MEMORANDUM AND ORDER New York’s Education Law provides that children in private schools must receive an education that is “at least substantially equivalent” to the instruction given at public schools in the city or district where they reside. N.Y. Educ. L. §3204(2)(i). On April 12, 2018, Governor Andrew Cuomo signed into law an amendment to the Education Law setting forth factors that must be considered when evaluating whether certain private schools provide a “substantially equivalent” education. See L. 2018, ch. 59, pt. SSS (the “Felder Amendment” or the “Amendment”); N.Y. Educ. L. §3204(2)(ii)-(v). Although the Felder Amendment does not refer to religious schools on its face, Young Advocates for Fair Education (“YAFFED”), a non-profit group that advocates for improved secular education in the Hasidic Jewish community, argues that the Amendment was designed to reduce the level of secular education that must be taught in private Hasidic Jewish schools without changing the educational requirements applicable to other private schools, including other religious schools. (ECF No. 1 (“Compl.”)
8-9, 12).YAFFED brought this action on July 23, 2018, alleging that the Felder Amendment violates the Establishment Clause of the First Amendment to the United States Constitution and seeking declaratory and injunctive relief. YAFFED names Governor Cuomo, Betty Rosa, Chancellor of the Board of Regents of the State of New York, and MaryEllen Elia, Commissioner (the “Commissioner”) of the New York State Education Department (“NYSED”), in each case in their official capacities, as Defendants. On August 24, 2018, YAFFED moved for a preliminary injunction “restraining and enjoining Defendants…from enforcing or promulgating guidelines in compliance with the [Felder Amendment] [and] ordering Defendants to maintain the statutory status quo ante as it existed prior to April 12, 2018.” (ECF No. 17, at 1-2). On October 2, 2018, Defendants moved to dismiss pursuant to Federal Rules of Civil 12(b)(1) and (6) on standing, ripeness and Eleventh Amendment grounds. (ECF Nos. 32, 34).The statute at issue in this case, and the events leading up to its enactment, have aroused strong feelings on both sides and raise substantial questions of constitutional law. However, Article III of the United States Constitution limits this Court’s jurisdiction to “Cases” and “Controversies,” which the Supreme Court has construed to require that “the plaintiff…have suffered an ‘injury in fact’ — an invasion of a legally protected interest” which is “concrete and particularized,” as well as “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations omitted). This standing requirement “tends to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982). The Court has no desire to evade the complex questions presented here, mindful that the judiciary’s application of the standing doctrine has occasionally been criticized as a way of punting on difficult questions or avoiding a ruling on the merits. See, e.g., Mark V. Tushnet, The Sociology of Article III: A Response to Professor Brillmayer, 93 Harv. L. Rev. 1698, 1715 n. 72 (1980); Mark V. Tushnet, The New Law of Standing: A Plea for Abandonment, 62 Cornell L. Rev. 663, 663-664 (1977). However, on the present record, YAFFED has failed to demonstrate that it has suffered an injury in fact sufficient to confer standing, or that such an injury is “certainly impending.” Knife Rights, Inc. v. Vance, 802 F.3d 377, 389 (2d Cir. 2015) (quoting Clapper v. Amnesty Intern. USA, 568 U.S. 398, 409 (2013)). Therefore, the Court has no choice but to grant Defendant’s motion to dismiss pursuant to Rule 12(b)(1).BACKGROUNDI. The Education Law Prior to April 12, 2018The Education Law requires children aged 6 to 16 in New York State to attend “full time instruction” and sets forth minimum standards for the quality of instruction in public schools. N.Y. Educ. L. §§3204, 3205(1), (3). Public schools must teach particular subjects at various grade levels, including English language, reading, writing, mathematics, geography, United States history, science, music, visual arts, and physical education. See N.Y. Educ. L. §3204(3)(a); 8 N.Y.C.R.R. §§100.2-100.5, 135.4. The State also