and school-age programs. For providers under the Universal Prekindergarten program, caregivers must meet specific qualifications (which are different for state and non-state services), in addition to receiving specialized training and professional development. Utah requires providers to ensure that employees and volunteers are sufficiently supervised, qualified and training, while Texas lists minimum qualifications for childcare centre employees. In New York, group teachers are similarly required to possess the minimum regulatory qualifications to oversee the needs and safety of children in a childcare centre or school-age childcare group.
Concerning working conditions, the National Institute for Early Education Research reports that while nearly all state-funded preschools and pre-kindergartens have equivalent requirements for public and private teachers, most states lack polices supporting compensation parity on their salaries and benefits. It is very rare to find them for private teachers and they are often paid less than public schools. In 2018, 21 states reported on having no policies to ensure comparable benefits with K-3 teachers. Among the states with policies in place, only Minnesota and Tennessee include state-funded preschool teachers in private settings for all reported benefits. Moreover, when collective bargaining policies are present, they only apply to preschool teachers in public schools.
Fee-setting: Fee-setting is not usually regulated for licensed providers that receive no funding from the state. In Illinois, regulations require licensed daycare centers to provide publicly written statements to parents on their fees, plans for payment, and policies regarding delinquent fees. Similarly, in Massachusetts, licensees must provide information on the program’s fee schedule to families, including any fees for late payment, late pick up, special materials, and field trips. However, there is no explicit regulation on fee-setting.
The majority of states allow for private providers to receive funding directly from the state for preschool and pre-kindergarten services and allow for school districts or schools to subcontract with private providers for preschool-kindergarten services. These may cover all or part of the tuition fees for preschool services for eligible children. In Alabama, the First-Class Pre-K program does not require parents to pay fees. However, programs may choose to request tuition based on the guidelines in the Sliding Fee Scale for the First Class Pre-K Program, which are based on family income and poverty level. If a program charges fees, it must clearly show how parental fees are reinvested back into the First-Class Pre-K classroom, while no child may be refused access to First Class based on inability to pay. Children under migrant or homeless funds have specific guidance on fees. In Kansas, contracted providers have their fees prescribed by the Board of Education. In California, the Payment for Child Care Services Regulations includes a maximum payment rate for funded providers. However, the client may choose a provider who charges a fee higher than the maximum payment rate, in which case the client is responsible for paying those additional childcare costs. In New York, families receiving state-funded childcare assistance must contribute towards the costs of childcare services by paying a family share that is based on the family’s income.
Admission selection and processes: The admission process of ECCE centers is regulated at the state level, with state-funding often determined by the type of children admitted in the service (see Policies for vulnerable groups). Illinois requires licensed daycare centers to provide parents with information on admission, enrollment, and discharge policies and procedures. Similarly, in New York, providers must give parents a written policy statement on the admission and disenrollment of children. In Kansas, licensed preschools and childcare centers are required to have an admission policy that is “non-discriminatory in regard to race, color, religion, national origin, ancestry, physical handicap, or sex”, with arrangements for the admission of children to be made prior to the admission date of the child to center or preschool.
Policies for vulnerable groups: The Child Care and Development Fund (CCDF), also known as the Child Care and Development Block Grant, was established in 1991 and reauthorized in 2014. Administered by the U.S. Department of Health and Human Services (HHS), the Fund supports the states’ effort to provide childcare services for low-income families. The fund can be used for state, private, religious, non-religious, and center or home-based care. Federal assistance for non-state ECCE services can also be provided through equitable services under the Elementary and Secondary Education Act of 1965 (as amended by the Every Student Succeeds Act) (see Multi-level regulations) to private primary schools that consider kindergarten to be part of primary education. The federal government has also published various guidance documents setting a vision of inclusion for states, local educational agencies, and state and private ECCE programs to “strengthen and increase the number of inclusive high-quality early childhood programs nationwide” and “assist them in making inclusive high-quality early childhood programs accessible for all young children with disabilities”. This includes the Promoting Inclusive High-Quality Early Childhood Programs 2017 and the Caring for Our Children Basics: Health and Safety Foundations for Early Care and Education.
Vulnerable groups may also be targeted through various state-funded programs that also apply to non-state services. For example, in Illinois, the Preschool for All program determines child eligibility based on whether the child has at least two risk factors, such as low income, history of family neglect, violence, or abuse, exposure to drug or alcohol abuse in the family, developmental delays, low parent education, and homelessness or unstable housing. Similarly, in California, families are prioritized for funded full-day services if they have established at least one of the following: employment/seeking employment, education or vocational training, homelessness, or parental incapacity. The Kentucky Preschool Partnership Grant aims to provide high-quality programs for “at-risk children”, while the public-private partnership program in Massachusetts aims to invest in ECCE for vulnerable families and increase access to quality preschool for high-need communities. The Universal Pre-K Kindergarten initiative in Massachusetts must be willing to serve children from families at or below 85% of the state’s median income. In Utah, eligible students for the state’s Expanded Student Access to High Quality School Readiness (ESA) grant program include children who are economically disadvantaged or whose parent or guardian has experienced at least one risk factor, or a student who is an English learner. In New York, childcare assistance is mainly provided to low-income families, as defined in the Social Services Law.
Quality assurance, monitoring and accountability
Reporting requirements: Record keeping and reporting requirements vary by state, with funded ECCE services often subject to additional reporting and accountability requirements for accountability purposes.
Inspection: There are different inspection requirements in each state for both state and non-state providers. Licensed childcare centers in California are subject to unannounced facility inspections, with state-funded providers receiving structured quality observations at least once a year. In Illinois, the buildings used for daycare centers are approved and inspected by the Illinois Department of Public Health and the Office of the State Fire Marshal. Similarly, in Massachusetts, childcare centre buildings are inspected by the Department of Public Safety or the local building inspector, certifying that the facility complies with the state building code. Moreover, there are fire, water source, and food inspections. Health and safety inspections are also mandated in Florida’s regulations on Health and Safety Checklists and Inspections. In Kansas, all childcare centers and preschools are annually inspected to check compliance with regulations with the aim to protect the health, safety and well-being of the children in care. The Kansas Department of Health and Environment contracts with local county health departments or private contractors to conduct on-site inspections. In Texas, licensed services are evaluated for compliance with minimum standards through regular inspections with an emphasis on preventing risk to children in care. The frequency of inspections depends on the type of permit and the provider’s history of compliance with the minimum standards. Child daycare programs in New York are required to admit inspectors and other representatives of the Office of Children and Family Services onto their premises at any time during operation hours, with inspectors given free access to the entire grounds, staff, children, and program records.
Child assessment: The federal government encourages early learning assessment systems that organize information on the process and content of children’s learning and conform with the National Research Council’s report on early childhood assessment. Some of the guidance documents that include recommendations on child assessment are the Birth to Five: Watch Me Thrive! and the Caring for Our Children Basics: Health and Safety Foundations for Early Care and Education. These documents promote age-appropriate developmental and behavioral screening for children at the beginning of a child's enrollment in the program, at least yearly thereafter, and as developmental concerns become apparent to staff and/or parents/guardians. Providers may choose to conduct these screenings, themselves, or partner with a local agency/health care provider/specialist who would conduct the screening. Otherwise, they can also work with parents in connecting them to resources to ensure that screening occurs. State-funded ECCE services are also likely to mandate child assessments as part of the program. In Alabama, the First-Class Pre-K program requires funded providers to conduct structured classroom observations, using the data for program improvement. Similarly, providers that are part of the Universal Pre-Kindergarten program in Massachusetts must collect observational formative assessment data on all children in the state-funded classroom.
Sanctions: The licenses of daycare centers may be revoked or suspended if providers fail to meet the minimum licensing requirements which are set for each state, and the health, safety and welfare of children is put at risk. States such as California, Illinois, Kansas, Kentucky and Massachusetts have specific administrative regulations for the revocation or suspension of a provider’s license. For example, in Kansas, if upon investigation a childcare facility is found to be maintained without due regard to the health, safety or welfare of any woman or child, the secretary of health and environment may issue an order revoking the center’s license. Once a license has been revoked, the provider is not eligible to apply for another license for at least a year following the date of revocation. If the license is revoked for a provider who is a repeat (three or more times) violator of statutory requirements or rules and regulations or is found to have contributed to the death or serious bodily harm of a child under their care, the provider will be permanently prohibited from applying for a new license to provide childcare or from seeking employment under another licensee. In Utah, a license may be revoked for failure to pay the required fees, which include application fees, late fees, returned checks, license changes, additional inspections, conditional monitoring inspections, background checks, civil money penalties, and other fees assessed by the department of health. If a child day care program is found to be unregistered or unlicensed in New York (when law dictates that it should be), the Office of Children and Family Services will require the provider to comply with the law, which may include directing the unlicensed or unregistered program to cease operation immediately.
