NY Educ L § 211-F (2021)
2021 New York Laws EDN - Education Title 1 - General Provisions Article 5 - University of the State of New York Part 1 - General Organization 211-F - Takeover and Restructuring Failing Schools.

§  211-f.  Takeover  and restructuring failing schools. 1. Eligibility for appointment of  an  external  receiver.  (a)  Failing  schools.  The commissioner  shall  designate  as  failing each of the schools that has been identified under the state's accountability system to be among  the lowest  achieving  five percent of public schools in the state (priority schools) for at least three consecutive school years, or identified as a "priority school" in each applicable year  of  such  period  except  one school  year  in  which  the  school  was  not  identified because of an approved closure plan that was not implemented, based upon  measures  of student  achievement  and  outcomes  and a methodology prescribed in the regulations of the commissioner,  provided  that  this  list  shall  not include  schools  within  a  special  act  school district as defined in subdivision eight of section  four  thousand  one  of  this  chapter  or schools  chartered pursuant to article fifty-six of this chapter. Except as otherwise provided in paragraph (c) of this subdivision, and pursuant to regulations promulgated by the commissioner, a school  designated  as failing  under  this  paragraph shall be eligible for receivership under this section upon a determination by the commissioner.  (b) Persistently failing  schools.  Based  upon  measures  of  student achievement and outcomes and a methodology prescribed in the regulations of  the  commissioner,  the commissioner shall designate as persistently failing each of the schools that have been identified under the  state's accountability system to be among the lowest achieving public schools in the state for ten consecutive school years, based upon identification of the  school  by  the  commissioner  as:  a  "priority  school"  for each applicable year from the  two  thousand  twelve--two  thousand  thirteen school  year  to  the  current school year, or identified as a "priority school" in each applicable year of such period except one year in  which the  school  was not identified because of an approved closure plan that was not implemented; and as a "School Requiring Academic  Progress  Year 5",  "School  Requiring  Academic  Progress  Year  6", "School Requiring Academic Progress Year 7" and/or a "School in Restructuring,"  for  each applicable  year  from  the  two thousand six--two thousand seven school year to the two thousand eleven--two thousand twelve school  year.  This designation  shall  not  include  schools  within  a  special act school district as defined in subdivision eight of section four thousand one of this chapter or schools chartered pursuant to article fifty-six of  this chapter.  (c)  Specific  provisions.  (i) For schools designated as persistently failing pursuant  to  paragraph  (b)  of  this  subdivision,  the  local district  shall  continue to operate the school for an additional school year provided that there is a department-approved intervention model  or comprehensive education plan in place that includes rigorous performance metrics  and  goals,  including  but  not limited to measures of student academic  achievement  and  outcomes  including  those  set   forth   in subdivision  six of this section. Notwithstanding any other provision of law, rule or regulation to the contrary,  the  superintendent  shall  be vested  with all powers granted to a receiver appointed pursuant to this section for such time period; provided, however that such superintendent shall not be allowed to override any decision of the board of  education with  respect  to his or her employment status. At the end of such year, the department shall conduct a performance review  in  consultation  and cooperation  with  the  district and school staff to determine, based on the performance metrics in the school's model or plan, whether  (1)  the designation  of  persistently  failing should be removed; (2) the school should  remain  under  continued  school  district  operation  with  the superintendent  vested  with the powers of a receiver; or (3) the school should be placed into receivership; provided,  however,  that  a  school  that makes demonstrable improvement based on the performance metrics and goals  herein  shall  remain  under district operation for an additional school year and if such school  remains  under  district  operation,  it shall  continue  to  be  subject  to annual review by the department, in consultation and cooperation with the district, under the same terms and conditions.  (ii) For schools designated as failing, but not persistently  failing, the  local  district  shall  continue  to  operate  the  school  for two additional school years provided that  there  is  a  department-approved intervention  model  or  comprehensive  education  plan  in  place  that includes rigorous performance  metrics  and  goals,  including  but  not limited  to  measures  of  student  academic  achievement  and  outcomes including  those  set  forth  in  subdivision  six  of   this   section. Notwithstanding  any  other  provision of law, rule or regulation to the contrary, the superintendent shall be vested with all powers granted  to a  receiver  appointed  pursuant to this section; provided, however that such superintendent shall not be allowed to override any decision of the board of education with respect to his or her employment status. At  the end of such two years, the department shall conduct a school performance review  in  consultation  and  cooperation  with the district and school staff to determine, based on the performance  metrics  in  the  school's model or plan, whether (1) the designation of failing should be removed; (2)  the  school should remain under continued school district operation with the superintendent vested with the powers of a receiver; or (3) the school should be placed into receivership;  provided,  however,  that  a school  that  makes  demonstrable  improvement  based on the performance metrics and goals herein shall remain under district  operation  for  an additional  school  year  and  if  such  school  remains  under district operation, it shall continue to be subject to such annual review by  the department  under  the  same  terms  and  conditions.  For schools newly designated as failing  after  the  two  thousand  sixteen--two  thousand seventeen  school  year,  the  school  shall be immediately eligible for receivership upon such designation.  (iii) Nothing in this paragraph shall be  construed  to  limit  (1)  a school  district's  ability  to  modify,  subject  to  approval  by  the department, such department approved intervention model or comprehensive education plan, or (2) the commissioner's ability to  require  a  school district  to  modify  such  department  approved  intervention  model or comprehensive education plan and require his or  her  approval  of  such modifications.  (iv) The district shall provide notice to parents and guardians of the students of the school which may be placed into receivership pursuant to this   subdivision  and  provided  further  that  the  district  or  the commissioner shall hold a public meeting  or  hearing  for  purposes  of discussing   the   performance  of  the  school  and  the  construct  of receivership.   1-a.  Community  engagement  team.  Upon  designation  as  failing  or persistently  failing  pursuant  to subdivision one of this section, the district shall establish a community engagement team which shall include community  stakeholders,  including  but  not  limited  to  the   school principal,  parents  and  guardians, teachers and other school staff and students. Membership of such team may be modified at any time. Such team shall develop recommendations for improvement of the  school  and  shall solicit  input  through  public  engagement.  The team shall present its recommendations  periodically  to  the   school   leadership   and,   as applicable, the receiver.   2.  Appointment  of  a  receiver.  (a)  Upon  a  determination  by the commissioner that a  school  shall  be  placed  into  receivership,  the  applicable  school  district  shall  appoint  an  independent  receiver, subject to the approval of the commissioner, to manage and  operate  all aspects of the school and to develop and implement a school intervention plan for the school that shall consider the recommendations developed by the  community  engagement team when creating such plan. The independent receiver may be a non-profit entity,  another  school  district,  or  an individual.  If  the  school  district  fails  to appoint an independent receiver that meets with the commissioner's approval within  sixty  days of such determination, the commissioner shall appoint the receiver.  (b) The receiver shall be authorized to manage and operate the failing or persistently failing school and shall have the power to supersede any decision, policy or regulation of the superintendent of schools or chief school  officer,  or of the board of education or another school officer or the building principal that in the  sole  judgment  of  the  receiver conflicts  with  the school intervention plan; provided however that the receiver may not supersede decisions that are not directly linked to the school intervention plan, including but not limited  to  building  usage plans,   co-location  decisions  and  transportation  of  students.  The receiver shall have authority to review proposed school district budgets prior to presentation to the district voters, or in the case of  a  city school district in a city having a population of one hundred twenty-five thousand  or  more,  of  the  adoption of a contingency budget, prior to approval by the board of education, and to modify the proposed budget to conform to the school intervention plan provided that such modifications shall be limited in scope and effect  to  the  failing  or  persistently failing  school and may not unduly impact other schools in the district. A school under  receivership  shall  operate  in  accordance  with  laws regulating  other public schools, except as such provisions may conflict with this section.  (c) The  commissioner  shall  contract  with  the  receiver,  and  the compensation   and   other  costs  of  the  receiver  appointed  by  the commissioner shall be paid from a state appropriation for such  purpose, or  by  the school district, as determined by the commissioner, provided that costs shall be paid by the school district only if there is an open administrative  staffing  line  available  for  the  receiver,  and  the receiver  will  be  taking  on  the  responsibilities of such open line. Notwithstanding any other provision of law to the contrary, the receiver and any of its employees providing services in the receivership shall be entitled to defense and indemnification by the school  district  to  the same  extent  as a school district employee. The receiver's contract may be terminated by  the  commissioner  for  a  violation  of  law  or  the commissioner's  regulations or for neglect of duty. A receiver appointed to operate a district under this section shall have full managerial  and operational  control over such school; provided, however, that the board of education shall remain the employer of record, and  provided  further that  any  employment  decisions  of  the  board  of  education  may  be superseded by the receiver. It  shall  be  the  duty  of  the  board  of education  and the superintendent of schools to fully cooperate with the receiver and willful failure  to  cooperate  or  interference  with  the functions  of  the receiver shall constitute willful neglect of duty for purposes of section three hundred six of this title. The receiver or the receiver's designee shall be an ex  officio  non-voting  member  of  the board  of  education  entitled  to  attend  all meetings of the board of education.   3. Before developing the school intervention plan, the receiver  shall consult with local stakeholders such as: (a) the board of education; (b) the  superintendent of schools; (c) the building principal; (d) teachers assigned to the school and their collective  bargaining  representative;  (e)  school  administrators  assigned to the school and their collective bargaining  representative;  (f)  parents  and  guardians  of   students attending  the  school  or their representatives; (g) representatives of applicable  state  and  local  social  service, health and mental health agencies; (h) as appropriate, representatives of local career  education providers,  state and local workforce development agencies and the local business community; (i) for elementary schools, representatives of local prekindergarten  programs;  (j)  students  attending   the   school   as appropriate;  (k)  as  needed  for  middle schools, junior high schools, central  schools  or  high  schools,  representatives  of  local  higher education institutions; and (l) the school stakeholder team set forth in subdivision one-a of this section.   4.  In  creating  the school intervention plan, the receiver shall (i) consider the recommendations developed by the community engagement  team set  forth in subdivision one-a of this section; (ii) include provisions intended to maximize the rapid academic achievement of students  at  the school;  and  (iii) ensure that the plan addresses school leadership and capacity, school leader practices and decisions, curriculum  development and  support,  teacher  practices  and  decisions,  student  social  and emotional developmental health, and family and community engagement. The receiver shall, to the extent practicable, base the plan on the findings of any recent diagnostic review or assessment of  the  school  that  has been  conducted  and,  as  applied  to  the school, student outcome data including, but not limited to: (a) student achievement growth data based on state measures;  (b)  other  measures  of  student  achievement;  (c) student  promotion and graduation rates; (d) achievement and growth data for the subgroups of students used in the state's accountability system; (e) student attendance; and  (f)  long-term  and  short-term  suspension rates.   5.  (a)  The  receiver  shall  include  the  following  in  the school intervention plan: (i) measures to address social  service,  health  and mental  health  needs  of  students  in the school and their families in order to help students arrive and  remain  at  school  ready  to  learn; provided  that  this  may  include  mental  health  and  substance abuse screening; (ii) measures to improve or expand access  to  child  welfare services  and,  as  appropriate,  services  in  the  school community to promote a safe and secure learning  environment;  (iii)  as  applicable, measures to provide greater access to career and technical education and workforce  development  services  provided to students in the school and their families in order to provide students and families with meaningful employment  skills  and  opportunities;   (iv)   measures   to   address achievement   gaps   for   English   language  learners,  students  with disabilities and economically disadvantaged students, as applicable; (v) measures to  address  school  climate  and  positive  behavior  support, including  mentoring  and  other  youth development programs; and (vi) a budget for the school intervention plan.  (b) As necessary,  the  commissioner  and  the  commissioners  of  the department  of  health,  the office of children and family services, the department of labor and other applicable state and local social service, health, mental health  and  child  welfare  officials  shall  coordinate regarding  the implementation of the measures described in subparagraphs (i) through (iii) of paragraph (a) of this subdivision that are included in the school intervention plan and  shall,  subject  to  appropriation, reasonably  support such implementation consistent with the requirements of state and federal law applicable to the relevant programs  that  each such  official  is  responsible  for  administering,  and  grant failing schools priority in competitive grants, as allowable before  and  during the period of receivership.    6.  