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

10/19/11 N.Y. St. Reg. EDU-42-11-00016-P

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 42

October 19, 2011

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

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

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 proposed rule:

Proposed Action:

Addition of section 119.5 of Title 8 NYCRR.

Statutory authority:

Education Law, sections 101(not subdivided), 206(not subdivided), 207(not subdivided), 305(1), (2), (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 2854(2).

Text of proposed 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 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 anticipated number of attendees. If 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.

(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.

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

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

Data, views or arguments may be submitted to:

Kenneth Slentz, Deputy Comm. P-12 Education, State Education Department, Office of P-12 Education, State Education Building, Room 125, 89 Washington Ave., Albany, NY 12234, [phone], email: [e-mail]

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

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 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.

2. LEGISLATIVE OBJECTIVES:

Consistent with the statutory authority set forth above, the proposed rule is necessary to 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.

3. NEEDS AND BENEFITS:

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, and to ensure that the process is performed in a transparent and equitable manner, consistent with the requirements of the statute.

4. COSTS:

(a) Costs to State government: none.

(b) Costs to local government: 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, and generally will not impose any additional costs on local governments beyond those inherent in the statute. There may be some costs associated with a charter school maintaining records to document the lottery process. It is anticipated that these costs will be minimal and capable of being absorbed using existing staff and resources.

(c) Cost to private regulated parties: none. The proposed rule does not affect any private regulated parties.

(d) Cost to regulating agency for implementation and continued administration of this rule: none.

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, and will not impose any additional costs on the State or State Education Department beyond those inherent in the statute.

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/or (iii) siblings of pupils already enrolled in the charter school. 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 anticipated number of attendees. If 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

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.

6. PAPERWORK:

Charter schools must 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.

7. DUPLICATION:

The proposed rule does not duplicate any existing State or Federal requirements, and is necessary to 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.

8. ALTERNATIVES:

The proposed rule is necessary to 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. Consideration was given to prescribing more specific criteria for the lottery selection process, including requiring: (i) a specific date by which the lottery must be held, (ii) certification from the person conducting the lottery that the student selection process was authentic, random and fair; (iii) specified notice to parents of students selected in the lottery; (iv) establishment of a waitlist for students who were not selected; (v) that the charter school admissions policy include specified criteria concerning the process by which mid-year vacancies will be filled. It was subsequently decided that such criteria are best left to each charter school to determine in accordance with its approved admissions policy.

9. FEDERAL STANDARDS:

There are no applicable Federal standards.

10. COMPLIANCE SCHEDULE:

It is anticipated that regulated parties will be able to achieve compliance with the proposed rule by its effective date.

Regulatory Flexibility Analysis

Small Businesses:

The proposed rule 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 rule does not impose any economic impact, or other compliance requirements on small businesses. Because it is evident from the nature of the proposed rule that it does not affect small businesses, no further measures were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.

Local Governments:

EFFECT OF RULE:

The proposed rule applies to all charter schools in the State. There are currently 217 approved charter schools.

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/or (iii) siblings of pupils already enrolled in the charter school. 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 anticipated number of attendees. If 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;

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.

PROFESSIONAL SERVICES:

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

COMPLIANCE COSTS:

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, and will not impose any additional costs on charter schools beyond those inherent in the statute. There may be some costs associated with a charter school maintaining records to document the lottery process. It is anticipated that these costs will be minimal and capable of being absorbed using existing staff and resources.

ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed rule does not impose any additional technological requirements on school districts or charter schools. Economic feasibility is addressed under compliance costs above.

MINIMIZING ADVERSE IMPACT:

The proposed rule is necessary to 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. Consequently, the major provisions of the proposed rule are statutorily imposed and it is not feasible to establish differing compliance or reporting requirements or timetables or to exempt charter schools from coverage by the rule. The proposed rule has been carefully drafted to meet statutory requirements while minimizing the impact on charter schools.

Consideration was given to prescribing more specific criteria for the lottery selection process, including requiring: (i) a specific date by which the lottery must be held, (ii) certification from the person conducting the lottery that the student selection process was authentic, random and fair; (iii) specified notice to parents of students selected in the lottery; (iv) establishment of a waitlist for students who were not selected; (v) that the charter school admissions policy include specified criteria concerning the process by which mid-year vacancies will be filled. It was subsequently decided that such criteria are best left to each charter school to determine in accordance with its approved admissions policy.

LOCAL GOVERNMENT PARTICIPATION:

Copies of the proposed rule were provided to other charter school authorizers (the Board of Trustees of the State University of New York and the Chancellor of the NYC School District) and charter school organizations and their comments were considered in the development of the proposed rule. In addition, prior to developing the proposed rule, the issue was discussed with representatives of many individual charter schools and their comments were also considered.

Rural Area Flexibility Analysis

TYPES AND ESTIMATED NUMBER OF RURAL AREAS:

The proposed amendment applies to all 217 approved charter schools within the State, including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less. At present, there is one charter school in a rural area.

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/or (iii) siblings of pupils already enrolled in the charter school. 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 anticipated number of attendees. If 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;

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.

COSTS:

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, and will not impose any additional costs on charter schools in rural areas beyond those inherent in the statute. There may be some costs associated with a charter school maintaining records to document the lottery process. It is anticipated that these costs will be minimal and capable of being absorbed using existing staff and resources.

MINIMIZING ADVERSE IMPACT:

The proposed rule is necessary to 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. Consequently, the major provisions of the proposed rule are statutorily imposed and it is not feasible to establish differing compliance or reporting requirements or timetables or to exempt charter schools in rural areas from coverage by the rule, or impose a lesser standard on such schools. The proposed rule has been carefully drafted to meet statutory requirements while minimizing the impact on charter schools.

Consideration was given to prescribing more specific criteria for the lottery selection process, including requiring: (i) a specific date by which the lottery must be held, (ii) certification from the person conducting the lottery that the student selection process was authentic, random and fair; (iii) specified notice to parents of students selected in the lottery; (iv) establishment of a waitlist for students who were not selected; (v) that the charter school admissions policy include specified criteria concerning the process by which mid-year vacancies will be filled. It was subsequently decided that such criteria are best left to each charter school to determine in accordance with its approved admissions policy.

RURAL AREA PARTICIPATION:

Comments on the proposed rule were solicited from the Department's Rural Advisory Committee. In addition, copies of the proposed rule were provided to other charter school authorizers (the Board of Trustees of the State University of New York and the Chancellor of the NYC School District) and charter school organizations and their comments were considered in the development of the proposed rule. In addition, prior to developing the proposed rule, the issue was discussed with representatives of many individual charter schools and their comments were also considered.

Job Impact Statement

The proposed rule 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 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.