EDU-42-11-00016-A Random Selection Process for Charter School Student Admissions

1/4/12 N.Y. St. Reg. EDU-42-11-00016-A

NEW YORK STATE REGISTER

VOLUME XXXIV, ISSUE 1

January 04, 2012

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

NOTICE OF ADOPTION

 

I.D No. EDU-42-11-00016-A

Filing No. 1380

Filing Date. Dec. 20, 2011

Effective Date. Jan. 04, 2012

Random Selection Process for Charter School Student Admissions

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Addition of section 119.5 to Title 8 NYCRR.

Statutory authority:

Education Law, sections 101 (not subdivided), 206 (not subdivided), 207 (not subdivided), 214 (not subdivided), 215 (not subdivided), 305(1), (2) and (20) and 2854(2); and L. 2010, ch. 101

Subject:

Random selection process for Charter School student admissions.

Purpose:

To establish procedures for the random selection process required under Education Law, section 2854(2).

Text of final rule:

Section 119.5 of the Regulations of the Commissioner of Education is added, effective January 4, 2012, as follows:

§ 119.5 Random Selection Process for Charter School Student Applicants. If the number of timely submitted applications of eligible students for admission to a charter school exceeds the capacity of the grade level of a charter school (or building if the school does not distinguish between grades), students shall be accepted for admission from among such applicants by a random selection process (lottery) pursuant to the requirements of this section.

(a) Preferences. (1) Notwithstanding the provisions of this section, a charter school shall provide an enrollment preference to:

(i) pupils returning to the charter school in the second or any subsequent year of operation;

(ii) pupils residing in the school district in which the charter school is located, or in the case of the City School District of the City of New York, pupils residing in the community school district in which the charter school is located; and

(iii) siblings of pupils already enrolled in the charter school.

(2) Establishment of specific school design. Consistent with the requirements of federal law and with the school design described in the school's charter, a charter school may also establish a single-sex charter school and/or establish enrollment preferences for students at-risk of academic failure, students with disabilities and English language learners.

(b) Notice. The charter school shall provide public notice of the date, time and place of the lottery, consistent with Public Officers Law section 104.

(c) Procedures for conducting lottery.

(1) The person(s) conducting the selection of lottery applicants or acting as an impartial observer of the selection of lottery applicants shall not be a board member or employee of the school, or a parent, person in parental relationship, grandparent, sibling, aunt, uncle or first cousin of any applicant to the school or of any pupil enrolled in the school.

(2) The lottery shall be held in a space that is open and accessible to the public and capable of accommodating the reasonably anticipated number of attendees. If the reasonably anticipated attendance exceeds capacity, separate grade level lotteries may be held in separate locations provided that each lottery is publicized in a manner consistent with the requirements of Public Officers Law section 104. Nothing herein shall be construed to require or exclude attendance at the lottery by parents, persons in parental relationships, guardians and/or students participating in the admissions process.

(3) A charter school may structure the actual lottery process in any manner consistent with its approved admissions policy and this section.

(4) The random process used in the lottery may be generated by any traditional lottery ball system, technology-based software, paper ticket process or other methodology which generates random results.

(d) Records. The charter school shall document the lottery process, and make such records available to the Department and/or the charter authorizing entity upon request. Records shall be sufficiently detailed to enable the reviewer to identify the process used, compare the process used to the lottery procedures contained in the charter school's charter, and determine that the procedures used were consistent with those set forth in the charter.

Final rule as compared with last published rule:

Nonsubstantial changes were made in section 119.5(a)(2), (c)(2) and (3).

Text of rule and any required statements and analyses may be obtained from:

Mary Gammon, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, [phone], email: [e-mail]

Revised Regulatory Impact Statement

Since publication of a Notice of Proposed Rule Making in the State Register on October 19, 2011, nonsubstantial revisions were made to the rule as follows:

Section 119.5(a)(2) was revised to clarify that a charter school's establishment of a single-sex charter school or establishment of enrollment preferences for students at-risk of academic failure, students with disabilities and English language learners must be consistent with the requirements of federal law, in addition to being consistent with the school design described in the school's charter.

Section 119.5(c)(2) was revised to clarify that the lottery be held in a space that is open and accessible to the public and capable of accommodating the reasonably anticipated number of attendees.

Section 119.5(c)(3) was revised to clarify that the actual lottery process must be structured consistent with the provisions of the proposed rule, in addition to being consistent with the charter school's approved admissions policy.

