Snubbed by Court, NY State Takes Aim at Yeshivos Again

Its first stab at asserting oversight over yeshivos rejected by court, New York State’s education department is trying again, issuing a press release last Friday that it intends to propose intrusive regulations that would force yeshivos to dramatically change their schedules and very essence.

As opposed to the “guidelines” the agency released in November, the newly proposed regulations would have to go through a lengthy process and include a comment period for the public to weigh in on them. But the new regulations are basically the same as the old guidelines, which were rejected by a court in April after being deemed too demanding of schools to go through without public input.

The proposal will be formally released on July 3, and the public will be able to comment through Sept. 3. It is unclear whether the comments would be submitted by attending an open hearing or by sending it online.

The regulations, which were posted on the department’s website on Monday, purport to satisfy the century-old law requiring that nonpublic schools be “substantially equivalent” to their public counterparts.

“As reflected in the proposed regulations,” the education department wrote in its press release, “the Department continues to recognize the need for the substantial equivalency review process to be conducted in a flexible and inclusive manner that reflects five core principles that are essential in the review process — objective, mindful, sensitive, respectful and consistent — to help establish a collaborative process between public and nonpublic schools.”

There are nearly 400,000 students in the state’s private schools, about one-third of which attend a yeshiva.

Advocates for yeshivos immediately denounced the proposal, saying that it hews closely to the previous guidelines, which placed unfeasible demands on yeshivos such as 4 hours and 20 minutes of secular studies a day — not including recess or lunch — and lessons in subjects that the schools find morally repulsive.

“To our chagrin,” Rabbi Chaim Dovid Zweibel, the executive vice president of Agudath Israel of America, told the Yated, “a lot of what we had hoped to see in those guidelines were not there, which led us to file a lawsuit. And again, to our chagrin, our first look at these proposed regulations suggests that they will be very problematic for us.”

Rabbi Zweibel, who is an attorney, said that if the yeshivos’ grievances were not addressed through the official comment period, “then we may have no choice but to go back to court.”

At least one member of the Board of Regents appeared uncomfortable with the state’s attempts at overseeing private schools, urging his colleagues at their monthly meeting on Monday to take it slower, according to Yeruchim Silber, Agudah’s director of New York government relations who attended the hearing in Albany.

Regent Roger Tilles, who represents Nassau and Suffolk counties on the 17-member board, tried convincing the board to wait one more month for them to review the regulations before issuing them in the state Register and offer an actual stamp of approval.

“I don’t want to put something out there that’s going to be attacked, at least unless I know what I’m doing,” he said.

The board ultimately decided to go ahead, saying that the revisions should take place after hearing from the public.

Silber said that he was standing in the education department’s lobby after the hearing when he spotted MaryEllen Elia, the chancellor, emerging from an elevator.

“I saw her,” Silber said, “and she smiled at me and said that ‘there will surely be changes before the final version.’”

The regulations mirrors the guidelines that were struck down, requiring yeshivos to devote much more time to secular studies and hands off to the hundreds of cities and school boards across the state in which the yeshiva is located responsibility to review whether they are in compliance.

In New York City, for example, Education Chancellor Richard Carranza would be the responsible party, while in Monsey, it would be the East Ramapo school board.

The final determination as to whether a school is in compliance, however, lays with the state education commissioner, currently Elia. An undetermined “due process” assurance was added to the regulation to allow an appeal of the commissioner’s decisions.

For grades 7 and 8, the regulations would demand three hours a week in each of the following subjects — English language arts, social studies, science and math. Divided by the typical four-day week yeshivos allot to secular studies, this would mean three hours a day in just these subjects. It also includes 45-minute weekly sessions in visual arts, music, physical and health education and other subjects. This would require an investment of nearly four and half hours a day.

As with the guidelines, the regulations also warn that schools that fail to prove that they provide an education substantially equivalent to that of public schools will lose all government funding for textbooks, food, busing and special education. Parents would be notified that their child faces truancy charges if they insist on continuing to send there.

Regulations differ from the imposition of guidelines in two significant ways.