Tertiary education in the US is categorized as 4-year colleges and universities and 2-year community colleges that offer variety of options from vocational and technical training to adult and community education services. Tertiary education institutions (TEIs) are mainly categorized into public (state-owned, state-funded, and subject to state regulations) and private (non-state owned and independent of state control). Private institutions can be for-profit or non-profit and may be secular or affiliated with a religious community. The oldest tradition in the US higher education system is the establishment and operation of higher education institutions by religious communities, which include Buddhist, Jewish, Latter-Day Saints, Muslim, Orthodox Christian, Protestant Denominations, and Roman Catholic institutions. While providers of 4-year colleges and universities are mostly private and 2-year community colleges are public, most students enroll in public universities and colleges. In 2018/19, private non-profit institutions accounted for most 4-year degree-granting institutions in the US (56%), followed by public (31%) and private for-profit (13%) institutions. In the same year, the most institutions offering 2-year degrees were public (65%), followed by private for-profit (29%) and private non-profit (6%) institutions.
In addition to public and private non-profit institutions, there are private for-profit institutions called proprietary schools that provide practical training opportunities with flexible curriculum schedule. Proprietary schools are especially prevalent at the non-degree level, however the enrollment rate is low in degree-granting institutions.
All private institutions are chartered or licensed as non-profit or for-profit corporations and are legally independent and self-governing in terms of academic affairs, administration, fund-raising, resource allocation, and public relations.
The US higher education system is largely independent from federal government regulation and is highly decentralized, with states assuming various degrees of control. In general, higher education institutions are allowed to operate with considerable autonomy and independence. The Higher Education Act 1965 is the major federal legislation governing colleges, universities, and higher education institutions (state and private). The law provides for funding and oversight of student financial aid, research, program initiatives, and accreditation of institutions and programs. In 2019, a bill to amend and reauthorize the Higher Education Act was introduced known as the College Affordability Act. This gives federal authorities more responsibilities in academic decision-making and shifts oversight of facility quality from accreditors to the state.
Registration and approval: TEIs are organized and licensed or chartered as non-profit or for-profit corporations, regardless of whether they are public or private. They are generally afforded more autonomy than schools, with state governments responsible for issuing corporate charters, regulating standards, and exercising oversight and coordinating authority over institutions within their jurisdiction. Private TEIs must be approved by the state to operate and accredited by private agencies to prove their reliability. State approval to operate signifies that institutions have met certain minimum state requirements, whereas accreditation signifies that the institution has attained a threshold of academic quality. In many states, approval to operate does not require accreditation. Since the federal government has no authority to exercise national control over tertiary education institutions, voluntary accreditation developed as a means of conducting peer evaluation of educational institutions and programs. Universities and colleges are accredited by one of the 19 recognized institutional accrediting organizations in the US, while programs are accredited by one of the approximately 60 recognized programmatic accrediting organizations. Accreditors are private, non-governmental organizations created for the specific purpose of reviewing TEIs and programs for quality. A “recognized” accrediting organization means that it has been reviewed for quality by the Council on Higher Education Accreditation (CHEA) or the US Department of Education and meets the minimum standards. The CHEA is an independent, private non-profit organization that carries out periodic review (“recognition”) of institutional and programmatic accrediting organizations. For quality assurance, the Department of Education provides a list of reliable accrediting agencies that meet the basic requirements.
While accreditation is generally considered voluntary, there are many states require TEIs to be accredited in order to operate. In states such as Alabama, Illinois, Kansas, Kentucky, Massachusetts, and Texas, accreditation is required for an institution to operate, as well as for the establishment of a new institution. However, in other states (including California, Florida, New York and Utah), institutions are not required by law to be accredited. Accreditation may be the responsibility of more than one agency at the state level, with some states distinguishing between the accreditation of for-profit and non-profit institutions, and others with whether the institution is degree-awarding or not. Some states (such as Alabama, California, and Florida) have a dedicated division for private institutions. This includes the Private School Licensure Division in Alabama, the Bureau for Private Postsecondary Education in California, and the Commission for Independent Education in Florida. In Texas, the Texas Higher Education Coordinating Board is specifically responsible for licensing private, degree-awarding institutions.
License: TEIs are licensed by the respective authorities in each state. In Kansas, the Kansas Board of Regents is responsible for authorizing private and out-of-state institutions to operate in Kansas with a Certificate of Approval that must be renewed annually. The Kentucky Council on Postsecondary Education licenses all non-profit colleges and universities (including private degree-awarding institutions) in Kentucky. In Massachusetts, the Department of Higher Education has licensing authority over the approval of charters, and in Texas, the Texas Workforce Commission licenses private TEIs. In Utah, there is no approval and licensing agency for private degree-granting institutions.
Profit-making: TEIs can be organized as either for-profit or non-profit corporations, with private institutions explicitly permitted to operate as for-profit institutions. According to the Higher Education Act, a non-profit institution of higher education is defined as an institution that is “controlled, owned, and operated by one or more nonprofit corporations or associations, no part of the net earnings of which inures, or may lawfully inure, to the benefit of any private shareholder or individual”. Moreover, “no member of the governing board of the institution of higher education…receives any substantial direct or indirect economic benefit (including a lease, promissory note, or other contract) from such institution of higher education”. Non-profit TEIs are generally afforded more benefits compared to for-profit institutions (including being included in more federal financial assistance programs). In some states, however, TEIs may only be established as non-profit institutions. For example, in Texas, a private or independent institution of higher education includes only a “private or independent college or university that is organized under the Texas Non-Profit Corporation Act and exempt from taxation”.
Degree-granting private institutions generally depend on a variety of sources of income. According to the National Center for Education Statistics, 2-year private non-profit institution heavily relies on student tuition and fees, while the sources for 4-year private non-profit institutions are more distributed. Their major revenue comes from student tuition and fees, which are relatively higher than public institutions, followed by investment returns, private gifts, grants, and contracts, and federal grants and contracts.
Taxes and subsidies: Non-profit TEIs are exempt from taxation under the Internal Revenue Code 1986. The Higher Education Act additionally establishes various financial aid programs for TEIs and conditions accompanying them, with some institutions authorized by state governments to receive operating funds and provide public services. These include operating state-funded academic programs or functioning as state land-grant institutions receiving federal funding from the US Department of Agriculture. Most faith-based institutions also qualify for US federal assistance programs. To be eligible to receive federal funds and loans, the federal government requires that a college, university or program be accredited by a recognized accrediting organization. Although accreditation is a non-governmental activity, it is used by the federal government as one of the tools to help protect the federal investment in institutions and ensure that basic quality standards are met. Most states also require TEIs to be accredited by a recognized accrediting agency to receive state funding for their students or institution. In Alabama, Florida, Illinois and Massachusetts, accreditation is required for using state funds. In New York, it is only required for some funds but not for campuses or community colleges of the State University of New York or The City University of New York. In Texas, career schools and colleges do not receive state funds.
In 2020, the US Department of Education approved the Coronavirus Supplemental relief bill, which provided $22.7 billion for the Higher Education Emergency Relief Fund and benefitted non-profit colleges ($20 billion), historically black colleges and universities ($1.7 billion) , institutions of higher education with the greatest unmet need ($113 million), and students at for-profit colleges ($681 million).
Quality of teaching and learning
Curriculum and education standards: Programs are accredited at each degree level, with accredited institutions that offer programs at the same level considered to have met the same minimum standards. While each accrediting organization establishes its own standards under which programs are accredited, these standards generally address similar areas (including curriculum requirements). Programs are accredited separately to institutions. If a TEI is accredited, this does not automatically mean that the program is accredited. Accreditation aims to assure and strengthen academic quality and ongoing quality improvement in courses, programs, and degrees.
Teaching profession: According to the Higher Education Act 1965, teachers in public and accredited non-profit institutions of higher education must have the required state qualifications and licensing requirements.
Fee-setting: Both public and private TEIs may charge students tuition and fees, receive gifts and donations, and earn income from research and instructional grants and contracts. Public institutions, however, have certain restrictions on fee-setting set by each state on how much they can charge students. However, tuition and fees at public universities are generally higher for out-of-state residents and the price is generally increasing regardless of the types of institution. To meet the cumulative cost for tertiary education, most of all of both public and private university students receive grants, scholarships, work-study jobs, and loans offered by federal, state, and private institutions. The incremental student loans/debts alarm the sustainability of the US tertiary education that two-thirds of the graduating seniors from both public and private institutions are being affected.