requires instruction in specialized topics including mental health, alcohol and drug abuse, patriotism, citizenship, and human rights, among others. See N.Y. Educ. L. §§801, 801-a, 803, 804, 806, 808, 809, 810; 8 N.Y.C.R.R. §§100.2(c), 135.3.In private schools, including parochial schools, students must receive instruction that is “at least substantially equivalent” to the instruction given at public schools in the city or district where they reside. Id. §3204(2)(i). It is generally up to the local school board, through the district superintendent, to determine whether its students are receiving a “substantially equivalent” education. See Blackwelder v. Safnauer, 689 F.Supp. 106, 122 (N.D.N.Y. 1988); Matter of Adam D., 132 Misc.2d 797, 801, 803 (N.Y. Fam. Ct., Schoharie County 1986); Appeal of M. L. B., 34 Ed. Dept. Rep., Decision No. 13225, 1994 WL 16854677, at *2 (N.Y. Comm’n Educ. Jul. 22, 1994); Appeal of N. and A.A., 33 Ed. Dept. Rep., Decision No. 13118, 1994 WL 16854598, at *2 (N.Y. Comm’n Educ. Feb. 28, 1994).1 In New York City, this function is discharged by the Chancellor of the New York City Department of Education (“NYCDOE”). See New York State Department of Education, “Substantial Equivalency Review and Determination Process” 1-2 (Nov. 20, 2018), available at http://www.nysed.gov/common/nvsed/files/programs/nonpublic-schools/substantial-equivalency-guidance.pdf.2 Parents and/or private school officials may appeal the local school authority’s adverse determination directly to the Commissioner of Education. See Blackwelder, 689 F.Supp. at 122; Adam D., 132 Misc.3d at 803.3The Education Law does not define what it means for private school instruction to be “substantially equivalent.” However, for years, NYSED maintained “guidelines” which essentially incorporated most of the statutory and regulatory requirements applicable to public schools, see N.Y. Educ. L., Title I, Art. 17; id. §3204(3)(a); 8 N.Y.C.R.R. §§100.2-100.5, and applied them to private schools. (ECF No. 39 (“Coughlin Decl.”) 3). See New York State Department of Education, “Guidelines for Determining Equivalency of Instruction in Nonpublic Schools” (the “Prior Guidelines”), Question 24, available at http://www.p12.nvsed.gov/nonpub/guidelinesequivofinstruction.html. Hence, under the Prior Guidelines, all private schools in the State were legally required to teach English, mathematics, science, social studies, art, music, physical education, and health, among other courses.II. Hasidic Education in New YorkHasidic4 Jewish parents generally choose to educate their children in a network of religious schools. (ECF No. 27 (“Moster Decl.”) 31). During the 2013-2014 school year, according to one estimate, there were approximately 52,063 students enrolled in Hasidic schools throughout New York City, representing nearly half of all enrollment in Jewish day schools. See Marvin Schick, A Census of Jewish Day Schools in the United States 2013-2014, at 33, Table 13 (October 2014).5 These schools are segregated by gender, with boys attending what are called yeshivas (or, at younger ages, cheder). (Moster Decl. 31). As stated by amici who are supportive of the Felder Amendment:Orthodox Jewish parents choose yeshiva education for their children to fulfill the Biblical injunction that “You shall place these words of Mine upon your heart and upon your soul… and you shall teach them to your children to speak in them.” Deuteronomy 11:18-19. The Bible says of Abraham, “I have known him because he commands his sons and his household after him, that they should keep the way of the Lord.” Genesis 18:19.(ECF No. 41, at 1 (Brief of Amici Curiae Parents for Educational and Religious Liberty in Schools (PEARLS), Agudath Israel of America, Torah Umesorah: National Society for Hebrew Day Schools, and United Jewish Organizations of Williamsburg (UJO) (collectively, the “PEARLS Amici”)). For parents who choose a traditional yeshiva education for their children, it is an important pillar of continuity within the Hasidic community, assuring that their beliefs will be reliably passed on from one generation to the next, and instilling an invaluable sense of Jewish identity and belonging. (ECF No. 44 (“Twerski Decl.”)