Firstly, guidelines were portrayed by the department as a mere clarification to existing law. The court struck them down, ruling the list of new mandates required both of schools and the local school boards was too extensive to be considered existing law. The issuing of regulations, which came two days after the deadline to appeal the ruling came and went, recognizes that this is government adding to the citizens’ burden.

Secondly, guidelines can be imposed unilaterally, without the need to tell the executive branch or get permission from the public. Regulations, however, must be filed with the secretary of state and require a comment period — usually 60 days — for the public to give their opinion. The state must also issue reports on how the regulation will impact the public and economy.

The timing of the regulations’ release was questioned by some officials. It was sent out on a Friday afternoon, suggesting the Board of Regents that oversees the education department wanted a quiet news dump. The comment period runs through the summer and ends days before the next school year. Some questioned whether this was intended to depress the community’s response.

The board resisted calls by several state senators to impose the regulations as an emergency measure, which would override the comment period and have them go into effect immediately. The emergency regulations, however, would have expired in three months, and it likely did not make sense to regents to impose them with the end of the school year weeks away.

Along with the yeshivos, whose student population is the largest among the state’s nonpublic schools, the Catholic and independent schools are also affected by the regulations. They each filed separate lawsuits against the education department.

The Catholics’ main argument was that the agency governing public schools has no right to oversee private schools since it essentially gives the public schools an edge against its competition. The yeshivos’ focused on the rights parents have to educate their children as they see fit.

Agudah Leader: Proposed Regulations Appear ‘Very Problematic’

Rabbi Chaim Dovid Zweibel, like others the Yated spoke with, did not appear optimistic that the unique process required for the regulations to go into force will slow the state down from the oversight of yeshivos and private schools.

Rabbi Zweibel, executive vice president of Agudath Israel of America, said in an interview that there are currently internal discussions of how best to harness the power of the yeshivos’ parents and students to deliver the message to the education department.

What do you read into their ignoring calls to impose emergency regulations that would take effect immediately?

I was pleased at that. I think it would have been a travesty if they had enacted emergency regulations. It would have made no sense from a variety of fronts.

Do you think they didn’t impose the emergency regulations because they realized they are just alienating the people they claim to be trying to help? Or do they just not buy into the contention that there is an emergency going on?

I’d like to think it’s because they recognize that there is no basis for issuing an emergency regulation. An emergency regulation is meant for a situation of an emergency. And to interfere with a school system that’s been in place for many, many years and do so in a way which precludes public comments, would have been something that we’d probably challenged in court right away. And they probably realized that and came to the conclusion that they’d probably lose in court.

The reason why I’m asking is — just to give you a hypothetical: Let’s say the public comment period opens and 200,000 comments flood in, showing wall to wall opposition to these regulations. Will they defy the public and push this through anyway, or are they forced to take the public comments into consideration?

We could both speculate about that. It’s hard to know the answer. Certainly, in thinking about the strategy going forward, one of the tools in our kit that we can possibly pull out and use is to mobilize the strong grassroots in reaction to it.

So this will be a topic of discussion that will be taking place internally amongst the askonim and roshei yeshiva and admorim and whoever else is involved in this before we develop a strategy. That strategy may include a massive grassroots outcry about the unacceptability of any of these regulations.

We do believe that when there was a big outcry when the guidelines were published in November — we had a petition drive, we had other things — they were actually a very useful thing.

Also, the timing of all this — we only have another few weeks left to the school year — and the official publication of this will not be until July 3, when people are out of school and on their summer vacations.

Do you think they planned this timeline? The regulations are published just when people are going away for the summer and the 60-day comment period ends on Sept. 3, just when they’re returning home.

The best answer I can tell you is, I don’t know.

By the way, the fact that they decided not to go with imposing emergency regulations is not especially puzzling, because emergency regulations are only in place for 90 days. The 90 days would be from the beginning of June to the beginning of September, a time when the schools are closed. That may have also been a factor in their deciding not to go down that road.

Have you met with Commissioner Elia since the court struck down the guidelines before Pesach?

