NY Educ L § 2854 (2021)
2021 New York Laws EDN - Education Title 2 - School District Organization Article 56 - Charter Schools 2854 - General Requirements.

§  2854.  General  requirements.  1.  Applicability of other laws. (a) Notwithstanding any provision of law to the contrary, to the extent that any provision of this article is inconsistent with any  other  state  or local  law,  rule  or  regulation,  the provisions of this article shall govern and be controlling.  (b) A charter school shall meet the  same  health  and  safety,  civil rights,  and  student assessment requirements applicable to other public schools, except as otherwise specifically provided in  this  article.  A charter  school  shall  be  exempt  from all other state and local laws, rules, regulations or policies  governing  public  or  private  schools, boards  of  education,  school  districts  and  political  subdivisions, including those relating to school personnel  and  students,  except  as specifically  provided  in  the  school's  charter  or  in this article. Nothing in this subdivision shall affect the requirements of  compulsory education  of  minors  established  by part one of article sixty-five of this chapter.  (c) A charter school shall be subject to  the  financial  audits,  the audit  procedures,  and the audit requirements set forth in the charter, and shall be subject to audits of the comptroller  of  the  city  school district of the city of New York for charter schools located in New York city,  and to the audits of the comptroller of the state of New York for charter schools located in  the  rest  of  the  state,  at  his  or  her discretion,  with  respect  to  the  school's financial operations. Such procedures and standards shall be  consistent  with  generally  accepted accounting  and  audit  standards.  Independent  fiscal  audits shall be required at least once annually.  (d) A charter school shall design its educational programs to meet  or exceed the student performance standards adopted by the board of regents and the student performance standards contained in the charter. Students attending  charter school shall be required to take regents examinations to the same extent such examinations are required of other public school students. A charter school  offering  instruction  in  the  high  school grades  may grant regents diplomas and local diplomas to the same extent as other public schools, and such other certificates and honors  as  are specifically  authorized by their charter, and in testimony thereof give suitable certificates, honors and diplomas under  its  seal;  and  every certificate  and  diploma  so  granted shall entitle the conferee to all privileges and immunities which by usage  or  statute  are  allowed  for similar  diplomas  of  corresponding  grade  granted by any other public school.  (e) A charter school shall be subject to the  provisions  of  articles six and seven of the public officers law.  (f)  A  charter  school shall be subject to the provisions of sections eight hundred, eight hundred  one,  eight  hundred  two,  eight  hundred three,  eight  hundred  four,  eight hundred four-a, eight hundred five, eight hundred five-a, eight hundred five-b and eight hundred six of  the general  municipal  law to the same extent such sections apply to school districts.   2. Admissions; enrollment; students.  (a) A charter  school  shall  be nonsectarian  in its programs, admission policies, employment practices, and all other operations and shall not charge tuition or fees;  provided that  a charter school may require the payment of fees on the same basis and to the same extent as other public schools. A charter  school  shall not  discriminate  against  any student, employee or any other person on the basis of ethnicity, national origin, gender, or  disability  or  any other  ground  that  would be unlawful if done by a school. Admission of students shall not be limited on  the  basis  of  intellectual  ability, measures of achievement or aptitude, athletic ability, disability, race,  creed,   gender,  national  origin,  religion,  or  ancestry;  provided, however, that nothing in this article shall be construed to prevent  the establishment  of  a  single-sex  charter  school  or  a  charter school designed to provide expanded learning opportunities for students at-risk of  academic  failure or students with disabilities and English language learners;  and  provided,  further,  that  the  charter   school   shall demonstrate  good  faith  efforts  to attract and retain a comparable or greater enrollment  of  students  with  disabilities,  English  language learners,  and  students  who  are  eligible applicants for the free and reduced price lunch program when compared to the enrollment figures  for such  students  in  the  school  district in which the charter school is located. A charter shall not be issued  to  any  school  that  would  be wholly  or  in  part  under  the  control  or direction of any religious denomination, or in which any denominational tenet or doctrine would  be taught.  (b)  Any  child  who  is  qualified  under  the laws of this state for admission to a public school is qualified for  admission  to  a  charter school.  Applications  for  admission  to  a  charter  school  shall  be submitted on a uniform application form created by  the  department  and shall  be  made available by a charter school in languages predominately spoken in the community in which such charter  school  is  located.  