Private schools in New York recently filed a lawsuit to stop enforcement of the state’s new curriculum inspection guidelines, released this past November. Under the new guidelines, district officials will conduct regular curriculum inspections of private schools. The inspections are designed to ensure that private schools provide “substantially equivalent instruction” to that in public schools.

In the past, such inspections were triggered by complaints to education authorities. Under the new rules, district officials will begin to conduct regular curriculum inspections this year.

New York’s highest court struck down an attempt by the legislature to delegate authority to the department to regulate or license independent schools back in the 1940s. As asserted by the plaintiffs today, the court’s ruling in that case was clear: any attempt by the department to regulate independent schools is unconstitutional unless it is based on a legislative statute that gives the department regulatory authority and instructions. The plaintiffs argue that the legislature passed no such statute here and the department’s new regulatory scheme is therefore unconstitutional.

The plaintiffs further argue that the department has not yet provided district officials with a clear standard regarding what constitutes “substantially equivalent” instruction. Instead, the standards “must be gleaned from a series of changing and sometimes contradictory public communications issued by the Department.” The lack of guidance can leave district officials with substantial discretion in deciding whether an independent school is providing substantially equivalent instruction.

The new scheme thus jeopardizes the academic freedom of nearly 1,800 nonpublic schools in New York. In an interview with The Wall Street Journal, Mark Lauria, the executive director of the New York State Association of Independent Schools, said the new regulations “cut to the core of what our schools do.” Indeed, a school’s ability to design its own curriculum is central to its independence.

Nonetheless, the inspections are scheduled to begin this year and reoccur every five years. In between reviews, the district official is expected to “keep abreast of important information, such as changes in leadership, curriculum, school building locations, grade levels served, etc.”

If an independent school is found non-compliant, it will effectively be closed by the department. After a preliminary finding that an independent school is not providing substantially equivalent instruction, the school has a brief period to address the board’s concerns. If the school is still found non-compliant, parents will have thirty days to transfer their children to a different school, and students who continue to attend the non-compliant school will be deemed “truant.”

As detailed by this recent lawsuit, independent schools in New York face substantially increased curriculum oversight. We are watching the case closely for important updates. In the meantime, please find the related Wall Street Journal article here for more information. (Please note a subscription is required.)