Back on June 27, 2024, New York’s second-highest court, the Appellate Division’s Third Department, ruled that the New York State Education Department is allowed to withhold funding and services such as busing and lunch to schools it determines to be inadequate.
A group of New York yeshivos argue that the regulations also authorize the State to completely shutter such yeshivos and to also to hold liable parents who send their children to such schools.
The yeshivos are now seeking permission for the State's highest court to review and vacate the new regulations.
New York law requires that instruction “elsewhere than at a public school” be “substantially equivalent to the instruction given” at public schools.
In 2018, in a law known as “Felder Amendment schools," the Legislature designated the Commissioner of Education as the entity responsible for determining whether certain nonpublic schools provide substantially equivalent instruction. That legislation also set forth substantive criteria that the Commissioner must consider in making those determinations.
In 2022, the State Education Department (SED) promulgated regulations which provide a framework for evaluating whether nonpublic schools meet the substantial equivalency standard. Nonpublic schools are deemed substantially equivalent upon demonstrating their voluntary high school registration by the Board of Regents, accreditation by an approved accrediting body, or use of approved assessments showing academic progress from grade to grade (among other pathways). Otherwise, nonpublic schools must be periodically reviewed by the local school authority.
If deficiencies are identified, there is a negative preliminary determination followed by a lengthy collaborative period to assist the nonpublic school in attaining substantial equivalence. At the end of this review period, either the Commissioner (for Felder Amendment schools) or the local school authority (for all other nonpublic schools) must make a final substantial equivalency determination. The Commissioner may also issue a negative substantial equivalency determination upon finding that a nonpublic school intentionally prohibited a local school authority from conducting a review.
Importantly, as a consequence of a negative final determination, “the nonpublic school shall no longer be deemed a school which provides compulsory education fulfilling the requirements of [the Compulsory Education Law].” The local school authority or the Commissioner must then “provide a reasonable timeframe for parents or persons in parental relationship to enroll their children in a different appropriate educational setting.
In response to the enactment of these regulations, on October 9, 2022, a petition was filed in Albany Supreme Court challenging the regulations.
This petition was filed by Attorney Avi Schick on behalf of Parents For Educational And Religious Liberty In Schools (PEARLS), Agudath Israel Of America, Torah Umesorah, Mesivta Yeshiva Rabbi Chaim Berlin, Yeshiva Torah Vodaath, Mesivtha Tifereth Jerusalem, Rabbi Jacob Joseph School, Yeshiva Ch'San Sofer - The Solomon Kluger School. These five Orthodox yeshivas, as well as three organizations whose members encompass most Jewish schools in New York and parents whose children attend those schools.
Some of the member schools have already received substantial equivalency determinations under the new regulations.
The petition raised both constitutional and statutory challenges under a hybrid declaratory judgment action and Article 78 petition.
Following the filing of the petition, Educational Institute Oholei Torah, represented by Martin Bienstock; Bobover Yeshiva Bnei Zion, represented by Dennis Rapps; Union of Orthodox Jewish Congregation of America, NYS Council of Catholic Schools Superintendents and The Bruderhof, represented by Michael L. Costello filed amicus curaie briefs supporting the petition.
Young Advocates For Fair Education (YAFFED), represented by Christopher Hazen filed an amicus curaie brief supporting the state.
On March 9, 2023, Justice Christine Ryba, sitting in the Albany Supreme Court, granted a major victory to the yeshivos.
Judge Ryba turned aside the facial constitutional challenge to the New Regulations but found that the provisions that stated (1) that a nonpublic school found to be less than substantially equivalent “shall no longer be deemed a school which provides compulsory education fulfilling the requirements of Article 65 of the Education Law”; and (2) consequently, that parents must “enroll their children in a different, appropriate educational setting" imposed severe consequences on parochial schools and the parents who chose those schools for their children exceeded the state's authority under the Education Law.
"Taken together, the new regulations permit the State Education Department and Local School Authorities to require nonpublic schools to close - a penalty the Education Law does not authorize. They also unlawfully restrict the rights of parents to satisfy their compulsory education obligation through a combination of multiple sources of instruction.
"Under a correct reading of the Education Law, if a parochial school does not itself “meet each and every criteria for substantial equivalency,” parents have the legal right to supplement the instruction received at the parochial school with instruction received through other sources. Limiting parents’ option to provide their children with a satisfactory education was unlawful, and exceeded the State Education Department's authority," Judge Ryba found.
