When I finally reached him earlier this month, Rabbi Yeruchim Silber was in his car, catching up on emails. He was going to be there for a while, he told me, because he had just come out of five straight hours of meetings with state education officials in Albany.
Rabbi Silber is the Director of New York Government Relations at Agudath Israel of America, (the Agudah) a major organization that advocates on behalf of Orthodox Jews.
He was in the state’s capital to talk about a number of issues[*], including a proposed set of regulations that require private schools to be “substantially equivalent” to public schools—and threaten to wreak havoc with Orthodox Jewish yeshivas in New York this fall.
Under the new rules, school authorities who now toss aside objective standards in the name of diversity, equity, and inclusion will apply them with rigor to Orthodox Jews and their yeshivas.
The proposed regulations require that nonpublic schools submit themselves to review by a local school authority (LSA) readied with a list of “objective criteria”—and the power to determine whether the private school meets them or not:
Section 130.9 of the proposed rule provides that, when reviewing a nonpublic school for substantial equivalency, an LSA and the Commissioner, when he or she is responsible for making the final determination, must consider the following criteria:
Instruction is given only by a competent teacher;
English is the language of instruction for common branch subjects;
Students who have limited English proficiency are provided with instructional programs enabling them to make progress toward English language proficiency;
Accreditation materials from the last five years;
The instructional program in the nonpublic school as a whole incorporates instruction in mathematics, science, English language arts, and social studies that is substantially equivalent to such instruction required to be provided in public schools pursuant to Education Law §3204(3);
Similar courses of instruction to the course of instruction required by law in public schools in: patriotism and citizenship; history, meaning, significance and effect of the provisions of the Constitution of the United States and the amendments thereto, the Declaration of Independence, the Constitution of the State of New York and the amendments thereto; instruction in New York State history and civics; instruction in physical education and kindred subjects; instruction in health education regarding alcohol, drugs, and tobacco abuse; instruction in highway safety and traffic regulation; instruction in fire drills and in fire and arson prevention, injury prevention, and life safety education; and instruction in hands-only cardiopulmonary resuscitation and the use of an automated external defibrillator; and
For nonpublic schools meeting the criteria for Commissioner’s final substantial equivalency determinations in Education Law §3204(2)(ii)-(iii), the criteria enumerated in such statute.
The problem is that none of these criteria acknowledge any academic value in the basic course of study in traditional yeshivas, making “a cruel mockery of the review process,” says Rabbi David Zwiebel, the Executive Vice President of the Agudah.
Rabbi Zwiebel explains that the religious subjects include “the study of Chumash (Bible), Mishna, Talmud, the Codes of Jewish Law and the various other sacred Jewish texts,” in their original Hebrew and Aramaic.
And it is these subjects, in particular the study of Talmud, that are the most intellectually challenging. Brooklyn Law School’s Professor Aaron Twerski, a former Dean of Hofstra Law School, would know. He is also “the father, grandfather, and great-grandfather of over 100 descendants all who attended yeshivos.” In his letter opposing the regulations, he writes:
As a law professor for over five decades, I can tell you that the intellectual rigor of Talmudic studies exceeds by far the standard fare in public education. Our children are taught how to read text critically and are schooled in the Socratic method. They enter the world of commerce with the skills to be problem solvers and their successes are notable.
But under the new guidelines, many of the best yeshivas, Rabbi Zwiebel says, “would likely fall short in a substantial equivalency review unless they make significant changes to their school day schedules.”
In other words, unless they became more like public schools.
In fact, the substantial equivalency requirement has been the law in New York for over a hundred years. But for virtually all this time, the state has not interfered with the yeshivas’ traditional dual curriculum combining religious and secular studies.
The yeshivas must have been doing something right, because enrollment in New York has exploded over the past decades.
The trouble started several years ago when a group of former yeshiva students, dissatisfied with the secular education they received, mobilized. Bolstered by a liberal press with an appetite and audience for stories about Orthodox Jewish defectors, the group set out on a relentless, years-long campaign for reform. The yeshiva system failed them, they claimed, and they turned to the state to fix it.
