What Does the Law Have to Say About Establishing a Private School in Massachusetts?

M.G.L. c.76, section 1 holds that children between 6 and 16 years of age must attend public day school based upon jurisdictional requirements and exceptions. One of the exceptions available to Massachusetts school children is the option of attending a private school that is either religiously affiliated or secular in nature.

Must a Private School be Approved by the State?

Except for private schools which satisfy certain conditions to provide education after public-school attendance (in addition to public school attendance), all private schools in Massachusetts must be approved by the school committee within which the private school will be located.

Can a Private School Exist without State Approval?

Technically, a private school could exist without approval of the local school committee, however, it would be difficult to populate such a school with students since students within the 6–16-year-old age range must attend a public day school or face truancy laws and other laws designed to keep them in school. Still, for after school or tutoring purposes, a private school could exist without the approval of the local school committee.

If a Private School is Authorized by the Local School Committee, Who Provides Transportation?

Any private school approved by a local school committee board is entitled to the same rights and privileges to transportation to and from school as are children of public schools. Note: A private school with religious affiliation or instruction is also afforded the same rights and privileges as any other approved private school under M.G.L. c.76, section 1.

How is School Transportation to a Private School Administered?

The local school committee will provide for transportation of the children of an approved private school within that school committee’s district. School committees can set a minimum distance or must use that set out by Massachusetts law (2 miles) over which distance the student must live from the school to qualify for public transportation to the private school.

What are the Criteria for Private School Approval in Massachusetts?

There are no standards that are cast in stone, that are required by the state. However, regulatory recommendations to school committee boards do exist that shed some light on the subject. Please see the Private School Outline at the end of this document for more information.

How is Home Schooling Different than a Private School in Massachusetts?

Under Massachusetts law, parents in Massachusetts may home school their children if instruction is approved in advance by the superintendent or the school committee. This fact raises the question as to whether one could argue that a group of home schoolers could be individually approved by the superintendent or school committee, then meet at the same location to conduct the education. While this strategy may be possible to utilize in very small groups, it is likely unadvisable where groups are larger because the large number of applications for home schooling funneled through a school committee is likely to raise red flags in what is inarguably a politically motivated institution, i.e., a school committee.

What Procedures or Legal Arguments Exist for Situations Where a Local School Committee Denies a Private School?

In Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925), the Supreme Court of the U.S. recognized that the U.S. Constitution allows for a parent’s right to choose a private education. On the other hand, the right of the parent to educate their own child is offset to varying degrees by the right of the power of each state to regulate private schools.

For example, Massachusetts law requires children aged 6-16 to be enrolled in and to attend a public school or other approved home-schooling program or approved private school. The point at which a parent’s right to educate their child may be hampered arises when a school committee exercises its authority to prevent the home-schooling program or private school.

Where a denial is issued to a private school, it may be possible to challenge a school committee’s decision on several points. First, the school committee must act reasonably and in good faith in reviewing and denying or approving a private school request. In cases where a school committee has an established policy and procedure with respect to the private school approval process, or where voting and deliberation has occurred in a board meeting or other communications, it may be possible for an attorney to exploit a lack of language limiting the school committee’s liability under M.G.L. c.76, section 1.

If a denial is issued by a school committee, the first recourse of the denied party is to request a review by the school committee. However, the school committee is under no obligation to review the denial, nor can the matter be appealed to the Department of Elementary and Secondary Education. The local school committee has a fair degree of power in this area, however, a denied party may be able to raise a legal claim if the approval process or standards used by the school committee are not administered in good faith or otherwise unreasonable.

If State Funds are Involved with a Private School with Religious Affiliation, Can This Fact Cause Problems for the School?

In Zelman v. Simmons-Harris, 536 U.S. 639 (2002), the U.S. Supreme Court held that students of a private religiously affiliated school that received tuition cost vouchers from the State of Ohio did not do so in violation of the Establishment Clause. The issue in this case was the constitutionality of the state’s voucher program, where the U.S. Constitution holds that a government practice violates the Constitution if (a) the state law does not have a secular legislative purpose, (b) the primary effect of the law is not to advance or inhibit religion, and (c) the law does not foster an excessive entanglement with religion.

The Court held that the voucher program was not unconstitutional because (a) a valid secular purpose was served, where the private school offered a program which served as a remedy to the failing school system in the district, (b) the student’s parents were the recipients of the tuition aid, and were private citizens with freedom of choice as to where to enroll their children, (c) voucher recipients were chosen based upon their failing school programs not their religion, (d) no financial incentives existed which would result in religiously affiliated schools receiving the majority of the vouchers, and (e) voucher recipients could choose other non-sectarian private schools.

Does a Massachusetts Private School Have to Meet the 900/990 Hours and 180 School Day Minimum Standards of the Board of Education’s Regulations to be Approved?

The answer to this question is not crystal clear. Basically, private schools are not required to meet these standards as the standards apply to public, non-private schools. However, school committees may consider the statutory standard of “thoroughness and efficiency” in the Massachusetts law to argue that any private school proposal which addresses length of school year and total learning time should be equal that of 603 C.M.R. 27.01(2).

Does a Private School in Massachusetts have to Pay Property Taxes?

Private school property may be exempt from property taxes under M.G.L. Ch. 59, section 5, as a “literary, benevolent, charitable and scientific institution.”

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