In  order  to assess the school across multiple measures of school performance and student success,  the  school  intervention  plan  shall include  measurable  annual  goals  including,  but  not limited to, the following: (a) student attendance; (b) student discipline including  but not  limited  to  short-term and long-term suspension rates; (c) student safety; (d) student promotion and graduation  and  drop-out  rates;  (e) student  achievement and growth on state measures; (f) progress in areas of academic  underperformance;  (g)  progress  among  the  subgroups  of students  used  in  the  state's accountability system; (h) reduction of achievement gaps among specific groups of students; (i)  development  of college  and  career  readiness,  including at the elementary and middle school levels; (j) parent and family engagement; (k) building a  culture of  academic  success  among students; (l) building a culture of student support and success among faculty and staff; (m)  using  developmentally appropriate child assessments from pre-kindergarten through third grade, if  applicable,  that  are  tailored to the needs of the school; and (n) measures of student learning.   7. (a) Notwithstanding any general or special law to the contrary,  in creating  and  implementing  the  school intervention plan, the receiver shall, after consulting with stakeholders and the  community  engagement team,  convert  schools to community schools to provide expanded health, mental health and other services to the students and their families. In addition, the receiver may: (i) review and if necessary expand, alter or replace the curriculum and program offerings of the school, including the implementation of  research-based  early  literacy  programs,  early interventions  for  struggling  readers  and  the  teaching  of advanced placement  courses  or  other  rigorous  nationally  or  internationally recognized courses, if the school does not already have such programs or courses;  (ii)  replace  teachers  and  administrators, including school leadership who  are  not  appropriately  certified  or  licensed;  (iii) increase  salaries of current or prospective teachers and administrators to attract and retain high-performing teachers and administrators;  (iv) establish  steps  to  improve  hiring,  induction,  teacher  evaluation, professional  development,  teacher  advancement,  school  culture   and organizational structure; (v) reallocate the uses of the existing budget of  the school; (vi) expand the school day or school year or both of the school;  (vii)  for  a  school  that  offers  the   first   grade,   add pre-kindergarten  and  full-day kindergarten classes, if the school does not already have such classes; (viii) in accordance with paragraphs  (b) and  (c) of this subdivision, to abolish the positions of all members of the teaching and administrative and supervisory staff  assigned  to  the failing  or  persistently failing school and terminate the employment of any building principal assigned to such a school, and require such staff members to reapply for their positions in the school if they so  choose; (ix)  include a provision of a job-embedded professional development for teachers at the school, with an  emphasis  on  strategies  that  involve teacher  input  and  feedback;  (x)  establish  a  plan for professional development for administrators  at  the  school,  with  an  emphasis  on strategies  that  develop  leadership  skills  and use the principles of distributive leadership; and/or (xi) order the conversion of a school in receivership that has been designated as failing or persistently failing pursuant to this section into  a  charter  school,  provided  that  such conversion  shall  be  subject  to article fifty-six of this chapter and provided further that  such  charter  conversion  school  shall  operate pursuant  to  such  article  and  provided  further  that  such  charter conversion school shall operate  consistent  with  a  community  schools model  and provided further that such conversion charter school shall be  subject to the provisions in subdivisions three, four, five, six,  nine, ten, eleven, twelve and thirteen of this section.  (b)  Notwithstanding any other provision of law, rule or regulation to the contrary, upon designation of any school of the school district as a failing or persistently failing school pursuant  to  this  section,  the abolition of positions of members of the teaching and administrative and supervisory  staff  of  the  school  shall thereafter be governed by the applicable provisions of section twenty-five  hundred  ten,  twenty-five hundred  eighty-five, twenty-five hundred eighty-eight or three thousand thirteen of this chapter as modified  by  this  paragraph.  A  classroom teacher  or  building  principal  who has received two or more composite ratings of ineffective on  an  annual  professional  performance  review shall  be  deemed  not  to  have rendered faithful and competent service within the meaning  of  section  twenty-five  hundred  ten,  twenty-five hundred  eighty-five, twenty-five hundred eighty-eight or three thousand thirteen of this chapter. When a position  of  a  classroom  teacher  or building  principal  is  abolished,  the  services  of  the  teacher  or administrator or supervisor within the tenure area of the position  with the  lowest  rating  on  the most recent annual professional performance review shall be discontinued, provided that seniority within the  tenure area  of  the  position shall be used solely to determine which position should be discontinued in the event of a tie.  (c) The receiver  may  abolish  the  positions  of  all  teachers  and pedagogical  support  staff,  administrators and pupil personnel service providers assigned to a school designated  as  failing  or  persistently failing  pursuant  to  this  section  and  require such staff members to reapply for new positions if they so choose. The receiver  shall  define new  positions for the school aligned with the school intervention plan, including selection criteria and expected  duties  and  responsibilities for  each  position.  For  administrators  and  pupil  personnel service providers, the  receiver  shall  have  full  discretion  over  all  such rehiring  decisions.  For  teachers  and  pedagogical support staff, the receiver shall convene a staffing committee including the receiver,  two appointees  of  the  receiver  and two appointees selected by the school staff or their collective bargaining unit. The staffing  committee  will determine  whether  former  school  staff  reapplying  for positions are qualified for the new positions. The receiver shall have full discretion regarding hiring decisions but must fill at least fifty percent  of  the newly defined positions with the most senior former school staff who are determined  by  the  staffing  committee  to be qualified. Any remaining vacancies shall be filled by  the  receiver  in  consultation  with  the staffing  committee.  Notwithstanding  any other provision of law to the contrary,  a  member  of   the   teaching   and   pedagogical   support, administrative,  or  pupil  personnel  service  staff who is not rehired pursuant to this paragraph shall not have any right to bump or  displace any  other  person  employed  by  the district, but shall be placed on a preferred eligibility list in accordance with the applicable  provisions of  section  twenty-five  hundred  ten, twenty-five hundred eighty-five, twenty-five hundred eighty-eight or  three  thousand  thirteen  of  this chapter.  Teachers  rehired  pursuant  to  this paragraph shall maintain their prior status  as  tenured  or  probationary,  and  a  probationary teacher's probation period shall not be changed.  (d)  For  a  school  with  English language learners, the professional development and planning time for teachers and administrators identified in clauses (vi) and (vii) of the closing paragraph of paragraph  (a)  of this subdivision, shall include specific strategies and content designed to  maximize  the  rapid  academic  achievement  of the English language learners.    8. (a) In order to maximize the rapid achievement of students  at  the applicable   school,  the  receiver  may  request  that  the  collective bargaining unit or units representing teachers  and  administrators  and the  receiver,  on  behalf  of  the  board  of  education,  negotiate  a receivership   agreement   that   modifies   the  applicable  collective bargaining agreement or agreements with respect to any  failing  schools in  receivership  applicable  during  the  period  of  receivership. The receivership agreement may address the following subjects: the length of the school day; the length of the school year; professional  development for  teachers  and  administrators;  class  size;  and  changes  to  the programs,  assignments,  and  teaching  conditions  in  the  school   in receivership.  The  receivership  agreement  shall  not  provide for any reduction in compensation unless there shall  also  be  a  proportionate reduction  in  hours  and  shall provide for a proportionate increase in compensation where the length of  the  school  day  or  school  year  is extended. The receivership agreement shall not alter the remaining terms of  the  existing/underlying collective bargaining agreement which shall remain in effect.  (b) The bargaining shall be conducted between  the  receiver  and  the collective  bargaining  unit  in good faith and completed not later than thirty days from the point at which  the  receiver  requested  that  the bargaining  commence.  The  agreement  shall  be subject to ratification within ten business days by the bargaining unit members in  the  school. If the parties are unable to reach an agreement within thirty days or if the agreement is not ratified within ten business days by the bargaining unit  members  of  the  school,  the  parties shall submit any remaining unresolved issues to the commissioner who shall resolve  any  unresolved issues   within  five  days,  in  accordance  with  standard  collective bargaining principles.  (c) For purposes only for schools designated as  failing  pursuant  to subparagraph  (ii)  of paragraph (c) of subdivision one of this section, bargaining shall be conducted between the receiver  and  the  collective bargaining  unit  in good faith and completed not later than thirty days from the point at which  the  receiver  requested  that  the  bargaining commence.  The  agreement  shall  be  subject to ratification within ten business days by the bargaining unit  members  of  the  school.  