Substantial Equivalency Letter

August 19, 2019


Ms. Christina Coughlin
Assistant Commissioner for the Office of School Governance, Policy, and Religious and Independent Schools
New York State Education Department 89 Washington Avenue, Room 1075 EBA Albany, New York 12234

Re: Proposed Rulemaking I.D. No. EDU-27-19-00010-P Dear Ms. Coughlin:

On behalf of the New York State School Boards Association, please accept these comments in response to the proposed addition of Part 130 to the Commissioner's Regulations relating to substantial equivalency reviews for students attending nonpublic schools.

At the outset, the Association recognizes the importance of ensuring that all students in our state, including those attending nonpublic schools, receive the education to which they are entitled to under the law. The receipt of substantially equivalent instruction is essential to the ability of nonpublic school students to succeed in their academic and professional choices after they leave elementary and secondary school. Therefore, the Association appreciates the stated purposes of the proposed regulations. But for the reasons that follow we cannot support the proposed regulations in their current form.

NYSSBA's Concerns:

1. Increased burden

An overarching concern with the proposed regulations relates to the increased burden that touches all of the various processes involved in determining whether nonpublic schools are providing their students with instruction that is substantially equivalent to that offered in public schools, and any corrective actions that may need to be taken if they do not. The specifics of the proposed regulatory provisions go beyond what has been historically recommended under the Department's existing guidelines regarding substantial equivalency reviews.

That concern is heightened by the embedded threat contained within the proposed regulations' reference to the enforcement mechanism of Education Law §3234, which authorizes the commissioner to withhold state aid from districts that are found to be noncompliant with regulatory requirements.

By way of illustration, under the proposed regulations a much deeper dive into the nonpublic school program is expected on the part of school district officials such as the review of textbooks and sample lesson plans to ensure nonpublic school students receive sufficient instruction in core subjects. They also must determine whether nonpublic school students have the opportunity to acquire core skills and to make academic progress. In comparison, the existing guidelines limit their work in this regard to the review of a list of courses and subjects to be taught in each grade level.

Moreover, the existing guidelines place the responsibility on nonpublic school administrators to hire teachers, who in the judgment of the nonpublic school administrator are qualified in light of the goals and philosophy of the school. In comparison, the proposed regulations would have district officials consider whether instruction in a nonpublic school is given by a competent teacher based on whether their qualifications are "consistent with the school's policy for teacher hiring standards and qualifications".

2. Sufficiency of resources

The sufficiency of resources, human or otherwise, that might be necessary to meet the increased burden imposed by the proposed regulations poses an issue that cannot be understated.

The proposed regulations indicate that school districts should assign at least two individuals to the substantial review process with expertise in instruction and the ability to communicate well with the nonpublic school community, and suggest that a site visit is required. In contrast, the existing guidelines leave it within each school district's discretion as to how many individuals are involved in the review process and recommends, but does not require, site visits. Compliance with these proposed regulatory requirements will necessitate the hiring of additional staff in many localities.

Also regarding concerns over the sufficiency of resources for the implementation of the proposed regulations, the language suggests a continuously, ongoing substantial equivalency review obligation on districts. On the one hand they require school districts to conduct a review within three years of when a new nonpublic school commences instruction and for existing schools, by the end of the 2022-23 school year. However, in both cases they also indicate that such reviews must be conducted "regularly thereafter," with no definition as to what "regularly thereafter" means. The proposed regulations also provide that school districts must "maintain regular substantial equivalency reviews and updates... " In contrast, the existing guidelines do not reflect an ongoing review requirement beyond the initial determination

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