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 appealing to 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. For many, many years, there was no set definition or enforcement of "substantially equivalent."
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."
New York yeshivos argue that by forcing all parents to unenroll their children from the Yeshiva, these regulations essentially authorize the State to completely shutter such yeshivos. The regulations could also hold liable parents who send their children to such schools.
Accordingly, 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 unhappy 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.”
The undeterred yeshivos continue their valiant efforts.
Back in September 2024, the Appellate Division granted the yeshivos' petition to appeal to the Court of Appeals, the State's highest court.
The yeshivos have now filed their appeal brief.
"These regulations require private schools to earn a “substantially equivalent” designation. If a school fails to achieve that status, LSAs must direct parents of the students educated there to enroll them elsewhere. Without any students to instruct, the private school must close," Mr. Schick emphasized in his brief.
The appeal presents the following 3 questions to the court:
1) Whether parents have the right to fulfill their compulsory education obligation by arranging for their child to receive instruction from a combination of sources.
2) Whether the State Education Department exceeded its authority by promulgating regulations that require parents to unenroll their children from the school chosen for them and instead enroll them elsewhere.
3) Whether the State Education Department exceeded its authority by requiring private schools to obtain a “substantially equivalent” designation in order to provide instruction to students and by requiring all students of private schools not granted “substantially equivalent” status to unenroll, thereby effecting the school’s closure?
The State's opposition is due later this month. Oral arguments are expected to be held in the coming months.
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