Letter concerning the New York City Department of Education’s oversight of the adequacy of education in private and religious schools.
SUMMARY
The Education and Law Committee wrote to Mayor Eric Adams and Schools Chancellor David Banks, urging them to swiftly investigate substantial claims of inadequate education in any of New York City’s schools, not just certain religious schools that have been the focus of attention. The letter cites New York State Education legislation which provides that “Instruction given to a minor elsewhere than at a public school shall be at least substantially equivalent to the instruction given to minors of like age and attainments at the public schools of the city or district where the minor resides.” While the New York State Board of Regents recently adopted new regulations designed to implement the Substantial Equivalency Law, which tasks local school authorities, including the NYCDOE, with making substantial equivalency determinations for all nonpublic schools within their geographical borders, many of the individual enforcement provisions in the Regulations are not effective until December 1, 2024. Particularly given the pandemic’s negative impacts on student learning, the letter urges more immediate action to protect the basic educational rights of New York City children.
REPORT
February 15, 2023
Dear Mayor Adams and Chancellor Banks,
We are writing on behalf of the Education and the Law Committee of the New York City Bar Association[1] concerning the New York City Department of Education’s (NYCDOE) oversight of the adequacy of education in private and religious schools.
New York State Education Law §3204(2) provides “Instruction given to a minor elsewhere than at a public school shall be at least substantially equivalent to the instruction given to minors of like age and attainments at the public schools of the city or district where the minor resides.” While the focus of much of the discussion around this provision has been on certain religious schools, we think it is important to emphasize that the law applies to all nonpublic schools.
In response to complaints of educational inadequacy at certain nonpublic schools, the New York State Board of Regents recently adopted new regulations designed to implement the Substantial Equivalency Law (“Regulations”) effective September 28, 2022. Volume XLIV NYS Reg. p. 39-42. These Regulations provide that local school authorities (LSAs), including the NYCDOE, are tasked with making substantial equivalency determinations for all nonpublic schools within their geographical borders. Unfortunately, many of the individual enforcement provisions in the Regulations are not effective until December 1, 2024. The deficiencies addressed by the Regulations require a far more urgent response, particularly given the pandemic’s negative impacts on student learning. We therefore urge more immediate action to protect the basic educational rights of New York City children.
On October 6, 2022, the New York State Education Commissioner, Betty Rosa, ruled that a large school in Brooklyn failed to provide a basic secular education. In the Matter of Yeshiva Mesivta Arugath Habosem regarding substantial equivalence, 10.6.22. In the order, the Commissioner instructed the school and the NYCDOE to jointly draft a plan within 60 days aimed at reaching “equivalency,” and to set a remediation timeline that does not extend beyond the end of the 2023-24 school year.
We agree with this approach of schools working with the NYCDOE to remediate inadequate educational opportunities and urge the City not to allow educational inadequacy to continue unchecked until December 1, 2024, the effective date of the Regulations. Correction should not, and cannot, wait for two years. The NYCDOE must do its most important job and immediately secure equal educational opportunities for all New York City schoolchildren.
We respectfully recommend that the NYCDOE:
- Act swiftly to investigate substantial claims of inadequate education in any school.
- Conduct all investigations transparently, and issue public reports describing the findings.
- Specify, and follow through on, concrete repercussions for schools that do not cooperate in investigations. Uncooperative schools should not be permitted to stall investigations.
- Given how politically fraught investigations of inadequate education have been in past years, appoint an independent investigation team to oversee this investigation process (akin to a special master process).
- Encourage documented self-monitoring and supervision by agreed upon authorities, such as the New York State Association of Independent Schools (NYSAIS).
Thank you for your attention to this matter. We would be happy to discuss these issues and our recommendations further if that would be helpful to you. Please feel free to reach out to us at the contact information provided above.
Respectfully,
Rebecca Berkebile and Jonathan Glater, Co-Chairs
Education and Law Committee
Cc: Hon. Rita Joseph, Chair, NYC Council Education Committee
Footnotes
[1] The Education and the Law Committee consists of legal practitioners and academic experts in education policy and practice. The Committee addresses the full range of legal issues surrounding education from pre-K through higher education, including education finance, governance, legislative proposals, and special education.