The Federal Student Aid of the US Department of Education serves as the largest provider for student financial programs authorized under the Higher Education Opportunity Act 2008 by renewing the Higher Education Act of 1965. The Federal Student Aid has been operating as a forefront to assist the students’ financial needs by developing Free Application for Federal Student Aid and providing flexible student loan payment plans.
The College Affordability Act aims to lower the cost of college for students and families, restrict eligibility for tuition-free community college based on income, and prohibit a school from offering state-tuition or a reduced fee rate to a person not lawfully present in the US. All institutions must provide a clear statement to students on the tuition and fees of the educational program and a refund policy which the institution is required to comply with for the return of unearned tuition and fees. The US Department of Education does not have the legal authority to require TEIs to refund tuition fees to students whose programs were found by the accrediting agency to be out of compliance with its standards.
However, states may have individual regulations on fee-setting. For example, in California, private post-secondary institutions are required by law to refund students if the student cancels enrolment prior to the completion of the course. The law provides a minimum amount of refund depending on the percentage of attendance time or course length. Moreover, all private institutions are entitled to a minimum registration fee of $25.00 with a maximum of 15% of the total tuition fees or $100.00, whichever is less. In Texas, the law states that students are responsible for the payment of tuition and fees in independent or private institutions of higher education.
During the COVID-19 pandemic, some private colleges offered tuition discounts to students ranging from 10% to 30% in spring of 2021.
Admission selection and processes: While the admission processes of private TEIs that receive no federal or state funding are not regulated, private universities that receive federal funding are prohibited from discriminating in their admissions. All TEIs that receive federal funding are subject to Title VI of the Civil Rights Act of 1964 which prohibits discrimination on the basis of race, Title IX of the Education Amendments of 1972 that prohibits discrimination on the basis of gender, the Americans with Disabilities Act of 1990, which prohibits discrimination on the basis of disability in public accommodations, transportation, and employment, by a wide range of privately owned entities, and the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability. There are also several private and public colleges which are characterized by historical service to a particular ethnic group, race, or gender, with a long tradition of TEIs being founded for this purpose. These include tribal colleges founded by American Indigenous nations, historically black colleges and universities, and single-sex colleges. Private, non-profit higher education institutions where not less than 45% of their total student enrolment consist of low-income students may be eligible for certain federal financial assistance programs.
Quality assurance, monitoring and accountability
Board: Private TEIs are governed by boards of trustees, who are citizens elected by the board itself. Non-profit institutions have their governance arrangements reviewed by the Secretary of Education in order to “promote the highest standards of non-profit integrity”.
Reporting requirements: Accredited TEIs are required to engage in regular self-evaluations of their performance, procedures, standards and policies, and where warranted, use that information for improvement. The Higher Education Act requires for-profit and non-profit institutions receiving federal assistance to annually submit audited financial statements to the US Department of Education to demonstrate that they are maintaining the necessary standards of financial accountability. One of the standards which the Department uses to assess the financial responsibility of an institution is a composite of three ratios derived from the audited financial statements: primary reserve ratio, equity ratio, and net income ratio. These ratios determine the financial health of the institution.
Inspection: Unlike many other countries where accreditation (or quality assurance) is carried out by government agencies, in the US, accreditation of public and private TEIs is the responsibility of private, non-governmental organizations. Monitoring and oversight conducted by accrediting organizations includes peer reviews (primarily conducted by faculty, administrators, and members of the public) and site visits. Institutions and programs are reviewed over time in cycles from every few years to ten years.
Assessment: As part of “teacher skills”, teachers must be able to conduct ongoing assessments of student learning, including the use of formative assessments, performance-based assessments, project-based assessments, or portfolio assessments, that measure higher order thinking skills (including application, analysis, synthesis, and evaluation).
Diplomas and degrees: The accreditation of a public or private TEI by a recognized agency allows the degrees and credits issued by that institution to be officially recognized by institutions, employers, and state licensing boards outside the home state or territory, as well as by recognition authorities abroad. Unaccredited and unrecognized providers that offer unverified diplomas are often referred to as “diploma mills”.
Sanctions: An institution’s accreditation may be withdrawn by the accrediting organization if the provider fails to comply with the minimum standards of accreditation. Noncompliance can also result in the withdrawal of state recognition.
3.2 Multi-level regulations
Registration and approval:
The US Department of Education does not have jurisdiction over private schools covering kindergarten to grade 12 levels (K12), unless they are direct recipients of federal financial assistance. The regulation of private schools is primarily the responsibility of state and local governments. For starting K-12 private schools, each state sets various rules on accreditation, registration, licensing, and approval, while some exempt specific types of schools such as religious schools or do not put any regulation for the establishment. State Department of Education and state-approved accrediting agencies are the major authorities for such judgments. See the US Department of Education’s Private School Regulations Comparison Chart on Accreditation, Registration, Licensing, and Approval for an overview of all 50 states.
Most states do not require the mandatory registration and/or approval of private schools. In California, Florida, Kansas, and Alabama (among others), registration is mandatory for all private schools (except church schools in Alabama and accredited schools in Kansas). However, in the majority of states, including Illinois, Texas, New York, Utah and Kentucky, the registration and approval of private schools remains optional.
In Massachusetts, while registration is voluntary, all private schools (including religious schools) serving students of compulsory school age (6-16) are required to be approved by the school committee of the city or town within which the school is located in, while the Department of Elementary and Secondary Education must additionally approve all publicly funded private schools that serve students with disabilities. As one of the criteria for approval, schools must show evidence that the site, equipment and plant adequately support the program and are operated to ensure the health and safety of students. California requires all private schools to file an annual affidavit with the Superintendent of Public Instruction, allowing a private person, firm, association, organization, or corporation to establish a school (California Education Code). However, filing the affidavit does not imply any evaluation or approval by the California Department of Education or other government agency. No state agency regulates, licenses or oversees private schools in California, which are considered businesses or nonprofit entities that comply with local requirements such as health and safety codes, fire codes and zoning. The exception to this are non-state (nonpublic), nonsectarian schools serving students with special educational needs which are certified by the California Department of Education, with certification requirements and statutory guidelines administered by the Special Education Division. All private schools are subject to the provisions of the Private Schools Building Safety Act of 1996, which regulates the design and structure of private schools and provides for inspections by an enforcement agency. In Florida, all private schools are required by law to register with the Florida Department of Education, which similarly allows both private individuals and legal entities to establish a school (Florida Statutes 1002.01). However, the Department does not regulate, control, or approve these schools, with owners solely responsible for all aspects of their educational programs (including classroom size). Applications to establish for-profit or non-profit organizations for the purpose of creating a private primary/secondary school are processed by the Office of the Secretary of State, Division of Corporations. Boarding schools must similarly be registered with the Department of Education and additionally provide proof of accreditation to the Department of Children and Families. Sole proprietors, LLCs, corporations, and partnerships must file a DBA ('doing business as') under the Chamber of Commerce to operate under a fictitious business name. In Kansas and Alabama, the registration of private schools is similarly mandatory by the state Department of Education, with schools required to meet minimum infrastructure and health and safety standards. In Alabama however, church schools are not required to be registered with the Department of Education.
While some states such as the above require some form of registration, others have no laws mandating private schools to be registered, approved, or accredited by any agency. Texas does not have any oversight of private schools, with schools having the option to be accredited by a variety of organizations. The commissioner of education recognizes the accreditation of non-state schools which are accredited by member associations of the Texas Private School Accreditation Commission (TEPSAC). Similarly, in New York, there is no law mandating the registration of private schools, with the Board of Regents conducting two types of voluntary registration programs: (1) nursery schools and kindergartens and (2) secondary schools. There is no registration program for private primary schools. To be recognized as a new private school in New York, schools must obtain incorporation (depending on their profit orientation and status) and verify that they are located in a safe, educationally appropriate environment. Their local public school district must also certify that they are educationally equivalent to a state school. The New York State Education Department, under the Board of Regents, is then responsible for incorporating non-state not-for-profit schools as Education Corporations. For-profit schools must incorporate with the New York State Department of State after being approved by the education department through a commissioner's consent per New York State Education Department's website. In Illinois, non-state schools may choose to register with the Illinois State Board of Education and seek recognition, with the option to be recognized via a state-approved external accrediting organization. Requirements for private school recognition include administration, organization, instructional programs, student services, and staff. Similarly, in Kentucky, private schools may become certified if they have been accredited by one the accrediting agencies recognized by the Kentucky Board of Education and the Kentucky Non-Public School Commission.
