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Judge suspends substantial equivalency guidelines

By Eric D. Randall, Editor-in-Chief

A state Supreme Court justice has halted new, tougher state guidelines that require superintendents and school boards to determine whether private and parochial schools provide an education that is "substantially equivalent" to public schools.

The decision represents a victory for yeshivas, Catholic schools and independent schools that opposed the inspections, as well as relief for some superintendents who expressed mixed feelings about the guidelines.

In November, Education Commissioner MaryEllen Elia issued the updated guidelines, which stated "all religious and independent schools will be visited."

But guidelines are supposed to be reserved for "interpretive statements and statements of general policy which in themselves have no legal effect but are explanatory," according to Judge Christina L. Ryba. "The term ‘will’ is mandatory."

Ryba’s decision suggests that regulations, not guidelines, are the appropriate way to issue such instructions to districts. The process used by state agencies to issue regulations is outlined the state’s Administrative Procedure Act. The process gives the public an opportunity to make comments on proposed regulations prior to enactment.

The court’s decision could prompt the State Education Department and the Board of Regents to use the regulatory process to impose the same or similar obligations on districts. Or they could issue a different guidance consistent with the court ruling, or devise a different way to approach the issue of substantial equivalency.

"We are reviewing the court's decision and will determine the appropriate next steps," said Emily DeSantis, a spokesperson for the State Education Department.

One question raised by the decision is whether it also negates prior, longstanding guidelines that call on superintendents to determine if private and parochial schools are substantially equivalent.

"Based on my reading of the decision, I think the older guidelines are still in effect," said Jay Worona, NYSSBA’s deputy executive director and general counsel. "The older guidelines didn’t have words like "will" or "shall," and they left more to superintendents’ discretion."

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