2023 New Mexico Statutes › Chapter 22 - Public Schools › Article 8B - Charter Schools › Section 22-8B-4 - Charter schools' rights and responsibilities; operation.

A. A charter school shall be subject to all federal and state laws and constitutional provisions prohibiting discrimination on the basis of disability, physical or mental handicap, serious medical condition, race, creed, color, sex, gender identity, sexual orientation, spousal affiliation, national origin, religion, ancestry or need for special education services and shall not allow for the imposition of discipline, discrimination or disparate treatment against a student based on the student's race, religion or culture or because of the student's use of protective hairstyles or cultural or religious headdresses.
B. A charter school shall be governed by a governing body in the manner set forth in the charter contract; provided that a governing body shall have at least five members; and provided further that no member of a governing body for a charter school that is initially approved on or after July 1, 2005 or whose charter is renewed on or after July 1, 2005 shall serve on the governing body of another charter school. No member of a local school board shall be a member of a governing body for a charter school or employed in any capacity by a locally chartered charter school located within the local school board's school district during the term of office for which the member was elected or appointed.
C. A charter school shall be responsible for:
(1) its own operation, including preparation of a budget, subject to audits pursuant to the Audit Act [12-6-1 to 12-6-15 NMSA 1978]; and
(2) contracting for services and personnel matters.
D. A charter school may contract with a school district, a university or college, the state, another political subdivision of the state, the federal government or one of its agencies, a tribal government or any other third party for the use of a facility, its operation and maintenance and the provision of any service or activity that the charter school is required to perform in order to carry out the educational program described in its charter contract. Facilities used by a charter school shall meet the standards required pursuant to Section 22-8B-4.2 NMSA 1978.
E. A conversion school chartered before July 1, 2007 may choose to continue using the school district facilities and equipment it had been using prior to conversion, subject to the provisions of Subsection F of this section.
F. A school district that has available land or one or more available facilities not currently used for other educational purposes shall make facilities and may make land available for lease, lease-purchase or purchase to the charter schools located in the school district for the charter schools' operations and shall notify the charter schools of that availability no later than May 1 of each year. The public school facilities authority shall annually ensure that each school district with available land or one or more available facilities has provided that notification. A school district may develop a facility prioritization plan that identifies which charter schools may lease, lease-purchase or purchase available school district facilities. School-district-owned land shall not be considered available to a charter school if the school district has justified future use of that land through its five-year facilities master plan. An agreement for the use of school district facilities by a charter school may provide for reasonable lease payments; provided that the payments do not exceed the sum of the lease reimbursement rate provided in Paragraph (1) of Subsection I of Section 22-24-4 NMSA 1978 plus any reimbursement for actual direct costs incurred by the school district in providing the facilities; and provided further that any lease payments received by a school district may be retained by the school district and shall not be considered to be cash balances in any calculation pursuant to Section 22-8-41 NMSA 1978. The available facilities provided by a school district to a charter school shall meet all occupancy standards as specified by the public school capital outlay council. As used in this subsection, "other educational purposes" includes health clinics, daycare centers, teacher training centers, school district administration functions and other ancillary services related to a school district's functions and operations.
G. A locally chartered charter school may pay the costs of operation and maintenance of its facilities or may contract with the school district to provide facility operation and maintenance services.
H. Locally chartered charter school facilities are eligible for state and local capital outlay funds and shall be included in the school district's five-year facilities plan.
I. A locally chartered charter school shall negotiate with a school district to provide transportation to students eligible for transportation under the provisions of the Public School Code [Chapter 22 NMSA 1978]. The school district, in conjunction with the charter school, may establish a limit for student transportation to and from the charter school site not to extend beyond the school district boundary.
J. A charter school shall be a nonsectarian, nonreligious and non-home-based public school.
K. Except as otherwise provided in the Public School Code, a charter school shall not charge tuition or have admission requirements.
L. With the approval of the chartering authority, a single charter school may maintain separate facilities at two or more locations within the same school district; but, for purposes of calculating program units pursuant to the Public School Finance Act [Chapter 22, Article 8 NMSA 1978], the separate facilities shall be treated together as one school.
M. A charter school shall be subject to the provisions of Section 22-2-8 NMSA 1978 and the Assessment and Accountability Act [Chapter 22, Article 2C NMSA 1978].
N. Within constitutional and statutory limits, a charter school may acquire and dispose of property; provided that, upon termination of the charter, all assets of the locally chartered charter school shall revert to the local school board and all assets of the state-chartered charter school shall revert to the state, except that, if all or any portion of a state-chartered charter school facility is financed with the proceeds of general obligation bonds issued by a local school board, the facility shall revert to the local school board.
