Photo Credit: Jewish Press

Yeshivos Get A Judicial Reprieve

State Supreme Court Judge Christina Ryba handed down a favorable decision for yeshivos last week, protecting the school leadership from having to adhere to unilateral oversight from the State Education Department’s local school authorities when it pertains to secular course curriculum. The 11-page guidelines were established in November. The arguments before Ryba, heard on Monday, April 15, centered on whether or not these guidelines were actually mandates.

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The attorney for the yeshivos argued that the Commissioner of Education had not followed the state-mandated procedure for promulgating a new rule or regulation, thereby depriving any opportunity for formal input, such as a public hearing during the process, and thus nullifying the new guidelines.

“The New York City Department of Education, which has half of the non-public schools, has already reached out to schools,” argued Avi Schick of the Troutman Sanders law firm, the attorney for PEARLS (Parents for Educational and Religious Liberty in Schools), a conglomerate of well-known yeshiva leadership in Borough Park, Crown Heights, and Williamsburg.

“The city has sent letters in which they are demanding that certain private schools fill out the checklist. They want the schools to self-report, ‘Do you do every single thing that is required by the department under the November 20 guidelines?’ So the harm is here, the department is poised to take action, and that’s why we’re here today, your honor, asking you for a preliminary injunction.”

The attorney for the state had his own spin on where the case stands and falls apart, countering Schick’s argument regarding imminent harm on the horizon.

“It’s all in the guidance. There’s no rush to judgment. There’s nothing happening tomorrow. There’s nothing happening last month,” countered C. Harris Dague, special litigation counsel in the attorney general’s office speaking for the State Education Department. “The only thing that they can show is that some of their schools have gotten calls to start the initial phase of the process, which doesn’t end until 2021. What we don’t acknowledge is that this needs to be done under a mandatory preliminary injunction. There’s no need for that. There’s no fast moving train. This is a slow moving freight train – with no harm.”

Avi Schick (left), attorney for PEARLS, with his associate Timothy Butler, during a hearing in State Supreme Court on April 15.

Schick pointed out that the decision impacts more than 1,200 yeshivas, Catholic schools and independent private schools.

“The department now wants every local school district to have an affirmative obligation to visit, periodically, every non-public school; inspect it, evaluate it, vote on it, and approve it or disapprove it,” Schick told the court. “When I say periodically, I mean to say under these new guidelines each of the 1,800 non-public schools must be visited within the next two and a half years and then the cycle repeats itself every five years. That is surely entirely new.”

On Wednesday, April 17, Ryba disagreed with the State Education Department and ruled the guidelines handed down by the State Education Department were actually rules or mandates disguised as guidelines and therefore, public hearings needed to be held.

“The mandatory language dictating when the reviews will begin, coupled with the language that insists that ‘all’ schools will be visited as part of the process, constitute clear rules and not merely ‘interpretive statements which in themselves have no legal effect but are merely explanatory,” Ryba wrote in her decision.

Another blunder made by State Education Department officials when issuing this order was overlooking a section of law that states “the Commissioner is the entity that determines whether non-public schools are in compliance with the academic requirements.” The law does not mandate that the LSAs conduct reviews at every school and dictate when they commence. Therefore, the mandates are akin to “sufficiently fixed standards” that required compliance under state law to include, among other things, a filing with the Department of State,” Ryba concluded.

Agudath Israel of America, a plaintiff in the case, hailed the decision as “a major victory in the battle to preserve the educational autonomy of yeshivos and other non-public schools.”

Strict enforcement of the new regulations would have wreaked havoc in many, if not most, yeshivos in New York,” said Rabbi Chaim Dovid Zwiebel, executive vice president of Agudath Israel and a part of the leadership team at PEARLS. “There is nothing more important to the yeshiva community than the independence of our educational institutions. Today’s ruling preserves that independence, retaining the parental right to make educational choices for their children, by the educators they have entrusted their children to, rather than government bureaucrats.”

It remains to be seen what the next step the State Education Department will take. Officials say they are mulling over their options.

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