I have not met with her; I have communicated with her. Whether we will have a meeting in the days ahead — I hope we will, but I don’t know.

She wrote in the press release on Friday that she’s had extensive discussions with stakeholders, including the private schools.

Yes, those conversations did take place, not after the publication of the guidelines, but before their publication. And they went back for a couple of years, actually. All of that is true.

To our chagrin, a lot of what we had hoped to see in those guidelines were not there, which led us to file a lawsuit. And again, to our chagrin, our first look at these proposed regulations suggests that they will be very problematic for us. If we’re not able to accomplish something through the official comment period, we may have no choice but to go back to court.

How will this comment period work? Does the Board of Regents have to take them into consideration? Can they say “we know better” and ignore the public comments?

Yes.

What they typically do — and what I think will happen in this case also — is that they are going to present these regulations. We are going to have a certain amount of time to comment. My guess is that they will then publish a slightly revised version of the regulations to show that they are paying attention to one or two points in the comments and they will then allow another period of public comments on the second version.

At the end of the day, as long as they allow for public input, and they acknowledge that the input was provided and that people were given the opportunity to be heard, they don’t need to adopt any of the recommendations and suggestions. They could just say that “we consider that this would be appropriate.” There’s a great deal of leeway they have to exercise their discretion to decide whether they will follow the comments or not.

Were you in touch with all regents on the board?

A letter was recently sent by Agudah, PEARLS and Torah Umesorah to the head of Board of Regents, Betty Rosa, and if I’m not mistaken, it was cc’ed to the other 16 regents.

Based on what you know of the board, what are your feelings? This is an independent body that is answerable to nobody.

They are answerable, in theory, to the Assembly which appoints them. The Board of Regents is a very powerful entity. But in theory, the governor — if he wanted to be helpful, he could be helpful. He doesn’t appoint members of the Board of Regents, but he does approve budget requests. So he definitely does have some influence over education policy through the power of the purse.

So you have no idea how the board will end up voting on these regulations?

I would say that on the board there is some diversity of opinion, yet at the same time, they are a big challenge for us. They will have to show that they’re “concerned” about the educational wellbeing of the children, including Jewish children who attend “Hassidic” schools. So there is some room at the margins for leniency, but it’s a difficult challenge.

The nonpublic school sector has no representation on the board, right?

No such thing.

The most they have is the advisory council for nonpublic school education. And this council, of which I am a member, will be meeting with the commissioner the day after Shavuos. Based on what we see in this document, we anticipate that the regulations are likely to be problematic for the independent and Catholic schools as well. One of the positive factors from our perspective was that the entire nonpublic school community was upset at this and this is not just a Jewish issue.

Attorney for Yeshivos Says Regulations ‘Carbon Copy’ of Rejected Guidelines

Avi Schick, the attorney for yeshivos who successfully convinced a judge in April to reject the old guidelines, says that the new regulations are virtually the same and will also be rebuffed.

Schick, who is a partner at the Troutman Sanders law firm, told the Yated that the agency “will find themselves in a fight” if they push ahead despite wall to wall opposition within the nonpublic school community.

What happened this past week?

The state education department did not appeal the ruling that struck down their guidelines. On Friday, they issued a press release announcing that they are going to propose regulations. The proposed regulations will be formally released a month from now, on July 3. But substantively, they are a carbon copy of the guidelines that were challenged by just about the entire private school community. So they are obviously unacceptable.

What can we expect to see in the coming weeks?

If the state education department continues down this path, they will find themselves in a fight. In a fight with the yeshiva community, in a fight with the Catholic school community and in a fight with the independent schools.

For starters, proposed regulations must go through a public comment period. There is every reason to expect that SED (the state education department) will be inundated by comments from across the nonpublic school spectrum — schools, school leaders, yeshiva and other private school parents and graduates will be invited to express their opposition to the proposal. I would expect many, many thousands of comments to pour in, each pointing out how ill-advised these proposed regulations are.

What is the role of the Board of Regents in all this?

