Court Strikes NY State Regulations Threatening Orthodox Jewish Yeshivas Under “Substantial Equivalency” Test

Court Strikes NY State Regulations Threatening Orthodox Jewish Yeshivas Under “Substantial Equivalency” Test

Yesterday, a group of Orthodox Jewish schools (“yeshivas”) and yeshiva advocates scored a limited but important win in their lawsuit challenging the New York State Department of Education’s recently adopted regulations requiring private schools to be “substantially equivalent” to public schools.

New York State Supreme Court Justice Christina Ryba struck down provisions in the new regulations that force parents to unenroll their children from yeshivas that fail to meet the substantial equivalency requirements—effectively forcing closure of the schools themselves.

It is the parents’ prerogative to keep their children in the nonpublic school of their choosing, even where it fails to meet the criteria, and supplement their education through other resources, including homeschooling, the court held.

While the court otherwise upheld the new regulations, its ruling reaffirms an important principle: that the right and responsibility to direct a child’s education lies with the parent.

We covered the controversy over the regulations and their threat to all Orthodox Jewish schools here:

• NY State Proposed Regulations Threaten Orthodox Jewish Schools

We also wrote about the suspiciously timed hit piece against Orthodox Jewish yeshivas—published by the NY Times two days before the state Board of Regents’ scheduled vote on the rules this past September:

• NY Times Hit Piece On Hasidic Education Published On Eve Of NY Regents Vote To Undermine All Religious Schools

The law underlying the regulations is not new. For over 125 years, New York’s compulsory education statute has required that children attending non-public schools receive instruction that is “substantially equivalent” to the instruction given in public schools. And for almost all that time, as we explained here, the state has not interfered with the yeshivas’ traditional dual curriculum combining religious and secular studies.

But over the past ten years, the relatively peaceful coexistence between the yeshivas and the state began to break down. The trouble started from within, when a group of former yeshiva students, dissatisfied with the secular education they received, mobilized and founded the organization Young Advocates for Fair Education (YAFFED). 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.

After years of litigation and hotly contested attempts to enforce substantial equivalency, the NY Board of Regents this past Fall finally adopted rules  for private schools.

Under the new regulations, nonpublic schools must 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.

From Section 130.9 of the New Regulations:

When reviewing a nonpublic school for substantial equivalency, other than schools deemed substantially equivalent pursuant to section 130.3 of this Part, the following must be considered:

(a) whether instruction is given only by a competent teacher or teachers as required by Education Law §3204(2)(i);

(b) whether English is the language of instruction for common branch subjects as required by Education Law §3204(2)(i);

(c) whether students who have limited English proficiency have been provided with instructional programs enabling them to make progress toward English language proficiency as required by Education Law §3204(2-a);

(d) accreditation materials from the last five years;

(e) whether 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);

(f) whether the nonpublic school meets the following other statutory and regulatory instructional requirements:

(1) instruction in patriotism and citizenship pursuant to Education Law §801(1) and section 100.2(c)(1) of this Title;

(2) instruction in the 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, pursuant to Education Law §801(2) and section 100.2(c)(3) of this Title;

(3) instruction in New York State history and civics pursuant to Education Law §3204(3) and section 100.2(c)(7) of this Title;

(4) instruction in physical education and kindred subjects pursuant to Education Law §803(4) and section 135.4(b) of this Title and instruction in health education regarding alcohol, drugs, and tobacco abuse pursuant to Education Law §804 and section 100.2(c)(4) of this Title. Pursuant to Education Law §3204(5), a student may, consistent with the requirements of public education and public health, be excused from such study of health and hygiene as conflicts with the religion of the students’ parents or guardian; provided that such conflict must be certified by a proper representative of their religion as defined in Religious Corporations Law §2;

(5) instruction in highway safety and traffic regulation, pursuant to Education Law §806 and section 100.2(c)(5) of this Title;

(6) instruction in fire drills and in fire and arson prevention, injury prevention and life safety education, pursuant to Education Law §§807 and 808, and section 100.2(c)(6) of this Title; and

(7) instruction in hands-only cardiopulmonary resuscitation and the use of an automated external defibrillator pursuant to Education Law §305(52) and section 100.2(c)(11) of this Title; and

(g) For nonpublic schools meeting the criteria in Education Law §3204(2)(ii)-(iii), the criteria enumerated in such statute for such schools.

Shortly after the rules were adopted, the yeshivas and advocates filed their lawsuit asking the court to declare the regulations null and void and to bar the education department from enforcing them. They claimed that the new regulations were unconstitutional and  that the education department failed to comply with the state admininistrative procedures act (SAPA).

The court rejected both the constitutional claims and the SAPA claims. The regulations, the court held, “merely reiterate the compulsory education and substantial equivalency requirements that have already been mandated by the Legislature, which constitutes an entirely proper exercise of an agency’s authority to adopt and enforce regulations consistent with their enabling legislation.”

The yeshivas had challenged the regulations, not the underlying compulsory education laws. And if they had, those claims would have failed. The state can both compel education and regulate it, including education at private schools.

The SAPA claims also failed because the education department had complied with the applicable statutory requirements.

But the court sided with the yeshivas when it came to other provisions in the regulations that dictate what happens when a private school fails to meet the new criteria. In those situations, the court said:

The effect of the [regulations] is to force parents to completely unenroll their children from a nonpublic school that does not meet all of the criteria for substantial equivalency, thereby forcing the school to close its doors.

Those dire consequences, the court said, are “above and beyond” what is authorized under the state’s Compulsory Education Law.

That is because, under the law, the fundamental burden for educating a child lies with the parent:

The purpose of the Compulsory Education Law is to ensure that “children are not left in ignorance, that from some source they will receive instruction that will fit them for their place in society.”  …  However, the statutory scheme places the burden for ensuring a child’s education squarely on the parent, not the school. … Education Law § 3212 requires those in a “parental relation” with a child to ensure that he or she is attending the required instruction at either a public school or at a substantially equivalent nonpublic school. The only penalties for noncompliance authorized by the Compulsory Education Law are the imposition of fines and/or penalties upon a parent (see, Education Law§ 3233) and the withholding of public moneys from a city or public school district that fails to enforce the law (see, Education Law §3234 [l]). Notably, the Compulsory Education Law does not authorize or contemplate the imposition of penalties or other consequences upon a nonpublic school that has been found to not provide substantially equivalent instruction.

Forcing parents to take their children out of the private school of their choosing—and effectively shutting the school down—is inconsistent with the underlying state compulsory education law and beyond the education department’s authority, the court held.

Instead, when a nonpublic school falls short of the new criteria:

[T]he parents should be given a reasonable opportunity to prove that the substantial equivalency requirements for their children’s education are satisfied by instruction provided through a combination of sources. For example, parents should be permitted to supplement the education that their children receive at a nonpublic school with supplemental instruction that specifically addresses any identified deficiencies in that education, such as by providing supplemental home instruction.

The new substantial equivalency regulations forced a conflict that for years had lain dormant between the state’s power to both compel and regulate children’s education and the parents’ constitutional rights to direct that education. It was an uphill battle for the yeshivas, but the court’s ruling at least does away with the most damaging provisions in the new rules that threatened to shut them down. And it puts the power to direct a child’s education back where it belongs: with the parent.

Donations tax deductible
to the full extent allowed by law.