Eyeing Reformation for the New York Standard for Determining Substantial Equivalency

Education Law 3204(2) states that, “[i]nstruction given to a minor elsewhere than a public school shall be at least substantially equivalent to the instruction given to minors of like age and attainments at the public schools of the city or district where the minor resides.” However, the current system of determining substantial equivalence has left many stakeholders wondering if a better system is possible. While in the nascent stages of any reforms, on May 10 the Board of Regents released details about regional engagement sessions for stakeholders regarding substantial equivalency. Among the approximately 500 participants in the regional sessions were religious and independent schools, public school districts, BOCES, State-level organizations, Advocacy organizations, Community-based organizations, parents, students and alumni. This wide net evidences the concerted effort to create a more workable and fair system for all those involved. The main discussion topics were what components of a nonpublic school’s mission and program are important to consider as NYSED creates a framework for the substantial equivalence determination process and how to demonstrate or recognize substantial equivalence.

Currently, with certain exceptions, it is the statutory responsibility of local boards of education to enforce and determine whether nonpublic schools attended by their resident students are providing “substantially equivalent” instruction to that provided in the district’s public schools. In actuality, the board most often delegates this authority and obligation to the Superintendent. At the engagement sessions, stakeholders for private schools identified potential for conflicts of interest for the boards or superintendents responsible, such as competition for enrollment and associated funding under this current system. Also, they expressed concern that the current framework fosters a perception of nonpublic schools being subordinate to the public school district. Further, some nonpublic schools use resources for accreditation processes and feel another review would be duplicative. Meanwhile, districts are concerned that negative determinations could lead to lawsuits or influence budget approvals. The common concern among the public and private stakeholders was the lack of finances and personnel to dedicate to a review process.

So, neither side endorses the system as is, and a more centralized approach seems appropriate. However, NYSED does not have ready access to school grounds and information needed to make these determinations. Even if the Commissioner wanted to take on the full workload of these determinations, there is no statutory authority to do so. A decision rendered in April found that although the Commissioner has exercised jurisdiction over entities other than public schools, such jurisdiction requires a specific, statutory grant of authority. Since this statutory authority remains with boards of education, a centralized approach is out of the question without legislative action.

In April 2018, the Legislature amended the Education Law §3204(2)(ii) to create an exception for certain schools that are non-profits, bilingual and with longer hours. For those particular schools, the ultimate responsibility for making final substantial equivalence determinations is shifted from local school districts to the Commissioner. The limited pool of applicable schools presumably allows the Commissioner to take on the obligation in this instance. Notwithstanding this centralized review, NYSED will likely remain reluctant to centralize all non-public school equivalency determinations due to lack of authority and resources or a belief that communities are better served by local determinations.

Overall, the summary promulgated by NYSED suggests the Department will work to provide criteria for substantially equivalent instruction including how requirements of accrediting bodies may align with requirements for substantial equivalence to address the pitfalls of the current system. NYSED may also provide assessments for demonstrating and documenting that nonpublic schools are providing substantially equivalent instruction. Although these changes may not completely alleviate the conflict concerns broached in the regional stakeholder meetings, a clearer framework for rendering these decisions may ease the tensions among public and private schools under the current system.