Specific reasons underlying the finding of necessity:
The proposed amendment would extend the English Language Learner (ELL) specific pathway to graduate with a Local Diploma via appeal to ELLs who meet all other conditions for appeal and are otherwise eligible to graduate in January 2015 and thereafter, and clarify that this appeal process applies to ELLs who meet one or more graduation assessment requirements via an available alternative pathway and meet all other conditions for appeal.
The proposed amendment was adopted as an emergency action at the February 9-10, 2015 Regents meeting, effective February 10, 2015. A Notice of Emergency Adoption and Proposed Rule Making was published in the State Register on February 25, 2015. Because the Board of Regents meets at scheduled intervals, the earliest the proposed amendment could be presented for regular (non-emergency) adoption, after publication in the State Register and expiration of the 45-day public comment period provided for in State Administrative Procedure Act (SAPA) section 202(1) and (5), is the May 18-19, 2015 Regents meeting. Furthermore, pursuant to SAPA section 203(1), the earliest effective date of the proposed amendment, if adopted at the May meeting, would be June 3, 2015, the date a Notice of Adoption would be published in the State Register. However, the February emergency rule will expire on May 10, 2015, 90 days from its filing with the Department of State on February 10, 2014. A lapse in the rule's effective date could disrupt appeals pursuant to section 100.5(d)(7) which provides a specific pathway for English Language Learner (ELL) students who meet all other conditions for appeal and are otherwise eligible to graduate in January 2015 and thereafter to graduate with a Local Diploma. Emergency action is therefore necessary for the preservation of the general welfare to ensure that the proposed rule adopted by emergency action at the February 2015 Regents meeting remains continuously in effect until the rule can be adopted and take effect as a permanent rule.
It is anticipated that the proposed amendment will be presented for adoption as a permanent rule at the May 18-19, 2015 Regents meeting, which is the first meeting scheduled after expiration of the 45-day period for public comment pursuant to the State Administrative Procedure Act.
Subject:
Appeals process on Regents exams passing score for English Language Learners (ELLs).
Purpose:
To extend ability to graduate with a Local Diploma via appeal process to qualifying English Language Learner (ELL) students who satisfy all other graduation requirements (including those who satisfy such requirements via available alternative pathways) in January 2015 or thereafter.
Text of emergency rule:
Paragraph (7) of subdivision (d) of section 100.5 of the Regulations of the Commissioner of Education is amended, effective May 11, 2015, as follows:
(7) Appeals process on Regents examinations passing score to meet Regents diploma requirements.
(i) School districts shall provide unlimited opportunities for all students to retake required Regents examinations to improve their scores.
(a) . . .
(b) A student who first enters school in the United States (the 50 States and the District of Columbia) in grade nine, ten, eleven or twelve [in September 2010 or thereafter] and is otherwise eligible to graduate in January 2015 or thereafter, is identified as an English Language Leaner pursuant to Part 154 of this Title, and fails, after at least two attempts, to attain a score of 65 or above on the required Regents examination in English language arts for graduation shall be given an opportunity to appeal such score in accordance with the provisions of this paragraph, provided that no such student may appeal his or her score on more than two of the five required Regents examinations and provided further that the student:
(1) has scored between 55 and 61 on the required Regents examination in English language arts under appeal;
(2) provides evidence that he or she has received academic intervention services by the school in English language arts;
(3) has an attendance rate of at least 95 percent for the school year during which the student last took the required Regents examination in English language arts;
(4) has attained a course average in English language arts that meets or exceeds the required passing grade by the school and is recorded on the student’s official transcript with grades achieved by the student in each quarter of the school year; and
(5) is recommended for an exemption to the passing score on the required Regents examination in English language arts by his or her teacher or department chairperson in English language arts.
[(c)] (ii) An appeal may be initiated by the student, the student's parent or guardian, or the student's teacher, and shall be submitted in a form prescribed by the commissioner to the student's school principal.
[(d)] (iii) The school principal shall chair a standing committee comprised of three teachers (not to include the student's teacher in the subject area of the Regents examination under appeal) and two school administrators (one of whom shall be the school principal). The standing committee shall review an appeal within 10 school days of its receipt and make a recommendation to the school superintendent or, in the City School District of the City of New York, to the chancellor of the city school district or his/her designee, to accept or deny the appeal. The standing committee may interview the teacher or department chairperson who recommended the appeal, and may also interview the student making the appeal to determine that he or she has demonstrated the knowledge and skills required under the State learning standards in the subject area in question.