O. The governing body of a charter school may accept or reject any charitable gift, grant, devise or bequest; provided that no such gift, grant, devise or bequest shall be accepted if subject to any condition contrary to law or to the terms of the charter. The particular gift, grant, devise or bequest shall be considered an asset of the charter school to which it is given.
P. The governing body may contract and sue and be sued. A local school board shall not be liable for any acts or omissions of the charter school.
Q. A charter school shall comply with all state and federal health and safety requirements applicable to public schools, including those health and safety codes relating to educational building occupancy.
R. A charter school is a public school that may contract with a school district or other party for provision of financial management, food services, transportation, facilities, education-related services or other services. The governing body shall not contract with a for-profit entity for the management of the charter school.
S. To enable state-chartered charter schools to submit required data to the department, an accountability data system shall be maintained by the department.
T. A charter school shall comply with all applicable state and federal laws and rules related to providing special education services. Charter school students with disabilities and their parents retain all rights under the federal Individuals with Disabilities Education Act and its implementing state and federal rules. Each charter school is responsible for identifying, evaluating and offering a free appropriate public education to all eligible children who are accepted for enrollment in that charter school. The state-chartered charter school, as a local educational agency, shall assume responsibility for determining students' needs for special education and related services. The division may promulgate rules to implement the requirements of this subsection.
U. As used in this section:
(1) "cultural or religious headdresses" includes hijabs, head wraps or other headdresses used as part of an individual's personal cultural or religious beliefs;
(2) "protective hairstyles" includes such hairstyles as braids, locs, twists, tight coils or curls, cornrows, bantu knots, afros, weaves, wigs or head wraps; and
(3) "race" includes traits historically associated with race, including hair texture, length of hair, protective hairstyles or cultural or religious headdresses.
History:
Laws 1999, ch. 281, § 4; 2000, ch. 82, § 2; 2001, ch. 348, § 1; 2003, ch. 153, § 32; 2005, ch. 221, § 2; 2006, ch. 94, § 31; 2007, ch. 366, § 16; 2011, ch. 14, § 1; 2021, ch. 19, § 2; 2021, ch. 37, § 2; 2022, ch. 19, § 2.
ANNOTATIONS
Cross references.
— For the Human Rights Act,
see
28-1-1 NMSA 1978.
For the Public School Facilities Authority,
see
22-20-1 NMSA 1978.
For the Public School Capital Outlay Act,
see
22-24-1 NMSA 1978.
For the Public School Capital Improvements Act,
see
22-25-1 NMSA 1978.
For Public School Buildings Act,
see
22-26-1 NMSA 1978.
For the federal Individuals with Disabilities Education Act,
see
20 U.S.C. § 1400.
The 2022 amendment,
effective May 18, 2022, required school districts to notify charter schools of property available for the charter schools' educational operations, and authorized school districts to develop facility prioritization plans that identify which charter schools may lease, lease-purchase or purchase available school district facilities; in Subsection F, after "A school district", deleted "in which a charter school is geographically located shall provide a charter school with" and added "that has", after "available", added "land or one or more available", after "facilities", added "not currently used", after the next occurrence of "for", added "other educational purposes shall make facilities and may make land available for lease, lease-purchase or purchase to", after the next occurrence of "the", deleted "school's" and added "charter schools located in the school district for the charter schools'", and after "operations", deleted "unless the facilities are currently used for other educational purposes" and added "and shall notify the charter schools of that availability no later than May 1 of each year. The public school facilities authority shall annually ensure that each school district with available land or one or more available facilities has provided that notification. A school district may develop a facility prioritization plan that identifies which charter schools may lease, lease-purchase or purchase available school district facilities. School-district-owned land shall not be considered available to a charter school if the school district has justified future use of that land through its five-year facilities master plan.", and after "reimbursement rate provided in", deleted "Subparagraph (b) of".
The 2021 amendment,
effective July 1, 2021, prohibited the imposition of discipline, discrimination or disparate treatment against a student based on the student's race, religion or culture or because of the student's use of protective hairstyles or cultural or religious headdresses, and defined "cultural or religious headdresses", "protective hairstyles", and "race" as used in this section; in Subsection A, after "special education services", added "and shall not allow for the imposition of discipline, discrimination or disparate treatment against a student based on the student's race, religion or culture or because of the student's use of protective hairstyles or cultural or religious headdresses"; and added new Subsection U.
Laws 2021, ch. 19, § 2 and Laws 2021, ch. 37, § 2, both effective July 1, 2021, enacted identical amendments to this section. The section was set out as amended by Laws 2021, ch. 37, § 2.
See
12-1-8 NMSA 1978.