There are also multiple states (such as Arkansas, Missouri, Montana, New Jersey, and Texas) that have gaps in the oversight of religious boarding schools, carving out licensing exemptions for religious facilities. In at least 14 other states, education and child welfare agencies exempt boarding schools from licensing requirements if they are privately owned or privately funded. In Minnesota, education and human services departments do not license religious schools or private boarding schools. In 23 states, religious boarding schools are not required to inform their state education department of their operation.
Charter schools (non-state managed state schools) are provided for PK-12 levels (pre-kindergarten to secondary education) by following the respective state rules. While some provide grants to incentivize their establishment, some states regulate the establishment of charter schools by prohibiting the conversion of existing state schools, setting caps on the number of charter schools, and restricting the types of applicants and operators. The contract, known as the charter, contains details on how the school will be organized, managed, and held accountable for student learning. Authorizers, who are responsible for granting or denying charter applications, are mostly local schools boards, state’s Board of Education and Department of Education, universities, and non-profit organizations These entities regularly monitor charter schools and decide on the renewal of the charter or school closure. Charter school laws exist in 45 states and the District of Colombia. Most of these states (41) allow the state to convert existing state schools into charter schools and for applications to be made by both natural and legal persons. States such as Alabama, California, Illinois, Massachusetts, New York, and Texas cap the number of charter schools that may be authorized each year, while others (including Florida, Kansas, Kentucky, and Utah) do not. Regulations for establishment vary from state to state, with the extent of state rules being waived depending on each state. Most are subject to basic health and safety standards that apply to state schools. In Florida, schools are additionally subject to standards in classroom size. For a 50-State Comparison on Charter School Laws and Policies (including authorizations, caps, and approval preference) see the Education Commission of the States’ charts or individual state profile pages on charter school policies.
License: In states such as California, Illinois, Florida, Texas, New York, Massachusetts, Utah and Kansas, there are no requirements for private schools to be licensed while other states (such as Arkansas, Missouri, Montana, New Jersey, and Texas) carve out licensing requirements for religious facilities or boarding schools (Minnesota). In Kentucky, many private schools can choose to participate in a voluntary certification process. If private, parochial, or church school complies with the certification, curriculum and textbook standards established by the Kentucky Board of Education, they may obtain certification by the Department. Certified private schools are more likely to be recognized as valid educational institutions by colleges, universities, and future employers. Proprietary schools (i.e., privately owned for-profit educational institutions offering instruction in business, trade, technical, industrial, or related areas, but not including parochial, denominational, or charitable schools), cannot be established and operated in Kentucky without a license. In Alabama, private schools (but not church schools) hold a certificate issued by the state superintendent of education showing that the school conforms to instructional, language, and attendance register requirements.
Charter schools operate on the basis of a charter (contract) granted by authorizers.
Water, sanitation and hygiene (WASH): Most states require private schools and charter schools to meet basic infrastructure and health and safety standards, which includes WASH requirements. California requires every K-12 state and private school to have a sufficient number of regularly clean, operational, and stocked restrooms, with the Sex Equity in Education Act stipulating that “Nothing herein shall be construed to prohibit any educational institution from maintaining separate toilet facilities, locker rooms, or living facilities for the different sexes, so long as comparable facilities are provided” (California Education Code; School Maintenance, Article 4). In Florida, all private schools are mandated to meet certain safety and sanitation standards in the Department of Health Rule 6A-2.0040 and Environmental Health Inspection Requirements, which must be included in their school inspection report. Schools are additionally required to meet drinking water system sanitation requirements in accordance with the State Department of Health Rule 64E-8, F.A.C. and State Department of Environmental Protection Rule 62-550, F.A.C. In Illinois, charter schools are subject to all health and safety laws applicable to state schools, including the provision of feminine hygiene products.
There is no federal law prohibiting profit-making in private schools, with schools allowed to be established as for-profit or non-profit entities. At the state level, private schools are explicitly permitted to be established as profit-making entities. In Alabama, a private school is defined as a “profit or nonprofit entity as opposed to publicly owned or operated schools”. California defines private schools as private businesses or nonprofit entities, with the California Department of Education not overseeing any aspect of schools that are considered private businesses. In its definition of a “private school”, Florida also states that “A private school may be a parochial, religious, denominational, for-profit, or nonprofit school”, with private schools allowed to be operated as either for-profit or nonprofit entities by section 1002.01(2), Florida Statutes. New York similarly distinguishes between for-profit and not-for-profit independent schools, with for-profit schools incorporated as limited liability companies with the New York State Department of State and not-for-profit schools obtaining a provisional charter from the New York State Board of Regents, which serves as incorporation as an education corporation.
The profit orientation of charter schools varies by state to state, with many states not explicitly defining by law whether charter school operators or management companies should be for-profit or non-profit organizations, and others explicitly prohibiting the operation of charter schools by for-profit entities. In Kansas and Kentucky, the state law does not specify whether charter school applicants must have non-profit status or not. In Illinois, the law explicitly allows charter schools to negotiate and contract with any for-profit or non-profit entity for the provision of any service activity or undertaking that the school is required to perform in order to carry out the terms of its charter.
Other states, including Alabama, California, Massachusetts, Florida, Texas, and Utah, prohibit for-profit organizations from establishing and operating a charter school. In Utah, the only exception to this are charter schools authorized by local school boards. New York allows both for-profit and non-profit entities to apply to open a charter school, but for-profit entities may not operate or manage charters or charter schools issued under a request for proposal from the State University of New York. Moreover, charters may not have relationships with for-profit education providers. However, some reports show that some charter schools may be set up a non-profit schools, but then evade state laws by directing the school’s business operations to related corporations.
Taxes and subsidies:
At the federal level, the US Department of Education does not have any programs that provide funds for building, establishing, or operating private primary and secondary schools, with the exception authorized financial assistance in cases of major disasters or emergencies, such as the Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170 and 5190) and the Immediate Aid to Restart School Operations (Restart). There are however some federal grants that eligible private schools, faith-based and community organizations may directly apply to, which focus on addressing specific needs and concerns. Federal funds are defined in regulations as “any grant, loan, contract (other than a procurement contract or a contract of insurance or guarantee), or any other arrangement by the [US Education] Department provides or otherwise makes available assistance in the form of: 1) Funds, Services or Federal Personnel; or 3) Real or personal property or any interest in the use of such property”. If a private school receives such grants from the Department (which includes federal grants to administer a federal education program), they are considered a “recipient of federal financial assistance” and are subject to laws and regulations that apply to such recipients, including federal civil rights laws enforced by the Department’s Office for Civil Rights. Moreover, ever since the Elementary and Secondary Education Act (ESEA) was signed into law in 1965 and amended by the Every Student Succeeds Act (ESSA), eligible private school students and teachers have been entitled to equitable participation in a number of applicable federal education programs (see Equitable access). Private schools may also be granted tax exempt status from the Internal Revenue Service (IRS) if they have a non-discriminatory admissions policy.
During the COVID-19 outbreak, eligible K-12 private schools were recipients of the $2.75 billion in COVID-19 Relief Federal Funding as part of the American Rescue Plan Emergency Assistance to Non-Public Schools. Eligible private schools were defined as those that “enroll a significant percentage of students from low-income families and are most impacted by the COVID-19 emergency”.
Besides federal assistance, many states offer various tax exemptions and government aid to private schools. In Texas, food products served by private schools, parent-teacher organizations, and student organizations are exempt from sales tax when served during the regular school day or during a fund-raiser when the proceeds do not benefit an individual (Texas Tax Code 151.314). In Illinois, Utah, and Kansas, any property owned by a non-profit entity used exclusively for educational purposes may be exempt from property tax. Kansas exempts private non-profit schools at primary and secondary level from federal income tax, while Kentucky exempts non-profit educational institutions generally from taxation. Massachusetts exempts private school property from property tax but prohibits the appropriation of public money as aid to any primary or secondary school that is not publicly owned and under the exclusive control of public officers. In Florida, for-profit private schools are required to pay an occupational business tax and obtain a Business Tax Certificate issued by the local municipality, with exemptions only available for non-profit schools. In Alabama and California, any property used exclusively for school purposes is exempt from taxation if the school meets certain requirements. However, 37 states have so-called Blaine Amendments that prohibit public funds to be spent for religious schools. However, in June 2020, the supreme court in Montana ruled that the state’s tax incentive program that indirectly helps private religious schools is constitutional.