[(e)] (iv) The school superintendent or, in the City School District of the City of New York, the chancellor of the city school district or his/her designee, shall make a final determination to accept or deny the appeal. The school superintendent or chancellor or chancellor's designee may interview the student making the appeal to determine that the student has demonstrated the knowledge and skills required under the State learning standards in the subject area in question.
[(f)] (v) Diplomas.
[(1)] (a) A student whose appeal is accepted for one required Regents examination pursuant to clause (a) of subparagraph (i) of this paragraph, and who has attained a passing score of 65 or above on each of the four remaining required Regents examinations (or satisfied the corresponding graduation requirement via an alternative assessment pursuant to section 100.2(f)(1) of this Part or a pathway assessment pursuant to section 100.5(a)(5)(i)(f) of this Part), shall earn a Regents diploma.
[(2)] (b) A student whose appeal is accepted for two required Regents examinations pursuant to clause (a) of subparagraph (i) of this paragraph, and who has attained a passing score of 65 or above on each of the three remaining required Regent examinations (or satisfied the corresponding graduation requirement via an alternative assessment pursuant to section 100.2(f)(1) of this Part or a pathway assessment pursuant to section 100.5(a)(5)(i)(f) of this Part), shall earn a local diploma.
[(3)] (c) A student whose appeal is accepted for the required Regents examination in English language arts pursuant to clause (b) of subparagraph (i) of this paragraph, and who has attained a passing score of 65 or above on each of the four remaining required Regents examinations (or satisfied the corresponding graduation requirement via an alternative assessment pursuant to section 100.2(f)(1) of this Part or a pathway assessment pursuant to section 100.5(a)(5)(i)(f) of this Part), shall earn a local diploma.
[(4)] (d) A student whose appeal is accepted for the required Regents examination in English language arts pursuant to clause (b) of subparagraph (i) of this paragraph and for one other required Regents examination pursuant to clause (a) of subparagraph (i) of this paragraph, and who has attained a passing score of 65 or above on each of the three remaining required Regents examinations (or satisfied the corresponding graduation requirement via an alternative assessment pursuant to section 100.2(f)(1) of this Part or a pathway assessment pursuant to section 100.5(a)(5)(i)(f) of this Part), shall earn a local diploma.
[(g)] (vi) Each school shall keep a record of all appeals received and granted and report this information to the State Education Department on a form prescribed by the commissioner. All school records relating to appeals of scores on required Regents examinations shall be made available for inspection by the State Education Department.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. EDU-08-15-00006-EP, Issue of February 25, 2015. The emergency rule will expire July 9, 2015.
Text of rule and any required statements and analyses may be obtained from:
Kirti Goswami, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, email: legal@nysed.gov
Regulatory Impact Statement
STATUTORY AUTHORITY:
Education Law section 101 continues the existence of the Education Department, with the Board of Regents at its head and the Commissioner of Education as the chief administrative officer, and charges the Department with the general management and supervision of public schools and the educational work of the State.
Education Law section 207 empowers the Regents and the Commissioner to adopt rules and regulations to carry out State laws regarding education and the functions and duties conferred on the State Education Department by law.
Education Law section 208 authorizes the Regents to establish examinations as to attainments in learning and to award and confer suitable certificates, diplomas and degrees on persons who satisfactorily meet the requirements prescribed.
Education Law section 209 authorizes the Regents to establish secondary school examinations in studies furnishing a suitable standard of graduation and of admission to colleges; to confer certificates or diplomas on students who satisfactorily pass such examinations; and requires the admission to these examinations of any person who shall conform to the rules and pay the fees prescribed by the Regents.
Education Law section 215 authorizes the Regents and the Commissioner to require school districts to prepare and submit reports containing such information as they may prescribe.
Education Law section 305 (1) and (2) provide that the Commissioner, as chief executive officer of the State system of education and of the Board of Regents, shall have general supervision over all schools and institutions subject to the provisions of the Education Law, or of any statute relating to education, and execute all educational policies determined by the Regents.
Education Law section 2117(1) empowers the Regents and the Commissioner to require school districts to submit any information they deem appropriate.