The above revisions require that the Local Government Mandates section of the previously published Regulatory Impact Statement be revised to read as follows:

5. LOCAL GOVERNMENT MANDATES:

The proposed rule is necessary to establish procedures for the conduct of the random selection process for charter school admissions required under Education Law section 2854(2), as amended by Chapter 101 of the Laws of 2010. Consistent with Education Law section 2854(2), the proposed rule:

1. requires charter schools to provide an enrollment preference to: (i) pupils returning to the charter school in the second or any subsequent year of operation; (ii) pupils residing in the school district in which the charter school is located or, in the case of the City School District of the City of New York, pupils residing in the community school district in which the charter school is located; and (iii) siblings of pupils already enrolled in the charter school. Consistent with the requirements of federal law and with the school design described in the school's charter, a charter school may also establish a single-sex charter school and/or establish enrollment preferences for students at-risk of academic failure, students with disabilities and English language learners;

2. requires charter schools to provide public notice of the date, time and place of the lottery, consistent with Public Officers Law section 104;

3. requires that:

• person(s) conducting the selection of lottery applicants or acting as an impartial observer of such selection shall not be a board member or employee of the school, or a parent, person in parental relationship, grandparent, sibling, aunt, uncle or first cousin of any applicant to the school or of any pupil enrolled in the school;

• the lottery be held in a space that is open and accessible to the public and capable of accommodating the reasonably anticipated number of attendees. If the reasonably anticipated attendance exceeds capacity, separate grade level lotteries may be held in separate locations provided that each lottery is publicized in a manner consistent with the requirements of Public Officers Law section 104;

4. permits a charter school to structure the actual lottery process in any manner consistent with its approved admissions policy and the proposed rule; and

5. permits the random process used in the lottery to be generated by any traditional lottery ball system, technology-based software, paper ticket process or other methodology which generates random results.

In addition, the Statutory Authority section of the previously published Regulatory Impact Statement is inadequate or incomplete in that it inadvertently omitted reference to Education Law sections 214 and 215, and therefore is revised to read as follows:

1. STATUTORY AUTHORITY:

Education Law section 101 continues the existence of the Education Department, with the Board of Regents as its head, and authorizes the Board of Regents to appoint the Commissioner of Education as the chief administrative officer of the Department, which is charged with the general management and supervision of public schools and the educational work of the State.

Education Law section 206 authorizes the Regents, any committee thereof, the Commissioner, the deputy and any associate and assistant commissioner of education and the counsel of the State Education Department to take testimony or hear proofs relating to their official duties, or in any matter which they may lawfully investigate.

Education Law section 207 empowers the Regents and Commissioner to adopt rules and regulations to carry out the State laws regarding Education and the functions and duties conferred on the Department.

Education Law section 214 provides that the institutions of the University of the State of New York shall include all secondary and higher educational institutions which are now or may hereafter be incorporated in this State, and such other libraries, museums, institutions, schools, organizations and agencies for education as may be admitted to or incorporated by the University.

Education Law section 215 authorizes the Board of Regents to visit, examine into and inspect, any institution in the University of the State of New York and any school or institution under the educational supervision of the State, and to require reports therefrom giving such information and in such form as the Regents or the Commissioner shall prescribe.

Education Law section 305(1) provides that the Commissioner is the chief executive officer of the State system of education and of the Board of Regents, and charged with the enforcement of all general and special laws relating to the educational system of the State and the execution of all educational policies determined by Regents. Section 305(2) provides that the Commissioner shall have general supervision over all schools and institutions subject to the Education Law or any statute relating to education. Section 305(20) provides that the Commissioner shall have and execute such further powers and duties as he shall be charged with by the Regents.

Education Law section 2854(2), as amended by Chapter 101 of the Laws of 2010, provides that if the number of timely submitted applications of eligible students for admission to a charter school exceeds the capacity of the grade level or building of a charter school, students shall be accepted for admission from among such applicants by a random selection process, and directs the Commissioner to establish regulations to require that the random selection process be performed in a transparent and equitable manner and to require that the time and place of the random selection process be publicized consistent with Public Officers Law section 104.

Revised Regulatory Flexibility Analysis

Since publication of a Notice of Proposed Rule Making in the State Register on October 19, 2011, nonsubstantial revisions were made to the rule as described in the Revised Regulatory Impact Statement published herewith.

