QUESTION PRESENTED
You asked whether the four jurisdictions in Region II, New Jersey, New York, Puerto
Rico and the Virgin Islands, recognize online schools and if so, what are the state
or jurisdiction’s requirements? If the state or jurisdiction does not provide legal
recognition of online schooling, what are the educational requirements that a state
or jurisdiction must meet?
OPINION
Laws in New Jersey permit high school students to satisfy all or part of the requirements
for graduation through online courses and at least one public entity in New Jersey
offers online high school courses. The Puerto Rico Department of Education offers
online high school courses. Laws in New York and the Virgin Islands are silent regarding
the permissibility of attendance at or the requirements for an online school. However,
it appears that there are no public online schools currently recognized by New York
or the Virgin Islands.
For the four jurisdictions, we have provided a summary of the educational requirements
a public or non-public school must meet.
ANALYSIS
New Jersey
At the option of the local district board of education, all or a part of high school
graduation requirements may be met through online learning. N.J. A.D.C. § 6A:8-5.1(a)(2). At
least one entity in New Jersey offers online high school courses. The Monmouth Ocean
Educational Services Commission (MOESC) offers students the ability to earn high school
credits by doing online coursework through the New Jersey Virtual High School (NJVHS).
See http://www.njvs.org/ ; http://www.moesc.org/AboutUs.aspx (last observed January 28, 2010).
According to the NJVHS website, NJVHS courses meet both national and state curriculum
content standards, and are taught by certified New Jersey teachers. Id. Grades and progress can be checked daily, and arrangements are made through the
sending school’s guidance counselor to take exams either at the school or MOESC facility.
Id. High school students must first obtain permission from their sending district before
they can receive credit for the online courses. Id.
New Jersey’s compulsory education requires children between the ages of six and sixteen
to attend public schools or a day school that provides “instruction equivalent to
that provided in the public schools for children of similar grades and attainments
or to receive equivalent instruction elsewhere than at school.” N.J.S.A. § 18A:38-25. New
Jersey courts construe equivalent instruction to mean “academic equivalency,” “the
giving of instruction equal in value and effect to that given in a public school.”
State v. Massa, 231 A.2d 252 (Co. 1967); Stephens v. Bongart, 189 A. 131 (Juv. & Dom. Rel. 1937). School attendance must correlate to the days
and hours that public schools are in session. N.J.S.A. § 18A:38-26.
New Jersey requires public and private schools to provide instruction in accident
and fire prevention and on the U.S. Constitution. N.J.S.A. §§ 18A:6-2, 18A:6-3; 18A:35-1.
Public schools must offer courses in civics, the history of the United States and
New Jersey. N.J.S.A. §§ 18A:35-1; 18A:35-3. Public school students must salute the
flag and recite the Pledge of Allegiance daily, and must receive instruction on the
dangers of drug, alcohol, and tobacco use. N.J.S.A. §§ 18A:36-3; 18A:40A-1. District
boards of education are responsible for curriculum development and for implementing
local graduation requirements for state-endorsed high school diplomas. N.J. Admin.
Code §§ 6A:8-3.1; 6A:8-5.1. Local high school graduation requirements must include
120 credits in courses that meet core curriculum content standards formulated by the
State Department of Education. N.J. Admin. Code § 6A:8-5.1. The core curriculum includes
courses in language arts literacy, mathematics, science, social studies, financial,
economic, business, and entrepreneurial literacy, health, safety and physical education,
visual and performing arts, world language, technological literacy, and twenty-first
century life and careers. N.J. Admin. Code § 6A:8-5.1.