Education Law section 3204(2) and (2-a) provide for instructional programs for pupils with limited English proficiency (LEP) to be conducted in accordance with regulations of the Commissioner. Education Law section 3204(3) authorizes the Commissioner to establish standards for the instruction of LEP children, and section 3204(6) requires the Commissioner to establish standards by regulation.
LEGISLATIVE OBJECTIVES:
The proposed amendment is consistent with the above statutory authority and is necessary to implement Regents policy relating to criteria for bilingual education and English as a New Language programs for students who are English Language Learners, including determining graduation requirements, in order to ensure compliance with Education Law sections 3204 and 4403, and Title I and III of the Elementary and Secondary Education Act (ESEA), Title IV of the Civil Rights Act of 1964, Equal Educational Opportunities Act of 1974 (EEOA).
NEEDS AND BENEFITS:
Over the past 10 years, New York State English Language Learner (ELL) student enrollment has increased by 20%. According to the U.S. Department of Education, ELL student enrollment has increased by 18% nationally. Currently in New York State, over 230,000 ELLs make up 8.9% of the total student population. Their linguistic diversity makes up over 140 languages spoken in New York State; 61.5% for whom Spanish is the home language. In addition, 41.2% were born in another country.
Extensive discussion with stakeholders suggests that late arriving ELLs who are able to pass other required Regents examinations with a score of 65 and who obtain a score of at least 55 on the Regents examination in English can benefit from the opportunity to obtain postsecondary education or enter a career in the same manner as other students who may earn a diploma through the appeal process. Therefore, at their January 2015 meeting, the Board of Regents amended Commissioner’s Regulation section 100.5(d)(7) to adopt this pathway for ELLs to graduate with a Local Diploma pursuant to an appeal process if they score between 55-61 on the Regents Exam in English and meet all other conditions for appeal of a Regents score (State Register, January 28, 2015, EDU-44-14-00026-A).
At its January 2015 meeting, the Board of Regents also adopted amendments to Commissioner’s Regulations sections 100.2 and 100.5 to establish a 4+1 pathway to graduation for all students (State Register, January 28, 2015, EDU-44-14-00025-P). The 4+1 pathway option applies beginning with students who first enter grade nine in September 2011 and thereafter or who are otherwise eligible to receive a high school diploma in June 2015 and thereafter. The amendment creates graduation pathways assessments in the Humanities, STEM, Biliteracy (languages other than English [LOTE]), CTE and the Arts.
Public comment in response to the January 2015 amendments to section 100.5(d)(7) recommended making this option for graduation also available to ELLs who are in their 6th year of high school. These ELLs are currently excluded from this option because they entered high school prior to the 2010-11 school year. Public comment also highlighted the need to clarify that the appeal option under section 100.5(d)(7) is available to ELLs who satisfy graduation assessment requirements through the 4+1 pathway option in sections 100.2 and 100.5 or via another alternative pathway. After considering these policy concerns, the Department agrees that 6th year ELLs, as well as ELLs who satisfy graduation requirements via the 4+1 pathway options or via another alternative pathway, would benefit from the ability to utilize this graduation option.
COSTS:
(a) Costs to State government: none.
(b) Costs to local government: The proposed amendment will not impose any significant costs on local governments. An appeals process and criteria are already in place in section 100.5(d)(7) for students who score 65+ on three Regents exams and score 62-64 on two Regents exams, and the proposed amendment merely extends the ability to graduate with a Local Diploma via the appeal process to English Language Learners (ELLs) who meet all other conditions for appeal and are otherwise eligible to graduate in January 2015 and thereafter (i.e. the proposed amendment would include additional students who entered grade 9 prior to the 2010-11 school year but who are not currently covered under the existing regulation); and to clarify that this appeal process applies to ELLs who meet one or more graduation assessment requirements via an available alternative pathway and meet all other conditions for appeal.
Newly qualifying students would merely go through this existing appeals process, and the same personnel who review appeals under the current system would review the additional appeals. Any costs associated with the processing of these additional appeals are expected to be minimal and capable of being absorbed by using existing district staff and resources. In the long term, the proposed amendment is expected to be a cost saving measure in that it will boost the graduation rate, allowing more ELLs to access higher education or enter the workforce with a high school diploma. Both of these outcomes will in turn stimulate workforce productivity and economic performance in local communities.
(c) Costs to private regulated parties: none.
