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.