§ 211-F — Takeover and restructuring failing schools

§ 211-f. Takeover and restructuring failing schools. 1. Eligibility\nfor appointment of an external receiver. (a) Failing schools. The\ncommissioner shall designate as failing each of the schools that has\nbeen identified under the state's accountability system to be among the\nlowest achieving five percent of public schools in the state (priority\nschools) for at least three consecutive school years, or identified as a\n"priority school" in each applicable year of such period except one\nschool year in which the school was not identified because of an\napproved closure plan that was not implemented, based upon measures of\nstudent achievement and outcomes and a methodology prescribed in the\nregulations of the commissioner, provided that this list shall not\ninclude schools within a special act school district as defined in\nsubdivision eight of section four thousand one of this chapter or\nschools chartered pursuant to article fifty-six of this chapter. Except\nas otherwise provided in paragraph (c) of this subdivision, and pursuant\nto regulations promulgated by the commissioner, a school designated as\nfailing under this paragraph shall be eligible for receivership under\nthis section upon a determination by the commissioner.\n (b) Persistently failing schools. Based upon measures of student\nachievement and outcomes and a methodology prescribed in the regulations\nof the commissioner, the commissioner shall designate as persistently\nfailing each of the schools that have been identified under the state's\naccountability system to be among the lowest achieving public schools in\nthe state for ten consecutive school years, based upon identification of\nthe school by the commissioner as: a "priority school" for each\napplicable year from the two thousand twelve--two thousand thirteen\nschool year to the current school year, or identified as a "priority\nschool" in each applicable year of such period except one year in which\nthe school was not identified because of an approved closure plan that\nwas not implemented; and as a "School Requiring Academic Progress Year\n5", "School Requiring Academic Progress Year 6", "School Requiring\nAcademic Progress Year 7" and/or a "School in Restructuring," for each\napplicable year from the two thousand six--two thousand seven school\nyear to the two thousand eleven--two thousand twelve school year. This\ndesignation shall not include schools within a special act school\ndistrict as defined in subdivision eight of section four thousand one of\nthis chapter or schools chartered pursuant to article fifty-six of this\nchapter.\n (c) Specific provisions. (i) For schools designated as persistently\nfailing pursuant to paragraph (b) of this subdivision, the local\ndistrict shall continue to operate the school for an additional school\nyear provided that there is a department-approved intervention model or\ncomprehensive education plan in place that includes rigorous performance\nmetrics and goals, including but not limited to measures of student\nacademic achievement and outcomes including those set forth in\nsubdivision six of this section. Notwithstanding any other provision of\nlaw, rule or regulation to the contrary, the superintendent shall be\nvested with all powers granted to a receiver appointed pursuant to this\nsection for such time period; provided, however that such superintendent\nshall not be allowed to override any decision of the board of education\nwith respect to his or her employment status. At the end of such year,\nthe department shall conduct a performance review in consultation and\ncooperation with the district and school staff to determine, based on\nthe performance metrics in the school's model or plan, whether (1) the\ndesignation of persistently failing should be removed; (2) the school\nshould remain under continued school district operation with the\nsuperintendent vested with the powers of a receiver; or (3) the school\nshould be placed into receivership; provided, however, that a school\nthat makes demonstrable improvement based on the performance metrics and\ngoals herein shall remain under district operation for an additional\nschool year and if such school remains under district operation, it\nshall continue to be subject to annual review by the department, in\nconsultation and cooperation with the district, under the same terms and\nconditions.\n (ii) For schools designated as failing, but not persistently failing,\nthe local district shall continue to operate the school for two\nadditional school years provided that there is a department-approved\nintervention model or comprehensive education plan in place that\nincludes rigorous performance metrics and goals, including but not\nlimited to measures of student academic achievement and outcomes\nincluding those set forth in subdivision six of this section.\nNotwithstanding any other provision of law, rule or regulation to the\ncontrary, the superintendent shall be vested with all powers granted to\na receiver appointed pursuant to this section; provided, however that\nsuch superintendent shall not be allowed to override any decision of the\nboard of education with respect to his or her employment status. At the\nend of such two years, the department shall conduct a school performance\nreview in consultation and cooperation with the district and school\nstaff to determine, based on the performance metrics in the school's\nmodel or plan, whether (1) the designation of failing should be removed;\n(2) the school should remain under continued school district operation\nwith the superintendent vested with the powers of a receiver; or (3) the\nschool should be placed into receivership; provided, however, that a\nschool that makes demonstrable improvement based on the performance\nmetrics and goals herein shall remain under district operation for an\nadditional school year and if such school remains under district\noperation, it shall continue to be subject to such annual review by the\ndepartment under the same terms and conditions. For schools newly\ndesignated as failing after the two thousand sixteen--two thousand\nseventeen school year, the school shall be immediately eligible for\nreceivership upon such designation.\n (iii) Nothing in this paragraph shall be construed to limit (1) a\nschool district's ability to modify, subject to approval by the\ndepartment, such department approved intervention model or comprehensive\neducation plan, or (2) the commissioner's ability to require a school\ndistrict to modify such department approved intervention model or\ncomprehensive education plan and require his or her approval of such\nmodifications.\n (iv) The district shall provide notice to parents and guardians of the\nstudents of the school which may be placed into receivership pursuant to\nthis subdivision and provided further that the district or the\ncommissioner shall hold a public meeting or hearing for purposes of\ndiscussing the performance of the school and the construct of\nreceivership.