INTERVIEW: Education Begins at Home

By Reuvain Borchardt

Avi Schick, a partner at the Troutman Pepper law firm, discusses the ruling by New York State Supreme Court Justice Christina Ryba that struck down a key portion of the state Education Department’s recently enacted regulations for the secular studies curriculum at private schools.

Since the late 19th century, New York State’s Compulsory Education Law has required that children can attend a nonpublic school but they must receive instruction that is “at least substantially equivalent” to that offered in public schools. But the law never delineated how substantial equivalency is determined. The Education Department last fall — after years of debate and legal proceedings — passed regulations that detail how schools are deemed to achieve this requirement.

Yeshivas and yeshiva groups, represented by Schick, filed a lawsuit seeking to overturn the regulations, alleging that they violated state law and the U.S. Constitution.

Ryba issued her ruling last Thursday, saying that while she found the curricular requirements of the   substantial-equivalency regulations themselves to be legal, the Education Department does not have the authority to penalize a school that is determined to be not equivalent, or to direct parents to unenroll their children from that school. Ryba ruled that education requirements are directed at parents, not schools, and so parents have the right to send their children to the school of their choice and, if necessary, supplement the instruction they receive there, such as by home-schooling. (Read the full ruling by clicking here.)

It appears that enforcement of the regulations would be highly impractical under this framework, and yeshiva advocates are therefore celebrating the ruling.

Tell us about this ruling by Justice Ryba on Thursday.

The Court ruled that SED (the State Education Department) does not have the authority to penalize or close down a yeshiva that it feels does not meet the substantial-equivalency standard, and it does not have the authority to direct parents to switch their kids out of a school that the state believes does not meet the equivalency standard. The decision preserves the rights of parents to direct the education of the children as they see fit, and it preserves the autonomy of our yeshivas to set their own curriculum and standards. 

On the other hand, she left the curricular requirements of the regulations in place. The aspect that yeshivas are celebrating is the enforcement mechanism, what would happen if a yeshiva were found to be not substantially equivalent.

There are several aspects of the ruling to unpack.

The court rejected our State Administrative Procedure challenge, in which we argued that SED did not conduct the public-comment period appropriately.  The court also found that an as-applied constitutional challenge to the regulations is premature, because we have to wait until SED reaches a final determination under the regulations.

Beyond that, it’s important to understand that the core curricular requirements — English language, math, history, and science — have existed for over 125 years. And for 120 of those years, our community of yeshivas and yeshiva parents have coexisted comfortably with the state. The problems have only arisen in the last handful of years, because the state has tried to reinterpret those requirements in a way that is intrusive and improper.

The court’s decision, while not explicitly at this point touching on any of those requirements, does give parents more leeway and is likely to lead to SED reevaluating how it thinks about them.

For example, the requirement to teach children how to read and write English has been around for a long time, and I think most people understand and accept that. However, what we started to see last October was that SED was saying we want to see and approve the range of texts that you have students read when you do that teaching.

That is problematic, and we cannot abide by that. Yeshiva parents don’t want the state to choose the kinds of material that their children will read. What they want is for the leaders of the schools they choose for their children to make those decisions.

With the removal of SED’s ability to penalize a school that is deemed less than equivalent and to direct a parent to move that child to another school — and with the explicit invitation to return to court if the state applies these regulations in ways that are problematic — there is reason to hope that SED will go from bureaucratic overreach to bureaucratic modesty.

Another example: one of the troubling parts of the regulations was its mandate to teach a number of what most would call ancillary subjects, such as the state constitution, the federal constitution, geography of New York State, vehicle and traffic laws and the like.

What the court said was that parents can fulfill any requirements in the same way that homeschooling parents fulfill those requirements.

That’s important for two reasons. Firstly, of course, it gets SED out of the business of telling yeshivas what they have to do and how they have to allocate their instruction time.  More importantly in this context, as we pointed out to the court:  the homeschool regulations explicitly state that those ancillary subjects have to be covered once in eight years. It’s not something part of a yearly curriculum.

It should be simple enough to prepare some materials for these ancillary subjects in a booklet that parents have to cover once every eight years, and take it off the table as something that yeshivas are now pushed into adding to their school day and detracting from Judaic studies.

