Holding Court is a series by retired Rye City Court Judge Joe Latwin. Latwin retired from the court in December 2022 after thirteen years of service to the City.
What topics do you want addressed by Judge Latwin? Tell us.
By Joe Latwin
The New York State Constitution “requires the State to offer all children the opportunity for a sound basic education . . . to enable [them] to eventually function productively as civic participants capable of voting and serving on a jury”. The Constitution also requires that the Legislature shall provide “a system of free common schools”. These constitutional mandates are codified in the Education Law. It provides that children from 6 to 16 years old in New York State are entitled to a free education and that their parents or custodians must ensure that they attend “full time instruction”. This instruction may be provided at “a public school or elsewhere”. If a child receives instruction elsewhere, the instruction “shall be at least substantially equivalent to the instruction given to minors of like age and attainments at the public schools of the city or district where the minor resides”. Failure to comply with the compulsory education and substantial equivalency requirement may subject a parent or custodian to a neglect proceeding in Family Court, or criminal penalties including fines and imprisonment. The Education Law provides that the Commissioner shall make any final substantial equivalency determinations.
For nonpublic schools that do not pursue or are not deemed substantially equivalent the local school authority must collaborate with the nonpublic school to develop a plan for the school to achieve substantial equivalence within a reasonable time period. If these efforts fail, or if a non-public school fails to cooperate, a final negative determination may be issued and “the nonpublic school shall no longer be deemed a school which provides compulsory education.
Five nonpublic schools and three membership organizations representing several such schools and parents of the schools’ students sued to overturn the Commissioner’s regulations asserting that the regulations that deem a nonpublic school noncompliant with the Education Law exceed statutory authorization and because they compel parents to “unenroll” their children from schools.
The Court of Appeals found nothing requires that parents “unenroll” their children from a nonpublic school deemed not to provide substantially equivalent instruction. Nor do the regulations authorize school closures. The provisions merely state that the nonpublic school does not provide substantially equivalent instruction—a determination well within the authority provided to the Commissioner by the statute. The parent or custodian must determine how then to ensure their compliance with the Education Law.
We all want our children to be properly educated. We have chosen to leave the determination of what a proper education is to the State – that not only makes the rules but has a functional monopoly over the provision of education. I would venture to estimate that in excess of 95% of all students attend public schools. If a private company had the same market share in the education market as the public schools they would be deemed a monopoly in violation of the Sherman Antitrust Act. After all, not only are they almost the only supplier of educational services, but they compel dealing with them, subsidize the use by mandatory taxes, and have the power to regulate and punish competitors. The State is also subject to political influence and can be perceived as a captive of the unions of its employees. Statistics show that home schooled students – a growing trend – outperform public school students on standardized tests, such as SATs and ACTs. Religious schools have a good reputation of producing good students. My kids graduated from the Rye public school system and felt well-prepared at the competitive colleges they attended. To paraphrase Churchill, it’s not the best system, but it is better than all the others.