As categorized as public schools, charter schools are funded by public money from local taxpayers and offer tuition-free education. The charter system enables flexible operation for charter schools which attracts investments from philanthropic foundations for improving state education. The exact funding of charter schools is determined at the state level. Some states (including Alabama, California, Florida, Texas, Massachusetts, New York, and Utah) fund charter schools based on a similar funding formula to state schools. Alabama determines this amount based on the students' grade level, economic disadvantage, limited English proficiency and special education needs. In California, online charters are permitted, but are required to spend at least 40% of funding on teachers and 80% on instructional expenses (not facilities). The state in California also provides charters with access to state buildings. In Illinois, funding is negotiated with the sponsoring school district and specified in the charter but cannot be less than 97% or more than 103% of the per-student funding for traditional state schools. Kansas and Kentucky do not have permanent funding mechanisms for charter schools, with funding determined entirely by district authorizers in each charter. In 2021, President Biden said he plans on barring for-profit charter schools from receiving federal funding. The IRS bans for-profit charter schools from tax exemption.
Quality of teaching and learning
Curriculum and education standards:
The US Department of Education has no jurisdiction over the curriculum, textbooks, and main education standards followed by private schools. The Department of Education Organization Act 1979 explicitly prohibits the Department from exercising “any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system…except to the extent authorized by law.” (20 U.S.C. § 3403(b)). For private schools in receipt of federal aid, educational services must be “equitable in comparison to services and other benefits for public school children, teachers, and other educational personnel” in accordance with the Elementary and Secondary Education Act of 1965. However, “Nothing in this Act shall be construed to require any State educational agency or local educational agency that receives funds under this Act to mandate, direct, or control the curriculum of a private or home school, regardless or whether or not a home school is treated as a private school under state law, nor shall any funds under this Act be used for this purpose”.
At the state level, a variety of regulations can be found in curriculum, textbooks, assessment, teacher qualifications, and transportation, with only a few states having no requirements. The majority of states do not require private schools to follow a curriculum similar to public schools, whereas some, such as Alaska, California, Illinois, and New York, make it a requirement. See the US Department of Education’s Private School Regulations Comparison Chart on Teacher Certification, Length of School Day, and Curriculum Requirements for an overview of all 50 states.
In California, whereas private schools may select the curriculum and instructional material used and are not required to follow the state’s adopted Content Standards, they are mandated to meet certain statutory criteria and offer instruction in specific branches of study at the same general degree of depth as state schools in grades 1-12. In Illinois, only accredited schools have their curriculum reviewed by a third-party accrediting agency, while recognized schools must provide a program of instruction that meets the minimum statutory and regulatory requirements. Texas only exempts students from compulsory school attendance at a state school if the private school they are attending includes a course on good citizenship, while transfer students from Texas state schools must complete all requirements set in the Texas Administrative Code for graduation. In New York, the board of education of each school district must be assured that children attending private schools or being educated at home are receiving equivalent instruction to that provided in state schools of the same district. Moreover, every private school must provide instruction in patriotism, citizenship, and human rights issues (with particular attention to the study of the inhumanity of genocide, slavery, and the Holocaust) for students over 8 years old, and instruction in the Constitution of the United States and New York and the Declaration of Independence for students in grades 8-12. In Massachusetts, while there is no mandate regarding which courses private schools should teach, the state department suggests that the "thoroughness and efficiency" criteria can be interpreted to include approval based on the private school's program of studies and curriculum. The criteria for a school to be (voluntarily) approved are that the curriculum offered is “equivalent” to that offered in the local school system and follows specific instructional areas, such as mathematics, history and social science, English, and science and technology. Similarly, in Kansas, accredited private schools are required to teach specific subjects determined by the Kansas State Board of Education. Kentucky requires all private schools to teach subjects similar to state schools and adhere to laws regarding minimum learning hours, school attendance, and record-keeping. Proprietary schools also subject to state minimum standards (including quality and content of courses). Similarly, Alabama mandates all private schools (except church schools) to offer instruction in “the several branches of study required to be taught in the public schools” (Code of Alabama 1975 §16-28-1(1)).
On the other hand, in Florida, state and local districts have no authority to oversee or control the curriculum or academic programs in private schools, with owners being exclusively responsible for all aspects of their educational programs, including content and comprehensiveness of the curriculum.
Several states also require the curriculum to be taught in the English language, such as Alabama (except church schools), Illinois, Kentucky and New York.
Home schools are free to use their own curriculum, while some states require them to secure homeschool instructors, generally requiring the parent providing instruction to have a high school diploma or its equivalent.
Charter schools must follow the same non-discriminatory standards as traditional state schools while requirements for curriculum, teachers, school practices, and student achievements depend on state and local policies and individual charters. In states such as New York and Texas, charter schools are provided with more autonomy and are exempt from most regulations that apply to state schools (including curriculum requirements), except as may be provided in the school’s individual charter. In other states (including Massachusetts, Kansas, and Utah), charter schools do not receive an automatic waiver from most state and school district education laws. California requires charter schools to meet content standards, while Kentucky mandates any education programs offered in charter schools to be designed to meet or exceed the student performance standards adopted by the state board. Moreover, high school course offerings must meet or exceed the minimum requirements for high school graduation.
Textbooks and learning materials: For textbooks, while New York allows school districts to loan textbooks free of charge to private school students, it was found to be unconstitutional in the Kentucky Supreme Court. Massachusetts also prohibits the use of local funds for textbook loans to students in private schools. California prohibits the lending of textbooks, without charge, to students attending non-profit non-state schools, while in Illinois, recognized private schools are eligible to receive textbook grants to purchase textbooks that have been approved by the State Board of Education. In Massachusetts, private schools can only be approved if their textbooks and instructional material (including computers and other technology) are deemed “adequate”. The Kentucky State Textbook Commission only approves text materials for certified private and parochial schools if texts are comprehensive and appropriate to the grade level in question. In Kansas, the state school district may allow students from accredited private schools to purchase textbooks from the district. However, state schools are not required by law to make textbooks or learning material available to private school students. The Florida Department of Education is also authorized to sell educational materials to private school students, with local district school boards offering instructional materials when they become surplus, unserviceable, or no longer on state contract. In Texas, the State Board of Education may enter into an agreement with a non-profit school to provide special textbooks and instructional aids to blind and visually impaired students.
The use of textbooks and instructional material in charter schools varies by states, with many states giving charter schools the freedom to adopt their own learning materials. In states such as Alaska and Maryland, charter schools are exempt from adopting textbook, instructional programs, or curricula required in public schools. Moreover, New Mexico waives state requirements for purchasing instructional materials.
Teacher certification in private schools varies by state. Most states do not regulate teacher certificates for private schools, while others only require teachers to be certified in accredited schools. See the US Department of Education’s Private School Regulations Comparison Chart on Teacher Certification, Length of School Day, and Curriculum Requirements for an overview of all 50 states.
In Texas, teacher certification is not mandated for private schools. Teachers in accredited private schools must only be “highly qualified”, with each accrediting agency defining what that means as part of its approval process. While the Texas Education Agency does not have any oversight on private schools, it works with the Texas Private School Accreditation Commission and International Association for Learner Driven Schools to ensure that teacher service in private schools is recognized at state schools for salary purposes. Teacher certification is similarly optional in California, with no requirement for teachers to hold a state-approved teacher credential. The Education Code only specifies that private school teachers be “…persons capable of teaching” (EC Section 48222). In Florida, private school owners are fully responsible for all aspects of their educational programs, including teacher certification, qualification, professional training, and salaries. While a teacher certification is not mandated by the state, private schools that participate in an educational scholarship program are required to employ or contract teachers who hold baccalaureate or higher degrees, have at least 3 years of teaching experience in state or private schools, or have special knowledge, skills, or expertise that qualifies them to provide instruction in subjects taught. In New York, private school instruction must be given by a “competent” teacher, with no state requirement that teachers be certified. There is similarly no requirement for teacher certification in Utah, while the Kansas State Board of Education only requires teachers in accredited private schools to be certified.
In other states, certification is required for specific types of schools. Illinois requires full-time teachers or administrators in registered and recognized private schools to hold bachelor or higher degrees, or otherwise go through professional development. Kentucky mandates teachers in propriety schools to meet state minimum standards, which include qualifications of instructors and administrators. In Alabama, teachers in private schools (but not church schools) are required by law to hold certificates issued by the state superintendent of education.
