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, the NYSED has been battling these schools over the quality of the education they provide, arguing that they fail to meet the basic educational standards required by New York law. For that reason, this past fall, the NYSED enacted new regulations setting out a process to assess the instruction provided in nonpublic schools and, when a school fails to meet state standards, ensuring its closure. Not surprisingly, a number of Jewish organizations and schools filed suit against the new regulations. But instead of deciding the case based on big-ticket constitutional questions, a New York court invalidated the regulations on grounds that put the obligation to meet educational standards on parents, not on schools. In so doing, the court severely undermined the NYSED’s ability to regulate nonpublic schools.

New York education law requires that, when minors receive “instruction” outside a public school, the instruction “shall be at least substantially equivalent to the instruction given to minors of like age and attainments at the public schools of the city or district where the minor resides.” This “substantially equivalent” standard has been on the books in New York since the late nineteenth century.

Recent controversies have stemmed from complaints that a small group of Orthodox Jewish schools—primarily Hasidic schools—are failing to meet state standards. After some false starts, the NYSED enacted rules this past fall establishing a process for reviewing whether nonpublic schools were meeting the “substantially equivalent” requirement. If a school receives a final determination that it has failed to meet state standards, the penalties are severe. Under such circumstances, “the nonpublic school shall no longer be deemed a school,” in compliance with the state’s compulsory education law, and parents with children in that school are required “to enroll their children in a different, appropriate educational setting.” In sum, the school must close.

Various Jewish institutions and schools filed suit against the new regulations. According to their complaint, the regulations both exceeded the legal authority of the NYSED and, more dramatically, violated their constitutional rights, including their religious liberty, free speech, due process, and equal protection rights. Indeed, the lawsuit seemed destined to be fought out on the terrain of the Fourteenth Amendment, which ensures parents’ rights to control the upbringing of their children. This right, to be sure, is balanced against the government’s obligation to ensure that children receive an education that enables them to be economically self-sufficient and civically engaged. Figuring out where to draw the line between parental and government authority appeared to be the crux of the legal challenge.

But Judge Christina Ryba had something different mind. According to Judge Ryba, the constitutional challenges were premature: the new regulations did not add substantive educational requirements; they only outlined a process for reviewing schools’ compliance with preexisting educational requirements. As a result, any legal challenge arguing that the regulations imposed educational requirements that trespass on the rights of schools and parents must fail—at least for now—because the regulations did not, in fact, impose any new substantive requirements.

But while the court sidestepped the constitutional claims, it still interpreted existing New York law as vindicating a parallel principle of parental authority. Thus the court struck down perhaps the most significant elements of the regulations: the NYSED’s authority to close a school for failing to provide a substantially equivalent education. According to the court, New York’s education law makes clear why: “the statutory scheme places the burden for ensuring a child’s education squarely on the parent, not the school.” This implication, argued the court, is clear from various provisions of New York’s education laws—Education Law 3212, for example, which obligates those in a “parental relation” with a child to ensure that the child is receiving the required education. Education Law 3233, meantime, imposes fines and penalties on the child’s parent for noncompliance; and Education Law 3234 penalizes the city or its public schools if they fail to meet state educational requirements. Nowhere, however, does New York law authorize the imposition of penalties on a nonpublic school. As the plaintiffs argued in their briefing before the court, “the compulsory education law has long required parents to ensure that children receive . . . instruction that is substantially equivalent to the local public schools,” but the regulations “impose significant new requirements on nonpublic schools.”

Indeed, a careful reading of the “substantial equivalency” requirement further confirms this conclusion. The rule requires that the “instruction . . . be at least substantially equivalent.” But nowhere does the statute imply that this obligation is the school’s; when a child fails to receive an adequate education, it is the parent who may be subject to penalties for educational neglect. For these reasons, the court concluded that the NYSED exceeded the authority granted by the legislature when it threatened nonpublic schools with closure. New York law never authorized penalties against nonpublic schools, and the NYSED, under the guise of creating a process to implement state law, was seizing power the legislature had never delegated to it.

By locating the substantial-equivalence obligation with parents, the court interpreted New York law to require the state to consider alternative ways in which parents might meet this standard. Thus, if a nonpublic school is not providing a “substantially equivalent” education, “the parents should be given a reasonable opportunity to prove that the substantial equivalency requirements for their children’s education are satisfied by instruction provided through a combination of sources.” In the words of the court, “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.”

There is a conceptual elegance to the court’s decision. Yes, children must receive a substantially equivalent education. But that obligation rests with the parents. Therefore, if a nonpublic school fails to provide that education, then the parents must provide supplemental materials and instruction. In effect, the child defaults to being homeschooled: “if a student is found to be attending a school that is not deemed ‘substantially equivalent’, the home schooling rules shall apply if the parent chooses to keep their child enrolled at that school.” Indeed, to close a nonpublic school under such circumstances makes no more sense than closing an English course sponsored by a homeschool collective for failing to provide adequate mathematics instruction. In each case, the formal instruction is a part of the education; the rest of the education is for the parents to supplement.

But conceptual elegance cannot obscure the logistical impracticalities. If a nonpublic school isn’t providing adequate education, the court’s decision would require the government to follow up with every family to determine what kind of supplemental education these families are providing their children. After following up, officials would then need to compare the combined homeschooling and in-school education to determine if these resources meet the state’s standards. The scale of this operation would be staggering, and the manpower would, quite likely, overrun the system.

The NYSED could appeal the decision in hopes that another court will reread the relevant provisions of New York’s education law. It could also encourage the state legislature to give it the authority to close a nonpublic school. But both of these options present their own challenges. Given the strength of the court’s decision, it’s far from clear that the NYSED would secure a different outcome on appeal. And the political odds seem long that the legislature would amend the statute to grant the NYSED the authority to close a school.

In this way, the court’s decision reminds us that, for all the talk of constitutional challenges, New York may have woven parental authority into the fabric of its education law. No doubt, this interpretation of the law leaves open the possibility that some children may not receive a substantially equivalent education. Where nonpublic schools fail to provide such an education, it may be extremely difficult for the state to hold parents accountable. But these significant administrative challenges can’t change the limitations imposed by New York law. For that reason, government efforts to mandate uniform and basic educational requirements on parents of children attending nonpublic schools may ultimately be stymied by their limited authority and bureaucratic overreach.

Photo by Spencer Platt/Getty Images


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