On September 13, 2022, the New York State Board of Regents approved a new set of regulations affecting nonpublic schools. The new regulations lay out a process by which the state will determine whether nonpublic schools are providing an education that—as required by law—is “substantially equivalent” to the education provided by public schools in their local areas.
The process by which these new substantial equivalency regulations came into existence has been a long one. In November 2018, the New York State Education Department released a set of “guidelines” affecting nonpublic schools. The “guidelines” were actually rules that nonpublic schools would have to follow to be deemed “substantially equivalent” to public schools; the Department referred to them as “guidelines” in an effort to avoid going through the process required by New York law when the state creates new regulations. In April 2019, after nonpublic schools had filed several lawsuits, a New York court threw out the “guidelines” and the Department went back to the drawing board.
In May 2019, the Department proposed new regulations relating to substantial equivalency. More than 140,000 public comments on the proposed regulations were submitted; most of those comments were critical. The comment submitted by New Yorkers for Constitutional Freedoms (NYCF) outlined several serious problems with the proposed regulations and called upon the Department to withdraw them or make major changes. In fact, the Department put its regulatory push on hold in 2020 and sought further dialogue with nonpublic schools.
In 2022, the Department proposed a revised set of substantial equivalency regulations. While the new proposed regulations were an improvement upon the 2019 proposal, NYCF still submitted a public comment recommending major changes to them. NYCF expressed concern about violations of existing law, possible conflicts of interest, and the potential for excessive complaints against nonpublic schools. The New York State Education Department (NYSED) received 350,000 public comments on the regulations before they were finalized; the vast majority of the feedback was negative. Nevertheless, the Regents approved the regulations without significant changes.
The regulations purport to make local school districts responsible for evaluating education quality in nonpublic schools within their respective borders. According to LoHud.com, the regulations “require public school districts to identify private schools within their boundaries by Sept. 1, 2023, and to complete initial reviews of their academic offerings by June 2025.”
Nonpublic schools may utilize any one of several methods to opt out of being evaluated by their local school districts. Those methods include registering with the Board of Regents, obtaining accreditation from an approved accreditation organization, and submitting acceptable test results. Many—but not all—Christian schools in New York will be able to successfully opt out.
Rep. Lee Zeldin (R-Shirley) and Agudath Israel of America expressed strong opposition to the new regulations.
At New Yorkers for Constitutional Freedoms, we are disappointed that the final regulations did not include any of our recommended changes. Given the choice, we would have preferred that the state refrain from implementing substantial equivalency regulations at all. Furthermore, we believe that the state’s decision to give school districts the authority to evaluate nonpublic schools is neither legal nor sensible.