미연방헌법상 공․사립학교 구분의 규제론적 함의(含意)- 미연방대법원의 판례를 중심으로 -

Abstract

It is a meaningful subject of argument to deal with the differences between policy on public and private education. It is believed that there is a small distinction between the regulation of public and private schools in spite of a great difference in the constitutional control over the two. A distinct difference between the two is that the U.S. Constitution prohibits public schools but not private schools from using unrighteous admission criteria. It is certain that public schools may not discriminate on the grounds of race or gender in entrance to schools. Contrastingly, the Constitution does not bar private schools from these invidious acts if not fall under a category of state action theory. The constitutional legal basis of private schools' discriminatory acts is their constitutional rights of association or other rights under the 1st Amendment. We can make a analogous conclusion about regulation of expelling or suspending students from schools. The government can only expel students form from public schools by observing the limitation imposed by the Due Process Clause. In contrast, private schools are only bound by the contracts they entered into with parents of students in the absence of legislative acts. It seems that the U.S. Constitution has no legal basis of a strong distinction between public and private schools. As there is constitutional limits on the regulation of legislative branch on the public schools, the regulatory function of legislature's control over the private schools has also constitutional limits. In conclusion, taken as a whole in a dimension of U.S. Constitution, although the government can regulate the private schools on the same plane as the public schools, actually it does not. By not doing so, the government enables the private schools to pursue their own purposes of establishment of schools. Such a legislative policy has a great implication for us that the government should not be deeply involved in the general operation of private schools.