United States: Regents Adopt Substantial Equivalency Regulation For Private Schools

Seeking to hone in on requirements impacting nonpublic schools, today, the New York State Board of Regents approved amendments to the regulations mandating nonpublic schools provide "substantially equivalent" education to that provided in public schools. The amendment will slowly go into effect over the next two years and could mean some additional requirements on local schools.

Education Law §3204(2), which requires private schools provide "substantially equivalent" education to that provided in public schools, has remained largely unchanged since the late 1800's. Today's regulatory change seeks to more specifically identify implementation elements of the law and what substantial equivalency means, as well as how it will be determined.

Local school districts and the Commissioner have a role in ascertaining substantial equivalency. Ultimately, the Commissioner has final authority – "the Commissioner shall be the entity that determines whether nonpublic elementary and secondary schools are in compliance with academic requirements [related to substantial equivalency]."

Key Elements

Key elements of the regulation include what is described as a values-driven collaborative process; respect for different instructional models and values; allowing multiple pathways to demonstrate equivalency; a collaborative focus on core instruction; specific expectations for school districts, and a complaint and review process.

The regulation allows multiple pathways for nonpublic schools to demonstrate substantial equivalency. These include: recognition by a recognized accreditor; approved private special education schools (e.g. 853 schools); state-operated schools and state-supported schools (e.g. 4201 schools); schools offering international baccalaureate; US Government-Approved Instruction; registered high schools; and demonstration of grade-level progress on approved assessments.

The Regents rules include looking at the following criteria for reviewing programs: instruction given only by a competent teacher; English is the language of instruction for common branch subjects; students who have limited English proficiencies are provided an instructional program enabling them to make progress toward English language proficiency; materials from other accreditation reviews that did not meet the criteria for a pathway determination from the last five years; instructional programs incorporate math, science, English language arts and social studies that is substantially equivalent to what is required in public schools; courses of instruction in all other areas as required by law are similar.

No New Requirements

Presenting the regulation today, it was made clear the regulations do NOT impose a new requirement on public schools. Perhaps in response to extensive media coverage, including by the New York Times, and a long history of challenges related to these regulations, SED staff dispelled what it characterized as misconceptions about the new regulation. Staff informed the Regents the new regulation does not: impose a new obligation on local schools to ensure substantial equivalency; require all nonpublic schools to have a local school review; single out any group(s); mandate a specific curriculum or courses other than what is required by statute; allow appeals to the Commissioner except by aggrieved parties; and, regulate religious instruction.

Nonpublic schools may select one of two pathways for demonstrating substantial equivalency. The pathway option allows a school to choose and demonstrate it meets one of the substantial equivalency pathways approved by the Department. Alternatively, a nonpublic school can choose the local review option. Through this avenue, by December 1, 2023, a nonpublic school can choose the local school review option. The school then participates in the initial review process. This takes place through the 2024-2025 school year. Once the review is complete, the nonpublic school demonstrates substantial equivalency or requests more time to do so.

With the Board of Regents approval of the new regulation, SED staff will embark on developing guidance and a process for implementing the regulation. This will occur in the winter of 2022-23. By September 1, 2023, each school district must identify the nonpublic schools within its boundaries. Reviews will commence thereafter.
The Regents action, while grounded in a law largely unchanged for 100 years, has a more storied recent past. In 2015, New York City's education department set forth to investigate claims of education quality in certain nonpublic schools within the city. No substantive action resulted. A few years later, New York State issued rules overviewing what nonpublic schools needed to teach and for how long. That was met with legal challenge. The Regents action now seeks to more specifically codify rules for all nonpublic schools.

The impact on most local public schools may be modest and manageable. For some, where a large number of students attend nonpublic schools, implementation may be more challenging, even though the regulation is not supposed to impose new burdens on public schools. Local school districts still play a role and may possibly see an uptick in the work related to implementing the regulation.

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