Rules, Regulations and Religion
Avi Schick, a partner at the Troutman Pepper law firm who represents Agudath Israel, Torah Umesorah and PEARLS, discusses the New York State Education Department’s newly released proposed regulations of private schools. Please see related news article here.
The Education Department released new proposed guidelines on private school education last Thursday. The initial reaction from yeshivah advocates seems to be that they are somewhat less unhappy with these than with the previously proposed guidelines, though they are still unhappy.
The new regulations are different in a few respects from the versions that were released in 2018 and 2019, but there is extraordinarily deep concern about them.
These regulations, like the those previously proposed, require periodic reviews of every nonpublic school by their LSA (local school district or authority).
Where they differ is that they offer a few paths for a nonpublic school to avoid those reviews, at least initially. One such path is “registration” — which is the technical term for a high school that administers the Regents examinations. Another is “accreditation” by an agency that is approved by the State Education Department. Then there are “assessments,” which are not well-defined at this time.
There are a fair number of registered yeshivos. Almost none are accredited. Our analysis is that all of the non-Jewish private schools will be exempt from LSA reviews while a majority of yeshivos will not be exempt. As a result, these regulations governing the substantial equivalency reviews by LSAs will be applied exclusively at yeshivos.
It is important to note that even registered yeshivos may not ultimately be exempt from LSA reviews. That is because the regulations authorize the State Education Commissioner to direct that the school undergo a review. The Commissioner can do that for any reason at all, and is specifically empowered to undo the exemption if a complaint is lodged. The complaint need not come from a parent or student. Any complaint is sufficient to undo the protections that registration is supposed to provide a school.
Another section of the “Complaints” portion of the regulations says, “Persons considering themselves aggrieved by an LSA’s substantial equivalency determination may file an appeal to the Commissioner … and the Commissioner may, in his or her discretion, stay such determination” pending a review. That section doesn’t either say who may consider themselves “aggrieved.” Can an organization like YAFFED, which advocates for government oversight of yeshivos, consider itself “aggrieved” for these purposes?
That’s a very important point. Unfortunately, the answer to your questions seems to be yes.
There is an important legal principle called “standing,” which requires that for a person to be heard by a court or an administrative body, they have to demonstrate a sufficient and cognizable legal interest in the issue. That principle limits who is authorized to bring such an appeal of a determination by an LSA.
But this regulation says that for substantial equivalency appeals, we’re going to have a different set of rules. We’re not going to have the regular rules of standing that limit those who can bring actions challenging determinations, but we’re going to open it up to anybody “considering themselves aggrieved.” Almost anybody can consider themselves aggrieved, and in fact, there are organizations that are entirely dedicated to lodging grievances and complaints about yeshivos. So this would essentially make it open season on yeshivos.
The regulations say, “Reviews shall be conducted in a manner that is respectful to the diversity of the nonpublic school community.” But there are no specific guidelines for this. Do you feel this provision is something that will actually be taken into account? Or do you think that was just pretending to throw a bone to the yeshivah community?
That clause only addresses the manner in which the review is conducted, but it does not speak to the substance of the review or the substantial-equivalency determination.
Our concern is not that the people conducting the reviews won’t be respectful in their personal conduct when they’re visiting a yeshivah. The problem is that the reviews themselves are disrespectful of yeshivah education. The 20 pages of regulations make it clear that what matters for purposes of these reviews is only what goes on in secular studies. We all know, and the state knows, that for the vast majority of Jewish schools, the largest part of the school day is devoted to limudei kodesh. It’s our Jewish studies — Gemara, Mishnayos,, Chumash, Navi, Halachah, etc. — that set our schools apart. Yet these regulations disregard it all.
To ignore all of that in determining the value of our education is not only disrespectful, it is wrong educationally. If this is allowed to stand, it’s going to lead to results that are problematic.
There’s a law on the books, proposed by state Sen. Simcha Felder in 2018 and known as the Felder Amendment, that says the Education Department must consider the totality of education in determining substantial equivalency. Do the new regulations take this law into account?
The regulations set up two different types of reviews — those for schools that might fall under the Felder Amendment and those that don’t. But in substance, the regulations don’t mandate anything different in terms of what’s ultimately required. So while there’s a passing reference to that law, it doesn’t change what a reviewer will look at to determine substantial equivalency.