The above revisions require that the Compliance Requirements section of the previously published Regulatory Flexibility Analysis for Small Businesses and Local Government be revised to read as follows:

COMPLIANCE REQUIREMENTS: The proposed rule is necessary to establish procedures for the conduct of the random selection process for charter school admissions required under Education Law section 2854(2), as amended by Chapter 101 of the Laws of 2010. Consistent with Education Law section 2854(2), the proposed rule:

1. requires charter schools to provide an enrollment preference to: (i) pupils returning to the charter school in the second or any subsequent year of operation; (ii) pupils residing in the school district in which the charter school is located or, in the case of the City School District of the City of New York, pupils residing in the community school district in which the charter school is located; and (iii) siblings of pupils already enrolled in the charter school. Consistent with the requirements of federal law and with the school design described in the school's charter, a charter school may also establish a single-sex charter school and/or establish enrollment preferences for students at-risk of academic failure, students with disabilities and English language learners;

2. requires charter schools to provide public notice of the date, time and place of the lottery, consistent with Public Officers Law section 104;

3. requires that:

• person(s) conducting the selection of lottery applicants or acting as an impartial observer of such selection shall not be a board member or employee of the school, or a parent, person in parental relationship, grandparent, sibling, aunt, uncle or first cousin of any applicant to the school or of any pupil enrolled in the school;

• the lottery be held in a space that is open and accessible to the public and capable of accommodating the reasonably anticipated number of attendees. If the reasonably anticipated attendance exceeds capacity, separate grade level lotteries may be held in separate locations provided that each lottery is publicized in a manner consistent with the requirements of Public Officers Law section 104;

4. permits a charter school to structure the actual lottery process in any manner consistent with its approved admissions policy and the proposed rule; and

5. permits the random process used in the lottery to be generated by any traditional lottery ball system, technology-based software, paper ticket process or other methodology which generates random results; and

6. requires charter schools to document the lottery process, and make such records available to the Department and/or the charter authorizing entity upon request. Records shall be sufficiently detailed to enable the reviewer to identify the process used, compare the process used to the lottery procedures contained in the charter school's charter, and determine that the procedures used were consistent with those set forth in the charter.

Revised Rural Area Flexibility Analysis

Since publication of a Notice of Proposed Rule Making in the State Register on October 19, 2011, nonsubstantial revisions were made to the rule as described in the Revised Regulatory Impact Statement published herewith.

The above revisions require that the Reporting, Recordkeeping and Other Compliance Requirements; and Professional Services section of the previously published Rural Area Flexibility Analysis be revised to read as follows:

REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:

The proposed rule is necessary to establish procedures for the conduct of the random selection process for charter school admissions required under Education Law section 2854(2), as amended by Chapter 101 of the Laws of 2010. Consistent with Education Law section 2854(2), the proposed rule:

1. requires charter schools to provide an enrollment preference to: (i) pupils returning to the charter school in the second or any subsequent year of operation; (ii) pupils residing in the school district in which the charter school is located or, in the case of the City School District of the City of New York, pupils residing in the community school district in which the charter school is located; and (iii) siblings of pupils already enrolled in the charter school. Consistent with the requirements of federal law and with the school design described in the school's charter, a charter school may also establish a single-sex charter school and/or establish enrollment preferences for students at-risk of academic failure, students with disabilities and English language learners;

2. requires charter schools to provide public notice of the date, time and place of the lottery, consistent with Public Officers Law section 104;

3. requires that:

• person(s) conducting the selection of lottery applicants or acting as an impartial observer of such selection shall not be a board member or employee of the school, or a parent, person in parental relationship, grandparent, sibling, aunt, uncle or first cousin of any applicant to the school or of any pupil enrolled in the school;

• the lottery be held in a space that is open and accessible to the public and capable of accommodating the reasonably anticipated number of attendees. If the reasonably anticipated attendance exceeds capacity, separate grade level lotteries may be held in separate locations provided that each lottery is publicized in a manner consistent with the requirements of Public Officers Law section 104;

4. permits a charter school to structure the actual lottery process in any manner consistent with its approved admissions policy and the proposed rule; and

5. permits the random process used in the lottery to be generated by any traditional lottery ball system, technology-based software, paper ticket process or other methodology which generates random results; and

6. requires charter schools to document the lottery process, and make such records available to the Department and/or the charter authorizing entity upon request. Records shall be sufficiently detailed to enable the reviewer to identify the process used, compare the process used to the lottery procedures contained in the charter school's charter, and determine that the procedures used were consistent with those set forth in the charter.

The proposed rule does not impose any additional professional services requirements on charter schools.

Revised Job Impact Statement

Since publication of a Notice of Proposed Rule Making in the State Register on October 19, 2011, nonsubstantial revision have been made to the proposed rule as described in the Revised Regulatory Impact Statement published herewith. The proposed rule, as revised, applies to charter schools, and will establish procedures for the conduct of the random selection process for charter school admissions, as required under Education Law section 2854(2), as amended by Chapter 101 of the Laws of 2010. The proposed revised rule will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the rule that it will have a positive impact, or no impact, on jobs or employment opportunities, no further steps were needed to ascertain those facts and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.

Assessment of Public Comment

Since publication of a Notice of Proposed Rule Making in the State Register on October 19, 2011, the State Education Department received the following comments.

