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May 31, 2019
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JP O'Hare

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State Education Department Proposes Regulations for Substantially Equivalent Instruction for Nonpublic School Students

Public Comments to Be Accepted Through September 3

The New York State Education Department today proposed regulations regarding the statutory requirement for substantial equivalency of instruction for students attending nonpublic schools to ensure that all students receive the education to which they are entitled under the law.  

“Every child in New York State is entitled to a high-quality education,” Board of Regents Chancellor Betty A. Rosa said. “By proposing these regulations, we are moving through the public process to ensure that students attending nonpublic schools receive substantially equivalent instruction. We remain steadfast in our commitment that all New York’s children leave school with the knowledge they need to succeed in life.”

“Nonpublic schools are an important part of the educational landscape in New York State,” Commissioner MaryEllen Elia said. “With the regulations, we will ensure that all students – no matter which school they attend – have the benefit of receiving the education state law says they must have. By following the State Administrative Procedure Act process, we are addressing the Court’s concerns.”

Proposed Regulations

Over two years, NYSED engaged in a deliberative and thoughtful process to develop the guidance issued last year, consulting with numerous stakeholders, in both the public school and religious and independent school communities. The Department is issuing the proposed regulations in response to a ruling from Albany County Supreme Court that the process detailed in SAPA must be followed.

The proposed regulations contain recommendations for processes and criteria for the substantial equivalency process that largely reflect the major principles outlined in the Department’s November 2018 guidance. The proposed regulations have been updated to include the following elements:

  • Recommends that new schools be reviewed within three years of operation and that existing schools by reviewed by the end of the 2022-23 school year or as soon as practicable thereafter and regularly thereafter;
  • Provides due process to the nonpublic school throughout the substantial equivalency process;
  • Focuses on providing instruction in subject areas required by law and does not include reference to the state learning standards; 
  • Allows for integrated curriculum that delivers content by incorporating more than one subject into the content of a course;
  • Requires LSAs to annually file a list of nonpublic schools subject to their review and Commissioner’s review by Sep. 1, 2020 and each September 1 thereafter; and
  • Requires LSAs to file an annual update regarding the status of substantial equivalency reviews by Sep. 1, 2024 and each September 1 thereafter.

As reflected in the proposed regulations, the Department continues to recognize the need for the substantial equivalency review process to be conducted in a flexible and inclusive manner that reflects five core principles that are essential in the review process –  objective, mindful, sensitive, respectful and consistent – to help establish a collaborative process between public and nonpublic schools.

Substantial Equivalency Background
In response to the court ruling, the Department drafted proposed regulations to implement requirements in state law that students attending nonpublic schools receive substantially equivalent instruction. Under state law, local public school officials have the responsibility to ensure that the education received by nonpublic school students is substantially equivalent to that received in district public schools. Substantial equivalency means an instructional program is comparable to that offered in the public schools and is designed to facilitate the progression of students from grade to grade.
For decades, the New York State Education Department provided guidance for public school officials to determine the substantial equivalency of education provided in religious and independent schools. In response to questions from the field, the Department engaged in a consultative process for approximately two years to update the guidance and released updated guidance in November 2018.
The proposed regulations reflect current law, including the April 2018 Legislative amendment to Education Law §3204 and provides guidance to local school authorities and nonpublic school leaders to assist them in meeting their statutory responsibilities to ensure students in nonpublic schools are receiving instruction that is at least substantially equivalent to the instruction provided to public school students.

Public Comment Period

The proposed rulemaking will be published in the State Register on July 3 and the public comment period will run through Sep. 3. It is expected the final regulation will come before the Board of Regents for its consideration in fall 2019.

Public Comment Period Update - July 3, 2019

A Notice of Proposed Rule Making was published in the State Register on July 3, 2019. The public comment period will run through September 3, 2019. It is expected the final regulation will come before the Board of Regents for its consideration in fall 2019.