Photo Credit: Marc Gronich
The panel of five judges of the New York Supreme Court, Appellate Division, Third Judicial Department. From left to right, Associate Justice Eddie McShan, Associate Justice John Egan, Jr., Presiding Justice Elizabeth Garry, Associate Justice Lisa Fisher and Associate Justice Mark Powers. The five judges listened to the oral arguments from attorneys Beezly Kiernan and Avi Schick and asked questions missing from the legal briefs issued to the court prior to the arguments as well as clarifications of certain salient and arcane points.

Last week, a panel of five judges of the New York Supreme Court, Appellate Division, Third Judicial Department, heard arguments regarding what would the consequences be for a parent, school or building where the school is located if a curriculum is deemed inadequate by the department, and what penalties can be brought to bear.

Last year, arguments regarding whether the state education department can oversee yeshivas was settled by a lower court.


The parties who squared off for a 35-minute battle were the state education department, represented by the state attorney general’s office, Beezly Kiernan, an assistant solicitor general; against a group of three Jewish organizations represented by attorney Avi Schick, along with five yeshivas which were stakeholders of the larger organizations.

Attorney Avi Schick, representing Parents for Educational and Religious Liberty in Schools (PEARLS), Torah Umesorah and Agudath Israel along with five yeshivas, argues his case before a five-member panel of judges of the New York Supreme Court, Appellate Division, Third Judicial Department on March 28 at Albany Law School.

The groups Schick was representing in this case as plaintiffs were Parents for Educational and Religious Liberty in Schools (PEARLS), Torah Umesorah and Agudath Israel. PEARLS represents the financial interests of yeshivas. The five yeshivas included in the case are: Mesivta Yeshiva Rabbi Chaim Berlin, based in Midwood, Brooklyn; Yeshiva Torah Vodaath, also based in Midwood; Mesivta Tifereth Jerusalem, based in the Lower East Side of Manhattan; Yeshiva Ch’san Sofer – The Solomon Kluger School, based in Borough Park, Brooklyn; and the Staten Island-based Rabbi Jacob Joseph School.

The state was appealing a lower Supreme Court ruling by Judge Christina Ryba, asking the appeals judges to reverse the decision of Ryba’s ruling in favor of the yeshivas.

At the top of the PEARLS website is the message:

Say NO to the State Education Department’s plan to transform our yeshivas.
The State Education Department has proposed new regulations for all private schools, including yeshivas.
These regulations will dictate the curriculum that yeshivas must teach, and will give local public school districts the authority to approve our teachers.
The proposed regulations are opposed by the vast majority of private schools and parents across the state.

The state contends that “parents have the right to enroll their children in a nonpublic school. The children attending the nonpublic school have the right to instruction that is substantially equivalent to a public school education,” said Kiernan. “State ed promulgated [spread] the challenge to regulation to ensure that all children receive the education to which they are entitled. The regulations give effect to the statute of substantially equivalent mandate, and state ed acted well within its statutory authority and promulgated that.”

Kieran concluded, “The Supreme Court made two errors in striking down these rules. The Supreme Court misconstrued the regulations as authorizing the commissioner to close on public schools. Second, the Supreme Court incorrectly held that the regulations violate parents’ purported right to obtain instruction for their kids from multiple sources.”

Kiernan presented his argument as to why the lower court decision needs to be overturned.

“None of the petitioner organizations [the yeshivas] have come close to satisfying their burden under the organizational standing. They haven’t shown that any of their members are at imminent risk of closure. For that reason alone, the decision below should at least be vacated,” Kiernan said.

Schick countered, “There’s been this semantic game going on confusing the building with the school. The Department of Education is not putting a closure order on the building but on the school. When they say you can’t have the students there, it’s not a school,” Schick said. “Judge Ryba got that, and counsel has been trying in the papers and in his arguments to dance around the issue. Does state ed have the authority to close private schools?”

The presiding justice wanted an explanation from Kiernan about something he wrote in his brief that was submitted to the court before the hearing.

“This concept of the multiple source approach – in your reply brief you said there was no statutory right to obtain substantially equivalent instruction from multiple sources,” presiding Justice Elizabeth Garry said. “Could you just contextualize that by explaining the multiple sources and your position relative to that?”

“Our argument is that the education law does not contemplate the kind of hybrid education in this model the Supreme Court had in mind in which parents continue sending their children to a nonpublic school which fails to demonstrate substantial equivalency, while continuing to receive state aid for that school and then supplementing it with home instruction on the side,” Kiernan said. “So long as parents are satisfying those regulations, they can utilize instruction at nonpublic schools or anywhere else. The parents can provide instruction at home and also send their kids to various institutions for classes. For example, the Metropolitan Opera Ballet school. That’s fine but it is clear that the Metropolitan Opera Ballet School is not a school that provides compulsory education fulfilling the requirement of the education laws. That’s all the regulations say and is perfectly consistent with the statute.

“There are a few discrete areas in which the statute allows for hybrid education. For example, gifted and talented programs and disability services,” Kiernan noted. “There is also an existing statute for child performers in the labor law. Otherwise, the statute contemplates that children are either enrolled in a public school, a nonpublic school or they are receiving home instruction. “State ed has long interpreted the statute as reasonably requiring parents to fit into one of those slots. It is undisputed that the commissioner has the authority to make substantial equivalency determinations.”

Turning her attention to Schick, the presiding justice said, “What they are really saying is, we have the authority to deem something to not be offering a substantially similar education and thus deny state funding. Isn’t that what’s really at stake here?”