Similar to private schools, teacher certification and status in charter schools depends on individual state policies and regulations. Teachers in charter schools are required by law to be certified in states such as California, Florida, Kansas, and Kentucky. In Florida, the law additionally requires charter schools to comply with compensation and salary schedules, workforce reductions, contracts with individual personnel hired on or after 1 July 2021, and substantive requirements for performance evaluations for instructional personnel and school administrators. A 2020 bill in California establishes stricter requirements in relation to teacher certification. The new legislation requires all new teachers entering charter schools to hold the same credentials required by their counterparts in the public sector. For teachers already employed in the charter school sector, the law establishes a transitionary five-year period, during which time they are expected to obtain the required credentials in order to remain in the profession. In Illinois, charter schools are allowed to hire uncertified teachers only if they have certain qualifications, such as a bachelor’s degree, 5 years of work experience, and continuing evidence of professional growth. Uncertified teachers must additionally receive training, mentoring and staff development. All teachers in charter schools in Illinois are additionally subject to the Illinois Labor Relations Act, the Local Governmental and Governmental Employees Tort Immunity Act, and regulations pertaining to the removal or dismissal of teachers in contractual continued services. In Massachusetts, while teachers in charter schools must generally be certified, an exception is made if the teacher successfully passes the state teacher rest as required by law. Teachers are also exempt from laws regulating tenure, dismissal, demotion and professional teaching status that apply to state school teachers. Horace Mann charters are exempt from collective bargaining agreements to the extent provided by their charters. New York allows up to 30% or 5 of their teachers (whichever is less) to be non-certified or have other credentials (meeting specified criteria). Teachers are also exempt from state laws, regulations and policies governing school personnel. In Texas, while teachers in home-rule district charter schools must be certified, teachers in campus and open-enrollment charter schools are not required to certified. However, bilingual/English language learner teachers and special education teachers must all have proper certification. In Alabama, teachers in charter schools are not required to be certified.
Corporal punishment: There is no federal prohibition of corporal punishment in schools in the US. In 31 states and the District of Colombia, corporal punishment is unlawful only for public schools, although in some of these states there is no explicit prohibition. Utah explicitly allows private or parochial schools to exempt themselves from the state prohibition of corporal punishment by adopting a school policy and notifying the parent or guardians of the exemption (Utah Code Ann. §53A-11-802). In Iowa and New Jersey, corporal punishment is unlawful in both public and private schools. However, in 19 states, corporal punishment remains legal in both public and private schools. These states are Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, South Carolina, Oklahoma, Tennessee, Texas, and Wyoming.
Other safety measures and Covid-19: The COVID-19 epidemic required many schools across the US to close. In Kentucky, religious schools were seeking exemption from the statewide shutdown of in-person learning but the Supreme Court refused to provide the schools exemption.
While private schools and charter schools are often required to adopt state health and safety policies, many states do not require private schools, boarding schools, or religious schools to register with state departments, which has raised concerns of leaving children vulnerable to abuse. States such as Missouri, Montana, and Arkansas have gaps in the oversight of religious boarding schools. In other states (including Oklahoma, New Jersey, and Texas), education and child welfare agencies exempt boarding schools from licensing requirements if they are privately owned or funded. In Minnesota, religious schools and private boarding schools are not licensed by education and human service departments, which have no authority to investigate allegations of abuse (with reports instead being referred to law enforcement).
Private school tuition fees may often be exempt from state regulation with annual costs ranging from $3,000 to 27,000 in primary and $6,000 to $39,000 in secondary. In 2021/22, the national average private school tuition cost was $11,844 per year. In Florida, private school owners are solely responsible for all aspects of their educational programs, including tuition, fee scales, and refund policies. Other states, however, have introduced tuition caps or state funding for certain private school tuition fees. In California, state lawmakers have prohibited private schools from charging exorbitant fees for various incidentals such as uniforms and field trips. The law includes guidelines on fees that can be required and how to help low-income families participate. In Arkansas, legislation that would pay for private school tuition and fees for roughly 250 students from low-income families and award up to $2 million a year in state income tax credits to the contributors for the scholarships zipped through the Arkansas Senate in April 2021. During the COVID-19 pandemic, some private schools reportedly froze tuition or offered discounts due to the economic impact of the pandemic on families. However, the average tuition fees at private ranked colleges climbed by about 1%, according to data for the 2021/22 school year, while the average price for both in-state and out-of-state tuition and fees at ranked public schools increased by around 1% to 2%.
Charter schools are considered part of the public school system and do not charge tuition fees.
Admission selection and processes
Private schools can set their own admission policies, which often requires students to take entrance exams offered by private agencies. The most commonly used admissions tests for private schools and boarding schools are the Independent School Entrance Exam (ISEE) and Secondary School Admissions Exam (SSAT). For non-sectarian schools, discrimination is prohibited by the Civil Rights Act of 1866 (Section 1981). Moreover, private schools that are recipients of federal financial assistance are subject to laws and regulations that apply to recipients, which include federal civil rights laws enforced by the Department’s Office for Civil Rights. These include laws prohibiting discrimination on the bases of race, color, national origin, sex, disability, and age. The schools also generally become subject to the Department’s jurisdiction for purposes of enforcing those laws. In addition, according to the IRS, private schools must adopt and operate a racial nondiscrimination policy for students or otherwise be denied tax exemption under law. To be considered tax exempt institutions, private schools are required to have “affirmatively adopted a policy of racial nondiscrimination for students and operate in good faith to further the policy”. A “racial nondiscrimination policy as to students ” is defined as “meaning that the school admits the students of any race to all rights, privileges, programs, and activities generally afforded or made available to students at that school.” Also, the school cannot discriminate by race in administering its educational policies, admissions policies, scholarship and loan programs, athletic, and other school administered programs.
The California Education Code stipulates that “No person shall be subjected to discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is contained in the definition of hate crimes set forth in Section 422.55 of the Penal Code, including immigration status, in any program or activity conducted by an educational institution that receives, or benefits from, state financial assistance, or enrolls pupils who receive state student financial aid”. However, the article does not apply to educational institutions that are controlled by religious organizations. In New York, private schools must have a Nondiscrimination Policy that must be annually published in a newspaper that “serves all racial segments of the community”. Religious schools, however, are permitted to select students on the basis of their religious affiliation. The law also allows for the establishment of single-sex schools that may select students according to gender. For a private school to be approved in Massachusetts, it must specify the “population to be served” in its admissions criteria.
Charter schools generally have an enrollment application process, with most states requiring them to give priority to certain students (such as at-risk students or siblings of current students) and hold a lottery if applications exceed capacity. In Alabama, authorizers are required to give preference to charter schools that focus on serving at-risk students, which includes students who are members of low-income families, students with special education needs, students who are limited in English proficiency, students who are at risk of dropping out of high school, and students who do not meet the minimum standards of academic proficiency. Moreover, enrolment preference must be given to those students living in geographic proximity to start-up charter schools as well as those residing within the former attendance area for conversion charter schools. Charter schools in California must give enrollment priority to students currently attending the school, students who reside within the district, and students in an attendance area where 50% or more are eligible for free and reduced lunch. Moreover, the law stipulates that there shall be no discrimination in any aspect of the operation of charter schools or alternative schools in California. In Florida, Illinois, Texas, New York, and Utah, if applications exceed capacity, the school must hold a lottery and give enrollment preference to certain students. Kansas does not specify which students must be given enrollment preference but requires each charter application to specify the criteria for student admissions, including a lottery method to be used if enrollment capacity is exceeded. Moreover, the school is required to ensure that attendance is “reflective of the racial/socioeconomic conditions of the district as a whole”. Kentucky and Massachusetts also specify which students to give preference to during enrolment, with Kentucky charter schools required to serve students with disabilities.
