Yeshivas and NY Education Department Tussle in Court Over Enforcement of Curriculum Regulations

By Reuvain Borchardt

Composite images showing yeshiva attorney Avi Schick and SED attorney Beezly Kiernan at oral argument Thursday. (Reuvain Borchardt/Hamodia)

ALBANY — A  state appellate court questioned attorneys for yeshivas and the New York State Education Department (SED) over enforcement provisions in new state regulations on private schools’ curriculum, though the justices did not tip how they might rule, during oral arguments in the state’s appeal of a lower-court ruling that was largely favorable to yeshivas.

SED “promulgated the challenged regulations to ensure that all children receive the education to which they’re entitled,” SED attorney Beezly J. Kiernan argued Thursday before a panel of the state Appellate Division’s Third Department. “The regulations give effect to the statute’s substantial equivalency mandate and [SED] acted well within its statutory authority in promulgating them.”

“Nothing in the Compulsory Education Law,” countered yeshiva attorney Avi Schick, “authorizes SED to unilaterally direct parents to unenroll their children from a private school that SED believes does not meet its current interpretation of the substantial equivalence standard. And nothing in the Compulsory Education Law authorizes SED to unilaterally force the closure of that private school.”

Thursday’s oral argument — held at Albany Law School with a standing-room crowd of students in the  viewing gallery, an annual tradition of the Appellate Division’s Third Department since 1995 — was the latest chapter in a yearslong battle arising from the state’s attempt to regulate the curriculum of private schools.

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.

SED began the process of seeking to enact regulations defining “substantial equivalency” around 2015, after some former yeshiva graduates alleged that their secular education was inadequate preparation for life in modern society. 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 U.S. and New York Constitutions and New York administrative law. The groups includes the organizations 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 2023, Justice Christina L. Ryba of the state Supreme Court (New York’s trial-level court) 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 [regulation’s] 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.”

Ryba’s ruling was viewed as largely a victory for yeshivas: 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 ruling make onerous any large-scale enforcement the regulations.

SED appealed, arguing that, as Kiernan said Thursday, Ryba “misconstrued the regulations as authorizing the commissioner to close nonpublic schools,” and “incorrectly held that the regulations violate parents’ purported right to obtain instruction for their kids from multiple sources.”

Kiernan argued that just because a school’s is deemed non-subtantially equivalent doesn’t mean it would have to close.

“A determination as to substantial equivalency is not tantamount to a closure order [though] there are consequences, to be sure,” he said.

Schick, however, called Kiernan’s proposed scheme a “semantic game … they’re not putting a … closure order on the building, but they’re saying it’s not a school. When saying you can’t have students there, It’s not a school.”

Kierman also sought to bring into the arguments the issue of whether the state would be required to provide financial aid to schools deemed nonsubstantially equivalent.

A non-substantially equivalent school “could continue offering instruction in whatever courses it wants to. It’s just not entitled to state aid. It’s not entitled to transportation for its pupils.”

The issue of state aid had not been discussed in the prior case or in the briefs in the present case, and Ryba had at best only alluded to it, saying, “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.”

But at oral argument Thursday, for just about the first time in the history of this case, Kiernan sought to focus on the issue of aid.

Arguing that Ryba “held that parents are not only entitled to continue enrolling their children at the nonpublic school, they’re also entitled to state aid for that education, and parents can supplement with home instruction on the side,” Kiernan said,”It’s the state aid piece that’s really the problem, that’s inconsistent with the education law, and indeed undermines the substantial equivalency mandate.”

But Schick called discussion of aid “a red herring.”

“State aid never came up in [SED’s] papers [in the prior case], he said. “There was extensive briefing, they had four rounds of briefing before Supreme Court, state aid never came up  … It’s an entire red herring … It’s not an issue in this case.”

Kiernan and Schick also argued over whether Ryba was correct in ruling that a child could get some courses toward substantial equivalency at a non-conforming school while achieving substantial equivalency by supplementing their education elsewhere.

A significant portion of the argument, however, focused on whether the yeshivas and yeshiva organizations even had had “standing” — the legal right to bring the initial case, before any yeshiva has received a final determination of being non-substantially equivalent.

Kiernan argued that yeshivas shouldn’t be allowed to bring the case now because they none “are at imminent risk of a closure.”

“Standing is a major issue here,” Presiding Justice Elizabeth Garry said to Schick. “And I think you have to concede that there has been no impact to date on any of the organizations [representing yeshivas].”

But Schick argued that “a school does not have to wait until the unconstitutional, or extralegal harm is visited upon it.”

“Schools suffer a harm when SED holds over [them] the prospect that parents [who send their children to this school] face constant criminal penalties,” Schick said.

“The yeshivas that are represented here today were the object and the target of these regulations,” Schick continued. “The state has made clear its view by issuing well over a dozen preliminary determinations” of non-substantial equivalency against yeshivas.”

“A school can’t operate, Your Honor, if the parents wonder whether they’re going to be subject to criminal penalties by sending the child there. No one’s going to enroll their child for kindergarten or first grade if it may be when they hit third grade they’ll find out you can’t be here anymore.”

Following argument, Schick told Hamodia, “We are grateful for the time and attention of the Appellate Division today. On consideration of the merits, we are confident that the court will agree with Supreme Court Justice Ryba’s decision that the challenged regulations were contrary to the Education Law, exceeded SED’s authority and needed to be struck down.”

Regarding SED’s argument that the yeshivas did not have standing to sue at this time, he quipped, “If you ask a government lawyer, no case is ever ripe for decision until they can argue that it should be dismissed as moot.”

Harav Yisroel Reisman, Rosh Yeshiva of Torah Vodaath, and one of the rabbanim most involved in fighting the regulations, told Hamodia, “Hakadosh Baruch Hu has given us a pathway through the court system, and we daven for hatzlachah there. The Legislature and elected officials are so liberal in this state, that we have to avoid looking in that direction in our hishtadlus.

In response to Hamodia’s request for comment, an SED spokesperson said, “The Department doesn’t comment on pending litigation.”

YAFFED, a group of formerly Orthodox Jews who support government oversight of yeshivas and filed an amicus brief in the case, said in a statement, “YAFFED is grateful that the Appellate Division, Third Department took up NYSED’s appeal, as this matter is of critical importance to ensuring that tens of thousands of New York’s children receive the sound basic education that is their constitutional right. We look forward to receiving the Court’s decision, and remain confident that the case set forth by NYSED is strong and compelling. We also look forward, with even greater anticipation, to the time when all schools, having taken on the duty of educating our children, provide that sound basic education their children are entitled to.”

During their questioning, the justices did not appear to tip which way they were leaning.

Regardless of how they rule, it likely won’t be not the final word in the case, as the ruling will almost certainly be appealed to the state’s highest court, the Court of Appeals.

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