The State appealed this ruling to the Appellate Division’s Third Department.
The State argued principally that the petitioners lacked standing because no negative substantial equivalency determination had yet been rendered against the yeshivos.
In terms of the substance of the matter, the State admitted that the regulations imposed a “serious consequence” on schools receiving an unfavorable determination - they are “no longer deemed a school,” - but still denied that this amounted to a school closure because they could remain open for extracurricular activities.
The State also argued that parents had no “right to supplement deficient instruction at a nonpublic school” or to use a “combination of sources” to satisfy their compulsory education obligation.
On June 27, 2024, the Appellate Division reversed Justice Ryba's decision and ruled in the State's favor.
The court rejected the State’s standing arguments, holding held that "it is undisputed that the petitioner yeshivas will be directly subject to the regulations. The petitioner organizations represent both yeshivas in that position and the parents of yeshiva students who have an obvious interest in the education of their children. Although we recognize that to date no negative substantial equivalency determination has been rendered, we do not find the possibility that such will occur to be unduly speculative . . . Petitioners also provided evidence suggesting that, although in the abstract the curricula at the petitioner yeshivas align with accepted educational standards, the regulations will compel changes to render their curricula “substantially equivalent” to that available in public education; they assert that this will interfere with the religious instruction at the core of a yeshiva’s mission.”
However, the court agreed with the state that the new regulations did not amount to an authorization of school closures or any direct penalties.
"The Education Law does not provide for any direct penalty upon nonpublic schools. However, 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 . . . 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," the majority held.
The court also agreed with the state that the new regulations did not amount to a shut down of yeshivos because, even with a finding of non-compliance, the institutions may “provide some form of instruction. Parents may “enroll their children in any extracurricular . . . activities . . . they deem . . . helpful," but they could not combine educational sources to satisfy their compulsory education obligation.
Justice Egan dissented with this ruling. He agreed with Supreme Court Justice Ryba that the Education Law “affords parents . . . 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.”
Mr. Schick has recently filed a motion to the Appellate Division seeking leave to appeal their case to the Court of Appeals, the State's highest court, or in the alternative for reargument before the Appellate Division.
The motion argues that, in overturning Justice Ryba's ruling, the Appellate Division contradicts “the long-settled principle that ‘[p]rivate schools have a constitutional right to exist and parents have a constitutional right to send their children to such schools.’"
“It is parents and not private schools who face financial and other penalties for failing to comply with the law,” Schick wrote.
The State has just filed fierce opposition to the motion.
"Reargument is not necessary to correct any errors in the Court’s decision, which correctly upholds the regulations based on SED’s statutory authority to effectuate the statutory requirement that students at nonpublic schools receive instruction that is substantially equivalent to that given in public schools. Petitioners’ motion likewise does not set forth any meritorious issues for the Court of Appeals to address," wrote Assistant Solicitor General Beezly J. Kiernan.
"Contrary to petitioners’ argument - raised for the first time in this motion - the decision does not deprive parents of any procedural right to demonstrate substantial equivalency in a Family Court proceeding. To be sure, parents are ultimately responsible for ensuring their children attend upon full-time instruction. But the regulations do not tell parents how to fulfill that obligation. The regulations address a different issue, namely whether a nonpublic school provides substantially equivalent instruction. As the Court explained, a determination that “a particular institution fails to meet the statutory standard . . . is no more, or less, than a necessary advisory to parents.”
"Petitioners’ contention that the decision impermissibly authorizes SED to close nonpublic schools also does not merit review by the Court of Appeals. As this Court correctly concluded, the regulations do not purport to authorize the closure of nonpublic schools that fail to demonstrate substantial equivalency. The regulations merely describe the logical result of a negative substantial equivalency determination: “the nonpublic school shall no longer be deemed a school which provides compulsory education fulfilling the requirements of [the Compulsory Education Law].” It bears noting that a school that does not provide compulsory education cannot receive public funding for services linked to compulsory education. However, the school may continue to provide extracurricular instruction or other activities. If a nonpublic school chooses to close, it would do so of its own volition - not by order of the Commissioner or local school authority. Thus, petitioners fail to show any issue meriting review by the Court of Appeals," wrote Mr. Kiernan.
A written ruling on the motion is expected in the coming weeks.
To join a FAA News WhatsApp Group, click here.
To join the FAA News WhatsApp Status, click here.
No comments:
Post a Comment