The Appellate Division Third Department issued a 4-1 ruling this morning on the yeshiva case that challenged portions of the State Education Department regulations. YWN readers will recall that the Albany Supreme Court struck down portions of the regulations that would have allowed the State to close and penalize nonpublic schools that were determined to be less than substantially equivalent.

Today’s decision began by rejecting the State’s argument that the yeshivas did not have standing to challenge the regulations.  The court held that

“It is undisputed that the petitioner yeshivas will be directly subject to the regulations. The petitioner organizations represent both yeshivas in that position and the parents of yeshiva students who have an obvious interest in the education of their children. Although we recognize that to date no negative substantial equivalency determination has been rendered, we do not find the possibility that such will occur to be unduly speculative . . .  Petitioners also provided evidence suggesting that, although in the abstract the curricula at the petitioner yeshivas align with accepted educational standards, the regulations will compel changes to render their curricula “substantially equivalent” to that available in public education; they assert that this will interfere with the religious instruction at the core of a yeshiva’s mission.”

As it relates to the State’s authority to close nonpublic schools, the majority held that:

“The Education Law does not provide for any direct penalty upon nonpublic schools. However, a declaration that a school does not meet the required standards is simply that; although the loss of status as a substantially equivalent nonpublic school is a serious consequence, it is merely, or no more than, the logical result of such a determination . . . Parents are obligated to comply with this mandate and, as such, the Commissioner’s declaration that a particular institution fails to meet the statutory standards required to meet that duty is no more, or less, than a necessary advisory to parents.”

In the most confounding part of  the decision, the majority wrote that:

“In this regard, it bears clearly stating that the Commissioner’s authority to determine the substantial equivalency of nonpublic schools at issue here is limited in application to those nonpublic schools that have lengthy enrollment periods, encompassing a full school day on the majority of school days (see Education Law § 3204 [2] [ii] [3]).”

What this suggests is that only Felder schools are subject to this ruling and the State Education Commissioner’s authority.    Which yeshivas are Felder schools will now become a hotly contested issue.

In a fiery dissent, Appellate Division Judge Egan wrote that:

“To read the Education Law as restricting that parental discretion may well raise constitutional concerns given the “liberty of parents and guardians to direct the upbringing and education of children under their control” so long as the children receive an appropriate education,” noting that  the State’s “complaint that the Education Law implicitly forbids parents or similarly situated individuals from employing a mixture of those educational options to fulfill their duty of providing a proper education to children is particularly dubious given that the Commissioner’s own regulations contemplate that homeschooling may include “[i]nstruction . . . at a site other than the primary residence of the parents” while the State Education Department advises that students receiving homeschooling may be “instructed in a group situation for particular subjects” so long as such does not form the majority of their schooling.”

It is expected that parent’s rights groups and homeschooling advocates will weigh in on the side of yeshivas if, as expected, the case is appealed to the New York Court of Appeals.

This is a developing story, and YWN will brings you updates.

CLICK HERE TO READ THE COURT RULING

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