Third Lawsuit Filed as Elia Doubles Down on School Guidelines

ALBANY -

A school system representing nearly half of all children in New York state who don’t attend public school filed a lawsuit late Monday against the recent attempt by the education department to exert its control over the private school sector.

The Catholic Conference’s legal action comes as the lawsuit’s target, Commissioner MaryEllen Elia, hardened her stance against critics of her policies and denied that she was overstepping her authority.

Nine Catholic schools and five parents joined the conference’s lawsuit, which accused Elia and her department of unlawfully setting up the competition — the state’s hundreds of local school boards which are supposed to promote public schools — to oversee if the private schools are “substantially equivalent” to their public counterparts.

The suit is the third in as many weeks against the regulations — which Elia termed as “guidelines” — published in November. A group of yeshivos and yeshivah parents sued the week before, days after an upstate cluster of independent specialty schools filed legal action over the guidance.

“It’s quite a statement,” Rabbi Chaim Dovid Zwiebel, the executive vice president of Agudath Israel of America, which was a partner to the yeshivah lawsuit, told Hamodia on Tuesday, “that the vast majority of the nonpublic school community in New York state has not only expressed its opposition to the guidelines but have gone so far as to challenge them in court. It shows how deeply intrusive and troubling the guidelines are.”

The attorney in the yeshivah lawsuit, Avi Schick, made a motion last week for a preliminary injunction to cancel the yeshivah inspections until the lawsuit is settled. A judge is to rule on the motion next week Friday in Albany Supreme Court.

There are more than 400,000 children in the state attending private schools — 200,000 in the Catholic system, 160,000 in yeshivos and the rest in Muslim, specialty and similar institutions.

The guidelines were sharply criticized when they were unveiled. Yeshivah heads noted that the nearly four hours and 30 minutes demanded for secular education every day would remake yeshivos into a different entity entirely. They also expressed concern over the vague penalties if the guidelines are not adhered to.

The yeshivos’ lawsuit focused on the argument that the education department overstepped its authority by publishing the guidelines and that it deprives parents of their rights to educate their children as they see fit.

The Catholic system, on the other hand, competes directly with the public schools for students. The crux of their claim is that it sets up public schools to oversee how its competition performs.

“Their main concern over here is that they don’t want local authorities to run their schools,” Rabbi Zwiebel said.

James Cultrara, who heads the Conference — formally known as the New York State Council of Catholic School Superintendents — said in the filing that he represents 500 schools educating 200,000 students. He called for “vacating, annulling, reversing, voiding and setting aside” the guidelines and its resulting inspections.

The only previous time the education department attempted to assert its authority over nonpublic schools, the brief noted, it was rebuffed by the court.

The lawsuit leaned heavily on the Second U.S. Court of Appeals ruling from 70 years ago, in Packer Collegiate v. University of the State of New York, when the court declared it “intolerable” for an unelected body to regulate private schools.

“The court’s ruling was clear: Any attempt by the department to regulate and license nonpublic schools would be unconstitutional,” the lawsuit stated, “unless it was based on statutes enacted by the legislature… In the seventy years since Packer Collegiate was decided, the legislature has declined to enact any such legislation.”

The lawsuit also derides the guidelines as “unconstitutional, vague and subjective” on a host of issues, baffling school administrators as to its demands.

For example, it provides at least six different sources to understand the guidelines, a list of frequently asked questions, two “toolkits,” plus several website links that lead to hundreds of pages of minutiae and multiple training sessions.

The guidance doesn’t specify what will happen to schools that fail inspection. It provides vague guidance to local school districts that will perform the inspection that they should be “objective, mindful, sensitive, respectful and consistent,” without explaining what those terms meant in a practical way.

Meanwhile, Elia rankled the private school community on Monday with a defiant refusal to withdraw the guidelines. Speaking to the Times Herald-Record editorial board, she made the argument that she was legally required to issue the guidelines.

“We know that there are some things in there that make some of our advisory members concerned,” Elia said, referring to an advisory panel that works with her department to promote private schools. “However, we follow New York state law, and I think it’s important for us to be able to say that we have a level of judgment that is made about whether or not whatever kind of school it is, nonpublic or public school, is providing what they’re required to do.”

Rabbi Zwiebel, who heads the advisory panel in his private capacity, responded, saying that all three lawsuits make plain that the law does not allow for the regulations.

“I would say that the guidelines is contrary to what the law says,” Rabbi Zwiebel said. “I think she was poorly advised in crafting these guidelines when she was told this is what the law required her to do.”