1. COMMENT:

Support was expressed for the proposed rule in that it will effectively carry out the intent and letter of Education Law section 2854(2)(b) and ensure the credibility of charter school lotteries and create necessary documentation to investigate any allegations of impropriety in the lottery process. At the same time, the proposed rule is properly limited to the topics referenced in the statute, and neither creates undue burden for charter school operators, nor re-create the critical oversight duties that reside with the State's charter school authorizing entities.

DEPARTMENT RESPONSE:

The Department acknowledges and appreciates the support for the proposed rule.

2. COMMENT:

The provisions in section 119.5(c)(2), that the lottery be held in a space that is open and accessible to the public and capable of accommodating the anticipated number of attendees and that if anticipated attendance exceeds capacity separate grade level lotteries may be held in separate locations provided each lottery is publicized in a manner consistent with Public Officers Law section 104, is not feasible for large charter management organizations (CMOs), which may have as much as 10,000 to 13,000 or more applications. The proposed rule's reference to "anticipated number of attendees" may unreasonably impose a burden on schools to reach out to applicants to ascertain whether they will be attending the lotteries. In addition, the logistics involved for a CMO to seek, receive and manage 13,000 R.S.V.P.s and accommodate the attendees would be staggering and effectively impossible. Holding separate grade level lotteries would not address the issue, as even with separate grade level lotteries (which would impose additional and unreasonable logistical and financial burdens), there would still be a tremendous number of applications per grade level. Requiring a CMO to accommodate such large numbers of applicants and their families to observe the lotteries serves little or no purpose since, even if they could be accommodated, they would not receive the results the day of the lotteries because it is not possible to logistically present individual results of such large numbers on the spot.

DEPARTMENT RESPONSE:

The Department acknowledges that in some instances it may be difficult for a CMO or charter school to estimate the number of potential attendees for the lotteries and that if they are required to anticipate that parents and families of all applicants would be attendance, the logistics of locating and paying for space large enough to accommodate that many people would be unreasonably burdensome. However, the provision in the proposed rule that the lottery be held in a space "capable of accommodating the anticipated number of attendees" is merely intended to require charter schools to provide a space capable of accommodating the number of attendees the charter school reasonably anticipates will attend, and is not intended to require charter schools to provide a space capable of accommodating all individuals who actually appear for the lottery, or to require charter schools to take extra measures to reach out to applicants to ascertain whether they will be attending. Consistent with this intent, the Department has added language to clarify that the space in which the lottery is conducted must be capable of accommodating the reasonably anticipated number of attendees (emphasis added), and thereby allow CMOs and charter schools to determine for themselves, based on past experience or other factors, how many attendees can reasonably be expected to attend the lottery and to locate and acquire space for the lottery(ies) accordingly.

3. COMMENT:

Section 119.5(c)(2) potentially imposes the burden on charter schools to make records documenting the lottery process available to the Department, irrespective of whether the Department is the chartering entity. Nothing in the cited statutory authority requires charter schools authorized by a particular entity to make lottery records available to any entity beyond the charter authorizing entity. The additional reporting requirement imposes significant and unreasonable staffing costs and paperwork burdens on charter schools beyond those inherent in Education Law.

DEPARTMENT RESPONSE:

The proposed rule is consistent with the Department's oversight authority under Education Law section 215 to examine into, inspect, and require reports and information from institutions that are chartered by the Board of Regents and included as institutions in the University of the State of New York pursuant to Education Law section 214. Furthermore, the proposed rule merely requires that such records be made available to the Department, and does not require charter schools to submit such records to the Department in all instances when a lottery is conducted.

4. COMMENT:

The proposed rule should be revised to clarify the manner in which geographic preference is awarded to charter school applicants living in temporary housing, to ensure that student admissions regulations are consistent with previous Department guidance on this subject. The proposed rule should also be revised to address the information that charter schools may request to establish an enrollment preference, the ways that information may be used, and the ways in which the admissions process may be conducted at schools that choose to give an enrollment preference to students at-risk of academic failure, students with disabilities and English Language Learners.

DEPARTMENT RESPONSE:

The proposed revisions are beyond the scope of the proposed rule making, which is intended to carry out the Commissioner's responsibilities under Education Law section 2854(2)(b) to establish regulations requiring that the random selection process be performed in a transparent and equitable manner and that the time and place of the random selection process be publicized in a manner consistent with the requirements of Public Officers Law section 104 and be open to the public. Issues regarding the admissions process and the awarding of preferences to applicants who are living in temporary housing or who are students at-risk, raise issues beyond merely ensuring transparency and equitability in the conduct of the random selection process and thus are beyond the scope of this rule making. The Department believes that these concerns are more appropriately addressed in further guidance to be issued by the Department.