If  the parties  are  unable  to reach an agreement within thirty days or if the agreement is not ratified within ten business  days  by  the  bargaining unit  members of the school, a conciliator shall be selected through the American Arbitration Association, who shall  forthwith  forward  to  the parties   a  list  of  three  conciliators,  each  of  whom  shall  have professional experience in  elementary  and  secondary  education,  from which the parties may agree upon a single conciliator provided, however, that  if  the  parties  cannot select a conciliator from among the three within three business days, the American Arbitration  Association  shall select a conciliator from the list of names within one business day, and the  conciliator  shall resolve all outstanding issues within five days. After such five days, if any unresolved issues remain, the parties shall submit such issues to the commissioner who  shall  resolve  such  issues within  five  days,  in  accordance  with standard collective bargaining principles.   9. A  final  school  intervention  plan  shall  be  submitted  to  the commissioner  for  approval  and,  upon approval, shall be issued by the receiver within six months of the receiver's appointment. A copy of such plan shall be provided to the board of education, the superintendent  of schools  and  the  collective bargaining representatives of teachers and administrators of the  school  district.  The  plan  shall  be  publicly available and shall be posted on the department's website and the school  district's  website,  and  the  school  district shall provide notice to parents of such school intervention plan and its availability.   10.  Each school intervention plan shall be authorized for a period of not  more  than  three  years.  The  receiver  may  develop   additional components of the plan and shall develop annual goals for each component of  the plan in a manner consistent with this section, all of which must be approved by the commissioner. The receiver shall be  responsible  for meeting the goals of the school intervention plan.   11.  The  receiver  shall  provide  a  written  report to the board of education, the commissioner, and the board of  regents  on  a  quarterly basis  to  provide specific information about the progress being made on the implementation of the school intervention plan. One of the quarterly reports shall be the annual evaluation of the  intervention  plan  under subdivision twelve of this section.   12.  (a)  The commissioner shall, in consultation and cooperation with the district  and  the  school  staff,  evaluate  each  school  with  an appointed  receiver  at  least  annually.  The purpose of the evaluation shall be to determine whether the school has met the annual goals in its school intervention plan and to assess the implementation of the plan at the school. The evaluation shall be in writing and shall be submitted to the superintendent and the board of education not later  than  September first  for  the preceding school year. The evaluation shall be submitted in a format determined by the commissioner.  (b) If the commissioner determines that the school has met the  annual performance goals stated in the school intervention plan, the evaluation shall  be  considered  sufficient  and  the implementation of the school intervention plan shall continue. If the  commissioner  determines  that the  school  has not met one or more goals in the plan, the commissioner may require modification of the plan.   13. Upon the expiration of a school intervention  plan  for  a  school with  an  appointed  receiver,  the  commissioner,  in  consultation and cooperation with the district, shall conduct an evaluation of the school to determine whether the  school  has  improved  sufficiently,  requires further  improvement  or  has  failed  to  improve. On the basis of such review, the commissioner,  in  consultation  and  cooperation  with  the district,  may:   (a) renew the plan with the receiver for an additional period of not more than three years; (b) if the failing or  persistently failing  school  remains failing and the terms of the plan have not been substantially met, terminate the contract with the receiver and  appoint a   new  receiver;  or  (c)  determine  that  the  school  has  improved sufficiently for the designation of failing or persistently  failing  to be removed.   14. Nothing in this section shall prohibit the commissioner or a local district  from  closing  a  school  pursuant  to  the regulations of the commissioner.   15. The commissioner shall be authorized to adopt regulations to carry out the provisions of this section.   16. The commissioner shall report annually to  the  governor  and  the legislature on the implementation and fiscal impact of this section. The report  shall  include,  but  not  be  limited to, a list of all schools currently  designated  as  failing  or  persistently  failing  and   the strategies  used  in  each of the schools to maximize the rapid academic achievement of students.   17. The commissioner shall provide any relevant data that is needed to implement and comply with the requirements of the chapter of the laws of two thousand fifteen which added this section  to  any  school  district that  has  a  school  or  schools  designated as failing or persistently failing pursuant to this section by August fifteenth of  each  year,  to  the  fullest  extent  practicable.  Provided that the commissioner shall provide guidance to districts and may  establish  a  model  intervention plan.  And  provided further, that the commissioner shall make available to the public any school intervention plan, or other department-approved intervention  model  or  comprehensive  education  plan  of  a school or district provided that such measures are consistent with all federal and state privacy laws.