Weber v. New York State Education Department

76 Misc.3d 676

174 N.Y.S.3d 791

In the Matter of the Application of Beatrice WEBER on Behalf of Herself and Her Minor Son A.B. and David J. Shapiro, Petitioners-Plaintiffs,

v.The NEW YORK STATE EDUCATION DEPARTMENT; Betty A. Rosa, in Her Capacity as the Commissioner of Education of the State of New York; the New York City Department of Education ; Meisha Porter, in Her Capacity as Chancellor of the New York City Department of Education; and Yeshiva Mesivta Arugath Habosem, Respondents-Defendants.

Index No. 905413-21

Supreme Court, Albany County, New York.

Decided on June 7, 2022

SHAPIRO LITIGATION GROUP, PLLC, David J. Shapiro, Esq., 1460 Broadway, Suite 7019, New York, New York 10036, Counsel for Petitioners-Plaintiffs Beatrice Weber on Behalf of Herself and her Minor son A.B. and David Shapiro

HON. LETITIA JAMES, Attorney General for the State of New York, (Helena O. Pederson, Esq., Assistant Attorney General) The Capitol, Albany, New York 12224-0341, Counsel for Respondents-Defendants New York State Education Department and Commissioner Betty A. Rosa

CORPORATION COUNSEL OF THE CITY OF NEW YORK, Georgia M. Pestana, Esq., (Philip S. Frank, Esq., Assistant Corporation Counsel) 100 Church Street, New York, New York 10007, Counsel for Respondents-Defendants New York City Department of Education and Meisha Porter, Chancellor of the New York City Department of Education

TROUTMAN SANDERS, LLP, Avi Schick, Esq., 875 Third Avenue, New York, New York 10022, Counsel for Respondent-Defendant Yeshiva Mesivta Arugath Habosem

Adam W. Silverman, J."Today [education] is a principal instrument in awakening the child to cultural values, in preparing him [or her] for later professional training, and in helping him [or her] to adjust normally to his [or her] environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he [or she] is denied the opportunity of an education"

Brown v. Board of Ed. of Topeka , Shawnee County, Kan. , 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954).

INTRODUCTION

Petitioner-Plaintiff Beatrice Weber on behalf of herself and her son A.B. brings this combined proceeding pursuant to CPLR article 78 and action for declaratory judgment pursuant to CPLR 3001 to challenge an administrative determination issued by the New York State Education Department ("SED") Commissioner on April 21, 2021 ("the Determination"). The Determination dismissed her Education Law § 310 petition¹ which had requested a Commissioner's order requiring that the New York City Department of Education ("DOE") ensure Respondent-Defendant Yeshiva Mesivta Arugath Habosem ("YMAH") complies with the State's compulsory education law. This case also includes a separate challenge by Petitioner Weber's attorney, David J. Shapiro, brought on his own behalf, regarding a request pursuant to the Freedom of Information Law (see Public Officers Law art 6 ["FOIL"]) to obtain records withheld by DOE.² Petitioners seek a judgment: "1. Ordering [SED] to compel YMAH to teach the subject mandated by [ Education Law § 3024 and 801]; 2. Annulling the [Determination]; 3. Declaring that the right to a ‘sound basic education’ guaranteed by [ NY Const art XI, § 1 ] applies to Petitioner Weber's minor son who attends a nonpublic religious school in New York State; and 4. Ordering DOE to produce certain records duly requested by Petitioner Shapiro under [FOIL] concerning the DOE's investigation of YMAH."

Presently before the Court are seven motions, including motions to dismiss filed by the State Respondents as well as Respondent YMAH, a motion to sever/transfer filed by the City Respondents, and various discovery motions filed by Petitioners. Despite the voluminous submissions in this matter and the panoply of well-crafted legal arguments presented by counsel, this case boils down to a determination regarding the legal responsibility for ensuring Respondent YMAH complies with the State's compulsory education law and the legal process by which one may challenge Respondent YMAH's compliance.

I. BACKGROUND

A. Applicable Law

1. New York State Constitution, Article XI, § 1

Article XI of the State Constitution encompasses education and is broken into four sections, the first of which is devoted to "Common schools." It provides that "[t]he legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated" ( NY Const, art XI, § 1 ).