Policies for vulnerable groups: At the state constitution level, most states limit public funds use only for state schools and explicitly prohibits its use for non-state schools or religious schools. Instead, vouchers, Education Savings Accounts (ESAs), individual tax credit or tax deduction programs, scholarship tax credit programs, and federal grants are major supportive policies to promote equitable learning in non-state education (many of which are often promoted as “private choice programs”). Education Savings Accounts (ESAs) are private savings accounts funded by a deposit from the state government and managed by a parent. If a parent withdraws their child from state education, ESA funds can be used to purchase specified educational services, such as tutoring, online courses or private school tuition. Most states restrict their programs primarily to students with a disability, although a few states include other student groups, such as students attending a low-performing school, or offer universal eligibility. State policy determines whether to restrict or allow access to religiously-affiliated schools. Tax credit or deduction programs allow parents to claim tax credit or deduction for educational expenses such as school tuition, textbooks, and curricula, with some states having eligibility requirements for these programs. State scholarship programs may also be available for income-eligible students, students with a disability, students in foster care or from low-performing schools. While the states vary in the eligibility for vouchers, low-income students, students in low-performing schools, students with disabilities and those living in rural areas are the most common groups targeted in school voucher programs. The D.C. Opportunity Scholarship Program is the only federally-funded school choice program that provides scholarships to low-income children in Washington D.C. The Elementary and Secondary Education Act, as amended by the Every Student Succeeds Act (ESSA) is the foundation to distribute federal grants to improve the nation-wide quality of preschool to secondary education. The Act provides multiple grant opportunities for states to assist PK-12 non-state school students, teachers, and the support the cooperation between public school officials and private school officials. While the ESEA originally required contracted organizations providing equitable services to eligible private school students and teachers to be “independent...of any religious organization”, this was determined as unconstitutional in 2017 because it categorically excluded religious organizations (or affiliated persons) based solely on their religious identity from providing equitable services. School districts may now enter into a contract with religious organizations, such as religiously affiliated schools, to provide equitable services on the same basis as any other entity. To monitor and enforce ESSA equitable service requirements, states must designate an ombudsman. The Department of Education also provides direct grant opportunities to non-state schools. The Individuals with Disabilities Education Improvement Act (IDEA), another federal grant law to support students with disabilities, requires that school districts ensure the equitable participation of children with disabilities enrolled by their parents in private non-profit K-12 schools. In 2019, Education Freedom Scholarships were also introduced that establish a federal income tax credit for voluntary contributions to non-profit organizations that give scholarships to students. States can choose whether to participate, or they can elect not to offer more options to their students. If a state chooses to participate, they can design their own Education Freedom Scholarship program to meet their students’ needs. In general, the federal government does not provide scholarships or other forms of financial assistance to directly pay the tuition for a student to attend a private primary or secondary school. However, the Department administers one program, the District of Columbia Opportunity Scholarship Program, funded through a grant authorized under the Student Opportunity and Achievement Results Act, which provides low-income parents residing in the District of Columbia with expanded options for the education of their children. In addition, if a state recognizes a home school as a private school under state law, the homeschooled students would also be eligible to receive benefits and services under the equitable services provisions. During the COVID-19 outbreak in 2020, an executive order was issued allowing low-income families without access to in-person learning to use federal funds from the anti-poverty program to attend private or religious schools offering in-person classes.
At the state level, there are various programs for financial assistance for attendance at private schools. See the US Department of Education’s Private School Regulations Comparison Chart for Programs for Financial Assistance for Attendance at Private Schools for an overview of financial assistance programs in all 50 states.
In Florida, such programs include the John M. McKay Scholarships for Students with Disabilities Program, the Florida Tax Credit Scholarships Program (for low-income students), and the Personal Learning Scholarship Accounts (for students with disabilities). Registered private schools that meet all the requirements (including the compliance with antidiscrimination provisions) may become eligible for such programs. Moreover, in 2021, a new “education choice” bill was signed into law, which aims on expanding private school scholarships for low-income students in Florida. In Utah, the Carson Smith Scholarships for Students with Special Needs Act provides scholarships for attendance at approved private schools to students with qualifying disabilities. In Kansas, eligible students may qualify for a Low Income Students Scholarship to attend any private school that meets program requirements. Moreover, local school boards may contract any private, non-profit corporation or private institution within Kansas for providing special education services for exceptional children. In 2021, the Kansas Senate additionally approved a bill to expand the state's private school tax credit program to apply to all students who qualify for free or reduced-price lunches. Texas provides a tax credit scholarship program which subsidizes private school tuition for students with disabilities. California provides state-subsidized transportation for children attending parochial schools and places children with exceptional needs in non-state nonsectarian schools. In Illinois, school districts similarly may place children with disabilities in non-state schools or private education facilities that comply with state regulations. Moreover, charter schools in Illinois are required to meet federal and state non-discrimination and desegration rules. Eligible students with disabilities attending private schools at private expense in Massachusetts are entitled to special education to meet their needs and to an individualized education program which may be funded by local authorities. Moreover, students who attend private schools in Massachusetts are entitled to the same rights and privileges to transportation as are provided by law for students in state schools. In New York, private school students may be entitled to certain publicly-funded services such as Health Services, Textbook Loan Program, Homebound Instruction, Special Education Services, Computer Software Loan Program, School Library Materials Loan Program, and Transportation (for students residing within 15 miles of the private school).
Quality assurance, monitoring and accountability
There is no federal requirement for private schools to establish school boards or their composition, nor was any state regulation found requiring individual private schools to adopt these boards.
Charter schools can have a variety of management structures, with nearly two-thirds (65%) operating independently and apart from any management organization. Independent schools may have an Independent Board of Directors that governs the school made up of parents, teachers, and community leaders. The governmental unit under which charter schools operate does not elect or appoint the school’s board of directors. The remaining 35% charter schools belong to some type of management organization, although the structure and mission of these organizations slightly varies, with some involved directly in day-to-day school operations and others only providing back-office support. There are mainly two different types of management organizations: 1) Charter Management Organizations (CMOs) that have non-profit tax status and Education Management Organizations (EMOs) with for-profit tax status.
There are various recordkeeping and reporting requirements that states mandate of private schools towards local agencies. While private schools in California do not participate in the state’s educational accountability system (but remain accountable to students and parents/guardians), the state requires them to keep records of student attendance and file an annual affidavit with the Superintendent of Public Instruction. County boards of education may also mandate private schools to report the withdrawal of any student or the denial of admission of physically handicapped, mentally retarded, or multiple handicapped students to the county superintendent. Private schools are similarly required to keep attendance records and reports in Florida that are open for inspection by the local superintendent or designated school representative. In Illinois, all private schools must report the number or children who received health examinations and immunizations. Texas requires private school administrators to report on suspected criminal conduct occurring on school grounds or at school-sponsored activities to the local police or sheriff. In New York, private schools are required to maintain individual student records and a comprehensive assessment report. Massachusetts similarly mandates private schools to maintain an adequate system of student records in a “secure and organized manner that is consistent with federal and state student record laws”, with the local superintendent of schools filing an annual report with the commissioner of education on the number of students enrolled in private schools within the district. Kentucky private schools are also required to keep an adequate record of student attendance and provide reports on student attendance and scholarships to the local school board “in the same manner as required of public school officials”. In Utah, only accredited private schools are required to provide an estimate of student enrollment. Alabama mandates private schools (with the exception of church schools) to report on student enrollment and keep attendance records.
The laws regarding reporting and record-keeping in charter schools vary by state. In Florida, charter schools are required by law to comply with state statutes regarding financial record-keeping and reporting. Similarly, in Kentucky, charter schools are subject to financial accounting principles and audit procedures, as well as reporting on student information and financial data. In Kansas, charter schools are required to comply with state provisions on attendance records.
As many private schools are not under the jurisdiction of their state education department, school inspections are not mandated in many states, whereas in some, inspections may only be conducted by local health or fire departments. The California Department of Education has no authority to monitor or evaluate private schools. However, the Private Schools Building Safety Act of 1996 provides for inspections by local enforcement agencies, with schools being subject to an annual inspection through the state fire marshall's office. In Florida, for-profit and non-profit private schools are subject to local building, zoning, public safety, and inspection regulations. School buildings are routinely inspected by representatives from the local county health department for compliance with health and safety regulations. Under the New York State Uniform Fire Prevention and Building Code, private school buildings in New York are inspected annually for fire hazards, with reports being filed with the state fire administrator on forms provided by the commissioner of education. Private schools in Kansas are subject to annual safety inspections. In Kentucky, however, private schools must be open to inspection by the directors or student personnel and officials of the Kentucky Department of Education at all times. Moreover, private schools that are in receipt of federal financial assistance under the Elementary and Secondary Education Act, as amended by the Every Student Succeeds Act (ESSA) are monitored by the state through the designated ombudsman in each state (applicable for all states).
At the federal level, accountability policies do not distinguish between public schools and charter schools. However, differences emerge in the accountability systems established at state level. The original principle of charter schooling is that charter schools receive enhanced operational autonomy in exchange for strict accountability measures regarding the outcomes they promise to achieve. Charter contracts contain details on exactly how the school will be held accountable for student learning and how success will be measured. Authorizers play a critical role in holding charter schools accountable, by being responsible for overseeing the school’s compliance with the terms of the charter contract, which includes monitoring school performance and ensuring the school adheres with state law criteria. If charter schools wish to renew their contracts under public authorities, they must “prove” their value to receive another contract, with authorizers playing a critical role in this process. According to the National Association of Charter School Authorizers, “successful authorizers ensure that charter schools use the flexibility they are granted under state law to meet their students needs and spend tax dollars appropriately”. In some states (such as Florida), charter schools are subject to public inspections.
