NY Appellate Court Upholds Regulations on Yeshiva Curricula

By Reuvain Borchardt

New York’s regulations on yeshiva curricula were upheld by the Appellate Division on Thursday, as it overturned a state Supreme Court ruling that had invalidated provisions of the regulations that had precluded enforcements against nonconforming schools.

“Only nonpublic schools that provide substantially equivalent instruction may retain their status,” Justice Elizabeth Garry wrote for the majority. “As the provisions at issue are authorized by the Education Law and are meaningfully designed to meet the statutory mandate, we find that Supreme Court improperly invalidated these two provisions, and that the Commissioner’s ability to enforce the statutory directives must be upheld.”

Yeshivas will appeal the ruling to the Court of Appeals, the state’s highest court, ensuring the continuation of a fierce legal and political battle that has already stretched on for nearly a decade.

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 formed a group called YAFFED (Young Advocates for Fair Education) and 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 group of yeshivas and yeshiva-supporting organizations 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. 

In March 2023, Justice Christina Ryba of the state Supreme Court in Albany 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 the ruling, arguing it has the authority to impose these consequences when schools are deemed non-substantially equivalent. 

By a majority ruling of 4-1, the Appellate Division agreed.

Writing for the majority, Justice Garry said the provisions at issue “simply provide” that upon a final negative substantial equivalency determination, ‘the nonpublic school shall no longer be deemed a school which provides compulsory education fulfilling the requirements . . . of the Education Law.’ These provisions are thus a direct, measured exercise of the Commissioner’s vested authority to determine whether a nonpublic school is in compliance with the substantial equivalency requirement, and to supervise the enforcement of this standard. The regulations ‘merely fill in the details of broad legislation describing the over-all policies to be implemented’ – that is, that only nonpublic schools that provide substantially equivalent instruction may retain their status. As the provisions at issue are authorized by the Education Law and are meaningfully designed to meet the statutory mandate, we find that Supreme Court improperly invalidated these two provisions, and that the Commissioner’s ability to enforce the statutory directives must be upheld.” [Internal citations omitted throughout.]

Garry argued that a determination that a school is not substantially equivalent is not a penalty on the school, but simply an “advisory” to parents that they cannot discharge their legal obligation by having their children be educated at that school — though they could still send their child to that school for “any extracurricular instruction or activities that they deem appropriate and helpful.”

“A declaration that a school does not meet the required standards is simply that; although the loss of status as a substantially equivalent nonpublic school is a serious consequence, it is merely, or no more than, the logical result of such a determination,” Garry wrote. “By definition, a nonpublic school that fails to demonstrate substantial equivalency necessarily fails to fulfill the requirements of the compulsory education mandate. Parents are obligated to comply with this mandate and, as such, the Commissioner’s declaration that a particular institution fails to meet the statutory standards required to meet that duty is no more, or less, than a necessary advisory to parents.”

Garry also said that since yeshivas have full-day classes, students would have no remaining time in which to supplement any possible shortcoming in their education.

“It bears clearly stating that the Commissioner’s authority to determine the substantial equivalency of nonpublic schools at issue here is limited in application to those nonpublic schools that have lengthy enrollment periods, encompassing a full school day on the majority of school days (see Education Law § 3204 [2] [ii] [3]). The flaw in the reasoning of the dissent arises from a failure to consider these time limitations. A child attending an institution for a full, lengthy school day period who is not receiving or obtaining a substantially equivalent education in the basics of arithmetic, English, science and history (see Education Law § 3204 [2] [ii]) cannot adequately supplement this substandard curriculum in the few hours remaining in the week.”

Garry’s citation was to a subsection of the Education Law known as the “Felder Amendment,” which discusses schools that have particularly long school days, are nonprofits and have bilingual programs — which includes only yeshivas. Her citation to that subsection in referring to the schools covered by the substantial-equivalency regulations indicates that the regulations apply only to yeshivas, not other private schools.

The Felder Amendment, named for its author Sen. Simcha Felder, was initially passed to protect yeshivas by including the totality of their curriculum in determining substantial equivalency. But yeshiva advocates argue SED has been turning the amendment on its head by considering all yeshivas — and only yeshivas — to be under this amendment, and using the statutory language to actually impose stronger rules on yeshivas than other schools.