2. Education Law § 801

Article 17 of the Education Law encompasses mandated courses of instruction in various subject areas. Housed within Article 17, Education Law § 801, entitled "[c]ourses of instruction in patriotism and citizenship and in certain historic documents," is made up of five sub-sections, the first and third of which are most applicable to this proceeding provide, inter alia , as follows:

"1. The regents of The University of the State of New York shall prescribe courses of instruction in patriotism, citizenship, civic education and values, our shared history of diversity, the role of religious tolerance in this country, and human rights issues, with particular attention to the study of the inhumanity of genocide, slavery (including the freedom trail and underground railroad), the Holocaust, and the mass starvation in Ireland from 1845 to 1850, to be maintained and followed in all the schools of the state....

Similar courses of instruction shall be prescribed and maintained in private schools in the state, and all pupils in such schools over eight years of age shall attend upon such courses. If such courses are not so established and maintained in a private school, attendance upon instruction in such school shall not be deemed substantially equivalent to instruction given to pupils of like age in the public schools of the city or district in which such pupils reside.

3. The regents shall determine the subjects to be included in such courses of instruction ... and the period of instruction in each of the grades in such subjects.... The commissioner shall be responsible for the enforcement of such section and shall cause to be inspected and supervise the instruction to be given in such subjects. The commissioner may, in his discretion, cause all or a portion of the public school money to be apportioned to a district or city to be withheld for failure of the school authorities of such district or city to provide instruction in such courses and to compel attendance upon such instruction, as herein prescribed, and for a non-compliance with the rules of the regents adopted as herein provided.

The commissioner shall be responsible for the enforcement of such section and shall cause to be inspected and supervise the instruction to be given in such subjects. The commissioner may, in his discretion, cause all or a portion of the public school money to be apportioned to a district or city to be withheld for failure of the school authorities of such district or city to provide instruction in such courses and to compel attendance upon such instruction, as herein prescribed, and for a non-compliance with the rules of the regents adopted as herein provided.

3. Education Law §§ 3201 — 3234

Article 65 of the Education Law, entitled "compulsory education and school census" is a comprehensive set of laws establishing minimum requirements for the provision of education across the State. The first of its two parts, entitled "compulsory education," includes thirty-four sections of law, from Education Law § 3201 ("[d]iscrimination on account of race, creed, color or national origin prohibited") through Education Law § 3234 ("[e]nforcement; withholding state moneys by commissioner of education"). Most applicable to this proceeding are the following sections:

" Education Law § 3204 .

1. Place of instruction. A minor required to attend upon instruction by the provisions of part one of this article may attend at a public school or elsewhere. The requirements of this section shall apply to such a minor, irrespective of the place of instruction.

2. (i) Instruction may be given only by a competent teacher. In the teaching of the subjects of instruction prescribed by this section, English shall be the language of instruction, and text-books used shall be written in English.... Instruction given to a minor elsewhere than at a public school 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."

(v) The commissioner shall be the entity that determines whether nonpublic elementary and secondary schools are in compliance with the academic requirements set forth in paragraphs (ii) and (iii) of this subdivision."

( Education Law § 3204 ).

" Education Law § 3234.

1. The commissioner of education shall supervise the enforcement of part one of this article and he may withhold one-half of all public school moneys from any city or district, which, in his judgment, willfully omits and refuses to enforce the provisions of part one of this article, after due notice, so often and so long as such willful omission and refusal shall, in his judgment, occur, or continue."

( Education Law § 3234 ).

4. Education Law § 310

Article 7 of the Education Law establishes, and delineates, the powers and responsibilities of the State Commissioner of Education. Within Article 7, Education Law § 310, entitled "Appeals or petitions to commissioner of education and other proceedings," provides that:

"Any party conceiving himself aggrieved may appeal by petition to the commissioner of education who is hereby authorized and required to examine and decide the same; and the commissioner of education may also institute such proceedings as are authorized under this article. The petition may be made in consequence of any action:

1. By any school district meeting.

2. By any district superintendent and other officers, in forming or altering, or refusing to form or alter, any

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