New York State School Boards Association

Substantial Equivalency Letter

and follow up period except in cases where a serious concern is raised regarding the nonpublic school or if additional grades are added to an existing school. We also note that under the Department's process for high schools that voluntarily register with the State Education Department, the Department's manual for new administrators of nonpublic schools states that "[r]egistered nonpublic secondary schools are reviewed on a ten-year cycle." We question why this same time frame would not make sense with respect to substantial equivalency reviews conducted by school districts for schools not registered with the Department.

Furthermore, clarification is required regarding what is meant by the language in the proposed regulations that states that school district officials "provide appropriate technical assistance, particularly regarding the availability of any resources for professional development that may support the nonpublic school in attaining the shared goal of substantial equivalence;" Does this mean that school districts would have to provide professional development for nonpublic school staff? Or just provide them with information regarding where they may be able to access such resources? The former would certainly impose a financial burden on school districts. In addition, the existing guidelines and other Department documents list the District Superintendent and the State Office for Religious and Independent Schools as a resource for technical assistance . We question why these entities are not identified as resources in the proposed regulations and contend that for statewide consistency in the review process, which is a goal specified in the proposed regulations, those entities would be best positioned to provide required technical assistance to nonpublic schools and districts.

3. Costs

The regulatory impact statement for the proposed regulations states that "[n]o additional costs are imposed on local governments beyond those imposed by law." However, the regulatory impact statement also indicates that "the Department developed a COSER by which [a school district] may engage with a board of cooperative educational services to conduct substantial equivalency reviews, which may be used to offset any costs incurred by local governments ... " Thus the fact that the proposed regulations do impose additional costs was recognized by the Department through the creation of the BOCES COSER. While there have been costs associated with the existing guidelines, there are greater costs with the increased burdens imposed by the proposed regulations. A new regulatory impact statement that accurately sets forth the expected costs on school districts must be filed.

4. Lack of statutory authority

Finally, notwithstanding the concerns raised above over the onerous burden that the proposed regulations would impose on local public school authorities, we find no enabling statutory authority that would support their adoption. Thus, the submission of those concerns should not be interpreted as a concession that local public school authorities are indeed obligated to make substantial equivalency determinations, except in one limited instance identified below.

Despite the long-established policy and practice, and prior Department guidelines, we have found no express statutory language that imposes on school districts the responsibility to make substantial equivalency determinations for students attending all nonpublic schools throughout the state. We are aware of Education Law §3210(2) (d) and the responsibility of school districts to make substantial equivalency determinations in the case of a nonpublic school with a shorter school day or year or both (emphasis added). However, we do not see how this section of law applies to substantial equivalency determinations for nonpublic schools that do not have shorter school days and/or school years.

Furthermore, relevant amendments to the Education Law enacted in 2018 expressly provide that "the commissioner of education shall be the entity that determines whether [yeshiva] schools are in compliance with the [substantial equivalency] academic requirements" applicable to them. We do not see how the plain language and legislative history of those amendments enable the adoption of regulations that delegate to local public school authorities the responsibility to make even initial determinations regarding such compliance.

NYSSBA's Proposed Solution

Putting aside whether the obligation to conduct substantial equivalency reviews and make related determinations is a state or a local responsibility, the most efficient and effective way to ensure nonpublic school students are indeed receiving substantially equivalent instruction is to utilize BOCES resources to accomplish that objective.

We are aware that the Department has established a COSER that would

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