Showdown in New York

Imagine that the State of California was to deliver the following directives to all public school districts:  “If a private school exists within your catchment area, representatives of your district must, within a span of three years, visit each such school as part of a review process designed to determine whether the private school offers an education that is substantially equivalent to that provided by district public schools.  Should it be determined that the education offered by a private school is not substantially equivalent, the school is to be extended a sensible period of time during which to achieve reasonable equivalency.  Should the private school fail to do so, parents of children enrolled in the school are to be given 45 days to find suitable alternative enrollment arrangements.  Following the 45-day period, any students remaining in the school are to be deemed truant.”

In the State of New York, such a directive is more than a thought experiment.  It actually happened.  On November 20, 2018, New York State Commissioner of Education MaryEllen Elia, issued a set of guidelines designed to steer the implementation of the very process outlined above.  The state’s action comes in the aftermath of a New York City investigation of several Orthodox Jewish schools claimed by a group of graduates to be deficient in the teaching of secular subject matter.

New York’s requirement that education in a private school must be “substantially equivalent” to that offered by local public schools has been on the books for decades, but has never been enforced along the lines found in the State Commissioner’s recent directive.  To state the obvious, the directive does not sit well with New York’s private school leaders and stakeholders.  Indeed, the New York Council of Catholic School Superintendents has thrown down the gauntlet by exhorting all Catholic schools in the state to refrain from participating in “any review carried out by local public school officials.”

Jewish education advocates have also expressed displeasure over the directive.  As reported in the CAPE Outlook, Rabbi David Zwiebel, Executive Vice President of Agudath Israel of America voiced the following objection:

“The notion that our schools have to provide an education that is ‘substantially equivalent’ to that provided in the public schools, as measured by the specific courses offered and the hours required to be devoted to those courses, is patently absurd. Parents who reach deep into their pockets, often at considerable sacrifice, to enroll heir children in religious or independent schools do so precisely because they seek an education that is substantially inequivalent to that which is offered in the public schools. Any governmental regulation of how nonpublic schools go about their educational business must be done, if at all, with a light touch — not with the heavy hand New York State has displayed with its new substantial equivalency guidance.”

In an interview conducted by the CAPSO Midweek E-Mailer, New York Catholic Conference Director for Education James Cultrara indicated that leaders representing diverse private school groups favor a political solution to the concerns generated by the Commissioner’s directive.  While acknowledging the regulatory authority of the state, Mr. Cultrara pointedly observed that a state’s regulation of private schools must be reasonable and limited.  In his view, the current controversy necessitates an answer to the question: “What are the minimum standards of instruction a state is permitted to compel of private schools?”  From his perspective, the Commissioner’s directive significantly exceeds the limits of the state’s authority, “creating political and economic problems for private schools whose standards exceed those of the state.”

If private schools refuse to comply once school districts begin to implement the state’s directive, the matter will almost certainly move to the judicial arena.  If and when that happens, a principal finding in the U.S. Supreme Court’s ruling in Pierce v. Society of Sisters is sure to come into play.  In that landmark case, decided in 1925, a unanimous Court asserted the following:

“The fundamental theory of liberty upon which all governments of this Union rest excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.”

Admittedly, there is a degree of ambiguity in that statement.  Is the standardization of children permissible, just not via forcing actual enrollment in public schools?  Barring a political solution to the impending showdown in the Empire State, that might prove to be the decisive question in what, for America’s private schools, may prove to be the most consequential legal contest in nearly a century.

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