(d) Costs to regulating agency for implementation and continued administration of this rule: none.
LOCAL GOVERNMENT MANDATES:
The proposed amendment does not impose any additional program, service, duty or responsibility upon school districts. An appeals process and criteria are already in place for students who score 65+ on three Regents exams and score 62-64 on two Regents exams, and the proposed amendment merely extends the ability to graduate with a Local Diploma via the appeal process to English Language Learners (ELLs) who meet all other conditions for appeal and are otherwise eligible to graduate in January 2015 and thereafter (i.e. the proposed amendment would include additional students who entered grade 9 prior to the 2010-11 school year but who are not currently covered under the existing regulation); and to clarify that this appeal process applies to ELLs who meet one or more graduation assessment requirements via an available alternative pathway and meet all other conditions for appeal. Appeals by ELLs under the proposed amendment would be reviewed by the same committee that reviews all other appeals of Regents examination scores. ELL students would remain eligible for the current appeals process as well.
PAPERWORK:
The proposed amendment will not require any additional paperwork beyond what is necessary to process a limited number of additional appeals for a local diploma from qualifying late entry ELLs who score a 55-61 on the Regents examination in English after two tries who meet other conditions for appeal. Appeals by ELLs under the proposed amendment would be subject to the existing requirement in section 100.5(d)(7) that each school keep a record of all appeals received and granted and report this information to Department on a form prescribed by the Commissioner. All school records relating to appeals of scores shall be made available for inspection by the Department.
DUPLICATION:
The proposed amendment does not duplicate existing State or Federal requirements.
ALTERNATIVES:
There were no significant alternatives and none were considered.
FEDERAL STANDARDS:
The proposed amendment is necessary to ensure compliance with Education Law sections 3204 and 4403, Title I and III of the ESEA, Title IV of the Civil Rights Act of 1964, and the EEOA. These laws require states and school districts to provide ELL students with appropriate services to overcome language barriers. In addition, federal jurisprudence in landmark cases such as Castañeda v. Pickard established standards to ensure compliance with EEOA. For example, the Castañeda standard mandates that programs for language-minority students must be (1) based on a sound educational theory, (2) implemented effectively with sufficient resources and personnel, and (3) evaluated to determine whether they are effective in helping students overcome language barriers.
COMPLIANCE SCHEDULE:
It is anticipated that school districts and BOCES will be able to achieve compliance with the proposed amendment by its effective date. An appeals process and criteria are already in place for students who score 65+ on three Regents exams and score 62-64 on two Regents exams, and the proposed amendment merely extends the ability to graduate with a Local Diploma via the appeal process to English Language Learners (ELLs) who meet all other conditions for appeal and are otherwise eligible to graduate in January 2015 and thereafter (i.e. the proposed amendment would include additional students who entered grade 9 prior to the 2010-11 school year but who are not currently covered under the existing regulation); and to clarify that this appeal process applies to ELLs who meet one or more graduation assessment requirements via an available alternative pathway and meet all other conditions for appeal. Newly qualifying students would merely go through this existing appeals process, and the same personnel who review appeals under the current system would review the additional appeals.
Regulatory Flexibility Analysis
Small Businesses:
The proposed amendment relates to State learning standards, State assessments and graduation and diploma requirements, and is necessary to implement policy adopted by the Regents relating to criteria for bilingual education and English as a New Language programs for students who are English Language Learners, including determining graduation requirements, in order to ensure compliance with Education Law sections 3204 and 4403, and Title I and III of the Elementary and Secondary Education Act (ESEA), Title IV of the Civil Rights Act of 1964, Equal Educational Opportunities Act of 1974 (EEOA). The proposed amendment does not impose any adverse economic impact, reporting, record keeping or other compliance requirements on small businesses. Because it is evident from the nature of the proposed amendment that it does not affect small businesses, no further steps 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:
1. EFFECT OF RULE:
The proposed amendment applies to each of the 689 public school districts and 37 boards of cooperative educational services (BOCES) in the State.
