Advocates against yeshiva oversight like Law Professor Michael A. Helfand are missing the mark on what should happen next after a Court ruling affirmed regulations to yeshivas
By Christopher Hazen, Attorney, Counselor at Law, YAFFED
On July 22, 2024 Professor Michael A. Helfand at Pepperdine University’s Caruso School of Law in Malibu, California authored an article for the Manhattan Institute’s City Journal entitled “Substantially Uncertain”, in which he argues that there are avenues of appeal available for the anti-regulation yeshiva lobby group PEARLS in its case against the New York State Education Department. The PEARLS case concerns New York’s Compulsory Education Law and its substantial equivalency requirement. (For those not familiar with the subject, the Compulsory Education Law requires that all children in New York between the ages of 6 and 16 receive instruction to provide them with a sound, basic education.) Under the Compulsory Education Law, instruction must be at least substantially equivalent to that offered in the local public schools. In short, the substantial equivalency requirement sets a minimum standard for education quality.
With respect to Professor Helfand, his article is indicative of one arguing from passion rather than policy analysis. While I do believe there are grounds on which PEARLS may ask the Court’s permission to appeal, it is important to set the civic record straight with respect to certain claims made by the Professor.
NYSED’s authority is not “newly found.”
The Professor simultaneously claims that the Appellate Division’s decision “raises questions about the scope of NYSED’s new found authority” while rightly noting that the substantial equivalency law is over a century old. Professor Helfand may be conflating NYSED’s recently promulgated Part 130 regulations on substantial equivalency with the actual language of the statutory requirement. However, as the Appellate Division opined, the regulations are “… a direct, measured exercise of the Commissioner’s vested authority to determine whether a nonpublic school is in compliance with the substantial equivalency requirement, and to supervise the enforcement of this standard.”
According to the Court, the regulations “merely fill in the details of broad legislation describing the over-all policies to be implemented” or more simply, the Commissioner always had the authority to enforce the substantial equivalency requirement. It is disingenuous to suggest that the Commissioner was granted “new found authority” as the very case the Professor cites plainly states that the Commissioner had that authority for over a century. Justice Ryba did not sidestep any “big-ticket items.
While providing important history about the holding that was appealed, Professor Helfand states that the lower court “sidestepped” constitutional arguments raised by PEARLS, as well as an argument that NYSED exceeded its authority in promulgating the Part 130 regulations. This, too, is simply untrue.
The Professor joined the brief of The Union of Orthodox Jewish Congregations of America as amicus curiae in the lower court proceedings. The arguments raised by PEARLS included arguments that the Part 130 regulations violated First Amendment rights to speak freely and to practice religion freely, and the Fourteenth Amendment rights to due process and equal protection.
These concerns were addressed explicitly in Justice Ryba’s decision under the heading of “Constitutional Claims”. Her statement that “Petitioners’ constitutional challenges to the New Regulations are without merit” says pretty much all that needs to be said about PEARLS’ claims. This wasn’t a sidestep, it was a head-on decision on the merits which PEARLS, and by extension Professor Helfand, lost after a full and fair opportunity to litigate. Justice Ryba noted that PEARLS’ claims of constitutional infringement should have been targeted at the statutes under which they were enacted, not at the regulations themselves. As she wrote “Petitioners do not challenge the constitutionality of these legislative mandates as set forth in the Education Law itself.”
She then went on to determine if any of PEARLS’ claims supported a finding that the Part 130 regulations were unconstitutional on their face, and answered this more narrow inquiry in the negative as well, since Part 130 uses “entirely neutral language that draws no distinctions in its applicability.”
Far from sidestepping these serious questions, Justice Ryba affirmatively addressed them on their merits. Whether the Professor chooses to accept reality or not, PEARLS lost. The fact that PEARLS had the opportunity to appeal Justice Ryba’s decision itself and failed to do so means these legal issues were not before the Third Department and were settled before Justice Ryba. PEARLS’ decision not to appeal may have been a deliberate, strategic act; that the compulsory education law’s requirements are constitutional is, like the statute itself, well settled law.
PEARLS may not have seen a purpose in disturbing a ruling that it perceived as favorable on other grounds, or it may have chosen for other reasons not to appeal those arguments, or maybe PEARLS didn’t have a reason not to appeal and simply neglected to do so. I do not know why an appeal on those issues were not filed, but I do know with certainty that they were not. So to claim that it was Justice Ryba that “sidestepped” these issues is disingenuous.
