Opinion: NYS Education Department Abandons its Mission with Private School Regulations

‘The regulations, billed as solving the problem, only institutionalize it and gut the statutory requirement of equivalent instruction. As currently proposed, the regulations need to be voted down when the State Board of Regents meets to approve them in the fall.’

The State Education Department is about to abandon its essential mission of assuring a comprehensive education for all New York’s children.

The issue concerns proposed regulations for oversight of private schools. State law requires that all schools provide instruction in English, by competent teachers, that is at least substantially equivalent to the instruction given in public schools and that the curriculum include instruction in mathematics, science, English language arts, visual arts, music, and social studies, including specific classes in patriotism and citizenship, the Declaration of Independence, the U.S. and State Constitutions; New York State history and civics, physical education; health education; and other health and safety requirements. Specific instruction is required in “our shared history of diversity” with “particular attention to the inhumanity of genocide, slavery (including the freedom trail and underground railroad), the Holocaust, and mass starvation in Ireland.” The law explicitly pertains to private schools, with sanctions for violations.

Well and good. Maybe a little overboard, but that’s what the law requires for all kids in the state. But wait! If you think the new regulations simply provide procedures to assure that private schools follow the law—laws the State Education Department is legally required to enforce— you’re wrong. What the regulations do is eviscerate the law by providing what the SED calls “multiple pathways” but are really large loopholes, exempting mainly fundamentalist religious schools from any of the above requirements and denying students their rightful opportunity to fully participate in American society.

For example, the proposed regulations would let schools’ mere distribution of state tests—without any instructional underpinnings—to automatically fulfill substantial equivalence. It doesn’t matter if every kid scores zero. Kids could randomly mark their answer sheets. Doesn’t matter. Automatic compliance.

Ah, but surely schools need accreditation. Yes, say the proposed regs. But only if they can’t somehow walk through the wide-open testing loophole. And then schools can be accredited by any organization SED approves. Based on the clear context of accommodation, now or later the Department will cave and allow the schools to self-accredit. Allowing private schools to serve as their own accrediting agencies to substitute for Department personnel is abject surrender to private schools whose self-policing brought us to the place where 26 out of 28 ultra-Orthodox yeshivas failed to meet city inspections.

These, and another attributing compliance to any elementary and middle school connected to a state registered high school, are transparently inadequate proxies for the statute’s plain language requiring instruction. Not tests, not accreditation, not organizational structures, but actual competent teaching. And here the proposal adds yet another loophole: that teachers need not be certified and merely demonstrate undefined “appropriate knowledge, skills, and dispositions,” basically anyone the school says is qualified. The requirements of a competent teacher are so vague that they would allow a repeat of The Dalton School’s hiring of Jefferey Epstein to teach math.

What’s needed are regularly scheduled and surprise school visits by independent educators to verify that schools meet the fairly low baseline of state-mandated instructional requirements under the compulsory school law. New York City Public Schools do this and more on a regular basis through their far more rigorous Quality Reviews. So do other districts. On-site inspections are a basic governmental function to assure that private agencies meet public standards. That’s necessary here.

But SED has gone to extraordinary lengths to delay releasing these legally indefensible regulations despite the urgency of likely thousands of students daily denied their educational rights. Full implementation, not to mention a lengthy appeals process, means more years denying thousands of students their basic educational rights guaranteed in state law. No one says these children must relinquish their religious identity or observance. No one says their schools can’t provide a fully developed curriculum in sectarian studies, even outweighing the time spent in secular instruction. Plenty of religious schools successfully do that, providing different classes in religious studies and state-mandated subjects because the law demands it and society has a right to expect that its populace masters basic elements of citizenship, commerce, and our diverse culture.

With these regulations, the State Education Department has abdicated its constitutional, statutory, and moral responsibility to meet these demands. The regulations, billed as solving the problem, only institutionalize it and gut the statutory requirement of equivalent instruction. As currently proposed, the regulations need to be voted down when the State Board of Regents meets to approve them in the fall.

David C. Bloomfield is professor of education leadership, law, and policy at Brooklyn College and The CUNY Graduate Center.

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Emily DeSantis, spokesperson for the New York State Education Department, responded to this oped with the following statement:

“The assertion that the New York State Education Department is abandoning its mission of assuring a comprehensive education for the children of our state is patently false. Professor Bloomfield’s assertions about the proposed regulations, published on this page, are ill-informed and unfounded.  

The regulations make clear the Department will review and approve any proposed accreditor to ensure its practices are consistent with nationally recognized standards and practices for accreditors. No school will accredit another school or be self-accrediting.  Additionally, the proposed regulations require that schools opting to use state-approved assessments must sufficiently account for student progress.  Professor Bloomfield’s suggestion that schools that engage in the ‘mere distribution of state tests’ will automatically demonstrate substantially equivalent instruction is disingenuous. 

Over the past two years, amidst a global pandemic, the State Education Department has consulted with all interested parties through robust stakeholder engagement. The extent of consultation is well documented and many of the recommendations we received through the process are reflected in the proposed regulations. Recommendations aimed at thwarting compulsory education, substantial equivalency and other statutory requirements were rejected. We took care in ensuring the proposed regulations would be fair to all religious and independent schools and would provide time for schools to make necessary adjustments in their educational programs to demonstrate compliance. Our aim is that all schools will follow the law and demonstrate substantial equivalency of instruction. Those that do not will be given reasonable time within which to comply. Those that refuse will no longer meet the definition of a school for purposes of satisfying New York’s compulsory education law.  

The Board of Regents and the Department are committed to ensuring all students, including those who attend non-public schools, receive the education to which they are lawfully entitled consistent with the rights of parents to choose schools for their children. The publication of the proposed regulations will begin a 60-day comment period within which members of the public have the opportunity to offer comments and suggestions.”