Substantial Equivalency of Private Schools

Published on March 1st, 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 their operations by a local competitor who can, in effect, invalidate the Regents-issued absolute charters and SED-approved certificates of incorporation under which our schools have been authorized to operate.  While we believe the Regents and SED have the discretionary authority to adopt the changes we are proposing, we nonetheless seek an amendment to Article 65 of the education law to create various options for determining substantial equivalency with the final authority being vested exclusively with the State Education Department and Board of Regents.  We further urge restoration of the $2 million appropriation to support the State Office of Religious and Independent Schools’ efforts to oversee substantial equivalency provisions.

The NYS Council of Catholic School Superintendents is seeking the following additional options including but are not limited to:

  1. Like registered high schools, schools that are accredited by an accrediting agency approved by the Commissioner would be considered as being substantially equivalent.
  2. Schools or school systems that have an absolute charter issued by the Board of Regents would be considered as being substantially equivalent.
  3. For the significant number of schools that administer standardized tests (including state tests), submit BEDS reports, graduation reports, etc., to SED, the department would utilize such data to make a determination of equivalency, just as SED utilizes such data in evaluating public schools.
  4. Expand the voluntary registration process to include elementary level grades.  Currently, the registration process is available for only high school grades.  Just as is the case for registered high schools, any school that is registered with SED would be considered substantially equivalent.
  5. As a last resort, SED would engage BOCES or another contracted entity to conduct reviews.  The BOCES / entity would submit a recommendation to SED on equivalency for a final determination by the Commissioner and/or Regents.

Catholic Schools have a long and solid record of academic excellence.  We do not object to demonstrating our success in meeting and exceeding state standards, but we maintain that authority to determine whether private schools can operate in the state rests with the Board of Regents and State Education Department just as is the case with every other educational institution in the state.  The NYS Board of Regents has granted Absolute Charters to the state’s Catholic dioceses to operate schools.  Those charters are continually amended by the Regents as those schools are restructured.  Catholic schools also operate under Certificates of Incorporation (educational and/or religious corporations) all of which were approved by the State Education Department.  No local political subdivision should have the authority to contravene what is in effect a state-issued license.

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