Judge Deals Blow to Regents’ Scheme Against Yeshivas

Court defers constitutional battle over religious free exercise, but rules that the regulators from the Board of Regents exceeded their mandate.

AP/Mark Lennihan, file
The Young Israel of Flatbush yeshiva at Brooklyn, New York, in 2018. AP/Mark Lennihan, file

A trial court at Albany, after a battle between yeshivas and New York’s department of education, ruled that new regulations governing yeshivas had gone too far in their prescription for schools that didn’t meet their standards.

The regulations would have closed down Orthodox Jewish schools whose secular offerings the state deemed insufficient, forcing parents to transfer their children. Fervently Orthodox Jews across the state challenged such rules as a violation of their First Amendment right to religious free exercise.

Judge Christina Ryba shrank from the First Amendment challenge, but ruled that such penalties for violating the state regulations were beyond the scope of the mandate given to regulators.

The Agudath Israel of America, America’s largest grass roots organization representing fervently religious Jews, said in a statement that Thursday’s ruling provided “important protections for Orthodox Jewish education in New York.”

“While not the complete victory many were praying for, Agudath Israel is grateful that the court recognized the egregious overreach the Regulations sought,” the Agudah said in its statement. “The prospect of forcibly shutting down schools, and of the state mandating which schools children should be reenrolled to, is not something one would typically associate with 21st century America.”

The regulations, first adopted this fall, set forth a framework in which non-public schools were to be evaluated in accordance with the state’s compulsory education law — which requires all students receive instruction that is “substantially equivalent” to the education given in their public counterparts.

In October, yeshiva advocates and organizations representing the Orthodox Jewish community banded together in a lawsuit against the regulators, alleging that the new rules “single out yeshivas” for evaluations under greater scrutiny.

The regulations offered schools several mechanisms by which to prove they were “substantially equivalent” — Regents examinations, accreditation, international baccalaureate programs, among others. 

The Orthodox Jewish institutions of learning were the only group of non-public schools that did not fall neatly into one of the “pathways” and would therefore be subject to regular review by local public school districts.

After review, if schools failed to meet the standards set forth by the local school district, they would be given an amnesty period in which they would be required to shift their curricular offerings — possibly to include even profane subjects that some believe their religion prohibits them from teaching to their children.

If a school failed to meet standards after additional review, the school would be shut down, and parents whose children continued to attend could face jail time.

In Thursday’s ruling, following oral arguments earlier this month, Judge Christine Ryba struck down the penalties for schools found to be in violation of substantial equivalency — penalties that, she said, were outside the scope of the state’s compulsory education law.

Judge Ryba noted that the burden of the compulsory education law falls on parents — not schools. The state, therefore, has no compelling interest in closing a school that fails to meet substantial equivalence. 

Judge Ryba also noted that parents may not be relying on the school to fulfill the law’s requirements. If a school falls short of meeting requirements, it is not necessarily true that a child’s education is not substantially equivalent to that of a public school.

“Rather, 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,” Judge Ryba wrote.

In her ruling, the judge wrote that the Regents “lack authority” to enforce punitive measures on schools. Judge Ryba wrote that it was beyond the scope of the Regents’ mandate to “direct parents to completely unenroll their children from nonpublic schools” and “to direct the closure of such schools.”

The ruling, for the time being, preserves the autonomy of parochial and independent schools who are no longer at risk of closure for failure to comply with the regulatory regime.

The court, however, dismissed the constitutional merits of the case — saying the rules were “entirely neutral” and that the plaintiffs did not merit an injunction on First Amendment grounds. 

The plaintiffs had alleged that the regulations constitute an “invasive secular oversight” that threatens to “hamper and interfere with religious education,” which Judge Ryba dismissed.

If, however, the regulations are applied unevenly upon yeshivas, the judge left open the possibility of an “as-applied” free exercise challenge.

The New York Sun

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