2. COMPLIANCE REQUIREMENTS:
The proposed amendment does not impose any additional compliance requirements on local governments. An appeals process and criteria are already in place for students who score 65+ on three Regents exams and score 62-64 on two Regents exams, and the proposed amendment merely extends the ability to graduate with a Local Diploma via the appeal process to English Language Learners (ELLs) who meet all other conditions for appeal and are otherwise eligible to graduate in January 2015 and thereafter (i.e. the proposed amendment would include additional students who entered grade 9 prior to the 2010-11 school year but who are not currently covered under the existing regulation); and to clarify that this appeal process applies to ELLs who meet one or more graduation assessment requirements via an available alternative pathway and meet all other conditions for appeal. Appeals by ELLs under the proposed amendment would be reviewed by the same committee that reviews all other appeals of Regents examination scores. ELL students would remain eligible for the current appeals process as well.
The proposed amendment will not require any additional paperwork beyond what is necessary to process a limited number of additional appeals for a local diploma from qualifying late entry ELLs who score a 55-61 on the Regents examination in English after two tries who meet other conditions for appeal. Appeals by ELLs under the proposed amendment would be subject to the existing requirement in section 100.5(d)(7) that each school keep a record of all appeals received and granted and report this information to Department on a form prescribed by the Commissioner. All school records relating to appeals of scores shall be made available for inspection by the Department.
3. PROFESSIONAL SERVICES:
The proposed amendment does not impose any additional professional service requirements on local governments.
4. COMPLIANCE COSTS:
The proposed amendment will not impose any significant costs on school districts or BOCES. An appeals process and criteria are already in place in section 100.5(d)(7) for students who score 65+ on three Regents exams and score 62-64 on two Regents exams, and the proposed amendment merely extends the ability to graduate with a Local Diploma via the appeal process to English Language Learners (ELLs) who meet all other conditions for appeal and are otherwise eligible to graduate in January 2015 and thereafter (i.e. the proposed amendment would include additional students who entered grade 9 prior to the 2010-11 school year but who are not currently covered under the existing regulation); and to clarify that this appeal process applies to ELLs who meet one or more graduation assessment requirements via an available alternative pathway and meet all other conditions for appeal.
Newly qualifying students would merely go through this existing appeals process, and the same personnel who review appeals under the current system would review the additional appeals. Any costs associated with the processing of these additional appeals are expected to be minimal and capable of being absorbed by using existing district staff and resources. In the long term, the proposed amendment is expected to be a cost saving measure in that it will boost the graduation rate, allowing more ELLs to access higher education or enter the workforce with a high school diploma. Both of these outcomes will in turn stimulate workforce productivity and economic performance in local communities.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILTY:
The proposed amendment does not impose any additional technological requirements on school districts. Economic feasibility is addressed above under compliance costs.
6. MINIMIZE ADVERSE IMPACT:
The proposed amendment implements policy adopted by the Board of Regents relating to ELL equal access to education, in order to ensure compliance with Education Law sections 3204 and 4403, and Title I and III of the Elementary and Secondary Education Act, Title IV of the Civil Rights Act of 1964, Equal Educational Opportunities Act of 1974 (EEOA).
The proposed amendment does not impose any additional compliance requirements or significant costs upon school districts. An appeals process and criteria are already in place in section 100.5(d)(7) for students who score 65+ on three Regents exams and score 62-64 on two Regents exams, and the proposed amendment merely extends the ability to graduate with a Local Diploma via the appeal process to English Language Learners (ELLs) who meet all other conditions for appeal and are otherwise eligible to graduate in January 2015 and thereafter (i.e. the proposed amendment would include additional students who entered grade 9 prior to the 2010-11 school year but who are not currently covered under the existing regulation); and to clarify that this appeal process applies to ELLs who meet one or more graduation assessment requirements via an available alternative pathway and meet all other conditions for appeal.
Newly qualifying students would merely go through this existing appeals process, and the same personnel who review appeals under the current system would review the additional appeals. Any costs associated with the processing of these additional appeals are expected to be minimal and capable of being absorbed by using existing district staff and resources. In the long term, the proposed amendment is expected to be a cost saving measure in that it will boost the graduation rate, allowing more ELLs to access higher education or enter the workforce with a high school diploma. Both of these outcomes will in turn stimulate workforce productivity and economic performance in local communities.
Federal civil rights and education laws, as well as federal court jurisprudence, require that ELL students must be provided with equal access to all school programs and services offered to non-ELL students. Education Law section 3204 and Part 154 of the Regulations of the Commissioner (CR Part 154) contain standards for educational services provided to ELLs in New York State in order to meet these federal obligations.