Thursday’s ruling appears to possibly affirm SED’s view on these matters.

In dissent, Justice John Egan wrote, “in view of the Legislature’s failure to provide remedies against nonpublic schools … it is improper for a court to imply the existence of such remedies.”

“The law explicitly permits such education to occur ‘at a public school or elsewhere’ without limitation so long as a parent or similarly situated individual can demonstrate that a child ‘who is not attending upon instruction at a public or parochial school . . . is attending upon required instruction elsewhere,’” Egan continued.

“I have no difficulty concluding that the statutory framework affords parents and similarly situated individuals wide discretion in fashioning an acceptable program of instruction, be it in a nonpublic school, homeschooling or a mixture of the two, that fulfills their duty of providing an education to children under their care that is substantially equivalent to that available in public schools.”

Egan also wrote, in a footnote, that SED’s argument that parents may not use a mixture of those in-school and homeschooling education to fulfill their substantial equivalency requirement “is particularly dubious given that the Commissioner’s own regulations contemplate that homeschooling may include ‘instruction . . . at a site other than the primary residence of the parents,’ while the State Education Department advises that students receiving homeschooling may be ‘instructed in a group situation for particular subjects’ so long as such does not form the majority of their schooling.”

Yeshivas are expected to appeal to the Court of Appeals.

In a statement to Hamodia, SED spokesman Jonathan Burman celebrated the ruling.

“The Court ruled correctly in upholding regulations that are intended to ensure all New York State students receive the education they are legally entitled to, and in affirming the authority of the Commissioner and the Board of Regents to enforce this requirement,” Burman said. “The Court’s language in upholding the regulations is spot on:  ‘In sum, parents and guardians have a duty under the Education Law to ensure that the children in their care attend proper educational instruction…[They] cannot discharge their statutory duty by relying upon a nonpublic school that fails to meet the minimal standards of our state law, and the regulations at issue here are the direct application of the Commissioner’s statutory authority to enforce compliance with that standard.’ The Department will continue to work with all nonpublic schools and local school authorities on behalf of all New York State students.”

Adina Mermelstein Konikoff, executive director of YAFFED, the group of formerly Orthodox Jews whose complaints about yeshivas led to the regulations, “Once again, the yeshiva lobby has lost in court. New York State law is clear: every child has the right to a full education. There are many excellent yeshivas that balance religious education with general studies, and no school is exempt from the law. It’s time for the yeshivas who have been willfully ignoring the law to accept reality and improve their programs. Education is a Jewish value and a fundamental right in the U.S., regardless of the community children are born into. We look forward to seeing every yeshiva in New York perform a Kiddush Hashem and follow the law.”

PEARLS (Parents for Educational and Religious Liberty in Schools), one of the yeshiva organizations who had filed suit against the regulations, decried the ruling in a statement to Hamodia and indicated it would appeal.

“Today’s disappointing decision raises more questions than it answers,” PEARLS wrote. “We believe that the dissent and the Albany Supreme Court got it right, and we are confident that the Court of Appeals will see it the same way. 

“One particularly troubling aspect of the majority opinion is its suggestion that SED’s authority is limited to yeshivas covered by the Felder Law.  We have long complained that the State was targeting yeshivas, and the court has now confirmed that.

“At the same time, the decision contains important limitations on SED’s authority, including recognition that ‘the Education Law does not provide for any direct authority over nonpublic schools’ and an acknowledgment that the State Education Commissioner’s declaration that a school is not substantially equivalent is ‘no more or less than a necessary advisory to parents.’  We intend to hold SED to these limitations.

Harav Yisroel Reisman, Rosh Yeshiva of Torah Vodaath, one of the yeshivas that sued SED, told Hamodia, “We are happy that the court decided in our favor on the basic issue of state law – that schools cannot be penalized. However, we are disappointed that they interpreted the Felder Amendment as making yeshivas —  and only yeshivas, which are subject to the Felder Amendment —  subject to penalties for violating the substantial equivalency law. This was certainly not the the intention of Senator Simcha Felder when he proposed the amendment.

“We hope and pray that the Court of Appeals will see things this way. We see this as Hakadosh Baruch Hu wanting us to continue to daven for the welfare of our mosdos haTorah.”

The full court ruling is available by clicking here

—

rborchardt@hamodia.com