NYS Education Department Appeals Ruling on Private School Regulations

By Reuvain Borchardt

NEW YORK — The State Education Department has appealed a court decision that struck down a portion of its regulations on private schools enacted last year, arguing that the judged erred in ruling that parents who send children to a school found to be providing an insufficient secular education need not unenroll their children from the school, but instead be allowed to supplement the education through other sources.

“No provision in the State Constitution or Education Law gives parents the right to ensure that their children receive a substantially equivalent education through a combination of sources,” reads the appeal filed Tuesday in the state Supreme Court’s Appellate Division. “The kind of hybrid educational model discussed in Supreme Court’s decision is not contemplated by the Education Law or its implementing regulations.”

Since 1895, the state’s Compulsory Education Law has required that students in private schools or homeschool receive an education “at least substantially equivalent” to that offered in public schools, but the law never specifically delineated how substantial equivalency is determined.

The State Education Department (SED) 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 opposed regulations, arguing that yeshivas offer a robust education, particularly when including the critical-thinking and analytical skills learned in Judaic studies, and when considering student outcomes and life success rather than specific hourly inputs of secular education. They also oppose regulations of their curriculum as an intrusion on religious and parental rights.

After years of battles in the halls of government, on editorial pages and on social media, and in court, SED passed regulations 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 via one of several specified pathways, including: having a high school that offers Regents exams, being accredited by an approved accrediting body, or using assessments approved by the SED that demonstrate student academic progress. If a school doesn’t qualify under one of these pathways, it may prove substantial equivalency by the pathway the 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).

Under the law, if a school does not qualify as substantially equivalent under one of these pathways, it “shall no longer be deemed a school which provides compulsory education.” To avoid having their children deemed truant, which could result in the parents being fined or jailed, the parents would be required “to enroll their children in a different, appropriate educational setting.”

A month after the regulations passed, a group of yeshivas and advocates filed suit against SED and the Board of Regents, arguing the regulations violated the New York State Administrative Procedures Act (SAPA); the U.S. Constitution’s 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. The plaintiffs include the groups 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.

In March of this year, State Supreme Court Justice Christina L. Ryba rejected the SAPA challenge, and ruled that constitutional challenges would have to be made on an as-applied basis if a school is deemed non-substantially equivalent — effectively leaving the regulations in place for now.

However, she struck down the portion of the regulations that require parents to unenroll their children from a school deemed non-substantially equivalent, ruling that children attending such schools may still achieve substantial equivalency by supplementing their education from other sources such as home-schooling.

“The effect of the foregoing language is to force parents to completely unenroll their children from a nonpublic school that does not meet all of the criteria for substantial equivalency, thereby forcing the school to close its doors,” Ryba wrote. “This result is inconsistent with the Legislative goal of the Compulsory Education Law and exceeds the rule-making authority conferred upon [SED]. Notably, there is no provision of the Compulsory Education Law that requires parents to completely unenroll their children from nonpublic schools that do not fulfill all of the substantial equivalency requirements. Nor is there any provision of the Compulsory Education Law that requires a nonpublic school to close its doors if it does not meet each and every criteria for substantial equivalency. Most importantly, there is nothing in the Compulsory Education Law that limits a child to procuring a substantially equivalent education through merely one source of instruction provided at a single location. So long as the child receives a substantially equivalent education, through some source or combination of sources, the Legislative purpose of compulsory education is satisfied.”

Yeshiva advocates view Ryba’s ruling as mostly beneficial to their side. As enforcement of the regulations is achieved far more easily by authorities going after a school rather than its hundreds or thousands of parents, the upshot of Ryba’s ruling appears to make onerous any large-scale enforcement the regulations.

In its appeal Tuesday, SED said that since “the challenged regulations do not authorize SED to close nonpublic schools,” Ryba “erred in holding” that the regulations would force schools to close.

The schools “may continue to operate and provide some form of instruction — just as Sunday schools, Hebrew schools, and similar institutions likewise operate and provide religious instruction even though they do not qualify as schools for purposes of the Compulsory Education Law,” SED wrote.

And SED argued with Ryba’s crucial point that children may receive a partial secular education from a non-substantially equivalent school and achieve substantial equivalency via supplemental education such as homeschooling.

“No provision in the State Constitution or Education Law gives parents the right to ensure that their children receive a substantially equivalent education through a combination of sources. The kind of hybrid educational model discussed in Supreme Court’s decision is not contemplated by the Education Law or its implementing regulations,” SED wrote in its appeal. “The Education Law is based on the premise that whichever form of instruction parents choose — public school, nonpublic school, or home — it must be sufficient, standing alone, to provide the sound basic education to which children are entitled. Numerous statutes explicitly distinguish between each of these forms of instruction.”

SED also argued that the yeshivas had lacked standing to bring their suit at this time, because a determination that a school is non-substantially equivalent would only be made at the end of an investigative process, and SED has not yet deemed any school to be non-substantially equivalent.

Following SED’s filing of the appeal, YAFFED (Young Advocates for Fair Education), the group of former yeshiva students who advocate for state oversight of secular-studies in yeshivas, said in a statement, “We look forward to the conclusion of this process. YAFFED supports NYSED’s substantial equivalency regulation as written and without dilution and we look forward to its continued implementation.”

PEARLS (Parents for Educational and Religious Liberty in Schools), one of the plaintiffs in the case, said in a statement, “This latest filing by the State Education Department has nothing to do with education, and is instead all punishment and control. The yeshiva community will continue to fight SED’s overreach. As in the past, we are confident that we will prevail.”

Harav Yisroel Reisman, Rosh Yeshiva of Torah Vodaath, told Hamodia, “The relentless pursuit of our yeshivas by the state doesn’t stop. It’s as if SED has no problems it needs to focus on in the public-school system. We, in turn, must double down in our relentless defense of our yeshivas, which are the lifeblood of Klal Yisrael.”

The yeshivas are expected to reply to SED’s appeal around the end of the year, and oral argument will likely be held next spring.

Read the full SED appellate brief here


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