Many states do not require private school students to participate in the same assessments as students in state schools. There is no statutory requirement for private school students in participate in state school assessments in states such as Illinois, Florida, and California. In Florida, the law explicitly states that private schools are solely responsible for all aspects of their educational programs, including student assessment, academic credits, grades, and graduation or promotion requirements. However, private schools that participate in state school choice scholarship programs are required to administer or make a provision for scholarship students in grades 3-10 to take one of the Florida Department of Education’s approved tests or statewide assessments on an annual basis. In California, the Academic Performance Index (API) scores only apply to state schools by law, while private school students do not have access or participate in the STAR system. Private schools in Texas may voluntarily administer a state assessment instrument required for state schools, but the schools must reimburse the Texas Education Agency for the cost of administering that assessment. In Utah, private schools similarly have the option to voluntarily participate in the U-PASS at a reasonable cost paid by the school or student. New York only allows registered private secondary schools to administer Regents examinations and award diplomas. While not mandated by law, private primary schools are strongly encouraged to administer state tests, with approximately 75% of private school students participating. Private schools in New York (with the exception of registered high schools) are placed under state department review when the school scores below one or more in student assessment results. In Kansas, accredited private schools are required to have 95% or more of their students take state assessments.
Most states (including Alabama, California, Florida, Illinois, Kansas, Kentucky, New York, and Massachusetts) require charter schools to participate in state standardized assessment programs. In Utah, the State Charter School Board is tasked with reviewing state law and administrative rules to determine which laws and administrative rules it recommends charter schools should be exempt from.
Diplomas and degrees:
The recognition of diplomas issued by private schools varies from state to state, with recognized or accredited schools usually considered to be offering equivalent certificates to state schools. In Kentucky, diplomas issued by non-certified private schools are not recognized by the Kentucky Department of Education. When seeking advanced education or employment, students from non-certified schools may need to complete the General Education Development (GED) to show equivalence to a state recognized high school diploma. Similarly, in New York, only students in registered private schools are eligible to receive locally recognized diplomas. Il Illinois, it is up to employers and colleges whether or not to accept diplomas from unregistered schools. This is similar to California, where it is up to the discretion of colleges, employers and military branches as to whether private school credits or diplomas are acceptable. The California Department of Education has no role in determining the validity or acceptability of private school diplomas, nor does it accredit state or private schools. Accrediting is done by a variety of accrediting organizations, with private schools accredited by the Western Association of Schools and Colleges usually granting diplomas that generally are universally accepted.
Charter schools are considered part of the public school system, and offer equivalent diplomas to traditional pubic schools.
The sanctions applicable to private schools vary by state, with many not applied by the state education department, but local health and safety officers. In California, health and safety standards in private schools are not the responsibility of the California Department of Education but should be directed to local health or fire departments, or child protective services. Private schools are also not required to report their closure to the State Department. If a school building is judged to be unsanitary, unsafe, or constructed in violation of the law in Kentucky by the local health board or Cabinet for Health and Family Services, an action may be instituted by court. In Kansas, if the state fire marshal notices any dangerous conditions during its annual safety inspection, the school will be required to rectify it within a given time frame. In Florida, private schools may be subject to fines or misdemeanor charges if they fail to submit annual database survey forms. Moreover, private boarding schools may be removed from boarding school registration if they fail to complete their accreditation requirements or have not provided the required letter to the Department of Children and Families. The Department of Children and Families may additionally impose administrative sanctions or seek civil remedies if a boarding school in Florida is found to be operating without the required license. All private schools in Florida, New York and Massachusetts are required to notify their respective education authorities if the school closes.
Most states (including California, Florida, Kansas, Kentucky, Massachusetts, New York, Texas, and Utah) do not have sanctions in place for charter school authorizers. In Alabama, chartering authority may be revoked in certain circumstances. Illinois gives the state board the power to remove the power to authorize from any authorizer if the authorizer does not demonstrate a commitment to high-quality authorization practices and, if necessary, revoke the chronically low-performing charters authorized by the authorizer at the time of the removal. However, all states with charter school laws specify the grounds for terminating or not renewing a school’s charter. Moreover, many states (including Alabama, California, Florida, Illinois, Kentucky, Massachusetts, New York, Texas, and Utah) have a state policy that gives authorizers the power to close the school if it fails to meet the expectations set forth in its contract. In Kansas, there is no such law.
3.3 Supplementary private tutoring
Non-state actors play a critical role in the supplementary private tuition in the US. Services range from supporting studies in school, preparing for college exams, to hiring private counselors for college application process, as well as providing massive open online courses (MOOCs).
Supplementary tutoring can come in the form of private tutoring, out-of-school time lessons/after-school tutoring, and Supplemental Educational Services (SES). Private tutoring takes place in private institutions or private homes and is largely free from government control. Preparation for the SATs and ACTs, standardized tests for university and college admission, falls under private tutoring. The US has a hierarchical higher education system with intense competition for admission to the most elite institutions. From 1997-2016, the number of private tutoring centers more than tripled from about 3,000 to nearly 10,000, with services mostly concentrated in geographic areas with high income and parental education. According to a Global Industry Analyst report, the private tutoring market was estimated at $25 billion in 2021.
Out-of-school time lessons or after-school tutoring is provided by schools and communities and funded by government, tending to serve families with fewer resources or “at risk” students.
Supplementary Educational Services (SES) refer to publicly funded, free extra academic help (such as tutoring or remedial help) that is provided to students in subjects such as reading, language arts, and math. This extra help can be provided before or after school, on weekends, or in the summer. While most funding is provided to public schools, private schools can also be eligible to receive SES funds if they are identified as “at risk of failing”. Eligible SES providers include public schools, charter schools, private for-profit education agencies, and faith-based organizations. SES were originally included as one of the requirements for Title I funds under the No Child Left Behind Act of 2001, with parents of low-income students in low-performing schools offered a choice of Supplemental Educational Services (SES) for their children. However, such requirement did not succeed in the Every Student Succeeds Act (ESSA) and decisions on supporting SES depends on the states and school districts.
SAT and ACT are owned by different non-profit private organizations called College Board and ACT, respectively. On behalf of the College Board, SAT is administered by the Educational Testing Service, which is globally known non-profit organization for providing international tests such as TOEFL and TOEIC. The SAT/ACT prep courses and the college application counseling services are also provided by non-state institutions with high cost that studies raise concerns on the relationship between educational inequalities and social-economic status, race, and ethnicity.
MOOCs are online education platform that US non-state providers leads the global market. MOOCs are provided by for-profit private companies and non-profit organizations including global partnerships of public and private universities. Divergent services are provided to meet the needs from different education levels, for example providing supplementary courses for schooling and college preparation for primary and secondary education, while certificate courses and fully online master’s degree are offered for tertiary education and above.
Non-state providers can become eligible as Supplementary Educational Services (SES) providers if they are approved by the state. While state education agencies are no longer required to offer SES, many may decide to do so, in which case eligible providers must be approved based on minimum standards set by the state. Providers of SES may include non-profit entities, for-profit entities, local educational agencies, public schools, charter schools, religious schools, and private schools. Entities that want to be included on the list of eligible providers must apply to their State Education Agency (SEA) and meet the criteria established by the SEA to be approved to be as an eligible provider. The US Department of Education encourages private schools to consider becoming SES providers, with specific guidance provided for private schools. To receive approval providers must meet all applicable federal, state, and local health, safety, and civil rights laws, while services must be aligned with the State's academic content and achievement standards, as well as be consistent with the instructional program of the Local Education Agency (LEA). Once a school has been approved, it may market its services to parents of eligible students.
Financial operation and quality
Private schools that are approved providers of SES can receive government funding to help students improve academically by offering them tutoring and other academic enrichment services. The school district enters into an agreement with each provider that includes, among other things, the schedule of payments (which vary by state). However, SES providers are not considered “recipients of federal financial assistance”. As a result, certain federal requirements that apply to recipients of federal financial assistance are not directly applicable to SES providers unless they receive federal financial assistance for other purposes. All SES providers are required to meet the state’s academic content and achievement standards, in addition to being consistent with the LEA’ s instructional program.
The staff employed by SES providers are not required to meet the highly qualified teacher requirements set out in the Elementary and Secondary Education Act, nor are SES providers required to employ state-certified teachers. Outside of the SES, teachers may generally engage in private tutoring depending on their state or school rules. For example, in Massachusetts, tutoring students outside their districts using their own materials is legal for public teachers, whilst providing private tuition to current students may violate the law.