Advocates of New York yeshivos and representatives of the New York State Education Department are set for their first major courtroom showdown next week in a hearing that will likely determine whether the state’s controversial guidelines for nonpublic schools will go into effect before a final ruling on their legality.
Since this past December, when New York State Commissioner of Education MaryEllen Elia rolled out a new and unprecedentedly detailed rubric for oversight of private schools, the guidelines have elicited vociferous objections from the Orthodox community, as well as from the other two largest organizations of independent schools in the state, claiming that they are an intrusive and unconstitutional overreach of government authority.
Early last month, the three challengers filed briefs in New York state court asking for the guidelines to be struck from the books. While the outcome of the case is likely to be determined through a protracted legal battle, the plaintiffs have sought a preliminary injunction to put the new requirements and inspections regime on hold for the duration of the case.
Attorney Avi Schick, who is representing the interests of the yeshivah community in the case, told Hamodia that the upcoming “hearing is going to force the state to take a position.”
“We are hopeful that the court will understand the severity of the guidelines and act accordingly,” he said.
As is fairly common in legal standoffs, attorneys representing the Department have tried to delay any proceedings from being held. In the present case, the Department denied that a hearing was necessary, as none of the punitive actions threatened by the guidelines had been executed against any of the state’s private schools. Despite these efforts, a hearing with all three plaintiffs on the immediate impact of the guidelines has been set for next Monday in Albany.
Avrohom Weinstock, associate director of Education Affairs at Agudath Israel of America, told Hamodia that while the consequences of the guidelines that are potentially the most dire have not yet been felt, that does not mean that yeshivos and other schools have not been affected.
“To say that you have to wait for a yeshivah to be shut down before the claim is legally ‘ripe’ and can be challenged in court is not a particularly strong argument,” he said. “We are receiving calls from schools being contacted by authorities to schedule visits based on these Guidelines today. This means they will have to comply with the process and be potentially compelled to make unwanted changes to their curriculum and school day, or else.”
The case on behalf of the yeshivah system is being brought by Torah Vodaath, Rabbeinu Jacob Joseph, Mesivta Tifereth Jerusalem, Chaim Berlin and Chasam Sofer, as well as by Agudath Israel of America, Torah Umesorah, PEARLS [Parents for Educational and Religious Liberty in Schools], and several yeshivah parents.
The briefs presented against the guidelines issued by Commissioner Elia argue that the guidelines exceed the Department’s legal authority in determining policy for oversight of private schools. The filing also claims that the extensive time and subject requirements are an unconstitutional imposition on freedom both of expression and of religious exercise.
The state has denied all claims against it and said that the rubric it laid out to determine if private schools are meeting their legal requirement to provide an education that is “substantially equivalent” to that of public schools is within the Commissioner’s authority. Central to the Education Department’s argument is that the guidelines do not represent a “new regime,” but merely clarify and outline governance for the enforcement of pre-existing statutes.
“The commissioner is trying to downplay her actions since she cannot legally enact new law,” said Mr. Weinstock. “But the fact is that if you look at what the law says and what is in the guidance, there is a lot that does not match up. The guidance lumps many requirements that the law does not include as part of substantial equivalency, leaves open-ended, or requires in a different form. And of course there is the guidance’s novel addition, ‘we will come in to your school, on a recurring basis, and if you don’t conform, potentially even to a single item, we can close you down.’ Among other things it’s a delegation of power to local authorities that could be fatal in the hands of the wrong superintendent.”
The yeshivos’ filing is joined by two separate suits, one from the Catholic Conference of Schools and another from the state’s central Association of Independent Schools, which, all told, represent some 1,000 schools challenging the Department’s guidelines.
In addition to the main filings, advocates of the yeshivah system have submitted more than a dozen affidavits, some from prominent graduates of Orthodox educational institutions, others explaining the extent of the potential effects of the guidelines, and several deflecting common arguments in favor of additional state oversight.
“The affidavits cover a wide range of topics, but one essential point of many of them is the value of a yeshivah education, and its centrality in our self-determination and how we live our lives from a religious point of view,” said Mr. Weinstock. “Jewish education is not a preference; it is something we live and die by.”
Orthodox education came under greater scrutiny in New York some four years ago, in large part the result of a campaign fueled by a small group of disgruntled former yeshivah students. They filed a lawsuit alleging that the state and New York City had been neglectful in enforcing educational standards in many traditional yeshivos. Fanned by many in the media and by some elected officials, their campaign shined a spotlight on the state’s enforcement of policies and led it to apply greater pressure to yeshivos, and, by extension, to all private schools.
Several of those who have been outspoken critics of the yeshivah system have submitted affidavits and support briefs defending the state’s actions.
Mr. Schick said that although the suit brought by the yeshivos and the two other groups are technically separate cases, having them combined for a single, joint argument underscores just how broad-based the opposition to the guidelines is.
“The hearing will bring all three groups of petitioners together. That is significant not only because of the number of schools represented in the lawsuits, but also because it demonstrates the extent of the harmful effects of these guidelines,” he said. “Some people presume this case is only about a subset of yeshivos, but the truth is that it’s not only about yeshivos or even religious schools, it’s about the State Education Department’s overreach that is a violation of law that threatens the autonomy of all private schools and parents who send their children to a private school.”