Over the past 10 years, New York State ELL student enrollment has increased by 20%. Currently in New York State, over 230,000 ELLs make up 8.9%% of the total student population. While former ELLs generally achieve graduation rates equal to or above that of all non-ELLs, the graduation rate of current ELLs lagged well below that of non-ELLs. In June 2013, only 31.4% of ELLs graduated, compared to 74.9% of all students. Many of these ELLs were students who entered school in the United States for the first time on or after grade nine.
Extensive discussion with stakeholders suggests that late arriving ELLs who are able to pass other required Regents examinations with a score of 65 and who obtain a score of at least 55 on the Regents examination in English can benefit from the opportunity to obtain postsecondary education or enter a career in the same manner as other students who may earn a diploma through the appeal process. Therefore, at their January 2015 meeting, the Board of Regents amended Commissioner’s Regulation section 100.5(d)(7) to adopt this pathway for ELLs to graduate with a Local Diploma pursuant to an appeal process if they score between 55-61 on the Regents Exam in English and meet all other conditions for appeal of a Regents score (State Register, January 28, 2015, EDU-44-14-00026-A).
At its January 2015 meeting, the Board of Regents also adopted amendments to Commissioner’s Regulations sections 100.2 and 100.5 to establish a 4+1 pathway to graduation for all students (State Register, January 28, 2015, EDU-44-14-00025-P). The 4+1 pathway option applies beginning with students who first enter grade nine in September 2011 and thereafter or who are otherwise eligible to receive a high school diploma in June 2015 and thereafter. The amendment creates graduation pathways assessments in the Humanities, STEM, Biliteracy (languages other than English [LOTE]), CTE and the Arts.
Public comment in response to the January 2015 amendments to section 100.5(d)(7) recommended making this option for graduation also available to ELLs who are in their 6th year of high school. These ELLs are currently excluded from this option because they entered high school prior to the 2010-11 school year. Public comment also highlighted the need to clarify that the appeal option under section 100.5(d)(7) is available to ELLs who satisfy graduation assessment requirements through the 4+1 pathway option in sections 100.2 and 100.5 or via another available alternative pathway. After considering these policy concerns, the Department agrees that 6th year ELLs, as well as ELLs who satisfy graduation requirements via the 4+1 pathway options or via another available alternative pathway, would benefit from the ability to utilize this graduation option. The proposed amendment will expand access to the Local Diploma to this precise group of ELLs who are in a position to benefit from the opportunity to obtain postsecondary education or enter a career with a high school diploma. Because ELLs by definition are not yet fluent in English, this alternate pathway to graduation facilitates equal access to the Local Diploma. The proposed amendment minimizes the adverse impact of denying ELLs who satisfy all other conditions for appeal the ability to attain a high school diploma on account of their lack of fluency in English.
7. LOCAL GOVERNMENT PARTICIPATION:
Copies of the proposed amendment have been provided to District Superintendents with the request that they distribute them to school districts within their supervisory districts for review and comment. Copies were also provided for review and comment to the chief school officers of the five big city school districts.
8. INITIAL REVIEW OF RULE (SAPA § 207):
Pursuant to State Administrative Procedure Act section 207(1)(b), the State Education Department proposes that the initial review of this rule shall occur in the fifth calendar year after the year in which the rule is adopted, instead of in the third calendar year. The justification for a five year review period is that the proposed amendment is necessary to implement long-range Regents policy relating to improving graduation outcomes for students who are English Language Learners. Accordingly, there is no need for a shorter review period.
The Department invites public comment on the proposed five year review period for this rule. Comments should be sent to the agency contact listed in item 10. of the Notice of Proposed Rule Making published herewith, and must be received within 45 days of the State Register publication date of the Notice.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:
The proposed amendment applies to all school districts and boards of cooperative educational services (BOCES) in 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.
2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
The proposed amendment does not impose any additional reporting, recordkeeping or other compliance requirements on school districts and BOCES located in rural areas. An appeals process and criteria are already in place for students who score 65+ on three Regents exams and score 62-64 on two Regents exams, and the proposed amendment merely extends the ability to graduate with a Local Diploma via the appeal process to English Language Learners (ELLs) who meet all other conditions for appeal and are otherwise eligible to graduate in January 2015 and thereafter (i.e. the proposed amendment would include additional students who entered grade 9 prior to the 2010-11 school year but who are not currently covered under the existing regulation); and to clarify that this appeal process applies to ELLs who meet one or more graduation assessment requirements via an available alternative pathway and meet all other conditions for appeal. Appeals by ELLs under the proposed amendment would be reviewed by the same committee that reviews all other appeals of Regents examination scores. ELL students would remain eligible for the current appeals process as well.
