Legal Updates

Proposed New York Regulations Pose Threat To Independent Schools' Autonomy

Much of what is appealing about independent schools derives from their very independence. With minor exceptions, independent schools have the freedom to create their own curricula, practice their own pedagogy, and generally go about the business of educating their students as they see fit, with minimal government interference. In this environment, many types of independent schools thrive – from the secular to the religious, from the elite to the egalitarian, from schools that focus on outdoor activities to schools that focus on STEM or the arts, and so on.

In recent years, the New York State Education Department (“NYS Education Department”) has received complaints related to a number of ultra-Orthodox yeshivas in New York City, claiming that those schools do not provide adequate instruction in secular subjects such as math, science, and English. The State’s response – proposing seemingly unprecedented public oversight of all non-public schools in the state – has drawn sharp criticism from religious leaders as well as leaders in independent school communities, many of whom argue that the proposed regulations are unnecessary, would be redundant with current accreditation processes, would be wasteful of public funds, and would threaten the very nature of what it means to be an independent school.

While New York independent school communities are actively pushing back against the threatened regulations, independent schools throughout the country would be wise to consider the arguments they would raise, and the actions they would take, if the political winds in their state began to blow in a similar direction to those in New York.

Background

In the United States, state governments regulate independent schools in a number of ways, most of which go unnoticed by those who are not independent school administrators. State regulation of independent schools extends to issues as varied as accreditation, teacher certification, the length of the school year, curriculum, recordkeeping, and health and safety.

For example, depending on the state and municipality in which it is located, a school may be required to receive state approval before opening, submit immunization or attendance records, provide the government with proof of accreditation by a recognized organization, submit to inspections of its facilities, and/or provide a state or local governing body with an overview of its curriculum. Similarly, most independent school teachers are required to undergo criminal history and sex offender registry checks, and may be required to engage in state-mandated professional development and/or licensing.

In a number of notable decisions, federal courts have considered the extent to which states may constitutionally regulate non-public schools. For example, in a 1925 case, Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, the U.S. Supreme Court struck down an Oregon statute that required all children to attend the state’s public schools. In finding the statute unconstitutional, the Court explained that the Fourteenth Amendment recognizes the fundamental right of parents to direct the education of their children, including by choosing to send their children to a non-public school. In other cases, federal courts have similarly held that excessive state regulation can have the effect of illegally restricting parents’ constitutional rights to direct the education of their children.

However, the Supreme Court has been equally clear that states have a legitimate interest in regulating non-public schools, in order to foster a well-informed citizenry capable of full participation in the country’s democratic processes.

Therefore, every state action purporting to regulate non-public schools must walk the line between furthering the state’s interest in producing well-informed and capable citizens, and infringing on the right of parents to direct the education of their children. Of course, state laws must also be otherwise constitutional, avoiding, for example, improper restrictions on the free exercise of religion.

In 2019, the least controversial and most common ways in which states regulate independent schools include establishing and enforcing the number of days that schools must be in session, and imposing various mandates related to student health and safety (e.g., requiring schools to adopt anti-bullying policies, conditioning attendance on vaccination status, and mandating procedures related to the dispensation of medication).

Conversely, perhaps the most controversial state regulations in this area relate to school curricula. Each of the 50 states addresses this issue somewhat differently. For example:
 

• In Maine, non-public schools must either (i) be accredited by the New England Association of Colleges and Secondary Schools (“NEASC”) or (ii) provide instruction covering a state-mandated basic curriculum. For secondary schools, this basic curriculum includes instruction in English, social studies, history, mathematics, science, fine arts, health and physical education, and computer instruction. For schools not accredited by NEASC, the state also mandates minimum classroom time requirements and adherence to specific performance standards.

• In Maryland, the State Board of Education sets minimum curricular requirements that must be met in order for a student to graduate from any non-public secondary school (with exceptions for religious schools). These requirements include four credits in English language arts; two credits in social studies, including at least one credit in U.S. History; six credits in science and mathematics, including at least two science credits and two mathematics credits; and at least nine additional credits. Affected schools are required to certify their compliance with these state requirements, and upon request, supply the state with individual student transcripts demonstrating that the curricular requirements are being met.

• In Massachusetts, local school committees are responsible for granting initial approval for non-public schools seeking to operate within their municipality. A local school committee may grant such approval only when it is satisfied that the school’s instructional program is equal to that of the municipality’s public schools in “thoroughness and efficiency.” Though school committees may also require periodic reviews of previously approved non-public schools, they are not obligated to do so. Therefore, in practice, independent schools in Massachusetts frequently face very little curricular oversight by the government.

