New York Yeshivas File Suit Against Education Regulations

By Reuvain Borchardt

NEW YORK — New York yeshiva groups have filed a lawsuit against the new regulations on private school curricula, alleging the rules violate state law and the state and federal Constitutions, and discriminate against yeshivas.

“Yeshivas are subject to unequal treatment and are threatened with closure for offering the sort of culturally and linguistically sustaining education the NYSED [New York State Education Department] lauds in public schools,” reads the lawsuit filed Sunday in state Supreme Court in Albany against Board of Regents Chancellor Lester Young and Education Commissioner Betty Rosa, by a group that includes Parents for Educational and Religious Liberty in Schools (PEARLS), Agudath Israel of America, Torah Umesorah, and Yeshivas Rabbi Chaim Berlin, Torah Vodaath, Tifereth Jerusalem, Rabbi Jacob Joseph and Ch’san Sofer.

The regulations, which passed the Board of Regents last month, require all private schools to prove they are providing a secular education “at least substantially equivalent” to that offered in public schools via one of a number of pathways, including: having a high school that offers Regents exams, being accredited by an approved accrediting body, or using assessments approved by SED that demonstrate student academic progress. If a school cannot qualify under one of these methods, it may prove substantial equivalency by the method yeshivas consider most intrusive: the school having its curriculum reviewed and approved by the LSA (the local school authority, defined as the schools chancellor in New York City and the local school board elsewhere).

The regulations were first announced last March, kicking off a mandatory 60-day public-comment period, which resulted in more than 350,000 comments, the vast majority from yeshiva graduates opposing the regulations. But the regulations, with virtually no changes, were then put for a vote by the Board of Regents in September, passing unanimously and with little debate at the Board of Regents meeting.

The lawsuit alleges that the “public comment process was a sham.”

“The public comment period is not an end in itself, but rather a means by which the agency is required to receive input from the public and consider reasonable alternatives,” the suit alleges. “Here, NYSED received more than 300,000 comments in opposition to the proposed regulations but did not truly consider them and did not make any substantive revisions. NYSED decided in advance not to make any revisions to the regulations – because SAPA (the New York State Administrative Procedures Act) requires an additional comment period if proposed regulations are revised. Because it was determined to evade this element of SAPA, NYSED violated SAPA’s notice and comment requirements, by refusing to truly consider alternatives that were proposed.”

The suit says the new regulations will impose on yeshivas “obligations and restrictions not found in other schools,” arguing that only yeshivas will be subject to the intrusive LSA reviews, as nearly all Catholic and independent private schools — but not all yeshivas — will qualify for substantial equivalency through one of the alternate pathways.

LSA reviews will consider not only whether a school teaches the core curriculum of English, math, science and social studies, but also subjects including patriotism and citizenship; history; the significance and the effect of the provisions of the Declaration of Independence, the United States Constitution and the New York State Constitution and their amendments; New York State history and civics; physical education; health education regarding alcohol, drugs and tobacco abuse; highway safety and traffic regulation; fire drills, fire and arson prevention and injury prevention, and CPR and AED use. It is unclear whether the school is required to teach each of these subjects, or if it may omit or substitute several.

The suit also alleges that New York is dedicated to language and cultural diversity — but only in public schools, and not in the Chassidish yeshivas whose primary language is Yiddish. Plaintiffs cite from a guidance document SED had previously sent to public education and other officials that seeks “to help education stakeholders create student-centered learning environments that affirm cultural identities,” and which encourages “work to encourage cultural pluralism and not cultural assimilation.”

“The responsibility of education is not only to prevent the exclusion of historically silenced, erased, and disenfranchised groups, but also to assist in the promotion and perpetuation of cultures, languages and ways of knowing that have been devalued, suppressed, and imperiled by years of educational, social, political, economic neglect and other forms of oppression,” the document reads. “Culture far transcends practices such as cuisines, art, music, and celebrations to also include ways of thinking, values, and forms of expression. These ways and forms are in constant flux, renegotiation, and evolution.”

However, the suit says, under the new regulations, “Yeshivas and other private schools that must prove substantial equivalency via the LSA-investigation method, on the other hand, require that ‘English is the language of instruction for common branch subjects.’”

The result of the new regulations, according to plaintiffs, is the imposition of “more onerous standards on nonpublic schools than on public schools.” 

Since the late 19th Century, New York State law has required that private schools provide an education “at least substantially equivalent” to that offered in public schools, but the law never delineated how substantial equivalency is determined. After some former New York City yeshiva students began alleging a decade ago that they hadn’t received a substantially equivalent secular education, in 2015 state authorities began working to formulate regulations for pre-certifying that a school is substantially equivalent. Following unsuccessful attempts to pass regulations in 2018 and 2019, a new version of regulations was proposed this year by the Education Department, and it passed the Board of Regents on September 13.

The suit alleges the regulations violate plaintiffs’ First Amendment rights to freedom of religion and freedom of speech, and the Fourteenth Amendment’s Due Process and Equal Protection Clauses, and similar clauses in the New York State Constitution.

This week’s action is likely just the first salvo in a long legal battle, which may culminate at the U.S. Supreme Court. While Court precedent on parental rights in education is mixed, the current Court is considered the most pro-religious liberties in generations.

An SED spokesperson declined to comment on the lawsuit.

The full lawsuit is available by clicking here.

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