The fall semester started with a battle at Immanuel Schools near Fresno, California. Despite an order from health officials to cancel in-person classes during COVID-19, the private Christian campus opened on schedule. A Fresno County judge intervened on Sept. 15, siding with the government, but classrooms have remained open anyway.
Similar clashes have unfolded across the country. Cameron County, Texas, tried to close private campuses but backed down after two schools lawyered up. Maryland’s Montgomery County tried the same thing until Gov. Larry Hogan intervened. Wisconsin’s Dane County also ordered private schools to close until the state Supreme Court granted a temporary injunction on Sept. 10.
Elsewhere, Tacoma-Pierce County in Washington and most jurisdictions in California and Oregon have followed through on threats to close private schools. The one-size-fits-all policies, which extend even to small campuses with fewer than 10 children per grade level, purport to protect public health and safety. But the closure orders have just as much to do with protecting teachers unions from competition.
Nationwide, the loudest voices against reopening schools have come from union leaders. Some of their safety concerns are legitimate during the global pandemic. But private schools are often more agile than their government counterparts and can adapt more easily to a COVID world.
That’s the problem. Teachers unions worry about the embarrassment if private schools successfully do what public schools have declared impossible. Many private schools worked fast during the summer break making adjustments. Accommodations included plans for masks, plexiglass, staggered times for pickups and drop-offs, and lunch service at desks instead of cafeterias. Some schools even constructed external entrances to classrooms or set up canopies for outdoor instruction.
Similar adjustments have worked well at restaurants, airports, churches, gyms, salons, theaters, and retail outlets. But regulators have put private schools in a separate category. The arbitrary distinction makes little sense, especially when considering that the same jurisdictions that closed private schools allowed summer camps and day cares to stay open.
Some of these programs are even taking place in the same classrooms that regulators have closed for instruction. In other words, students can gather in closed spaces as long as nobody tries to teach math, science, or history.
Many parents have lost patience with the uncertainty and permanently switched to private schools. Interest in homeschooling and charter schools also has increased. Teachers unions worry about all of these threats. Some have asked for a moratorium on new charters and scholarship programs while public schools figure out a path back to in-person instruction.
During the transition, teachers unions also have taken steps to block competition from online providers. Oklahoma, Oregon, and Pennsylvania policymakers, for example, entertained ideas to limit the extent to which virtual charter schools could enroll new students.
New Mexico has been even more blatant in its protectionism. The state is only allowing private schools to open at 25% capacity while allowing public schools to operate at 50% capacity for kindergarten through fifth grade. Upset about the violation of their rights, parents at one private school filed a lawsuit before Labor Day, and the U.S. Department of Justice submitted a friend-of-the-court brief in their favor.
All of these efforts in jurisdictions around the country expose a lack of confidence in the ability of public schools to compete on a level playing field, and parents have noticed. Rather than protecting their children, they see teachers unions protecting themselves.
Ultimately, parents and not teachers unions should have the final say in how to best educate each child. This is not just good policy, but also a civil right reaffirmed in a recent U.S. Supreme Court decision on behalf of private school families in Montana. The nonprofit Institute for Justice, which has supported parental choice in education for 30 years, prevailed in its argument that all families are entitled to equal treatment under the law regardless of their educational preferences.
The government tramples this right when it forces private schools to close while allowing day cares and other types of businesses to remain open. Fortunately, parents and schools have fought back. Courts should do the right thing and rule for the parents — and against the unions.
Erica Smith is a senior attorney and Daryl James is a writer at the nonprofit Institute for Justice in Arlington, Virginia.
