Showdown in New York: Part Two

Last November, New York Commissioner of Education MaryEllen Elia jolted the state’s private school community by issuing guidelines requiring public school boards to ensure that private schools operating within their boundaries are providing an educational program that is “substantially equivalent” to that offered by district public schools.  The directive, seen by many as a response to claims that several Orthodox Jewish schools in New York City were deficient in the teaching of secular subject matter, would put teeth in a state law that, while on the books for some 120 years, has been largely ignored.  District boards would be directed to visit and examine each private school located within their catchment areas within a three year time frame.  If a board should determine that a private school isn’t providing a substantially equivalent education, the school will be granted a reasonable period of time in which to comply.  Should a private school fail to do so, parents will be given 45 days to make alternative enrollment arrangements.  After that, any students remaining in the private school will be deemed truant.

The State Education Department’s (SED) directive elicited uniform condemnation from private school groups across the state, and beyond.  The New York Council of Catholic School Superintendents exhorted all Catholic schools to refrain from participating in “any review carried out by local public school officials.”  Christian schools affiliated with the Association of Christian Schools International (ACSI) received a similar recommendation.  The New York State Association of Independent Schools (NYSAIS) filed papers seeking an injunction against implementation of what it described as “the NYSED’s unconstitutional mandate to take over the regulation of private school education in New York State.”  (Similar lawsuits were brought by Catholic and Jewish groups.)  A spokesperson for the Orthodox Jewish advocacy organization, Agudath Israel, described the directive as “patently absurd.”

In mid-May, the directive was voided by New York State Supreme Court Judge Christina Ryba, who found that the manner in which the SED had issued its guidance failed to comply with provisions of the State Administrative Procedures Act (SAPA), which makes proposed regulations subject to a notice and comment period.  Because the ruling was predicated upon purely procedural grounds, the SED could still opt to reissue its “substantial equivalency” directive in a manner that comports with the SAPA requirements.  Would it choose to do so?

That question was answered on May 31, when the SED released proposed “substantial equivalency” regulations that were essentially the same as the voided guidelines.  As is noted in the Department’s press release: “The proposed rulemaking will be published in the State Register on July 3 and the public comment period will run through Sep. 2. It is expected the final regulation will come before the Board of Regents for its consideration in fall 2019.”

If implemented in their current form, the regulations promulgated by New York’s Department of Education would, at the very least, create a perverse incentive for local school boards to close private schools.  After all, every child enrolled in a private school represents “revenue” that would otherwise be received by public schools.  For board members whose schools are in direct competition with private schools to be empowered with the authority to effectively shut private schools down because their education programs may not  satisfy an ultimately subjective determination of what constitutes “substantial equivalency” would appear to present a clear conflict of interest.

It its landmark 1925 decision in Pierce v. Sisters, a unanimous U.S. Supreme Court appeared to secure the legal foundation for the existence of private schools.  Declaring that “the child is not the mere creature of the state,” the ruling – issued after the state of Oregon enacted a compulsory education law requiring all school-age children to receive their education in a public school – asserted that, “the child is not the mere creature of the state.”

Barring a political solution, the current impasse between the state of New York and its private schools is certain to require resolution by the courts.  If that should happen, it is likely to present the most significant revisiting of Pierce v. Sisters in nearly  a century.  In that ruling, the High Court maintained that the state may not “standardize its children by forcing them to accept instruction from public teachers only.”  The State of New York will likely argue that such a formulation doesn’t preclude other means of standardization, including the requirement that instruction received in a private school be substantially equivalent to that provided in a public school.  To say that such a case will hold major implications for the future of American K-12 private education is an understatement.


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