This essay originally appeared in the Manhattan Institute’s City Journal.
Last April, in a downtown Albany courthouse, three sets of lawyers for private kindergarten through grade 12 schools found themselves defending, before a state trial-court judge, private and religious schools’ right to operate. One might think that Americans’ right to educate their children in private schools was settled long ago—in 1925, when the Supreme Court, in Pierce v. Society of Sisters, struck down an Oregon statute that required parents to enroll their children in public schools. But the lawyers in Albany, representing Jewish, Catholic, and nonsectarian independent schools, were challenging sweeping new Education Department edicts that would effectively force private schools to perform as de facto public schools. The Education Department is redefining an 1894 state law requiring that private schools offer “substantially equivalent” instruction to students as that provided in public schools—henceforth imposing on private schools the curriculum, scheduling, lesson plans, hiring standards, and reporting requirements that public schools must follow.
Even more alarmingly, 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 redefined substantially equivalent standard. 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 Education Department 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. Nor did the state’s Board of Regents—the supreme education policymaking board, which appoints the education commissioner and oversees the department—approve any new regulations. If the department succeeds in this unprecedented attempt to control nonpublic education in New York, 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. The idea of school district officials judging whether sectarian education programs pass muster raises serious constitutional questions. It would “create an improper entanglement between the affairs of church and state,” wrote Michael Costello, the attorney for the New York State Council of Catholic School Superintendents, a plaintiff in the lawsuit against the Education Department.
After hearing oral arguments in April, Justice Christina Ryba struck down the department’s guidance as violating the State Administrative Procedure Act. The court did not rule on the merits of the guidance; rather, it held that the guidance was illegally imposed and must, to be viable, go through the appropriate regulatory process. The reprieve for private and parochial schools was brief, however: following the Court’s ruling, the Board of Regents in June issued proposed regulations on private schools that pose an identical threat. The regulations would formally go into effect sometime this fall, after the required public comment period, absent further action from a court or a change of direction by the Regents board, which meets next week. At stake could be the future of private and religious education in New York.
Private schools serve as an alternative educational option for children from households of all income groups, ranging from low-income to wealthy. Many parents seek private schools substantially different from the available public schools. Most private schools are established for a religious purpose; these comprise 80 percent of private school enrollment.
The substantially equivalent provision in New York State education law is part of the compulsory school-attendance requirement for all children through age 16. Historically, the provision has been administered to balance the state’s interest that all children are educated, while respecting the autonomy of private and religious schools. Previous Education Department guidelines suggested a role for the local school district to investigate compliance with the substantially equivalent provision only if “a serious concern” arises—and even then, only after discussion with private school officials. Accordingly, superintendents of district schools, appointed by their respective boards of education, administered the law in an informal, responsive fashion.
No longer. The new regulations, if they take effect, will impose a licensure regime on nearly all private schools by compelling school district officials to evaluate every aspect of their education and operation. If the school is deemed noncompliant, the district board could vote to close it down and declare its students “truant.”
This approach “would radically restructure the relationship between New York State and its private, religious schools,” wrote Avi Schivk, the plaintiffs’ attorney for the several yeshivas and organizations representing Jewish schools. The state also would “sacrifice religious instruction that is central to [the schools’] mission and is the primary reason [parents] chose those schools to educate their children.” In other words, under the state’s new application of the substantially equivalent provision, the religious or independent nature of private schools could become an afterthought, or marginal at best.
The New York State School Boards Association, which represents most of New York’s nearly 700 district boards of education, also opposes the regulations, including what it called the “embedded threat” by the Education Department to withhold state aid if boards failed to implement them. The association clearly wants no part of an unfunded state mandate on school districts; nor does it want school districts entangled in making judgments about private school textbooks, lesson plans, and hiring of teachers.
This new crisis for private schools in New York originates with former state education commissioner Mary Ellen 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 Regents, including board chancellor Betty Rosa, apparently rubberstamped Elia’s proposed regulations. Governor Andrew Cuomo didn’t weigh in one way or the other—in part because, under the state constitution, the Regents are independent of gubernatorial control.
The Education Department maintains that the substantially equivalent provision in state law, including amendments passed by the legislature in 2018, authorizes the proposed regulations. In fact, nothing in the provision mandates or implies that private schools must conform to public school standards, much less be subject to regular oversight inspections. The 2018 amendments aimed to address concerns around the core educational quality of more than three dozen yeshivas in Rockland County and Brooklyn operated by an Orthodox Jewish sect. These schools resisted increasing instruction in core subjects to meet a substantially equivalent standard, leading to litigation when a group of Jewish plaintiffs sued. The case was thrown out for lack of standing, but it triggered the Education Department to upend a century-old understanding of the 1894 law and to bring to bear the redefined substantially equivalent standard on every private and religious school—rather than confining it to the yeshivas in question.
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, executive secretary to 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.”
Attorneys for the New York State Association of Independent Schools, also a plaintiff in the lawsuit, wrote that the Education Department “did not believe it had the power it now claims,” and the new regulatory approach toward nonpublic schools is “an unnecessary solution in search of a problem.”
The Education Department’s about-face not only breaks with the historic understanding of the regulatory relationship between private schools and the state; it also violates a landmark ruling by the Court of Appeals, the state’s highest court. In a 1948 case, Packer Collegiate Institute v. Univ. of State of NY, the Court ruled that the Education Department could not license private schools, absent specific legislation detailing the standards that would apply. (The legislature had passed a law, bereft of specifics, to license private schools.) The Court found that “it would be intolerable for the Legislature to hand over to any official or group of officials an unlimited, unrestrained, undefined power to make such regulations . . . and to grant or refuse licenses to such schools, depending on their compliance with such regulations.”