The school   shall  enroll  each  eligible  student  who  submits  a  timely application by the first day of April each year, unless  the  number  of applications  exceeds  the  capacity  of the grade level or building. In such cases, students shall be accepted from among applicants by a random selection process, provided,  however,  that  an  enrollment  preference shall  be  provided  to  pupils  returning  to the charter school in the second or any subsequent year of operation and pupils  residing  in  the school  district in which the charter school is located, and siblings of pupils already enrolled in the charter school. Preference  may  also  be provided  to  children  of  employees  of  the charter school or charter management organization, provided that such children  of  employees  may constitute  no  more  than fifteen percent of the charter school's total enrollment. The commissioner shall establish regulations to require that the random selection process conducted pursuant  to  this  paragraph  be performed  in a transparent and equitable manner and to require that the time and place of the random selection process be publicized in a manner consistent with the requirements of section  one  hundred  four  of  the public  officers law and be open to the public. For the purposes of this paragraph and paragraph (a) of this subdivision, the school district  in which  the  charter  school  is  located shall mean, for the city school district of the city of New York, the community district  in  which  the charter school is located.  (c) A charter school shall serve one or more of the grades one through twelve,  and  shall  limit  admission  to pupils within the grade levels served. Nothing herein shall prohibit a charter school from establishing a kindergarten program.  (d) A student may withdraw from a  charter  school  at  any  time  and enroll  in a public school. A charter school may refuse admission to any student who has been expelled or suspended from a  public  school  until the  period  of  suspension  or  expulsion  from  the  public school has expired, consistent with the requirements of due process.   3. School personnel. (a) An employee of a charter school shall  be  an employee  of  the  education  corporation  formed to operate the charter school and not an employee of the local school  district  in  which  the charter  school  is  located.  An  employee of a charter school shall be deemed to be a public employee solely for purposes of  article  fourteen of  the civil service law, except for section two hundred twelve of such  law, and for no  other  purposes  unless  otherwise  specified  in  this article,  the board of trustees of the charter school shall constitute a board of education solely for purposes of article fourteen of the  civil service  law, except for section two hundred twelve of such law, and for no other purposes unless otherwise specified in this article, a  charter school  shall  be  deemed to be a public employer solely for purposes of article fourteen of the  civil  service  law,  except  for  section  two hundred  twelve  of such law, and for no other purposes unless otherwise specified in this article,  and  the  chief  executive  officer  of  the charter  school  shall  be the person designated as such by the board of trustees of the charter school.  (a-1) The board of trustees of  a  charter  school  shall  employ  and contract  with  necessary  teachers,  administrators  and  other  school personnel. Such teachers shall  be  certified  in  accordance  with  the requirements applicable to other public schools; provided, however, that a charter school may employ as teachers (i) uncertified teachers with at least  three years of elementary, middle or secondary classroom teaching experience;  (ii)  tenured  or  tenure  track  college  faculty;   (iii) individuals  with two years of satisfactory experience through the Teach for America  program;  and  (iv)  individuals  who  possess  exceptional business,  professional,  artistic,  athletic,  or  military experience, provided, however, that such teachers described in  clauses  (i),  (ii), (iii),  and (iv) of this paragraph shall not in total comprise more than the sum of: (A) thirty per centum of the teaching  staff  of  a  charter school,  or  five teachers, whichever is less; plus (B) five teachers of mathematics,  science,  computer  science,  technology,  or  career  and technical  education;  plus  (C)  five  additional  teachers.  A teacher certified or  otherwise  approved  by  the  commissioner  shall  not  be included in the numerical limits established by the preceding sentence.   * (a-2)  (i)  The board of trustees of a charter school shall require, for purposes of a criminal history record check, the  fingerprinting  of all prospective employees pursuant to section three thousand thirty-five of  this  chapter,  who  do  not  hold  valid clearance pursuant to such section or pursuant to section three thousand four-b of this chapter  or section  five  hundred  nine-cc  or  twelve hundred twenty-nine-d of the vehicle and traffic law. Prior to initiating the fingerprinting process, the prospective employer shall  furnish  the  applicant  with  the  form described  in  paragraph  (c)  of  subdivision  thirty  of section three hundred five of this chapter and shall obtain the applicant's consent to the criminal history records search. Every  set  of  fingerprints  taken pursuant   to   this  paragraph  shall  be  promptly  submitted  to  the commissioner for purposes of clearance for employment.  (ii) Upon the recommendation of the chief  executive  officer  of  the charter   school,  the  board  of  trustees  of  a  charter  school  may conditionally appoint a prospective employee. A request for  conditional clearance  shall  be  forwarded  to  the  commissioner  along  with  the prospective employee's fingerprints, as required by subparagraph (i)  of this  paragraph.  Such appointment shall not commence until notification by the commissioner that the prospective employee has been conditionally cleared for employment and shall terminate forty-five  days  after  such notification  of  conditional clearance or when the prospective employer is notified of a determination by the  commissioner  to  grant  or  deny clearance,  whichever occurs earlier, and may not be extended or renewed unless the commissioner issues a new conditional clearance after finding that there was good cause for failing to obtain  clearance  within  such period,  provided  that  if  clearance is granted, the appointment shall continue  and  the  conditional  status  shall  be  removed.  Prior   to commencement  of  such conditional appointment, the prospective employer  shall obtain a signed statement for  conditional  appointment  from  the prospective  employee,  indicating  whether,  to  the best of his or her knowledge,  he  or  she  has  a  pending  criminal  charge  or  criminal conviction in any jurisdiction outside the state.  (iii)  Upon  the  recommendation of the chief executive officer of the charter school, the board of trustees of a charter school  may  make  an emergency  conditional  appointment when an unforeseen emergency vacancy has occurred. When such appointment is made, the process for conditional appointment pursuant to subparagraph (ii) of this paragraph must also be initiated. Emergency  conditional  appointment  may  commence  prior  to notification  from  the  commissioner on conditional clearance but shall terminate twenty business days from the date such appointment  commences or  when  the  prospective  employer  is  notified  by  the commissioner regarding conditional clearance, whichever occurs earlier, provided that if conditional clearance is granted, the appointment shall continue as a conditional appointment. Prior to the commencement of such  appointment, the  prospective  employer  must obtain a signed statement for emergency conditional  appointment  from  the  prospective  employee,   indicating whether,  to  the  best of his or her knowledge, he or she has a pending criminal  charge  or  criminal  conviction  in  any   jurisdiction.   An unforeseen  emergency  vacancy  shall  be defined as: (1) a vacancy that occurred less than ten business days before  the  start  of  any  school session,   including  summer  school,  or  during  any  school  session, including  summer  school,  without  sufficient  notice  to  allow   for clearance  or  conditional clearance; (2) when no other qualified person is available to fill the vacancy temporarily;  and  (3)  when  emergency conditional  appointment  is  necessary  to  maintain services which the charter school is legally required to provide or services  necessary  to protect  the  health,  education  or  safety  of  students or staff. The provisions of clause one of this subparagraph shall  not  apply  if  the board  finds that the charter school has been unable to fill the vacancy despite good faith efforts to fill such vacancy in a manner which  would have allowed sufficient time for clearance or conditional clearance.  (iv)  Shall  develop  a policy for the safety of the children who have contact with an employee holding conditional  appointment  or  emergency conditional appointment.   * NB Effective until July 1, 2022   * (a-2)  The  board of trustees of a charter school shall require, for purposes of a criminal history record check, the fingerprinting  of  all prospective  employees pursuant to section three thousand thirty-five of this chapter, who do not hold valid clearance pursuant to  such  section or  pursuant to section three thousand four-b of this chapter or section five hundred nine-cc or twelve hundred twenty-nine-d of the vehicle  and traffic  law.  Prior  to  initiating  the  fingerprinting  process,  the prospective employer shall furnish the applicant with the form described in paragraph (c) of subdivision thirty of section three hundred five  of this  chapter  and  shall obtain the applicant's consent to the criminal history records search. Every set of fingerprints taken pursuant to this paragraph shall be promptly submitted to the commissioner  for  purposes of clearance for employment.   * NB Effective July 1, 2022  (a-3)   The   board  of  trustees  of  a  charter  school  shall  upon commencement and termination of employment of an employee by the charter school district, provide the commissioner with the name of and  position held by such employee.  (b)  The  school employees of a charter school that has been converted from an existing public school who are eligible for representation under article fourteen of the civil service law shall be deemed to be included  within the negotiating unit containing like titles or positions, if any, for the school district in which such  charter  school  is  located  and shall  be  subject  to the collective bargaining agreement covering that school  district negotiating unit; provided, however, that a majority of the members of a negotiating unit within a charter school may modify, in writing,  a  collective  bargaining  agreement  for  the   purposes   of employment  in  the  charter  school  with  the approval of the board of trustees of the charter school.  (b-1) The employees of a charter school that is not a conversion  from an  existing  public  school shall not be deemed members of any existing collective bargaining unit representing employees of the school district in which the charter school is located, and the charter school  and  its employees  shall  not  be  subject to any existing collective bargaining agreement between the  school  district  and  its  employees.  Provided, however, that (i) if the student enrollment of the charter school on the first  day  on  which  the  charter school commences student instruction exceeds two hundred fifty or if the average daily student enrollment  of such  school  exceeds two hundred fifty students at any point during the first two years after the charter school commences student  instruction, all  employees  of  the school who are eligible for representation under article fourteen of  the  civil  service  law  shall  be  deemed  to  be represented  in a separate negotiating unit at the charter school by the same employee organization, if any, that represents  like  employees  in the  school  district  in which such charter school is located; (ii) the provisions of subparagraph (i) of this paragraph may be waived in up  to ten  charters  issued  on  the  recommendation of the charter entity set forth in paragraph (b) of  subdivision  three  of  section  twenty-eight hundred  fifty-one of this article; (iii) the provisions of subparagraph (i) of this  paragraph  shall  not  be  applicable  to  the  renewal  or extension  of  a  charter;  and  (iv)  nothing in this sentence shall be construed to subject a charter school subject to the provisions of  this paragraph  or  its  employees  to  any  collective  bargaining agreement between any public school district and its  employees  or  to  make  the employees  of  such  charter school part of any negotiating unit at such school district. The charter school may, in its sole discretion,  choose whether  or not to offer the terms of any existing collective bargaining to school employees.  (c) The employees of the charter school may be deemed employees of the local school district for the purpose of providing retirement  benefits, including  membership  in  the  teachers'  retirement  system  and other retirement systems open to employees of public  schools.  The  financial contributions  for  such  benefits  shall  be  the responsibility of the charter  school  and  the  school's  employees.  The  commissioner,   in consultation   with   the  comptroller,  shall  develop  regulations  to implement the provisions of this  paragraph  in  a  manner  that  allows charter  schools  to provide retirement benefits to its employees in the same manner as other public school employees.  (c-1) Reasonable access. (i) If employees of the  charter  school  are not  represented,  any charter school chartered pursuant to this article must afford reasonable access to any employee  organization  during  the reasonable  proximate  period  before  any  representation  question  is raised; or  (ii) If the  employee  organization  is  a  challenging  organization, reasonable  access  must  be  provided  to  any  organization seeking to represent employees beginning with a  date  reasonably  proximate  to  a challenge  period.  Reasonableness  is  defined, at a minimum, as access equal to that provided to the incumbent organization.  (c-2) Employer neutrality. It shall be  an  improper  practice  for  a charter  school  board  of  directors,  chief administrative officer and their agents to commit any of the acts set forth in subdivision  one  of section  two  hundred  nine-a  of  the  civil  service  law and could in accordance with section twenty-eight hundred fifty-five of this article, result in the revocation of the charter.  (d) A teacher employed by a school district may make a written request to the board of education for an extended leave of absence to teach at a charter  school.  Approval  for  such a leave of absence for a period of three years or less shall not be unreasonably withheld. If such approval is granted to a teacher by the school district, the teacher  may  return to  teach in the school district during such period of leave without the loss of any right of certification, retirement, seniority, salary status or any other  benefit  provided  by  law  or  by  collective  bargaining agreement. If an appropriate position is unavailable, the teacher's name shall  be  placed  on  a  preferred  eligible  list  of  candidates  for appointment to a vacancy that may  thereafter  occur  in  an  office  or position  similar to the one such teacher filled in such school district immediately prior to the leave of service.  (d-1) In a school district of  a  city  having  a  population  of  one million or more, a principal employed by such school district may make a written  request  to  the  board  of  education for an extended leave of absence to serve as a principal of a charter school. Approval for such a leave of absence for a period of  three  years  or  less  shall  not  be unreasonably withheld. If such approval is granted to a principal by the school district, the principal may return to serve as a principal in the school  district  during  such  period  of leave without the loss of any right of certification, retirement,  seniority,  salary  status  or  any other  benefit provided by law or by collective bargaining agreement. If an appropriate position is unavailable, the principal's  name  shall  be placed  on  a preferred eligible list of candidates for appointment to a vacancy that may thereafter occur in an office or  position  similar  to the  one such principal filled in such school district immediately prior to the leave of service.