The proposed amendment will not require any additional paperwork beyond what is necessary to process a limited number of additional appeals for a local diploma from qualifying late entry ELLs who score a 55-61 on the Regents examination in English after two tries who meet other conditions for appeal. Appeals by ELLs under the proposed amendment would be subject to the existing requirement in section 100.5(d)(7) that each school keep a record of all appeals received and granted and report this information to Department on a form prescribed by the Commissioner. All school records relating to appeals of scores shall be made available for inspection by the Department.
3. COMPLIANCE COSTS:
The proposed amendment will not impose any significant costs on school districts or BOCES located in rural areas. An appeals process and criteria are already in place in section 100.5(d)(7) for students who score 65+ on three Regents exams and score 62-64 on two Regents exams, and the proposed amendment merely extends the ability to graduate with a Local Diploma via the appeal process to English Language Learners (ELLs) who meet all other conditions for appeal and are otherwise eligible to graduate in January 2015 and thereafter (i.e. the proposed amendment would include additional students who entered grade 9 prior to the 2010-11 school year but who are not currently covered under the existing regulation); and to clarify that this appeal process applies to ELLs who meet one or more graduation assessment requirements via an available alternative pathway and meet all other conditions for appeal.
Newly qualifying students would merely go through this existing appeals process, and the same personnel who review appeals under the current system would review the additional appeals. Any costs associated with the processing of these additional appeals are expected to be minimal and capable of being absorbed by using existing district staff and resources. In the long term, the proposed amendment is expected to be a cost saving measure in that it will boost the graduation rate, allowing more ELLs to access higher education or enter the workforce with a high school diploma. Both of these outcomes will in turn stimulate workforce productivity and economic performance in local communities.
4. MINIMIZING ADVERSE IMPACT:
The proposed amendment implements policy adopted by the Board of Regents relating to ELL equal access to education, in order to ensure compliance with Education Law sections 3204 and 4403, and Title I and III of the Elementary and Secondary Education Act, Title IV of the Civil Rights Act of 1964, Equal Educational Opportunities Act of 1974 (EEOA).
The proposed amendment does not impose any additional compliance requirements or significant costs upon school districts or BOCES located in rural areas. An appeals process and criteria are already in place in section 100.5(d)(7) for students who score 65+ on three Regents exams and score 62-64 on two Regents exams, and the proposed amendment merely extends the ability to graduate with a Local Diploma via the appeal process to English Language Learners (ELLs) who meet all other conditions for appeal and are otherwise eligible to graduate in January 2015 and thereafter (i.e. the proposed amendment would include additional students who entered grade 9 prior to the 2010-11 school year but who are not currently covered under the existing regulation); and to clarify that this appeal process applies to ELLs who meet one or more graduation assessment requirements via an available alternative pathway and meet all other conditions for appeal.
Newly qualifying students would merely go through this existing appeals process, and the same personnel who review appeals under the current system would review the additional appeals. Any costs associated with the processing of these additional appeals are expected to be minimal and capable of being absorbed by using existing district staff and resources. In the long term, the proposed amendment is expected to be a cost saving measure in that it will boost the graduation rate, allowing more ELLs to access higher education or enter the workforce with a high school diploma. Both of these outcomes will in turn stimulate workforce productivity and economic performance in local communities.
Federal civil rights and education laws, as well as federal court jurisprudence, require that ELL students must be provided with equal access to all school programs and services offered to non-ELL students. Education Law section 3204 and Part 154 of the Regulations of the Commissioner (CR Part 154) contain standards for educational services provided to ELLs in New York State in order to meet these federal obligations.
Over the past 10 years, New York State ELL student enrollment has increased by 20%. Currently in New York State, over 230,000 ELLs make up 8.9%% of the total student population. While former ELLs generally achieve graduation rates equal to or above that of all non-ELLs, the graduation rate of current ELLs lagged well below that of non-ELLs. In June 2013, only 31.4% of ELLs graduated, compared to 74.9% of all students. Many of these ELLs were students who entered school in the United States for the first time on or after grade nine.
