Late in June, in a 4–1 decision, a New York appellate court tried its hand at resolving the near-decade-long battle between the New York State Education Department (NYSED) and various Orthodox Jewish schools over the government’s authority to regulate the content and quality of nonpublic school education. The appellate court seemed to side with the government, upholding NYSED’s rules that not only set out a process for evaluating the instruction provided in nonpublic schools but also require students in schools that fail to meet those standards to enroll in other schools. But while the court’s decision to side with NYSED made the headlines, the decision itself may be much less definitive than it appears. Buried in it is an odd, somewhat unexplained limitation—that the court’s ruling applies only to schools with exceedingly long school days—that raises questions about the scope of NYSED’s newfound authority.
The long-running dispute between NYSED and numerous Orthodox Jewish schools revolves around a century-old New York State “substantial equivalency” law. That law requires that, when minors receive “instruction” outside a public school, it “shall be at least substantially equivalent to the instruction given to minors of like age and attainments at the public schools of the city or district where the minor resides.” NYSED has fielded numerous allegations that certain Orthodox Jewish—primarily Hasidic—schools are failing to meet this standard.
In 2022, after some unsuccessful attempts, NYSED rolled out new regulations to police whether schools were satisfying the demands of substantial equivalency. Under these new rules, if NYSED issues a final determination that a nonpublic school has failed to meet state standards, the penalties are severe. Parents with children in that school are required “to enroll their children in a different, appropriate educational setting.” If all the students in a school must enroll elsewhere, it would appear that the school must cease operating as a school.
Orthodox Jewish schools filed suit challenging the new rules, arguing that NYSED not only exceeded its legal authority in issuing them but also violated a host of constitutional constraints—not least the schools’ religious liberty and due-process rights. A New York trial court, in issuing its decision, sidestepped these big-ticket items. Instead, the trial court argued that NYSED’s new regulations amounted to a category error. The obligation to ensure that children in nonpublic schools receive a “substantially equivalent” education is, argued the court, a parent’s obligation, not a school’s.
For that reason, the trial court explained, NYSED could not issue rules that closed a school that failed to satisfy the “substantial equivalency” standard. After all, the school had no obligation to satisfy the standard. Parents, however, could face legal consequences if they failed to ensure that their children did not receive an adequate education. At the same time, parents had numerous options for how to satisfy their obligations when a school wasn’t doing the job. Parents could switch their kids to another school. But they could also keep their kids in the school that was failing to meet the state’s standards and supplement that education at home. In that way, the court concluded that, by requiring parents to enroll their children in a different school, NYSED had issued regulations that were premature. In the words of the court, before demanding re-enrollment, “the parents should be given a reasonable opportunity to prove that the substantial equivalency requirements for their children’s education are satisfied by instruction provided through a combination of sources.”
In its June 27 decision, the New York appellate court reversed the trial court’s decision. But in many ways, it began from the same premises; like the trial court, it assumed that it is parents, not schools, who must ensure children receive a substantially equivalent education. Thus, it may be true that NYSED lacks authority to impose penalties on schools that fail to satisfy the substantial equivalency standard. But the court adopted a two-pronged argument to conclude that the new regulations don’t empower NYSED to impose an actual penalty on schools.
First, the court held that, when NYSED renders a determination that a school isn’t complying with the state’s educational standards, it isn’t imposing a penalty. Instead, it is simply informing parents that they aren’t living up to their existing obligation to provide their children with a substantially equivalent education. To use the words of the court, NYSED’s determination is just a “necessary advisory to parents”—a kind of update that lets parents know they are not currently satisfying their legal obligations, because NYSED has determined that the school their children are attending is not providing a substantially equivalent education.
Second, yes, it is true that parents must enroll their children in a different school once NYSED determines that their children’s current school isn’t providing a substantially equivalent education. An obligation that all parents must enroll their children elsewhere would seem to be a requirement that the current school close—a step that certainly looks like a penalty. But the court rejected this argument. To the contrary, the court held that, though the children must enroll elsewhere, the school can continue to operate by providing “extracurricular instruction or activities” that parents “deem appropriate and helpful.”
Thus, the court argued that the new regulations don’t impose a penalty. They simply allow NYSED to inform parents that they must enroll their children elsewhere. At the same time, parents can use their existing schools for extracurricular activities and instruction. And because the court concluded that the regulations don’t impose a penalty—on either the parents or the schools—it jettisoned the plaintiffs’ legal challenge.
But what about the trial court’s insight that parents can supplement the school’s education at home? If the appellate court agrees that “substantial equivalency” is a parental obligation, then, before requiring parents to enroll their children in a different school, government officials should have to evaluate whether—from a combination of educational sources or otherwise—a particular child is receiving an education that satisfies the state’s standards.
