Last April, lawyers for private kindergarten through grade 12 schools found themselves defending, before a state trial-court judge, private and religious schools’ right to operate. The lawyers, representing Jewish, Catholic and nonsectarian independent schools, were challenging sweeping new State Education Department edicts that would effectively force private schools to perform as de facto public schools.

The department’s new mandate would require local school district boards of education to oversee and inspect most private and parochial schools within their respective district boundaries, using undefined “objective criteria” to determine compliance with the state law that nonpublic schools must provide “substantially equivalent” instruction to their students.

Lack of compliance could mean closure. Public school districts, then, would become the arbiters of whether their competitors — private and religious schools — can remain open, a blatant conflict of interest.

The SED initially imposed these unprecedented mandates on private schools as “guidance” — that is, as a series of bureaucratic memoranda and checklists. The state Legislature passed no law. But the Board of Regents later rubber-stamped new regulations from the department.

If the department succeeds in this unprecedented attempt to control nonpublic education, it will virtually eliminate what makes private and independent schools different, and it will diminish First Amendment freedoms for hundreds of thousands of families, particularly regarding the free exercise of religion.

This new crisis for private schools in New York originates with former state Education Commissioner MaryEllen Elia, who resigned in August. Beginning in late 2017, with no direction from the Regents, Elia began an effort to redefine the substantially equivalent provision and require ongoing and regularly scheduled school-district inspections of private and religious schools.

The new policy came amid complaints that some yeshivas were failing to provide students with sufficient secular education.

The SED maintains that state law authorizes the proposed regulations. In fact, nothing in the law mandates or implies that private schools must conform to public school standards, much less be subject to regular oversight inspections. It’s hard to overstate the extent of this departure.

“If there are legitimate concerns about the academic performance of a school or set of schools, the focus should remain there, not on the vast array of religious and independent schools that are meeting academic expectations,” says James Cultrara, of the New York State Council of Catholic School Superintendents. “For decades, academic concerns have been handled on a case-by-case basis. A new regulatory and oversight regime is simply unnecessary.”

Not only does the private school community oppose the state’s unprecedented, extra-legal effort to control it, but the state school boards association, which represents most of New York’s 700 boards of education, also objects to what amounts to an unfunded mandate on them to conduct the inspections of private schools.

Though students in private and parochial schools accrue a modest taxpayer expense, the current enrollment of approximately 443,000 students actually amounts to a net annual savings of billions of dollars to local property- and state-income taxpayers, since it costs approximately $25,000 a year per pupil to educate kids in the public schools, far more than what the state shells out for private-school children.

Sustaining an economically viable private and religious-school sector thus not only serves the state’s compelling interest in educating children but also benefits taxpayers.

New York’s distinguished history of private and religious education stands today at a crossroads. With the departure of Elia, who led the effort to control nonpublic education, the Regents should jettison the proposed redefinition of “substantially equivalent.” And if the Regents won’t step in, then the state Legislature and the courts should intervene.

Above all, lawmakers and policymakers should first do no harm.

That begins with the Regents junking redefined substantially equivalent regulations for private and parochial school instruction — especially the mandate for school districts to determine compliance.

Private and religious schools will remain at grave risk until this essential step is taken.

Adapted from City Journal.