“The way state aid works, students are entitled to aid, not schools. Schools in New York state do not get state aid from the state. Students are entitled to certain aid based on choices parents make. It doesn’t happen to schools. They’re entitled to certain forms of aid,” Schick responded. “[If a student gets state aid for textbooks] and it turns out they don’t use the textbook, so obviously they don’t have the money. That’s not a penalty, because the book is not there. Parents are not only entitled to continue enrolling their children at nonpublic schools, they are also entitled to state aid for that education and parents can supplement with home instruction on the side. It’s the state aid piece that’s really the problem, as it is inconsistent with the education law and undermines the substantial equivalency mandate.”

Beezly Kiernan, an assistant solicitor general with the state attorney general’s office, representing the State Education Department, gives his arguments as to why a lower court ruling was misguided and needs to be overturned. The case was argued before a five-member panel of judges of the New York Supreme Court, Appellate Division, Third Judicial Department on March 28 at Albany Law School.

Kiernan disputed Schick’s argument concerning state aid.

“The regulations here implement that statute by providing a framework for the commissioner and the school district to make determinations that necessarily have consequences for state aid. For example, mandated services aid is available for schools which provide instruction in accordance with the Education Law. That’s the statute that covers substantial equivalency,” Kiernan said. “It bears disbelief to rule, as the Supreme Court did, that the commissioner can’t make these determinations and that these determinations have no consequences for nonpublic schools. The regulations are consistent with the statute. They give effect to the statutes’ substantial equivalency mandate.”

Schick took his defense a step further, saying, “It is indisputable that the state is taking an all-or-nothing approach. The compulsory education law is directed to parents,” Schick said. “State education law reads, those in parental authority have to ensure that their children receive the necessary education and that’s the way it is structured because what the state is concerned about in the compulsory education law is that children not remain ignorant. Therefore, the child needs to be educated. What the state in this litigation is concerned about in this case is control. There will be an order of education. They’ll say we need to effectively, they concede, force the closure of the school. We need to limit the parental choice that they want to make. It’s constricted. It’s not necessary to have a grant of statutory authority.”

Associate Justice Mark Powers requested further explanation from Schick. “Let me understand the gist of your legal argument,” he said. “In nonpublic schools you say that the statute requires they would be substantially conforming to the curriculum or to what is required in public schools. That’s the statutory mandate. The regulation that you challenge, which you say exceeds or is a violation of the separation of powers, basically stays for those school districts that are found not to, they shall be deemed nonconforming. You say the regulation then exceeds the mandate, violates the statute and violates the separation of powers. Is that right?”

“What the compulsory education law says explicitly is that a parent has to ensure that the child will receive instruction that is substantially equivalent,” Schick replied. “There is a mandate on parents, not on schools. It is not a statute on schools and that’s why in two of these regulations, for decades, the published guidance of SED (State Education Department) says that local school authorities have no direct authority over public schools. The goal was to make sure the child gets educated. Parents have the authority to direct that through a combination of sources.

“They are not at risk of a negative substantial equivalency determination. Four of the five schools are deemed substantially equivalent by virtue of their registration. The fifth school might be subject to periodic reviews. I’m informed that the Rabbi Jacob Joseph school is interested in pursuing another pathway, the assessment pathway, which would entitle this to be a substantial equivalent school,” Schick added.

Judge Garry wanted to know what harm there is in the current regulation.

“I think you have to concede that there has been no impact to date on any of the organizations or petitioners,” she said.

“Schools suffer harm when SED holds over them the prospect that parents can be charged with criminal penalties. The compulsory education law has an enforcement mechanism in it. It says that a parent who does not comply with its compulsory education obligation, a parent who doesn’t ensure that his or her child receives instruction as substantially equivalent is subject to a range of penalties, not only monetary penalties [but including] criminal penalties. The only difference is that they have to deal with it,” Schick said. “These are the two changes that these regulations make. The regulations want to make the school subject to the penalty and, more important, which is even worse, SED said, “We have the unilateral authority to be judge, jury and executioner. We promulgate these regulations, we interpret them, we review the schools and say which ones don’t comply and then we mete out the penalties.”

The arguments were livestreamed for a wider audience who could not make it to the courtroom at Albany Law School.

One observer from afar thought the concept of substantially equivalent is a low bar to obtain.

“We have a right as a government agency to declare if a school is doing what they are supposed to be doing or not,” Beatrice Weber, the executive director of YAFFED [Young Advocates for Fair Education] told The Jewish Press. “They can be a school and I think that’s what is clear. They can be a religious school and teach all they want but don’t pretend you’re teaching the kids basic subjects. Don’t pretend you’re being a school. You’re being just like a music school but don’t pretend you’re teaching the children the basic core subjects. That’s part of the substantial equivalency, which is a law.”

YAFFED is often seen as an antagonist to some yeshiva education. The advocacy group leader maintains this is not a fight solely against Jewish private schools.

“We have no fight with yeshivas. The ruling is going to apply across the board for all nonpublic schools across the state, not just yeshivas. Some of the Amish schools aren’t teaching a substantially equivalent curriculum,” Weber said. “This is not directed against yeshivas. This is directed against all nonpublic schools. Putting a process in place whereby the law that was written back 100 years ago is actually followed and making sure [it’s followed]. Children need to get an education. There are yeshivas that don’t give children an education and we need to take legal action to move them along, we do, we have and we will. The issue is the children. How do the children get an education? How do we make sure that happens?”

If there is a split decision, there is a court of last resort, the Court of Appeals, the state’s highest court. A ruling is expected to be handed down by the Appellate Division panel in June.

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Marc Gronich is the owner and news director of Statewide News Service. He has been covering government and politics for 44 years, since the administration of Hugh Carey. He is an award-winning journalist. His Albany Beat column appears monthly in The Jewish Press and his coverage about how Jewish life intersects with the happenings at the state Capitol appear weekly in the newspaper. You can reach Mr. Gronich at [email protected].