https://www.city-journal.org/article/ny-court-vindicates-parental-authority-in-education
Late last month, the ongoing battle between the New York State Education Department (NYSED) and a small group of Orthodox Jewish schools took a surprising turn. For the better part of a decade, the NYSED has been battling these schools over the quality of the education they provide, arguing that they fail to meet the basic educational standards required by New York law. For that reason, this past fall, the NYSED enacted new regulations setting out a process to assess the instruction provided in nonpublic schools and, when a school fails to meet state standards, ensuring its closure. Not surprisingly, a number of Jewish organizations and schools filed suit against the new regulations. But instead of deciding the case based on big-ticket constitutional questions, a New York court invalidated the regulations on grounds that put the obligation to meet educational standards on parents, not on schools. In so doing, the court severely undermined the NYSED’s ability to regulate nonpublic schools.
New York education law requires that, when minors receive “instruction” outside a public school, the instruction “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.” This “substantially equivalent” standard has been on the books in New York since the late nineteenth century.
Recent controversies have stemmed from complaints that a small group of Orthodox Jewish schools—primarily Hasidic schools—are failing to meet state standards. After some false starts, the NYSED enacted rules this past fall establishing a process for reviewing whether nonpublic schools were meeting the “substantially equivalent” requirement. If a school receives a final determination that it has failed to meet state standards, the penalties are severe. Under such circumstances, “the nonpublic school shall no longer be deemed a school,” in compliance with the state’s compulsory education law, and parents with children in that school are required “to enroll their children in a different, appropriate educational setting.” In sum, the school must close.
Various Jewish institutions and schools filed suit against the new regulations. According to their complaint, the regulations both exceeded the legal authority of the NYSED and, more dramatically, violated their constitutional rights, including their religious liberty, free speech, due process, and equal protection rights. Indeed, the lawsuit seemed destined to be fought out on the terrain of the Fourteenth Amendment, which ensures parents’ rights to control the upbringing of their children. This right, to be sure, is balanced against the government’s obligation to ensure that children receive an education that enables them to be economically self-sufficient and civically engaged. Figuring out where to draw the line between parental and government authority appeared to be the crux of the legal challenge.