• In Washington D.C., non-public schools must either submit proof that they are accredited by one of a list of specified accrediting agencies, or provide satisfactory evidence to the Superintendent of Schools regarding various aspects of their instruction, including the amount of instruction, the character of instruction (described as “acceptable subject matter and time devoted to the subjects”), the qualifications of their staff, and other factors such as class size, facilities, counseling services, etc.

In recent years, states have also been active in establishing regulations related to health and safety, many of which apply to independent (as well as public) schools. For example, states have passed laws requiring schools to adopt policies on hazing, concussions, and self-administration of lifesaving medications (e.g., Epinephrine). However, there has not been an overall trend toward strengthening oversight of independent schools’ curricula.

Proposed New York School Regulations

New York seems to be an outlier to the relatively laissez faire approach that most states have taken toward overseeing the curricula of independent schools. Within the last year, New York has embarked on an ambitious oversight plan designed to ensure that all of the state’s non-public schools meet New York’s longstanding statutory requirement of providing instruction that is “substantially equivalent” to that offered in the state’s public schools.

The impetus for this new interest in what non-public school students are learning apparently stems from complaints from graduates of certain yeshivas in New York City, who claim that these religious schools do not devote adequate time to secular subjects such as math, science, English, and history. This, combined with the refusal of some of these schools to allow city officials to access their facilities during a three-year-long investigation, has raised concerns that certain schools are not meeting the state’s substantial equivalency standard, and are not adequately preparing students for future employment.

In November of 2018, the increased scrutiny around the substantial equivalency standard resulted in the NYS Education Department’s issuing guidelines meant to clarify how the state will enforce this legal standard. Among these guidelines were the following:
 

• Non-public schools will be inspected by their local Education Department every five years.

• Non-public middle schools will be required to provide at least 72 minutes of math education every day.

• Non-public schools must provide their local school boards with sample lesson plans, including samples of daily, weekly, monthly, and yearly schedules, and the frameworks for their educational programs in English, math, science, and social studies.

• Continued non-compliance could result in cessation of various forms of public support (e.g., textbooks and transportation) or, ultimately, in a determination that attendance at the school will not fulfill the state’s mandatory education requirement (i.e., if a student attends the school in lieu of a public school, that student will be found to be truant.)

In response to challenges to these proposed standards by religious and educational groups, a New York trial court judge ruled that the NYS Education Department had failed to provide the requisite notice and comment period before promulgating the guidelines. However, this court decision may have merely delayed the implementation of the new standards. On May 31, 2019, the NYS Education Department repackaged the guidelines as proposed regulations, subject to the required notice and comment period, which was slated to run through September 2, 2019.

The reaction by many religious groups and independent schools has been overwhelmingly negative, with the Heads of a number of prominent independent schools in Manhattan publicly encouraging parents to submit comments expressing their disapproval of the proposed new rules. Because of the broad scope of the proposed regulations, and the extensive state oversight that they would entail, schools fear that the proposed regulations – if put into effect – would cause independent schools to lose much of their autonomy by putting into the hands of elected officials the oversight role that has traditionally resided with a school’s administration and Board of Trustees and private accrediting bodies.

A Sea Change?

One of the most important questions coming out of the proposed New York regulations is whether they represent a reaction to a unique set of New-York-specific circumstances or, instead, are an early sign of a fundamental change emerging in the relationship between state governments and independent schools. Though regulation of non-public schools varies from state to state both in kind and in degree, the overall picture nationwide might best be characterized as “loose oversight.”

We have yet to see proposals in other states that are similar to the proposed regulations in New York. States and localities have generally seemed uninterested in closely scrutinizing the educational quality of independent schools within their jurisdictions. This is perhaps because these public bodies are generally satisfied that the marketplace, school governance, and accrediting bodies do a good job of ensuring the quality of non-public schools, or because monitoring the quality of the public schools under their control is seen as enough of a burden.

However, as has recently happened with bullying plans, concussion regulations, and vaccination issues (to name just a few), it is not inconceivable that other states could follow New York’s lead and attempt to assert increased control over independent schools. Independent schools would be wise to keep abreast of all legal developments that may threaten the autonomy that has traditionally allowed them to thrive.

Independent schools should also continue to engage in a robust oversight process, led by people and organizations that are familiar with and sensitive to schools’ missions - most notably well-recognized independent school accrediting organizations. Likewise, independent schools should continue in their efforts to articulate their missions and what sets them apart from other schools, so that they can mobilize a motivated school community should their independence ever be threatened.

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If you have questions about the proposed New York regulations, or similar oversight issues elsewhere, please feel free to contact one of our education attorneys.