Substantial Equivalency of Private Schools


Substantial Equivalency of Private Schools

March 1, 2019

The revised substantial equivalency guidelines issued by SED, based in part by the amendment to section 3204 of the education law enacted as part of last year’s state budget, set forth three pathways for determining the substantial equivalency of private schools:

  1. those high schools which register with SED and whose substantial equivalency is reviewed and determined by SED;
  2. the subset of bilingual, extended-day schools to be reviewed by local public school authorities who then advance a recommendation regarding substantial equivalency to the Commissioner for a final determination; and
  3. all other private schools which are to be reviewed by local public school officials resulting in a final vote at a public meeting of a public school board. 

Schools in this third pathway do not have the benefit of having a determination of their equivalence made by the Commissioner but rather by a vote of the thousands of the locally-elected school board members across the state.  At a minimum, this raises equal protection questions.  Moreover, in the case of religious schools, sending local school authorities to scrutinize private religious schools would create excessive governmental entanglement in and an infringement of the exercise of religion. The very process of sending local school boards to inspect and evaluate religious schools raises these entanglement concerns, regardless of the outcome of such scrutiny.  We maintain that in no case should a local public school board have authority over whether a private school can operate. While we are accountable primarily to the parents who choose our schools for their children’s formal education, any government authority over our schools rests with the NYS Board of Regents.

Because the religious and independent school community is so diverse, we believe there ought to be multiple options in measuring the success of these schools without jeopardizing their independence and unique missions.  Indeed, multiple options are essential to preserve religious schools’ free exercise and equal protection rights protected by the United States and New York constitutions, as well as federal Department of Education rules concerning equal treatment.

As we communicated to the State Education Department numerous times in the last year, the NYS Council of Catholic School Superintendents cannot and will not accept a review and vote on t