State Accepting Comment Regarding Substantial Equivalency Regulations

Proposed regulations that have been issued by the New York State Education Department threaten the continued existence of Christian schools here in the Empire State.

According to Section 3204 of the Education Law, “[i]nstruction given to a minor elsewhere than at a public school shall be at least substantially equivalent” to the instruction that student would receive at his or her local public school. In November 2018, the Education Department released new “guidelines” affecting nonpublic schools (including Christian schools). Those “guidelines” laid out a process by which public school districts would determine whether nonpublic schools were providing a “substantially equivalent” education. The guidelines appear to have been driven by concern that some yeshivas (which are Orthodox Jewish schools) in New York have not been offering full and balanced curricula.

There were several major problems with the November 2018 “guidelines.” The first problem with them was the fact that they were not guidelines at all; rather, they were rules. By calling the rules “guidelines,” the Education Department attempted an “end run” around the State Administrative Procedures Act, which requires state agencies to publish proposed rules and make them available for public comment before finalizing and implementing them. On April 17, 2019, after several lawsuits had been filed on behalf of nonpublic schools, a state trial court nullified the “guidelines.”

Unfortunately, that court proceeding was only the first round of a larger fight. On Friday, May 31, the Education Department proposed new substantial equivalency regulations. The proposed regulations—like the November 2018 “guidelines”—outline a process for public school districts to use in reviewing whether nonpublic schools are providing a “substantially equivalent” education. The regulations would require school districts to review all nonpublic schools in the state by 2024, and would require school districts to annually evaluate nonpublic schools each year thereafter. Depending on the nonpublic school, school districts would either make recommendations to the New York State Commissioner of Education or to their own school boards. If a determination were made—whether by the Commissioner or by a school board—that a nonpublic school were not offering a “substantially equivalent education,” students continuing to attend that school would be considered truant. In other words, a determination that a nonpublic school is not “substantially equivalent” would, in practical terms, put that school out of business.

The proposed regulations are nothing short of ridiculous. If the stakes were not so high, they would be laughable. Here are some of the more glaring concerns:

  • Requiring public school districts—which often view nonpublic schools as competition—to evaluate the effectiveness of nonpublic schools is much like requiring the fox to evaluate the henhouse;
  • Many nonpublic schools across New York routinely exceed the performance of public schools. Therefore, the proposed regulations are a solution without a problem. If the Education Department or a school district receives information suggesting that a given nonpublic school is not performing adequately, that school can be investigated. There is no need to investigate every nonpublic school in the state;
  • The annual evaluations called for in the proposed regulations would be distracting and burdensome for nonpublic schools;
  • The regulations require that school districts consider the availability of ESL programs, “family and consumer sciences,” and “career development and occupational studies” in making substantial equivalency determinations. Christian schools, which tend to be small, may not have the resources to offer these programs. Thus, the criteria to be employed under the proposed regulations are unfair to Christian schools;
  • While the proposed regulations call for a review process that is “objective, mindful, sensitive, respectful, and consistent,” their provisions would create a review process that lacked all five of those characteristics. Appallingly, the proposed regulations would not even require a school district to notify a nonpublic school of the date of the board meeting at which its fate was to be decided. There is nothing “respectful” about this.

Public comments on the proposed regulations will be accepted until September 2, 2019. The Board of Regents is expected to make a decision on the proposed regulations in the fall. Rest assured that New Yorkers for Constitutional Freedoms will submit our own public comments in opposition to this dangerous proposal.