Interestingly, it doesn’t even change who is conducting the review. One of the elements of the Felder Amendment was that for certain schools that meet those requirements, it’s the Education Commissioner rather than the LSA who makes the determination. But these regulations say that for schools that meet the criteria of the amendment, the local school district still has to conduct the review. Instead of making a determination, it makes a recommendation to the Commissioner, who makes the final determination.
Which schools are subject to LSA determination and which ones are subject to Commissioner determination? And which of the two, if any, do yeshivah advocates consider to be preferable?
The question of whether a yeshivah is subject to the 2018 amendment really turns on the definition of whether the yeshivah has a “bilingual program,” and that’s a question for the city and the state to determine. In terms of what yeshivah advocates prefer, these regulations are so profound at this time that figuring out whether we care who is loading the rifle and who is pulling the trigger is less of a priority right now than figuring out a way to avoid being shot.
To avoid an LSA review, a yeshivah would have to either register as having a Regents program or be accredited by a government-approved accrediting body. Registering as having as a Regents program would presumably work for a lot of Brooklyn girls’ schools and Litvishe yeshivos. But for other schools, it would seem that the path to avoid LSA review would be accreditation. What is the current state of accrediting bodies as they relate to yeshivos?
You’re right. Registration would only work for schools whose high schools have a Regents program. That means for an elementary-only school, like most yeshivos in places like Queens, Rockland County, and elsewhere where elementary-only schools are the norm, registration is not an option.
That leaves accreditation. The problem is that the regulations require that the yeshivah be accredited by an accrediting body approved by the state for this purpose. Right now, there are few if any of our yeshivos that are so accredited, because, frankly, just like the state doesn’t understand limudei kodesh, neither do the major accrediting bodies.
So while there have been yeshivos in New York for over 120 years, and while there are now over 450 yeshivos in New York, at most a small handful of them — and they’re generally not the more traditional yeshivos — are accredited. So the reality is that accreditation, as the government now defines it, is not an option that works for yeshivos.
One of the major disappointments with regard to these regulations is that for well over a year, yeshivah advocates have been asking the State Education Department to broaden its definition so that accrediting bodies that do have an interest in working with yeshivos would be approved. There are agencies that work with yeshivos. And our yeshivos gedolos are all accredited, so there is a model of government working with our community on accreditation. Unfortunately, the State Education Department has, at least until this point, not been willing to substantively engage on this topic.
So is the next step for yeshivos to try to create like an AARTS entity for elementary and high schools?
It wouldn’t work based on the state’s definition of an approved accrediting agency. There’s also the problem of the timeline. These regulations require yeshivos to get a substantial equivalency review from an LSA in the next two to three years. It’s simply not possible to create a new accrediting body, have the state approve it, and have them work with yeshivos in that kind of timeline. That’s the unfortunate reality.
In past battles over regulations, Catholic and independent schools were fighting the regulations alongside yeshivos. But now, you said that all the Catholic and independent schools would be exempt from LSA review. Presumably that means they wouldn’t oppose the regulations, so the yeshivos would be alone in this battle.
We are confident that under these proposed regulations, all the Catholic and independent schools would be exempt from substantial equivalency reviews. There’s no legitimate question about that. But they still don’t like these regulations, because they don’t like the notion of government handing out licenses to operate as Catholic schools. They don’t like government issuing a license to tell Upper East Side parents how their child can be educated. So they’re not happy with the regulations. That said, the extent to which they’ll be devoted and engaged to undoing them is an entirely different question.
The previous iteration of the regulations was defeated largely because of a massive lobbying effort by (yeshivah-advocacy organization) PEARLS collecting over 100,000 comments opposing the regulations during the 60-day comment period. Is there going to be a new campaign to do the same thing now, and if yes, could such a campaign succeed again?
There’s no doubt that parents and yeshivah graduates are going to make their voices heard. They’re going to express outrage and opposition — and they should. The sum of these regulations is a gross disregard for the entirety of what yeshivah education is about. For now, our job is to ensure that the effort be undertaken. The result is up to siyatta diShmaya.
