NYS Regulations Would Require Yeshivas Be Accredited or Subject to Local Oversight

NEW YORK – After years of political battles and court proceedings, the New York State Education Department on Thursday once again released proposed regulations for secular education in private schools. The new regulations abandon the previous iteration’s mandate of a minimum number of hours of study of specific courses, but retain its charging of local school authorities with oversight over private schools, if those schools don’t have a Regents program or other state-approved accreditation.

New York State law has, for more than a century, required that private schools provide an education “substantially equivalent” to that of public schools, but the law never delineated how “substantial equivalency” is determined. In 2015, some former New York City yeshiva students who have since left the Orthodox community alleged that they hadn’t received a substantially equivalent secular education, and state authorities have since been working to formulate specific regulations for certifying substantial equivalency. But yeshivas, Catholic and independent schools have opposed what they deem an infringement on religious liberties and parental rights.

Under the regulations released Thursday, private schools may satisfy the substantial-equivalency requirement by either registering as having a Regents program; being accredited by a government-approved accrediting body; or being assessed and deemed compliant by the local school authority (LSA), which is the schools chancellor in New York City and the local school board elsewhere.

Registered: If a yeshiva’s high school is registered as a school that offers Regents exams, the entire school, including its elementary grades, is deemed substantially equivalent. A school that is elementary-only (as are many yeshivas outside Brooklyn) may not use this option.

Accredited: There are virtually no accrediting agencies that have dealt with the yeshiva community. In response to these guidelines, yeshiva advocates will likely renew efforts to establish accrediting agencies dedicated to serving their community.

Assessed: In assessing a school to determine whether it is providing a substantially equivalent secular education, the LSA must consider factors such as whether: English is the language of instruction; students who have limited English proficiency are provided with instructional programs enabling them to make progress toward English language proficiency; the math, science, English language arts and social studies curriculum is substantially equivalent to that offered in public schools; there are courses similar to that provided in public schools in subjects including patriotism and citizenship, the U.S. and New York constitutions, New York State history and civics, physical education, driving safety, fire drills and fire and arson prevention, injury prevention, life safety education, CPR and defibrillator use, and abuse of alcohol, drugs and tobacco.

A first iteration of proposed regulations on private schools, released in November 2018, mandated specific courses, and the minimum number of hours to be dedicated to the study of each, and placed the private schools under the purview of the LSA, which would assess whether each school is substantially equivalent. The time requirements would have obligated yeshivas, which have a four-day week, to teach secular studies an average of more than four hours per day in seventh and eighth grades, and an average of more than three hours per day in high school. Those regulations offered no registration or accreditation option; assessment by LSA was mandatory.

Those guidelines were struck down by a judge on procedural grounds in April 2019, then re-released under proper procedures in July 2019. But during the subsequent 60-day public-comment period, 140,000 comments were submitted to the Board of Regents, mostly from yeshiva parents and graduates opposing the rules. The Board of Regents then withdrew the proposed regulations and conducted meetings with stakeholders before releasing the new proposed regulations Thursday.

The new proposed regulations no longer have a requirement for specific hours of instruction in particular subjects. Rather, in describing LSA assessment of a school, the regulations discuss factors that “must be considered,” but don’t provide a hard criteria. It is unclear, for example, whether a school must provide courses in each subject mentioned above, or whether it can omit or substitute several.

Initial reviews must be conducted by the LSA no later end of the 2024-2025 school year, and every seven years thereafter.

Additionally, the education commissioner may direct the LSA to investigate a school if it receives a complaint about the substantial equivalency of its curriculum. These complaints don’t have to come from students or parents — providing an opportunity for anti-yeshiva groups to initiate investigations of yeshivas that have already been registered as having a Regents program, accredited by an approved body, or given a positive assessment by an LSA.

As for enforcement, the state education commissioner “may withhold one-half of all public school moneys from any city or district” that doesn’t enforce the regulations. And if parents send a child to a school deemed non-substantially-equivalent, the child would be considered truant and the parent may be jailed.

The proposed regulations would be subject to a 60-day public-comment period before a final vote by the Board of Regents.

The Education Department anticipates that the proposed regulations will be presented for approval at the Board of Regents’ September 2022 meeting.

“Our state is rich in diversity, from our cultural, racial, and religious backgrounds to the languages we speak,” Board of Regents Chancellor Lester Young said in a statement. “These differences are assets that should be embraced so we can learn from each other. The Board and I are committed to ensuring students who attend school in settings consistent with their religious and cultural beliefs and values receive the education to which they are legally entitled.”

“We have an obligation under the law to ensure all students receive an education that enables them to fulfill their potential and teaches them the skills and knowledge needed to contribute to society and participate in civic life,” Education Commissioner Betty Rosa said in a statement. “Through our robust stakeholder engagement over the past two years, we listened to all parties, and their feedback is reflected in our new proposed regulations.”

YAFFED, an organization of former yeshiva students that supports government oversight of yeshivas’ secular studies curriculum, called the proposed regulations a “positive step,” though it said the regulations “do contain several loopholes” that YAFFED hopes the Education Department “will close before adopting them.”

“Knowledge is a birthright,” said YAFFED executive director Naftuli Moster. “Every child has a right to a well-rounded education. We applaud this step forward by NYSED in the pursuit of that goal.”

Yeshiva advocates deem the new regulations a slight improvement over those proposed in 2018, but still oppose governmental oversight of private and religious schools.

“While we recognize that the proposed regulations are less intrusive than the two versions that preceded it, we remain disappointed,” yeshiva-advocacy group PEARLS said in a statement. “Government does not possess either the expertise or the ability to evaluate our limudei kodesh classes or those who teach them, yet these regulations require local school districts to do just that. SED [the State Education Department] heralds the possibility of third-party accreditation, but our repeated request that SED approve an accrediting body that is familiar and experienced with yeshiva education were ignored.”

“We appreciate that these regulations provide yeshivas with a path to equivalence if they are ‘registered’ to administer Regents examinations,” Avi Schick, an attorney at the Troutman Pepper firm who represents yeshivas, told Hamodia. “This will be relevant to yeshivas that have high schools, but does nothing for dozens of yeshivas across New York that don’t go beyond 8th grade. They will remain at the mercy of their local school district.

“Our yeshivas devote the majority of their school day to Torah learning and Jewish studies. In addition to their inherent religious value, those classes are chock full of academic learning. They are what sets our schools apart, and why parents choose yeshiva education for their children. Government is not in a position to evaluate those classes, or the faculty who teach them. Yet that is what these regulations would require local school districts to do. The result will not only be a practical disaster, but also a First Amendment minefield, as government employees assess the value of religious studies and the competence of religious teachers.”

“What is most disappointing is that the regulations provide that a private school that is “accredited by an accrediting body that is approved by” SED is deemed to be substantially equivalent. Unfortunately, there are currently no SED-approved agencies that have experience in accrediting yeshivas or in assessing the educational value of Jewish religious studies. For these regulations to maintain even the semblance of equity and fairness, SED must broaden the accreditation option to encompass yeshivas.”

The full proposed regulations are available here.

The draft regulations will be published in the state register on March 30, and public comment will be accepted until May 30. Comments may be emailed to seregcomments@nysed.gov or mailed to: 89 Washington Ave., EBA Room 1078, State Office of Religious and Independent Schools, SE Regulation Comments, Albany, NY 12234.

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rborchardt@hamodia.com