The Packer decision has never been challenged; the Regents and the Education Department are simply ignoring it. The Regents’ proposed regulations risk turning private schools into the functional equivalent of state public utilities—technically private entities but operating under the thumb of school districts and Albany education bureaucrats.
New York State’s relationship with private and religious schools, especially regarding the debate over public financial support, dates as far back as the early 1800s. As public schools grew in number, particularly in New York City under the auspices of the Public School Society, Catholic and other sectarian schools, which then educated more students, competed for taxpayer dollars. As Irish-Catholic immigrants rapidly increased in New York City in subsequent decades, so did competition between sectarian and nonsectarian schools for taxpayer support.
Delegates to the New York State Constitutional Convention of 1894 adopted restrictions on public funding of religious education—New York’s version of the Blaine Amendment, thwarting political pressure from Catholic schools for taxpayer funds. (Catholic charities remained eligible for state financial support.) That same year, the legislature enacted the substantially equivalent provision in the compulsory-education law. Nonetheless, private and religious schools have for the most part operated in a nonintrusive regulatory environment ever since, but for the legislation struck down in the 1948 Packer case—until now.
New York State continues to provide nominal financial support to students in private schools. These supports include school district busing, to ensure compulsory education; loans of public school textbooks and computer software and hardware, which contributes toward compliance with the substantially equivalent standard; nursing services to ensure children’s health; and security equipment to keep children safe. Private and religious schools also get state reimbursement for administering certain mandates.
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 the private per-pupil average. 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.
The state’s new regulatory threat comes as many private and religious schools face financial challenges from shrinking enrollments. The current enrollment of 443,000 students in New York’s private and religious schools is down overall from 527,000 in 2000—a 16 percent decline, or 84,000 students, in under two decades. This decline stems from various factors, including concerns about tuition affordability and cost of living, the overall waning of religious participation, lower birth rates, and the growth of public charter schools in large urban school districts. As their costs rise, private and religious schools are becoming more exclusively the option of children from upper-income families. Enrollment challenges likely will be intensified if the Regents’ proposed regulations diminish the differences and uniqueness—and thereby the benefits—of private education.
The cost of religious education has particular significance for Orthodox Jewish families, which typically have an above-average number of children, given the vital connection that the Orthodox make between schooling and practicing their religious faith. This commitment also explains the sharp uptick in enrollment in Jewish schools in New York, in contrast with overall trends. Currently, 170,000 students are enrolled in Jewish schools in New York, an increase of more than 60 percent since 2000. “Next to Israel, New York has historically been a second home to the Jewish people especially after the Holocaust,” said David Zwiebel, executive vice president of Agudath Israel of America, an Orthodox Jewish organization. “Our children’s schooling is absolutely integral to practicing and sustaining our faith for succeeding generations.”
For New York’s Catholic schools, shrinking enrollment has been acute, and the largest factor in the state’s overall private school decline, even as tuition levels remain comparatively modest. In 1999, 836 Catholic schools operated statewide, with 302,000 students. Today, there are just 503 Catholic schools, with 153,000 students—an enrollment loss of nearly half. Even with K-8 Catholic school tuition remaining at modest four-figure annual amounts, the cost is prohibitive for many working-class or middle-income families, especially when they’re paying anywhere from $5,000 to $12,000 or more in property taxes to live in modest suburban homes. As tuition and taxes rise, the marginal cost of private school tuition becomes harder to sustain.
“The parochial schools were serving a critical [minority] population,” Pedro Noguera, a professor of education at New York University and former trustee of the State University system, told the New York Times. “It’s a huge void that unfortunately the public schools cannot fill because they do not have the same values and culture.”
New York City’s Catholic schools educated generations of immigrants, and many prominent black and Latino leaders, among them Supreme Court Justice Sonia Sotomayor. Her school, Blessed Sacrament in the Bronx, closed in 2013. “Catholic schools have been a pipeline for opportunity for generations,” Sotomayor said.
New York’s distinguished history of private and religious education, with its conflicts, struggles, and successes, stands today at a crossroads. With the departure of Education Commissioner 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.
Indeed, given the achievements of private schools, New York State should be doing the opposite of what it is currently pursuing, and enact reforms that would make private schools an easier option for more parents. The legislature and Governor Cuomo—himself a product of Catholic schools, as are dozens of lawmakers—should adopt proposals to expand educational options through school choice, including for sectarian schools. School choice often is viewed as being about increasing options for parents and inducing more competition among public and private schools. That’s true as far as it goes, but school choice also represents a progressive approach to providing educational opportunity and economic equality for children from poor and working-class households to attend better schools. Moreover, expanding choice is not a zero-sum game; more school options for families do not impede the ability of elected officials to support and improve district public schools.
Expanding education opportunity could start by reconsidering the proposal for the education-scholarship tax credit, which would provide tax incentives for donations to private scholarship funds. This would vastly increase the number of K-12 scholarships, letting more low-income parents provide private and religious education for their kids. These kinds of tax incentives have proved effective in the 18 states that currently have them. Earlier in this decade, the New York State Senate on several occasions passed scholarship tax-credit legislation on a bipartisan vote, with more than two-thirds of the members of the State Assembly cosponsoring such legislation. But the bill ultimately failed to pass the full legislature due to political pressure on lawmakers and on the governor (who publicly supported it) from the New York State United Teachers, the statewide teachers’ union. Yet time and again, parents have flocked to take advantage of private schools and alternative public school opportunities, such as charter schools, whenever they have the chance.
Above all, though, New York State lawmakers and policymakers should first do no harm. That begins with the Regents junking the 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.
© 2019 City Journal