TN 6 (08-10)

PR 08205.035 New York

A.  PR 10-124 Request for legal precedent opinion on online schools in New Jersey, New York, Puerto Rico, and the Virgin Islands

DATE: July 15, 2010

1. SYLLABUS

At the time the regional attorney reviewed whether New York recognized online schools as educational institutions (EI), New York did not have an online program that could qualify independently as an EI for SSA purposes. The adjudicator should follow the instructions in RS 00205.295 and in GN 01010.815 if a student alleges full-time attendance at an online school in New York.

2. OPINION

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