Breaking Down “Public Rules on Private Schools”

“Regulators, mount up!”

That line from a popular western film, used later in a famous hip-hop song, is not generally thought of as one directed toward private schools. Indeed, many school choice opponents claim private schools are unregulated, particularly schools participating in voucher and tax-credit scholarship programs.

But au contraire mon frères and sœurs.

In examining 23 different school choice programs in 12 states, I found that not only did private school regulations accompany school choice programs, but a majority were in place before those programs even existed. That finding, among others, comes from Public Rules on Private Schools: Measuring the Regulatory Impact of State Statutes and School Choice Programs.

Based on my review of 575 regulations in 12 states, a majority (62 percent) of the regulations on private schools existed before the creation of school choice—355 regulations to be exact. When the programs were enacted, another 130 regulations on private schools came into place. After that first year, 90 more regulations were implemented once the programs were up and running.

Those regulations were measured using a new, objective framework with a standardized method and found several implications for policymakers and proponents of school choice.

Using the Regulatory Impact Scale I created, I show (1) the impact of a state’s private school regulations before any school choice program existed; (2) the immediate regulatory impact that comes with the creation of initial regulations for a school choice program; (3) the impact of changes and additions to the regulations for a school choice program as policymakers revisit school choice programs after their first year of operation; (4) the total regulatory impact the school choice program has had on participating private schools; and (5) the total regulatory impact of all regulations, both before and during school choice programs, on private schools.

My main finding was  voucher program scores, on average, are more than three times as negative the scores of tax-credit scholarship programs, although the actual level of burden facing private schools may or may not be onerous.

However, I found the design differences between various types of school choice programs provide insight into how regulatory structures placed on private schools can vary. It appears that statutes for voucher programs regulate the participating schools the most; statutes for tax-credit scholarship programs regulate the nonprofit scholarship-granting organizations (SGOs) the most; and statutes for ESAs regulate parents/guardians the most.

SGOs receiving the brunt of the regulatory burden for the tax-credit scholarship programs may contribute to why they were less negative, on average, than voucher programs.

Another important finding is that ESAs impose the least restrictive regulations on private schools, compared to the other types of school choice programs analyzed. This is most likely due to there being more protective safeguards (+3) than onerous requirements (-3).

However, this finding is based only on Arizona’s program, as it is currently the only one in operation.

I was intrigued by the fact that all private schools, which are claimed to be “unregulated,” already follow many regulations, regardless of their participation in a school choice program. For schools participating in the programs I analyzed, 62 percent of the applicable regulations existed before the programs did.

Policy Implications of Public Rules on Private Schools

 Although they are not a direct result of analyzing the outcomes of the Regulatory Impact Scale, I came across some findings in the course of my research that have several implications for policymakers.

They need to avoid reinventing the wheel. There are multiple empirical research studies that have been conducted on various aspects of private schools that are full of rich data. Policymakers should establish empirically-driven thresholds and see if the private school sector is already meeting those thresholds before determining if any additional regulation is necessary.

Time and again I saw regulations that already applied to all private schools in a state repeated almost word for word in the statutes created for a school choice program. Policymakers should ensure a recommended regulation is not already in place for private schools and, if there are some already in place with similar objectives, consider any overlap. This report and the Friedman Foundation’s database of all of the private school regulations in the examined states can make that job easier. (Database information is available upon request by emailing me at

Although I did not directly analyze the roles of accreditation agencies and associations, policymakers should take into account these organizations’ oversight roles to see if there is some measure of oversight and accountability already in place.

The cost, both financial and time, of following regulations can vary for private schools. Filling out a single form to meet a paperwork requirement has a very different cost compared to implementing standardized testing in multiple classrooms for multiple days, for example. Policymakers should consider the legislatively mandated costs to private schools in fiscal impact calculations. They should also ensure all schools, regardless of type or sector, can be reimbursed for substantial costs associated regulations.

Finally, I have a recommendation for proponents of school choice: Educate policymakers, the media, and the general public on the longstanding regulatory relationship between state governments and private schools.

– Drew Catt

Drew Catt is Research Analyst for the Friedman Foundation for Educational Choice.

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