Late last month, the ongoing battle between the New York State Education Department (NYSED) and a small group of Orthodox Jewish schools took a surprising turn. For the better part of a decade, NYSED has been battling these schools about the quality of the education they provide, arguing that they fail to meet basic educational standards required by New York law. That’s why, last fall, NYSED enacted new regulations that set out a process for evaluating instruction offered at non-public schools, and when a school fails to meet state standards, ensures that it closes. Not surprisingly, a number of Jewish organizations and schools have filed lawsuits against the new regulations. But instead of deciding the case on expensive constitutional questions, A New York court invalidated the regulations On the basis that places the obligation to meet educational standards on the parents, not on the schools. In doing so, the Court severely undermined NYSED’s ability to regulate non-public schools.
New York’s Education Code requires that when minors receive an “education” outside of a public school, the instruction “shall be at least substantially equivalent to the education given to minors of similar age and achievement in the public schools of the city or district in which the minor resides.” This “largely equivalent” standard has been on the books in New York since the late 19th century.
The recent controversies have stemmed from complaints that a small group of orthodox Jewish schools—primarily Hasidic schools—fail to meet state standards. After some false starts, NYSED enacted the rules last fall establishing a process for reviewing whether non-public schools meet “largely equivalency” requirements. If a school receives a final determination that it has failed to meet state standards, the penalties are severe. Under these circumstances, a non-public school “will not be considered a school,” according to the state’s compulsory education law, and parents with children at that school are required to “enroll their children in a different and appropriate educational setting.” In short, the school should close.
Various Jewish institutions and schools sued the new regulations. According to their complaint, the regulations exceeded NYSED’s legal authority and, more dramatically, violated their constitutional rights, including their freedom of religion, freedom of speech, due process, and equal protection rights. actually, It looks like the lawsuit is destined to fight on the grounds of the Fourteenth Amendment, which guarantees parents’ rights to control the upbringing of their children. Certainly, this right is balanced with the government’s obligation to ensure that children receive an education that enables them to achieve economic self-sufficiency and civic participation. Knowing where to draw the line between parental authority and governmental authority seems to be the crux of the legal challenge.
But Judge Cristina Ripa had something different. According to Judge Ripa, the constitutional appeals were premature: the new regulations did not add objectivity educational requirements; They just set a practical To review schools’ compliance with pre-existing educational requirements. As a result, any legal challenge arguing that the regulations imposed educational requirements that infringed on the rights of schools and parents must fail—at least for the time being—because the regulations did not, in fact, impose any new substantive requirements.
But while the court avoided constitutional claims, it still interpreted existing New York law as a parallel vindication of parental authority. And so the court struck down perhaps the most important element of the regulations: NYSED’s authority to close a school for failing to provide a substantially equivalent education. According to the court, the New York Education Code explains why: “The legal system places the burden of ensuring a child’s education squarely on the parentsNot school.” The court argued that this meaning is evident from various provisions of New York’s education statutes—Education Code 3212, for example, which obligates those who have a “parental relationship” with a child to ensure that the child receives the required education. Education Code 3233 mandates, Meanwhile, fines and penalties for a child’s parent for non-compliance, and Education Act Section 3234 penalize a city or its public schools if they fail to meet the state’s educational requirements.However, nowhere does New York law allow penalties for a non-public school.The plaintiffs also argued in Briefing them in court,” the Compulsory Education Act has long required parents To ensure that children. . . An education that is largely equivalent to the local public schools, “but the regulations” impose important new requirements on Non-public schools. “
Indeed, a careful reading of the “essential equivalence” clause confirms this conclusion. The rule requires that “the instructions . . . be at least substantially equivalent”. But nowhere does the law indicate that this obligation rests with the school; When a child fails to get a proper education, it is the parent who may be subject to penalties for educational negligence. For these reasons, the court concluded that NYSED exceeded the authority granted by the legislature when non-public schools threatened to close. New York law had never authorized penalties for non-public schools, and NYSED was, under the guise of creating a state law enforcement process, seizing power that the legislature had never delegated to it.
By setting an obligation of substantial equivalence with parents, the court interpreted New York law to require the state to consider alternative ways parents might meet this standard. Thus, if a non-public school does not provide a “substantially equivalent” education, “parents should be given a reasonable opportunity to demonstrate that the basic equivalency requirements of their children’s education are being met by instruction provided through a range of sources.” In the words of the court, “There is nothing in the Compulsory Education Act that limits a child to a substantially equivalent education through only one educational resource made available in one location.”
There is a conceptual consistency to the court’s decision. Yes, children should receive a largely equivalent education. But this obligation rests with the parents. Therefore, if a non-public school fails to provide this education, parents must provide supplemental materials and instructions. In effect, the child defaults to homeschooling: “If a student is found to be attending a school that is not considered to be ‘substantially equivalent’, the homeschooling rules must apply if the parent chooses to keep their child enrolled in that school.” Indeed, closing a non-public school under these circumstances makes no more sense than closing a homeschooling group-sponsored English course for failing to provide adequate mathematics education. In each case, formal education is part of education; The rest of the education for the parents to supplement.
But conceptual elegance cannot obscure logistical non-procedures. If a non-public school does not provide an adequate education, the court’s decision will require the government to follow up with each family to determine what kind of supplemental education those families provide for their children. After proceeding, officials will then need to compare homeschooling and in-school education together to determine if these resources meet state standards. The scale of this operation would be staggering, and the workforce would very likely overwhelm the system.
NYSED can appeal the decision in hopes that another court will re-read the relevant provisions of the New York Education Code. He could also encourage the state legislature to give him the power to close a non-public school. But both options present their own challenges. Given the strength of the court’s decision, it is unclear whether the NYSED administration would secure a different outcome on appeal. And the political odds seem long that the legislature will amend the law to give NYSED the power to close the school.
In this way, the court’s decision reminds us that despite talk of constitutional challenges, New York may have woven parental authority into the fabric of its education law. There is no doubt that this interpretation of the law leaves open the possibility that some children will not receive a substantially equal education. When non-public schools fail to provide such an education, it can be very difficult for the state to hold parents accountable. But these significant administrative challenges cannot alter the limitations imposed by New York law. For this reason, government efforts to impose standardized and basic educational requirements on parents of children attending non-public schools may ultimately be hampered by their limited authority and bureaucratic overreach.
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