Nonpublic K-12 Schools No Longer Regulated by State Department of Education

Nonpublic schools, which include private, church and home schools, are no longer subject to licensing or other regulations by the Alabama State Department of Education (ALSDE) effective July 1, 2014. Unless they intend to enroll students eligible to transfer from public schools through the provisions of the Alabama Accountability Act, that is.

According to numbers provided by local school district’s superintendent, 54,093 students were enrolled in nonpublic schools in Alabama during the 2012-2013 school year. A total of 735,605 students were enrolled in Alabama’s public schools last year. Scroll to the end of the post for a complete table of those enrollment numbers.

Last summer, nonpublic school administrators and home school advocates were very unhappy with what they perceived to be new regulations issued by the ALSDE. State Superintendent Dr. Tommy Bice agreed to postpone implementation of those regulations in deference to concerns brought forth by Governor Robert Bentley.

SB38, sponsored by Senators Dick Brewbaker and Del Marsh, went through a couple of gyrations, ended up in Conference Committee, and was passed on March 19, 2014, the 26th day (of 30) of the session.

Beginning July 1, nonpublic schools will only be required to follow enrollment-reporting requirements and conduct criminal background checks for employees having unsupervised access to children in educational settings.

Definitions Are Important

The biggest change is how nonpublic schools are defined, and that home schools are now acknowledged in the law (indicated in bold in each of the following paragraphs).

A private school is defined as a school that is established, conducted, and supported by a nongovernmental entity or agency offering educational instruction in grades K-12, or any combination thereof, including preschool, through on-site or home programs.

A church school is defined as a school that offers instruction in grades K-12, or any combination thereof, including preschool, through on-site or home programs, and is operated as a ministry of a local church, group of churches, denomination, and/or association of churches which do not receive any state of federal funding.

Registration with the ALSDE

Section 16-1-11 didn’t really change except to clarify that the requirement to register does not permit any licensing or regulation by any entity.

Private schools must register with the ALSDE each year on or before October 10. In addition to registering, private schools must annually report the following:

• the number of pupils
• the number of instructors
• enrollment
• attendance
• course of study
• length of term
• cost of tuition
• funds
• value of property and
• the general condition of the school

Church schools do not have to register with the ALSDE nor report any of the preceding statistics.

Reporting Enrollment and Attendance

The requirements within section 16-28-1 of the Code of Alabama were not changed. Language was added to the section to clarify that the requirement to report enrollment and attendance does not allow for any licensing or regulation.

The requirements for reporting enrollment differ for private and church schools, but the deadline is the same: the end of the fifth day from the opening of the public school.

Private schools must gather the names and addresses of all children of mandatory school attendance enrolled and report those to the superintendent of the school district within which the private school operates.

According to the law, throughout the school year, on at least a weekly basis, private schools must report students who were absent without being excused, or whose absence was not satisfactorily explained.

If a child is enrolled in a church school, the requirement for reporting enrollment falls on the parent, guardian, or other person in charge or control of the child. No follow up concerning attendance is required.

All Regulations Regarding Course Content Removed

The law removed all K-12 schools from being subject to Section 16-46, titled “Regulation of Certain Schools and Courses of Instruction” . That section now applies only to private postsecondary institutions. 

Criminal Background Checks

The law makes clear that nonpublic schools must comply with the Alabama Child Protection Act of 1999, codifed in section 16-22A. Criminal background checks are required for any nonpublic or public school employee “who has or will have unsupervised access to a child or children in an educational setting”. That requirement remains in place.

Language Prohibiting Discrimination Against Teachers Working In or Students Attending Nonpublic Schools

The law also specifies that the ALSDE is prohibited from denying certification to “an otherwise qualified person on the basis that the person was employed by an elementary of secondary nonpublic school, including private, church, parochial, and religious schools”.

Public two- and four-year higher education institutions are prohibited from “denying admittance to or discriminating against an otherwise qualified student” who has attended a nonpublic school or was homeschooled.

It is unclear if this language was inserted because of previous problems or if this was a preventive measure.

Home Schools

Home school advocates appear to be pleased with this law, as it appears to release homeschooling families from the requirement that they be a part of a church school in order to homeschool their children.

The Home School Legal Defense Association (HSLDA) posted this notice on its website in early April clarifying the changes affecting homeschooling families.

HSLDA Senior Counsel Dee Black states “The new law transforms Alabama from a state where the legal status of home educators was uncertain to one that offers one of the most favorable legal climates in the nation.” 

No Effect on the Alabama Accountability Act Requirements

While SB38 releases nonpublic school from regulation and licensing, it does not appear to affect the requirements for nonpublic schools who accept students from failing schools via the Alabama Accountability Act (AAA). The AAA is not mentioned in SB38.

So it appears that students who leave public schools to attend nonpublic schools will bring some regulation requirements with them…if their parents plan to take advantage of the tax credit or if the child’s tuition will be paid for by a scholarship obtained through a scholarship granting organization (SGO). Here is the list of the nonpublic schools who have stated they intend to enroll students through the AAA.

Here is the Alabama Department of Revenue’s web page devoted to information about the AAA.

What Does This Mean?

It doesn’t mean much for students attending public schools.

But for families of students attending private, church or home schools, it certainly gives them more freedom from government regulation. However, if those nonpublic schools accept students from failing schools and parents want to obtain tax credits for tuition or the student’s tuition is paid for with a scholarship from an SGO, those current regulations will remain.

Homeschooling families appear to be the big winner here, as they actually gained a new option: being allowed to become their own private school rather than being required to enroll in a church school (also known as a cover or umbrella school) or hire a private tutor.

The Numbers from the 2012-2013 School Year

Each year, the ALSDE requires school superintendents to certify the nonpublic school enrollment in the schools within their geographic area. The numbers below were provided in response to an Alabama Open Records request for the data that was provided by the districts in response to the February 2013 memo from the ALSDE. The 2014 memo was sent out in February, though I have yet to request those numbers.

NOTE: This interpretation of SB38 is based on the law itself. No changes to the Alabama Administrative Code nor changes to required forms have been published. This should not be construed to be legal advice to any nonpublic school entity. Official notifications should be forthcoming.