Ultimately, would the yeshivah entities that you represent accept any regulations at all? Or do they ultimately believe that the government has no role in determining what sort of school parents send their kids to?
For more than 100 years, government has understood that it has to tread very lightly in this area, because it doesn’t actually have authority over private schools, and even more importantly, because parents have the fundamental constitutional right to control the direction of their children’s upbringing and education.
So there was a balance, for quite some time, in which people acknowledged that there may be some role for government and government acknowledged that that role was quite limited. It’s only been in the last half-decade or so, when government has been trying to radically transform that relationship, that the conflict has emerged.
If these or similar regulations are ultimately adopted — the Education Department says it could happen by September — will the yeshivos file a First Amendment lawsuit?
For now, the focus has to be on opposition. Based on the state’s own timeline, they don’t anticipate anything being adopted for at least six months and maybe more. And so for now what’s important is to understand what the regulations require, and to act. If that’s successful, there won’t have to be any talk of further steps.
In terms of our community educating itself about the effect of these regulations, let me add an important point. One lesson that the state took from its two prior efforts to impose regulations on yeshivos was to be a little more careful in the language that it used. But couching things in careful language is not the same thing as substantively changing the effect of the regulations.
So, for example, the previous proposed regulations talked explicitly about penalties against parents whose children were in non-conforming yeshivos. They stated that these children would be considered truant, and their parents subject to penalties. And that created an uproar.
Now if you look at these new proposed regulations quickly, you don’t see the same sentences that caused all the anger last time around. But the same substance is there.
Section 130.14 of these regulations is titled “Penalties and Enforcement.” It states that “Any violation of the compulsory education requirements … is subject to the penalties prescribed in Education Law §3233.” Well, the compulsory education requirements are on parents, so they are the violators this section is referring to. And the penalties — threatened against parents — contained in Education Law §3233 are imprisonment. Ten days for a first offense, and 30 days for each subsequent offense.
There are other aspects of the regulations whose implications are not apparent at first glance: There is a reference to “physical education.” Who can be against recess, fresh air, running around, exercising? That’s all good. Every parent, every child, every teacher, agrees.
But the regulation says, “instruction in physical education and kindred subjects pursuant to Education Law §803.” That section of the Education Law states that those kindred subjects “shall be designed to aid in the well-rounded education of pupils and in the development of character, citizenship, physical fitness, health and the worthy use of leisure.”
It’s one thing to say you need to have an element of physical education. Everyone agrees with that. But it’s another thing to say that the yeshivos have to institute courses that the State thinks will aid in character, or to teach them about the healthy use of leisure. Educators have a view on that. Parents have a view on that.
There are numerous examples such as this where there is seemingly innocuous language in the regulations that were released that makes a reference to a different regulation or statutory section, and if one looks in the referenced section, it becomes quite intrusive, quite burdensome, and quite problematic.
So you mean somebody only reading the text of the newly released proposed regulations wouldn’t actually see those penalties in the text of that document, unless they actually go and read the other sections of the Education Law that these documents cite, which no one besides the lawyers are actually going to do.
Correct. But the fact is that the new regulations are threatening parents with imprisonment.
The second paragraph of that “Penalties and Enforcement” section you just referenced says that the Education Commissioner “may withhold one-half of all public school moneys from any city or district, which, in the Commissioner’s judgment, willfully omits and refuses to enforce the provisions of the compulsory education requirements …” The previous Mayor of New York City, Bill de Blasio, is alleged to have not conducted rigorous oversight of yeshivos, and perhaps it’s directed at the current and future mayoral administrations, to try to force them to comply.
The yeshivos subject to the City’s oversight feel that they were unbelievably rigorous. The City visited dozens of yeshivos in the course of its reviews, and required numerous follow-up submissions. Many felt they were not treated fairly. But yes, the provision you’re talking about is a way for the State to send a message. It’s threatening funding for school districts that don’t conduct the reviews the way the State wants them to.
Any final comments?
This is the third attempt by the state in the past three and a half years to impose its will on the yeshivah educational system. The prior two efforts were met with a united frum community, and the state’s efforts failed. I think the lesson to draw from that is that when Klal Yisrael really sticks together, the Eibershter takes care of the rest.
Hopefully that’s what we will see unfold here in the coming weeks and months.
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