Private Contracts for Instructional Services?

Each year schools receive solicitations from third parties offering to perform the various services required to operate the school district. These vendors sometimes seduce schools with offers to perform services the schools have no authority to contract for, which can lead to unauthorized contracts and legal headaches. With staff shortages and increased need for various therapies, the private vendor may seem like an appealing option. Before contracting with any third party, it is critical for school administrators to make sure the district or BOCES has the authority to contract for the offered services. One of those contracts you should carefully consider is contracts for instructional services.

As a general rule, school districts and BOCES are creatures of statute and possess only those powers expressly delegated by statute.

The Commissioner of Education has repeatedly held that it is impermissible for school districts and BOCES to contract with a private entity to provide the public educational services that the district or BOCES is legally obligated to provide (Appeal of McKenna, 42 Ed Dept Rep 54, Decision No. 14,774; Appeal of Sweeney, Decision No. 15,139). In the Appeal of Sweeney, the dispute was a contract the BOCES entered into with a private contractor to recruit, hire and assign employees for substitute teaching services. Similarly, the Appeal of McKenna involved a challenge to the school district’s use of a private contractor to provide alternative education services to district students.

In September 2024, the New York State Education Department specifically reminded school districts and BOCES that they do not have the authority to provide core instruction through the employees of third-party contractors. “Core instructional services” are defined as “instruction for grades K-8, special classes for students with disabilities and courses for which credit is awarded toward a high school diploma.” The core instructional services also include social work and psychological services, as well as substitute teachers. Contracting for core instruction is prohibited even if the contract is intended to fill a vacancy which cannot be otherwise filled due to the shortage of personnel.

On the other hand, contracting for supplemental instruction services is permitted. These supplemental services include “tutoring, enrichment programs, or before or after care, or courses that are not offered for high school credit”. While the provision of virtual core instruction through the employees of private entities is prohibited, contracting for virtual supplemental or additional instructional services, for example, digital curricular materials used to support the teachers employed by school districts and BOCES, is permissible.

School districts and BOCES may enter private contracts to provide related services to students, including school nurse services, physical therapy, occupational therapy and speech language therapy.

Also, in limited circumstances, school districts and BOCES may contract with private entities to provide students with disabilities with core instruction or to provide bilingual education services.

If you are interested in contracting for instructional services through private entities, we recommend considering the above prohibitions and contacting our office if you have any questions.