In the briefing before the appellate court, the possibility that children might receive a substantially equivalent education because their in-school instruction is supplemented at home was front and center. That’s for good reason. NYSED, in its attempt to justify the parental obligation to unenroll their children from schools, argued that New York law does not “allow parents to cobble together a substantially equivalent education from a combination of sources.” In turn, NYSED argued that, once it determined that a school had failed to provide a substantially equivalent education, there was no need to determine whether students received additional instruction at home; such additional instruction simply didn’t count. And that is why parents could be required to unenroll their children once NYSED determined that a school’s instruction was deficient.
This argument is deeply problematic. Government may have the authority, indeed the obligation, to ensure that children receive a basic education that prepares them for economic self-sufficiency and the responsibilities of democratic citizenship. But parents retain a right, consistent with that obligation, to determine how they satisfy that obligation. Put differently, government may have an overriding interest to ensure that children receive an adequate education, but government has no overriding interest—sufficient to constrain parents’ statutory and Fourteenth Amendment right to control their child’s upbringing—to require that parents satisfy those objectives through only one source.
Not surprisingly, a version of this counterargument was advanced by Judge John Egan, who dissented from the majority’s opinion, as well as by the plaintiffs and by an amicus brief (of which I am the author) supporting the plaintiffs’ position. But to get a sense of the strength of this counterargument—that parents retain the right to satisfy the state’s educational standards through a combination of in-school and after-school instruction—consider the amicus brief filed by Young Advocates for Fair Education (“YAFFED”), one of the staunchest advocates supporting NYSED’s new regulations. In that brief, YAFFED declined to support NYSED’s view, noting explicitly that it “takes no position on whether multiple sources could be combined to achieve substantial equivalency.”
So how did the appellate court uphold NYSED’s requirement that parents enroll their children in a different school without determining whether the parents were supplementing the instruction at home? Instead of adopting NYSED’s arguments, it squared the circle by noting a limitation on its ruling, which in some ways is the central argument of the decision: “[I]t 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.”
The category of “full school days,” as the court is careful to reference, isn’t just a fuzzy category. It is defined by New York law: at a minimum, 9 a.m. until 4 p.m. for first through third grade, until 5:30 p.m. for grades four through eight, and until 6 p.m. for grades nine through 12. And so, the court reasoned, if a child is enrolled at a school with such “lengthy enrollment periods” and “full school day[s],” then it is simply impossible to supplement the in-school instruction adequately. The school day is just too long. Or, in the words of the court, “A child attending an institution for a full, lengthy school day period who is not receiving or obtaining a substantially equivalent education in the basics of arithmetic, English, science and history . . . cannot adequately supplement this substandard curriculum in the few hours remaining in the week.”
The court did not extend this argument to schools with shorter days. Children in those schools could have their education supplemented. Thus, NYSED could not require them to be enrolled in a different school without evaluating whether the in-school education they were receiving was, in fact, being supplemented at home.
Note some of the assumptions of the decision. First, the court takes a view about how much instruction a child can handle. There is reason to be skeptical of this move. After all, how could the court know this? Shouldn’t the government still have to check before requiring that the parents enroll the child in a different school?
But even granting the court’s inference from the length of a school day to the impossibility of at-home instruction, other issues arise. As a practical matter, the ruling encourages schools to shorten their school day—and provide less instruction—to avoid the court’s inference. If the school day is shorter, then the possibility of at-home instruction becomes legally viable.
Still more peculiar is that, while the court inserted this limitation in its opinion, the text of its order—that is, the binding directives it issued to the parties—appears to affirm NYSED’s regulation without reservation by “finding the remaining portions of the regulations to be validly enacted.” Given the court’s logic, one might have expected something different, such as an order that limited the enforceability of the regulations only to schools with full days.
Of course, maybe that’s what the court meant in its order. Maybe it applies only to schools with full days as defined by New York’s education law. If the court’s order remains in place, time will tell as to whether NYSED abides by this limitation—or if it chooses instead to enforce its new regulations against all nonpublic schools irrespective of how long the school day is.
So where does this leave us? One can easily imagine the plaintiffs raising this apparent tension as grounds for an appeal to New York’s highest court, the Court of Appeals. One can also imagine parents contesting an order to enroll their children in a different school by submitting evidence that their child is, in fact, receiving additional instruction at home even though the school day may be long. At bottom, by adopting the fundamental argument that satisfying the “substantial equivalency” standard is a parental obligation, the appellate court’s decision may have simply kicked the can down the road. It may take another round of litigation before we reach the end of this story.
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