Why YAFFED decided not to take a position on supplemental education.
One of the main arguments advanced by the Professor is that the Appellate Division’s language on supplemental education, the idea that a parent could obtain instruction for their student through multiple sources that together equated to substantially equivalent instruction, leaves open the question of whether parents could send their students to schools with shorter days and still cobble together substantial instruction from a myriad of sources. He claims that NYSED’s position on this point, that no supplemental education can be provided to reach substantial equivalency, is innately weak, and that strong counter-arguments were made by himself as well as PEARLS. To aggrandize this claim, Professor Helfand notes that YAFFED elected not to take a stand on this issue, citing to footnote 17 of YAFFED’s amicus curiae brief. The Professor is clearly implying that YAFFED chose not to explicitly side with NYSED on this point because parents must obviously have the right to piece together substantially equivalent instruction.
As the author of the brief, I am well-positioned to attest to the rationale behind YAFFED’s choice not to take a position. YAFFED’s mission is inherently child-focused, and as part of our legal strategy, we would like to see an effort made at remediation of those problems stemming from NYSED’s previously lax enforcement of the state’s minimum education standards, and those that inevitably flow from the regulatory process.
While the Part 130 regulations as they stand were an important first step in rectifying the sins of past agency apathy, establishing a framework to identify private schools and to check their academic quality, that framework is not perfect. One of its many shortcomings is that it largely writes off as a lost cause for students attending substandard schools today. This is a result of NYSED’s attempt to strike a balance between preserving schools as institutions and enforcing the constitutional rights of New York students to a sound basic education.
The regulations require a broad, all-inclusive effort by Local School Authorities (LSAs) and school boards to periodically visit and verify the quality and quantity of instruction at each school in their district. If as a result of this process a school is found not to be offering a substantially equivalent education to its students, the LSAs are to work with the school to develop a plan for improvement, and then monitor the school’s progress towards achieving substantial equivalency. While this interactive, and collaborative, process is supposed to yield a plan to reach compliance in sixty days, the school may have two years or more to actually become compliant with the law. One can understand why NYSED took this route from the perspective of wanting to give non-compliant schools an opportunity to course correct, but in doing so, NYSED ostensibly condemns the children at that school during the improvement period to a substandard education.
Thus, the only way to ensure that children currently at non-compliant schools would receive the sound basic education they are entitled to without undue (and arguably unconstitutional) delay would be to at least temporarily allow for instruction from other sources. For this reason, not the “power” of any countervailing arguments, YAFFED opted not to take a position on multiple source instruction.
If, as the Professor suggests, YAFFED believed that PEARLS’ arguments for multiple source instruction was as persuasive as he implies, YAFFED would have joined with PEARLS as to that point. We did not. While YAFFED recognizes the necessity of outside instruction to make up for the failures of non-compliant schools until such time as compliance is met, it also recognizes the propensity for abuse and administrative infeasibility that allowing multiple source instruction could introduce if not carefully controlled and limited in scope as a curative measure.
The fact is, there is nuance in YAFFED’s position that Professor Helfand fails to appreciate. I would urge the Professor to take another look at YAFFED’s brief, specifically pages sixteen to eighteen, where we explain our concerns about the infeasibility of using, as Justice Ryba suggested, the IHIP (homeschooling) process to allow students to attend non-compliant schools while also receiving proper instruction. I would also urge the Professor to consider YAFFED’s arguments on the impact of a long day at a non-compliant school followed by further instruction would have on the wellbeing of children, available on pages eight through eleven of YAFFED’s brief. The information therein might help answer some of the hypothetical questions posed.
When YAFFED’s position is placed in context and the mechanics of multi-source instruction are considered, the Third Department’s decision becomes clearer. Whereas the parties were locked into technical arguments on the regulations, the Court was moved by YAFFED’s assertion that its decision should consider the best interests of the children these laws and regulations were enacted to protect.
In conclusion, while the parties have questions to raise on appeal, the fact remains that the Third Department’s decision was well-reasoned, rational, and far more complete than Professor Helfand suggests. NYSED’s authority to regulate private schools is not newly found, the lower court did not sidestep the constitutional arguments raised by the petitioners, and YAFFED’s decision not to take a position on multiple source instruction was not in deference to any argument by the parties, but rather was the result of YAFFED’s emphasis on supporting the right of children to a sound basic education, a right YAFFED will absolutely fight to vindicate in any subsequent litigation and before any court.