The 2011 amendment,
effective July 1, 2012, prohibited discrimination based on physical or mental handicap, serious medical condition, sex, gender identity, sexual orientation and spousal affiliation; and prohibited a member of a local school board from being a member of the governing body of a charter school or being employed by a charter school in the school board's school district.
The 2007 amendment,
effective July 1, 2007, amended Subsection F to authorize reasonable lease payments for the use of school district facilities by charter schools provided that the payments do not exceed the lease reimbursement rate specified in 22-24-4 NMSA 1978 and that the payments are not considered to be cash balance in calculations under 22-8-41 NMSA 1978 and amended Subsection N to provide that upon the termination of the charter of a chartered school, the assets financed by general obligation bonds issued by the school district shall revert to the local school board.
The 2006 amendment,
effective July 1, 2007, added the condition in Subsection B that a governing body must have at least five members; provided in Paragraph (1) of Subsection C that operations are subject to audit pursuant to the Audit Act; in Subsection E, added the qualification that the conversion school must be chartered before July 1, 2007 and added the condition that the use of equipment and facilities is subject to Subsection F; provided in Subsection F that the facilities provided to a charter school must meet all occupancy standards specified by the public school capital outlay council; changed "charter school" to "locally chartered charter school" in Subsections G through I; changed "school district" to "chartering authority" in Subsection L; in Subsection N, added the qualification that the acquisition and disposition of property must be within constitutional and statutory limits and that all assets of state-chartered schools will revert to the state, added Subsection R to provide for contracting authority of charter schools; added Subsection S to require an accountability data system; and added Subsection T to provide for special education services.
The 2005 amendment,
effective July 1, 2005, provided in Subsection B that no member of a governing body of a school that is initially approved or whose charter is renewed on or after July 1, 2005 shall serve on the governing body of another charter school; provided in Subsection D that a charter school may contract with the state and its political subdivisions, the federal government or its agencies and a tribal government; provided in Subsection D that the facilities of a charter school must meet the standards of 22-8B-4.2 NMSA 1978; deleted the former provision in Subsection E which provided for the use by charter schools of school district facilities; provided in Subsection E that a conversion school may choose to continue using school district facilities and equipment; added Subsection F to provide for the use by charter schools of school district facilities; authorized a charter school in Subsection G to pay the costs of operation and maintenance of its facilities and to contract with a school district for facility operation and maintenance services; added Subsection H to provide that charter school facilities are eligible for state and local capital outlay funds and shall be included in the school district's five-year facilities plan; deleted the former provision of Subsection G, which provided that a charter school may negotiate with a school district for capital expenditures; added Subsection L to provide that a single charter school may maintain separate facilities at two or more locations, but that all locations shall be deemed to be a single location for purposes of calculating program units pursuant to the Public School Finance Act; and provided in Subsection Q that applicable health and safety requirements include health and safety codes relating to educational building occupancy.
The 2003 amendment,
effective April 4, 2003, deleted "local" preceding "school district" throughout the section; and in Subsection J substituted "Section" for "Sections 22-1-6 and" preceding "22-2-8" near the middle and inserted "and the Assessment and Accountability Act" at the end.
The 2001 amendment,
effective June 15, 2001, in Subsection F, substituted "shall" for "may" in the first sentence and added the second sentence.
The 2000 amendment,
effective March 7, 2000, deleted former Subsection B, relating to enrollment procedures at start-up charter schools, and redesignated the remaining subsections accordingly.
Procurement Code applies to charter schools.
— A charter school is a public entity, that is subject to the Procurement Code, 13-1-1 NMSA 1979 et seq., which requires competitive bids or proposals unless the school demonstrates that a sole-source contract by a single vendor is warranted. 2014 Op. Att'y Gen. 14-03.
Management agreement with a for-profit entity.
— Where a virtual charter school entered into a contract with a for-profit company for products and services that involved educational program consulting; personnel assistance; facility management; business administration of program aspects; budgeting, financial reporting and preparing a proposed annual budget; financial planning; maintenance of student records and retention of the records on behalf of the school; recommendation of school policies and procedures for student discipline; creation of the annual report to the chartering authority; development of teacher training and a faculty handbook; assistance in the development of charter policies and the charter renewal process; providing policies and procedures for instructional property; solicitation and receipt of grants and donations from public funds; and any other services agreed to by the parties, the services provided by the for-profit company and the relationship created under the contract constituted "management of the charter school" in violation of 22-8B-4(R) NMSA 1978, which prohibits the management of a charter school by a for-profit entity. 2014 Op. Att'y Gen. 14-03.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— Validity, construction, and application of statute or regulation governing charter schools, 78 A.L.R.5th 533.