Extensive discussion with stakeholders suggests that late arriving ELLs who are able to pass other required Regents examinations with a score of 65 and who obtain a score of at least 55 on the Regents examination in English can benefit from the opportunity to obtain postsecondary education or enter a career in the same manner as other students who may earn a diploma through the appeal process. Therefore, at their January 2015 meeting, the Board of Regents amended Commissioner’s Regulation section 100.5(d)(7) to adopt this pathway for ELLs to graduate with a Local Diploma pursuant to an appeal process if they score between 55-61 on the Regents Exam in English and meet all other conditions for appeal of a Regents score (State Register, January 28, 2015, EDU-44-14-00026-A).
At its January 2015 meeting, the Board of Regents also adopted amendments to Commissioner’s Regulations sections 100.2 and 100.5 to establish a 4+1 pathway to graduation for all students (State Register, January 28, 2015, EDU-44-14-00025-P). The 4+1 pathway option applies beginning with students who first enter grade nine in September 2011 and thereafter or who are otherwise eligible to receive a high school diploma in June 2015 and thereafter. The amendment creates graduation pathways assessments in the Humanities, STEM, Biliteracy (languages other than English [LOTE]), CTE and the Arts.
Public comment in response to the January 2015 amendments to section 100.5(d)(7) recommended making this option for graduation also available to ELLs who are in their 6th year of high school. These ELLs are currently excluded from this option because they entered high school prior to the 2010-11 school year. Public comment also highlighted the need to clarify that the appeal option under section 100.5(d)(7) is available to ELLs who satisfy graduation assessment requirements through the 4+1 pathway option in sections 100.2 and 100.5 and via other approved alternative assessments. After considering these policy concerns, the Department agrees that 6th year ELLs, as well as ELLs who satisfy graduation requirements via the 4+1 pathway options and via other approved alternative assessments, would benefit from the ability to utilize this graduation option.
The proposed amendment relates to State learning standards, State assessments and graduation and diploma requirements, and is necessary to implement policy adopted by the Regents relating to criteria for bilingual education and English as a New Language programs for students who are English Language Learners, including determining graduation requirements, in order to ensure compliance with Education Law sections 3204 and 4403, and Title I and III of the Elementary and Secondary Education Act (ESEA), Title IV of the Civil Rights Act of 1964, Equal Educational Opportunities Act of 1974 (EEOA). Because this policy is applicable throughout the State, it was not possible to provide for a lesser standard or an exemption for school districts and BOCES in rural areas.
5. RURAL AREA PARTICIPATION:
Comments on the proposed rule were solicited from the Department's Rural Advisory Committee, whose membership includes school districts located in rural areas.
6. INITIAL REVIEW OF RULE (SAPA § 207):
Pursuant to State Administrative Procedure Act section 207(1)(b), the State Education Department proposes that the initial review of this rule shall occur in the fifth calendar year after the year in which the rule is adopted, instead of in the third calendar year. The justification for a five year review period is that the proposed amendment is necessary to implement long-range Regents policy relating to improving graduation outcomes for students who are English Language Learners. Accordingly, there is no need for a shorter review period.
The Department invites public comment on the proposed five year review period for this rule. Comments should be sent to the agency contact listed in item 10. of the Notice of Proposed Rule Making published herewith, and must be received within 45 days of the State Register publication date of the Notice.
Job Impact Statement
The proposed amendment relates to an additional graduation pathway for qualifying students who are English Language Learners (ELLs), to allow such students to graduate with a Local Diploma via an appeals process.
The proposed amendment relates to State learning standards, State assessments and graduation and diploma requirements, and is necessary to implement policy adopted by the Regents relating to criteria for bilingual education and English as a New Language programs for students who are English Language Learners, including determining graduation requirements, in order to ensure compliance with Education Law sections 3204 and 4403, and Title I and III of the Elementary and Secondary Education Act (ESEA), Title IV of the Civil Rights Act of 1964, Equal Educational Opportunities Act of 1974 (EEOA). The proposed amendment will not have a substantial adverse impact on jobs or employment opportunities. Because it is evident from the nature of the proposed amendment that it will have no impact, or a positive impact, on jobs or employment opportunities, no further steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.