New York
Laws in New York are silent regarding the permissibility of attendance at or the requirements
for an online school. Further, there are no online high schools currently recognized
by New York. Telephone interview with Dr. Edward M~, New York State Education Department,
Supervisor of the Curriculum, Office of Curriculum Instruction and Instructional Technology
(January 20, 2010). In addition, although school districts have some degree of autonomy
in providing supplemental educational services by state-approved providers, they do
not have the authority to contract with independent contractors for instructional
services which are the very core and function of a school district. See memorandum from Johanna D~-P~, Senior Deputy Commissioner of Education (Jul. 29,
2009), available at http://www.emsc.nysed.gov/contractsforinstruction.pdf (last observed January 22, 2010). This requirement would seem to preclude use by
New York school districts of courses offered by nonpublic online schools.
New York compulsory education statutes require children between the ages of six and
sixteen to attend full-time instruction in public school or elsewhere. N.Y. Educ.
Law §§ 3204(1), 3205(1). Attendance must be regular. N.Y. Educ. Law § 3210(1)(a). Instruction
at other than a public school must be at least substantially equivalent to the instruction
given at public schools. N.Y. Educ. Law § 3204; Matter of Adam D., 505 N.Y.S. 2d 809 (N.Y.Fam.Ct., 1986). See Guidelines for Determining Equivalency of Instruction in Nonpublic Schools (Guidelines) at http://www.emsc.nysed.gov/nonpub/guidelinesequivofinstruction#new , last observed January 27, 2010; Matter of Adam D., 505 N.Y.S. 2d 809 (N.Y.Fam.Ct., 1986).
The following requirements apply, irrespective of the place of instruction:
Instruction must be given by a competent teacher and in English (with certain exceptions
to the English-only requirements permitted for students with limited English proficiency). N.Y.
Educ. Law § 3204(2).
For the first eight years of schooling, schools must include instruction in arithmetic,
reading, spelling, writing, the English language, geography, U.S. history, civics,
hygiene, physical training, and the history of New York. Beyond the first eight years,
instruction must include the English language and its use, civics, hygiene, physical
training, and American history and government. NY Educ. Law § 3204(3). All schools
must also offer instruction in patriotism, citizenship, human rights issues, the United
States and New York’s Declarations of Independence and Constitutions, alcohol, drug,
and tobacco abuse, health education, highway safety and traffic regulation, and fire
safety. N.Y. Educ. Law §§ 801, 804, 806, 807, and 808. Public schools must include
instruction relating to the flag and certain legal holidays, the humane treatment
of animals and birds, the conservation of natural resources, and a foreign language. N.Y.
Educ. Law. §§ 802, 809, 810; N.Y. Comp. Codes R. & Regs. tit. 8, §§ 100.2(c) and (d).
A full-time day school must be in session for not less than one hundred ninety days
each year, inclusive of legal holidays that occur during the term of the school and
exclusive of Saturdays, unless the State Education Department confers an exception. N.Y.
Educ. Law §§ 3204(4); 3210(2)(d). For non-public schools, holidays and vacations should
not exceed the number allowed by the public school. N.Y. Educ. Law § 3210(2)(c).
Public schools are required to provide instruction as follows: Grades 1-6, five hours
daily; grades 7-12, five and one-half hours daily. Guidelines. Nonpublic school should provide instruction for approximately the same time required
of public schools. See N.Y. Educ. Law § 3210(2). There is no requirement that teachers in nonpublic schools
be certified, nor is there a required curriculum. Guidelines.
The New York Board of Regents registers nonpublic schools. N.Y. Comp. Codes R. & Regs.
tit. 8, §100.2(p). Registration is not required, but if a nonpublic school is registered,
the State Education Department recommends that the board of education of the district
in which the nonpublic school is located accept the registration as evidence the nonpublic
high school has an equivalent program of instruction. Guidelines. Only a registered nonpublic high school may administer Regents examination or award
diplomas. N.Y. Comp. Codes R. & Regs. tit. 8, §100.2(p).
Puerto Rico
The Puerto Rico Department of Education offers high school courses for credit on their
Cursos en Linea (CeL) website (http://utc.dde.pr/ ). See http://utc.dde.pr/cursosenlinea/index.php?option=com_content&view=article&id=54&Itemid=65 for the English version. CeL began in 2003 as a trial project funded by a Federal
Title I grant for courses. Id. Students must first register for the course and pass an online interview with the
instructor (Id., see footnote 5, go to ‘courses’).
