New York law (Education Law § 3204(2)) requires nonpublic schools to provide their students with an education that is “substantially equivalent” to the education provided in the public schools where their students reside. In 2019, the New York State Education Department (NYSED) used the concept of substantial equivalency as the basis for new regulations that would have given public school districts a great deal of control over nonpublic schools. After losing a court battle and experiencing a massive statewide blowback, NYSED withdrew its proposed regulations in February 2020. Nevertheless, nonpublic schools—including Christian schools—continue to be on guard against regulations or laws that would allow government entities to interfere with them.
Bill S.6423-Jackson/A.7055-Seawright is one proposal that gives parents and nonpublic schools cause for concern. This bill would require nonpublic schools that receive mandated services aid or other state funds to certify that they provide an education that is substantially equivalent to the education provided in the public schools where their students reside. The bill would also require any school that “intentionally or negligently makes a false certification” to return any state funds that said school has received during the time period covered by the certification; also, any such school would be ineligible for state funds for the following five years. The bill includes a long list of curricular criteria to be considered in evaluating substantial equivalency, including (for primary school students) “concepts of science, mathematics, social science, and language arts in a hands-on, systems-based approach to problem solving that guides students in the understanding, design, and development of systems, devices, and products to serve human needs and wants.” Finally, the bill provides that the commissioner of NYSED has the authority to determine whether a nonpublic school is offering a substantially equivalent education, and adds that the commissioner “shall undertake regular reviews to ensure compliance with the substantial equivalence requirements…”
The bill memorandum reflects the sponsors’ critical attitude toward nonpublic schools. It asserts that “certain nonpublic schools have failed to provide [a] fundamental education to their students,” describes such schools as “institutions that reap millions of dollars in state funding that would be better directed to deserving schools,” and uses racially charged rhetoric in stating that the bill would “help ensure that [nonpublic] schools do not establish or perpetuate a separate, [sic] but unequal education for their students.”
There are several problems with this legislation. First, it is unnecessary to subject Christian schools and other nonpublic schools across the state to scrutiny from NYSED simply because a few schools are falling short of their obligations.
Second, the criteria used for reviewing nonpublic school curricula are problematic. Those criteria call for nonpublic schools to include a wide array of subjects within their curricula. Christian schools, which tend to be small, may not have the resources to provide the same breadth of specialized subjects as public schools do.
Third, and most importantly, the requirement that the commissioner of NYSED “undertake regular reviews” of nonpublic schools is disturbing. The absence of any indication as to when and how such reviews might be undertaken is also problematic. Nonpublic schools are nonpublic for a reason. They should not be subjected to onerous and intrusive oversight from the State Education Department, especially if there is no indication that they have done anything wrong. Also, many nonpublic schools are reviewed on a regular basis in order to maintain their respective accreditations; for these schools, a substantial equivalency review would be a complete waste of time. At this writing, Bill S.6423-Jackson/A.7055-Seawright is not moving in the State Senate or the State Assembly. At New Yorkers for Constitutional Freedoms, we want to keep it that way.