It is hard to argue with the worthy goal of the underlying compulsory education law: to see to it that all children “receive the instruction that will fit them for their place in society.” But Rabbi Silber says that is exactly what a traditional yeshiva education prepares its students to do—take their place in society. “Judaic studies prepare students for adult life,” he says. “They not only train them to think critically; they prepare them for communal life and many professions, both secular and religious.”
But those facts don’t matter under the new rules. Woe betides both the schools that fail to meet them and the parents of their students: The Education Commissioner is authorized to “withhold one-half of all public school moneys from any city or district” that refuses to enforce the new regulations. And it’s not only about the money. If a school fails to meet the new standards, parents of children who attend it can be fined and even imprisoned.
There is more: If the rules are adopted, there is no limit to the government’s intrusion on private school autonomy: Even if a yeshiva—or any private school—passes the “substantial equivalency” test, that doesn’t necessarily end the state’s inquiry.
The new rules empower the state Education Commissioner to order an investigation of a nonpublic school if he or she “receives a complaint” or “has concern regarding the substantial equivalency of instruction at a nonpublic school, regardless of whether a complaint has been submitted.” (Emphasis added). And even once a school is determined to be “substantially equivalent,” “persons considering themselves aggrieved” (emphasis added) by the determination can appeal it.
Read together, these proposed regulations grant near plenary power to the Commissioner to open an investigation on the say-so of virtually anyone or no one at all, for virtually any reason—even for a school that has already qualified as “substantially equivalent.” The rules set no limit to the number of times the school authorities can subject a school to yet another review. As Avi Schick, the lawyer representing the yeshiva advocates, said in an interview with Hamodia, if adopted in their proposed form, the rules “would essentially make it open season on yeshivos.”
The Jewish schools’ proponents—a diverse group reflecting a community of over 400 yeshivas in New York—are fighting back against the new rules.
According to the Agudah, individuals, parents, and professionals submitted a quarter of a million comments opposing the New York Board of Regents during the public comments period that ended on May 31st this year.
So far, the greatest opposition to the new regulations has come from the yeshiva community. But once they are adopted, the door to state intervention in all private schools will be wide open. What is to stop the government from taking the same warped educational philosophy and woke curricula poisoning the public schools and forcing them on the private schools under the rubric, for example, of “instruction in physical education and kindred subjects?” There is no limiting principle to prevent the state from reaching its tentacles back into other private school sectors in the name of “substantial equivalency.”
About ten years ago, when the movement for “substantial equivalency” was just beginning, the idea that the government could be trusted to set academic standards for both public and private schools would have seemed reasonable to most people. Just like trusting the police. Or the media. Or health care experts.
But the days of such deference are over, a recent Gallup poll shows. Confidence in major U.S. institutions has collapsed, their demise accelerated by the pandemic. People are beginning to defer to their own judgment rather than to the institutions that abused their trust.
Nowhere is this reorientation of the public’s trust on more vibrant display than in the school choice movement sweeping the country.
The pandemic, as we’ve written here before, precipitated a parents’ awakening. During the Covid shutdowns, parents could see into the virtual classrooms for the first time, and they started paying more attention, not only to what their children were being taught, but also to who was teaching it to them and how.
They learned that teachers unions, not their children’s safety, dictated when schools would reopen. In New York, they have now seen how public schools affirmatively ignore violence in the name of “restorative justice”; how they pay for library lessons in moral depravity; how they promote immorality; and how they sneak in CRT.
They have seen these things and they are leaving the public school system in droves, not only in New York, but nationwide.
Parents realize that they should rely on their own judgment, not the state’s, to direct their children’s education.
And that’s why, within the problem for New York’s yeshivas lies the solution: a model for school choice—for everyone.
The model is not new, but its track record is long: Jewish law places the obligation to educate children where it belongs, on the individuals who have the greatest stake in the outcome—the parents. Teachers and schools, therefore, are properly understood as the parents’ agents, not their masters. Parents choose who teaches their children.
Instead of looking to the state’s moribund model to regulate private schools, we should look to the one that has sustained its people for thousands of years—and let the parents decide how to educate their children.
[* This wording was added after publication for clarity.]
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