Regulations must be approved by the Board of Regents before they are adopted. There is reason to believe that the regents are not crazy about the commissioner’s proposed regulations. Early this week, there was a Board of Regents meeting, and there was some pushback among several regents who did not want the proposal to go forward at this time. At the end, it went forward only with the clarification that it is the commissioner’s proposal, not the Board of Regents. They will have to revisit the issue at some point, and they surely have not yet expressed their support for this proposal.

Does the Board of Regents have any limitations in voting any way they want if the comments are heavily skewed toward a certain viewpoint?

The state education department is supposed to respond to the comments that it receives. We will see if they actually take that obligation seriously.

Up to this point, SED has not been very good about engaging with the private school community. It’s almost laughable — the cover memo to the proposed regulations says that they are the product of a two-year deliberative process. We already know that more than 1,000 private schools are so opposed to these regulations that they sued SED to prevent them from implementing them as guidelines. And in those lawsuits, the schools complained about the total lack of dialogue with SED.

So, these proposed regulations are not part of any deliberative process. I’m hopeful that as the regents become educated about the substance of the proposed regulations and the process from which they emerged, they will begin to understand the source of the deep skepticism being expressed by the entire private school community.

Do you have any idea about the makeup and leanings of the 17 members of the Board of Regents?

They will likely be hearing over the next few weeks and months from large numbers of people on this issue. It’s our job to educate them. PEARLS, Agudah and Torah Umesorah reached out to every member of the Board of Regents a few weeks back asking to meet and discuss these issues. We are hopeful that they will respond affirmatively. I think this is something that is new to most of them. With siyatta dishmaya, there is a long way from a Friday afternoon press release to final regulations getting adopted and implemented.

Do you have any idea how the public comments will actually happen? Will it be through online comments? A public hearing that people can attend?

My assumption is the SED will attempt to minimize public engagement and interaction. They will try to avoid a public hearing. But there will be opportunities to submit public comments. It will be our job to organize our community and to make sure that the other communities are organized as well.

The Catholic community is opposed to these regulations. The independent school community is opposed. If we are organized and speak out, that will send a message that these proposed regulations are ill-conceived, ill-advised and inappropriate, and that we are going to fight to protect the independence of our mosdos hachinuch and the autonomy of parents to choose the education their children receive.

Can you give readers an idea as to what sort of organizing you’re planning?

There will be multiple layers of organizing. First, to ensure that local schools reach out to their elected officials, making sure that every local legislator hears from their local yeshiva, is invited into their local yeshiva, meets their local yeshiva leaders.

Second, we need to activate the tens of thousands of people who signed onto the petition expressing their opposition to the guidelines that were released last year. We will need to organize an effort to make it easy for those people to submit public comments. Our goal needs to be for every yeshiva parent and every yeshiva graduate to add their voice to the conversation and explain why the proposed regulations are misguided, why they emerged from ignorance and animus about yeshiva education.

There are tens of thousands of successful yeshiva graduates in New York and elsewhere, and we will need them to add their voices to this effort. We are going to need the tens of thousands of parents who affirmatively choose a yeshiva education for their children, and sacrifice to make that choice a reality. They didn’t choose to have the government set the curriculum.

We’re hopefully going to see thousands of comments put in, where people can talk about their yeshiva experience, about why these regulations will not work, about why they will impede the mission of yeshivos. When the voices of yeshiva graduates and parents and the schools and school leaders are heard, it will have iy”H an impact.

As always, litigation is the last and least favored option. Everyone wants to avoid litigation. But we will use every tool available going forward — tools of hishtadlus, tools of dialogue, tools of public education — and hopefully we’ll succeed in explaining why this proposal should not be adopted. But if those efforts do not succeed, there is every reason to believe that the courts will be just as skeptical of these regulations as they were of the guidelines.

One final question: Do you see the community united on this?

Yes, absolutely.

There has been a tremendous achdus among Klal Yisroel on this issue, with everyone working together toward a common goal. Litvishe roshei yeshiva, chassidishe admorim and baalei batim were and are united in the effort to prevent intrusive government regulation through which they assert control over large portions of the yeshiva school day.