You are viewing this ruling as a victory. How much of a victory is it, on a scale from zero to 100, where zero would be that the justice upheld the regulations in their entirety and 100 would be that she threw them out in their entirety?

I’ll let others assign numbers. What the court said is that “the Compulsory Education Law does not authorize or contemplate the imposition of penalties or other consequences upon a nonpublic school that has been found to not provide substantially equivalent instruction.” That’s important.

It takes off the table, entirely, the state’s threat that the yeshivas must bend to their will or face penalties or closure.

Even more importantly, the Court struck from the regulations the provision that said if a nonpublic school receives a determination that is not equivalent, that “the nonpublic school shall no longer be deemed a school which provides compulsory education fulfilling the requirements of Article 65 of the Education Law.”

In other words, the court said a yeshiva is a school. It might be a school that SED says does not entirely meet the substantial equivalence standard, but it’s still a school where parents can choose to send their children. 

That leads us to the most important aspect of the decision: parents have the absolute right to choose where to send their children to school. They get to send their child to the yeshiva of their choice — because they share their values, because they share their Judaic studies focus and approach, because they share their goals — even if SED says the secular studies there are less than substantially equivalent. That’s where my child is going to have his core educational experience. If SED believes that some instruction needs to be supplemented, that can be done elsewhere — at home, afterschool programs, wherever else.

So it’s incredibly important in preserving the autonomy of parents to direct their child’s education and upbringing, and in stating unequivocally that the rights of parents are superior to those of the State. And it’s important in preserving the autonomy of yeshivas to set their own educational approach  without fear of being closed down and the state declaring that they are not a school.

The justice ruled that the requirement of substantially equivalent education is on the parent, not on the school.

So if a school were determined to be not substantially equivalent and SED wanted to do something about it, rather than going after the school, I presume it would have to go after each student’s parents, and then the parents would have an opportunity to prove that they were appropriately supplementing the child’s education with homeschooling?

Homeschooling or afterschool programs.

But the homeschool standards are not what the state would impose on a school.

For example, one of the offensive provisions of the regulations as the state was interpreting it involved the requirement to have “competent” teachers. Of course, every institution strives to have teachers that are competent. And they would probably assess a teacher’s competence by how the teacher connects with students, how they learn, and so on. But what SED suggested, in an October 6 letter, was that it needs to review a yeshiva’s hiring policies and its recruitment policies to ascertain competence. That’s not only unnecessary; it is incredibly intrusive. It can lead to questions such as, “Why are you hiring exclusively Orthodox teachers?” or, “Why is your school only hiring female teachers?” This ruling effectively takes the state out of that business, and that’s vitally important.

Also, the regulations provided that even after a school is determined to be substantially equivalent, “persons considering themselves aggrieved” by this determination may file an appeal to the education commissioner, and the school might be re-examined. But after this court ruling, I presume the sorts of people who would have objected to yeshivas being deemed substantially equivalent won’t have the right to file such appeals against each parent’s homeschooling curriculum.

Even SED itself is not likely to have the authority to bring actions against parents. SED might make a referral to a local authority or social-service agency, but it could not itself proceed against a parent. 

Essentially, what SED tried to do with the regulations was to turn the issue of compulsory education into a wholesale issue by saying, we’re going to assess the yeshivas and give them a passing grade or a failing grade, and if it’s a failing grade, we’ll get the parent list and direct them to switch their children to another school. We argued that creates an impermissible and illegal licensing scheme. The New York State Court of Appeals held in a 1958 case called Packer Collegiate that SED does not have the authority to impose a licensing scheme on private schools. The court in our case ruled that SED doesn’t have authority to impose penalties on private schools, and therefore said that the illegal licensing scheme claim is now moot.

The argument that SED was trying to effectively create a licensing requirement for nonpublic schools was at the core of our case. That was one of the ways we attacked the structure SED was seeking to impose that told a yeshiva that it cannot operate as a school unless SED has declared that its secular-studies department is substantially equivalent. The court dismantled that structure. 

The seminal U.S. Supreme Court cases involving parental rights in education, like Wisconsin v. Yoder (1972) and Pierce v. Society of Sisters (1925) fundamentally said that we acknowledge that the state has a right to require compulsory education of its citizens, but we recognize the superior right of parents to direct that education.

