In November 2018, New York state’s educational commissioner issued guidelines that required a new, more extensive method of review of private schools. Those guidelines aimed to ascertain that private schools provided an education substantially equivalent to that of public schools.

In Matter of Application of NYS Council of Catholic School Superintendents et. al. v Maryellen Elia Commissioner of Education et. al., a group of private schools - State Council of Catholic School Superintendents, several Catholic schools and affiliates thereof – challenged those guidelines through an Article 78 proceeding. The plaintiffs argued that the new method of review is more than just a guideline; it’s a whole new inspection regime and regulatory mandate. As such, they claimed, the new rules had failed to go through the formal State Administrative Review Act (SAPA) process.

The SAPA process is more extensive than merely an issuance of guidelines by a state agency. It includes publication of a proposed new rule, opportunities to comment and respond, and a final review prior to formal implementation.

The Supreme Court in Albany County agreed with the schools. It found the guidelines contained mandatory language dictating when review will begin, along with the requirement being imposed on all schools – rules governed by SAPA, not state agencies. As such, the Court found SAPA was not adhered to and the guidelines nullified.

The State Education Department will need to revise the guidelines and promulgate new rules in accordance with SAPA. That will take some time; and will also provide opportunity for comment and feedback from the field prior to their implementation.