NY Yeshivas Tell Judge They Were Targeted by Curriculum Regulations

By Reuvain Borchardt

ALBANY — New York yeshiva groups asked a state judge to issue a preliminary injunction against newly issued education regulations, saying they specifically targeted yeshivas, while the state argued the regulations were neutrally applicable to all private schools, during oral arguments Wednesday in a case that could drastically alter the state’s relationship with yeshivas.

“There’s no real dispute in this case, that the only private schools that are going to be required to go through Local School Authority reviews are yeshivas,” Avi Schick, attorney for the yeshivas, told State Supreme Court Justice Christina L. Ryba. “The regulations have exemptions, called pathways, that exempt all, or effectively all, of schools that are not yeshivas. All the independent schools are exempt ab initio. State Catholics schools are exempt. Other schools are exempt. You’re left with yeshivas.”

 “Every nonpublic school has the same opportunity to use alternative pathways,” countered Bill Scott, Assistant State Attorney General, in defense of the new regulations.  “Any nonpublic school that is unable to meet those standards has to go through the evaluation. It is a completely neutral regulation.”

The two sides were arguing over regulations passed by the state Board of Regents in September 2022,  requiring all private schools in the state to prove they are providing a secular education “at least substantially equivalent” to that offered in public schools. Schools could prove their substantial equivalence using one of a number of specific pathways, including: having a high school that offers Regents exams, being accredited by an approved accrediting body, or using assessments approved by the state Education Department that demonstrate student academic progress. If a school doesn’t qualify under one of these methods, it may prove substantial equivalency by the method schools 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).

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 specifically delineated how substantial equivalency is determined.

The Education Department began the process of seeking to enact regulations defining “substantial equivalency” around 2015, after some former yeshiva graduates alleged they had not received an adequate secular education.

Yeshiva advocates have argued that yeshivas in fact offer a robust education, particularly when including the critical-thinking and analytical skills learned in Judaic studies, and when considering student outcomes and successes rather than specific hourly inputs of secular education. They also oppose regulations of their curriculum as an unlawful intrusion on religious and parental rights.

The Education Department first tried issuing a version of substantial-equivalency-defining regulations in 2018 and 2019. That version would have required specific hours of study in particular courses and mandated LSA reviews of all private schools. But it was struck down in 2019 by Ryba on procedural grounds, The state later tried reissued those regulations under proper rulemaking procedures — but withdrew them after receiving some 135,000 comments opposing them amid united opposition from the nonpublic-school community, including yeshivas, Catholic and independent private schools.

However, under the revised regulations passed last year, virtually all Catholic and independent schools would qualify for an alternative pathway to avoid LSA review, since they either offer Regents programs or are accredited by existing agencies.

The Catholic and independent schools did not oppose these regulations. With the yeshiva community alone in opposition, the regulations passed the Board of Regents in September unanimously, despite 350,000 comments having been submitted during the public-comment period, mostly from yeshiva parents and graduates opposing the regulations. (The Education Department has refused requests by Hamodia, as well as the plaintiffs, for the precise breakdown of how many comments opposed the regulations. The Department has only said that a majority of the comments opposed the regulations, and mentioned in its brief in this lawsuit that “approximately 64% were form generated comments created and provided for signatures” by yeshiva groups. Schick contended Wednesday that “discovery would show” that “more than 345,000” comments were against the regulations.)

The lawsuit, filed by five yeshivas and the yeshiva groups PEARLS (Parents for Educational and Religious Liberty in Schools), Agudath Israel and Torah Umesorah, allege that the state tailored the new regulations in a manner that isolates and targets yeshivas.

Schick, noting that he was arguing the case alone, whereas in the 2019 suit heard in the same courtroom he was joined by attorneys for Catholic and independent private schools, argued that “the fact that non-yeshivas are exempt isn’t happenstance. This is a case in which they didn’t shoot the arrow and get the bullseye; they shot the arrow and then drew the lines around it.”

Schick argued that in enacting the new regulations, the Education Department asked the non-yeshiva schools, “What do you need to buy your silence? What do you need so that we’re not knocking on your doors?”

But Scott argued that “the regulation itself does not single out yeshivas. It doesn’t single out any religious organization or any nonpublic school. It is generally applicable to all nonpublic schools.”

The yeshivas say that schools subject to LSA review, in addition to the review’s intrusiveness, will have to fulfill far more requirements than other schools. For example, the regulations require that an LSA review considers whether the school offers a host of courses outside core 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.

Additionally, LSA’s must consider “whether English is the language of instruction for common branch subjects,” while schools that are not subject to LSA review may teach primarily in other languages.

“How can it be that the state sits here and says … you must teach in English,” asked Schick, [while] “the same state … proudly boasts on their website of more than 300 dual-language” programs?

The state argued that the plaintiffs’ objections — such as to the regulations’ requiring specific standards for teacher competency, and to standards related to English-language instruction — are in fact objections to the original substantial-equivalency law enacted in the 19th Century, rather than to the requirements of the new regulation, which merely seek to clarify how the original law is defined and enforced.

“It’s a little disingenuous for a counsel challenging the adoption of a law to say that we operated too strictly within the bounds of the law, as required,” said Scott.

Ryba asked far more questions of Schick than she did of Scott, though her questions to both sides were inquisitive rather than argumentative, and did not indicate how she might rule.

While the lawsuit makes a number of arguments against the regulations — including that they infringe on plaintiffs’ constitutional religious rights and don’t adequately take into account opposition comments or consider alternatives — Ryba’s questioning Wednesday focused most heavily on the issue of whether the regulations unfairly target yeshivas specifically, and whether yeshivas would suffer “irreparable harm” if she were not to grant the injunction they are seeking before the case is eventually heard on the merits.

Scott argued a preliminary injunction is inappropriate because the plaintiffs have not “pointed to any immediate risk that … their school will be determined to provide a non substantial equivalent education,” and that “there’s no indication that any parent’s choice of their school has been impacted.”

Schick contended that an injunction is necessary because reviews of yeshivas’ secular curriculum are already underway.

The state Education Department did not respond to Hamodia’s request for comment following the oral arguments.

YAFFED (Young Adults For Fair Education), the group of former yeshiva students whose complaints, begun a decade ago, led to the regulations’ enactment, said in a statement that the yeshivas’ lawsuit constitutes “a cynical attack on the future well-being of more than 50K Hasidic children, primarily boys.”

Beatrice Weber, YAFFED’s executive director, said in a statement, “No one who cares about children would stand in the way of their education,” and that the yeshivas’ opposition to the regulations “is antithetical to our values as Americans and as Jews.”

Schick told Hamodia that the plaintiffs “were grateful for the opportunity to explain how the regulations single out yeshivas for local school board reviews, and impose requirements and restrictions on yeshivas that do not apply to other schools. This disparate treatment of yeshivas was a feature of the regulations, not a flaw.”

Harav Yisroel Reisman, Rosh Yeshiva of Torah Vodaath (one of the yeshiva plaintiffs), told Hamodia that while “advocating for yeshivas is our job, we wait to see from which direction Hakadosh Baruch Hu will bring the yeshua (salvation).”

Ryba did not indicate when she would issue her ruling, saying only that it would be “in due course.”

Below are audio files of the oral arguments

—

rborchardt@hamodia.com