The Puerto Rico Constitution provides for free education in its elementary and secondary
schools, but compulsory attendance is only required in elementary schools and even
then, “to the extent permitted by the facilities of the Commonwealth.” PR CONST Art.
II, § 5. Elementary schools “established under nongovernmental auspices” are exempt
from compulsory public school attendance. Id.; see P.R. Laws Ann. tit. 18, § 2. No public property or funds may be used to support
nonpublic schools. Id.
Private schools must either be accredited by the Puerto Rican Secretary of Education
or by an entity recognized by the U.S. Department of Education, or must obtain a license
from the Secretary of Education of Puerto Rico. P.R. Stat. Ann. tit. 18, §§ 2111,
2120. To obtain a license, the private school must show that (1) the school has an
operating permit for the physical plant, (2) the faculty has the requisite educational
preparation and experience, (3) the facilities, equipment, library and laboratory
services are adequate, (4) the school has an educational plan, (5) the school has
the requisite health and safety permits, (6) the school is economically viable, and
(6) the school has formulated regulations. P.R. Stat. Ann. tit. 18, § 2113.
U.S. Virgin Islands
Laws in the Virgin Islands are silent regarding the permissibility of attendance at
or the requirements for an online school and the Virgin Islands does not currently
appear to recognize any online schools.
The Virgin Islands requires children to attend school beginning in the calendar year
in which they reach their fifth birthday, and continue to the expiration of the school
year nearest their sixteenth birthday. V.I.C. tit. 17, § 82. Attendance at public
schools must not exceed six hours per school day. V.I.C. tit. 17 § 83. The school
year must begin no earlier than the first Tuesday after the first Monday in August
and end no later than the second Friday in June. The school year must include no less
than 1080 hours of pupil instruction. V.I.C. tit. 17 § 61.
The Department of Education develops the curriculum and regulates the admission and
transfer of students from one class or school to another. V.I.C. tit. 3, § 3/96; tit.
17 § 81. Public school curricula must meet the minimum standards by U.S. accrediting
groups, and include English as the basic language of instruction, Virgin Island and
Caribbean history, drug and alcohol education, financial education, character education,
real estate appraisal for high school students, and hotel and tourism training courses
through the twelfth grade. V.I.C. tit. 17, §§ 41, 41b, 58.
Children attending private schools are exempt from attending public schools so long
as they are pursuing a course of study in the appropriate grade. V.I.C. tit. 17, §
85. A non-public school is required to obtain a Certificate of Operation certifying
that (1) the educational courses are sufficient to achieve course objectives, even
though the standard achieved may not be high enough to qualify for accreditation;
(2) the school has adequate space, equipment, instructional material and instruction
personnel; (3) enrollment is not excessive; (4) instructors and administrators have
proper character, experience and credentials; (5) the school complies with all local
and federal regulations such as fire, building and sanitation codes; (6) the school
maintains adequate student records; (7) the school is financially stable; and (8)
a written copy school policies and procedures is given to each student on enrollment. V.I.C.
tit. 17, § 194. A non-public school must also incorporate and obtain federal tax-exempt
status and a business license. V.I.C. tit. 17, § 194.
In addition to granting the mandatory Certificate of Operation, the Commissioner of
Education has the discretion to accredit private schools “if he finds that the building
and equipment, and the curriculum and teaching personnel of the school, have an efficiency
substantially equal to that required in a public school of like grade.” V.I.C. tit.
17, § 192. Commissioner accreditation constitutes evidence showing that the private
school met all applicable provisions of law. Id.
A non-public school can make its own schedule of holidays, but there cannot be more
than ninety days’ vacation in any one school year, Saturdays, Sundays and legal holidays
excepted. V.I.C. tit. 17 § 63.
Stephen P. C~
Regional Chief Counsel
By:
Kevin J~
Assistant Regional Counse