Those cases were rooted in the U.S. Constitution, whereas this decision is rooted in New York state law. But that’s what this decision says: the state has a right to require compulsory education, but parents have superior rights to direct that education. And so parents can choose the educational setting they want for their children. And that can be a yeshiva — even one the state says does not meet its equivalency standards.

Neither side here can claim a complete victory. Do you expect the state to appeal? And if not, do you plan to appeal?

I can’t speak as to what the state is going to do, and I suspect that at this point SED has not yet made a decision.

Who will decide whether the state appeals? Is it Education Commissioner Betty Rosa? The Hochul Administration? Attorney General Tish James?

It will be the State Education Department that decides.

A big question people are asking now is how this ruling affects funding. Can the state say now, “Okay, we can’t close the school or force students to unenroll, but if you’re not substantially equivalent, we don’t consider you a school and we won’t give you funding for mandated services”?

The ruling says that “the Compulsory Education Law does not authorize or contemplate the imposition of penalties or other consequences upon a nonpublic school that has been found to not provide substantially equivalent instruction.”

You would consider pulling funding to be an “imposition of penalties or other consequences”?

Yes. Moreover, as I mentioned, a provision of the regulations said that if a nonpublic school receives a determination that it is not equivalent, “the nonpublic school shall no longer be deemed a school which provides compulsory education fulfilling the requirements of Article 65 of the Education Law.”

The court struck that provision, and said it is a school, and parents have the right to continue to send their child to that school. The court was quite clear that the state can’t impose “penalties or other consequences,” and the institution remains a school. What flows pretty clearly from there is that SED can’t fiddle around by trying to impact busing or lunch or other services.

Who would make this decision about whether funding is pulled? Would it be Rosa and the Education Department? Yeshiva advocates consider Rosa to be hostile to their position. Do you expect her to try to cut funding? Or would it be the Hochul administration that ultimately decides that? Hochul has not answered directly when she’s been asked in the past about the issue of substantial equivalency.

I don’t want to assume bad behavior on the part of the state.

We’ve certainly had our differences with SED over the last five years on this issue. At the same time, yeshivas in our community work with people in that agency every day and will continue to do so. And so we should continue to believe, until there is evidence otherwise, that day-to-day people will do the right thing. So I don’t want to anticipate that there would be problems in this regard. The court has spoken, and if the state appeals the ruling, so be it. But there is no reason to believe that SED will simply ignore the court decision. 

Again, our schools believe that they’re substantially equivalent, they believe that they’re producing good graduates, they believe that the totality of their curriculum, including their Judaic studies curriculum, fulfills the mandate that the law imposes.

If SED determines that a particular school is not substantially equivalent and decided it absolutely wanted to enforce substantial equivalency, it would have to hire enough agents to investigate every parent’s homeschooling course.

That is simply not going to happen.

So you feel that even though the curricular regulations themselves were upheld, this ruling effectively throws out the practical effects of the regulations?

It addressed the largest part of what concerned us about the regulations: the ability of the state to force a school to bend to its will under threat of closure, and the ability of the state to direct parents to remove their children from the yeshiva and to send it to a different school.

We will have to wait and see how SED moves forward with the curriculum mandates that are there, but given the leeway that the court has provided to parents to address compulsory education requirements and not impose them entirely on schools, we are, I think, in as comfortable a place as we’ve been in over the last five years.

Stereotypically, Republicans are more in favor of religious and parental rights, and Democrats are more in favor of governmental mandates. Do you find it significant that Ryba, a Democrat, wrote this ruling?

I think it affirms that this is not a Republican or Democrat issue, but it’s an issue of what’s right and wrong, and that when we put aside the noise and get a fair hearing, we get a fair result. And we’re grateful for that. And we hope that in the future, just like we got a fair hearing and a fair result in this court, we get a fair hearing and this result in the media and in the court of public opinion. 

There are national debates over schooling now. The House just passed a Parents Bill of Rights Act, mostly on party lines. There have been debates raging over education issues in places like Florida and Virginia. Do you view this case as part of the national debate over schooling?

There is no reason to try and nationalize this issue, or to bind it up with other issues elsewhere that may bring their own complications. We addressed our issues in New York under New York law.

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rborchardt@hamodia.com

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This interview originally appeared in Hamodia’s Prime Magazine.