\n 1-a. Community engagement team. Upon designation as failing or\npersistently failing pursuant to subdivision one of this section, the\ndistrict shall establish a community engagement team which shall include\ncommunity stakeholders, including but not limited to the school\nprincipal, parents and guardians, teachers and other school staff and\nstudents. Membership of such team may be modified at any time. Such team\nshall develop recommendations for improvement of the school and shall\nsolicit input through public engagement. The team shall present its\nrecommendations periodically to the school leadership and, as\napplicable, the receiver.\n 2. Appointment of a receiver. (a) Upon a determination by the\ncommissioner that a school shall be placed into receivership, the\napplicable school district shall appoint an independent receiver,\nsubject to the approval of the commissioner, to manage and operate all\naspects of the school and to develop and implement a school intervention\nplan for the school that shall consider the recommendations developed by\nthe community engagement team when creating such plan. The independent\nreceiver may be a non-profit entity, another school district, or an\nindividual. If the school district fails to appoint an independent\nreceiver that meets with the commissioner's approval within sixty days\nof such determination, the commissioner shall appoint the receiver.\n (b) The receiver shall be authorized to manage and operate the failing\nor persistently failing school and shall have the power to supersede any\ndecision, policy or regulation of the superintendent of schools or chief\nschool officer, or of the board of education or another school officer\nor the building principal that in the sole judgment of the receiver\nconflicts with the school intervention plan; provided however that the\nreceiver may not supersede decisions that are not directly linked to the\nschool intervention plan, including but not limited to building usage\nplans, co-location decisions and transportation of students. The\nreceiver shall have authority to review proposed school district budgets\nprior to presentation to the district voters, or in the case of a city\nschool district in a city having a population of one hundred twenty-five\nthousand or more, of the adoption of a contingency budget, prior to\napproval by the board of education, and to modify the proposed budget to\nconform to the school intervention plan provided that such modifications\nshall be limited in scope and effect to the failing or persistently\nfailing school and may not unduly impact other schools in the district.\nA school under receivership shall operate in accordance with laws\nregulating other public schools, except as such provisions may conflict\nwith this section.\n (c) The commissioner shall contract with the receiver, and the\ncompensation and other costs of the receiver appointed by the\ncommissioner shall be paid from a state appropriation for such purpose,\nor by the school district, as determined by the commissioner, provided\nthat costs shall be paid by the school district only if there is an open\nadministrative staffing line available for the receiver, and the\nreceiver will be taking on the responsibilities of such open line.\nNotwithstanding any other provision of law to the contrary, the receiver\nand any of its employees providing services in the receivership shall be\nentitled to defense and indemnification by the school district to the\nsame extent as a school district employee. The receiver's contract may\nbe terminated by the commissioner for a violation of law or the\ncommissioner's regulations or for neglect of duty. A receiver appointed\nto operate a district under this section shall have full managerial and\noperational control over such school; provided, however, that the board\nof education shall remain the employer of record, and provided further\nthat any employment decisions of the board of education may be\nsuperseded by the receiver. It shall be the duty of the board of\neducation and the superintendent of schools to fully cooperate with the\nreceiver and willful failure to cooperate or interference with the\nfunctions of the receiver shall constitute willful neglect of duty for\npurposes of section three hundred six of this title. The receiver or the\nreceiver's designee shall be an ex officio non-voting member of the\nboard of education entitled to attend all meetings of the board of\neducation.\n 3. Before developing the school intervention plan, the receiver shall\nconsult with local stakeholders such as: (a) the board of education; (b)\nthe superintendent of schools; (c) the building principal; (d) teachers\nassigned to the school and their collective bargaining representative;\n(e) school administrators assigned to the school and their collective\nbargaining representative; (f) parents and guardians of students\nattending the school or their representatives; (g) representatives of\napplicable state and local social service, health and mental health\nagencies; (h) as appropriate, representatives of local career education\nproviders, state and local workforce development agencies and the local\nbusiness community; (i) for elementary schools, representatives of local\nprekindergarten programs; (j) students attending the school as\nappropriate; (k) as needed for middle schools, junior high schools,\ncentral schools or high schools, representatives of local higher\neducation institutions; and (l) the school stakeholder team set forth in\nsubdivision one-a of this section.\n 4. In creating the school intervention plan, the receiver shall (i)\nconsider the recommendations developed by the community engagement team\nset forth in subdivision one-a of this section; (ii) include provisions\nintended to maximize the rapid academic achievement of students at the\nschool; and (iii) ensure that the plan addresses school leadership and\ncapacity, school leader practices and decisions, curriculum development\nand support, teacher practices and decisions, student social and\nemotional developmental health, and family and community engagement. The\nreceiver shall, to the extent practicable, base the plan on the findings\nof any recent diagnostic review or assessment of the school that has\nbeen conducted and, as applied to the school, student outcome data\nincluding, but not limited to: (a) student achievement growth data based\non state measures; (b) other measures of student achievement; (c)\nstudent promotion and graduation rates; (d) achievement and growth data\nfor the subgroups of students used in the state's accountability system;\n(e) student attendance; and (f) long-term and short-term suspension\nrates.\n 5. (a) The receiver shall include the following in the school\nintervention plan: (i) measures to address social service, health and\nmental health needs of students in the school and their families in\norder to help students arrive and remain at school ready to learn;\nprovided that this may include mental health and substance abuse\nscreening; (ii) measures to improve or expand access to child welfare\nservices and, as appropriate, services in the school community to\npromote a safe and secure learning environment; (iii) as applicable,\nmeasures to provide greater access to career and technical education and\nworkforce development services provided to students in the school and\ntheir families in order to provide students and families with meaningful\nemployment skills and opportunities; (iv) measures to address\nachievement gaps for English language learners, students with\ndisabilities and economically disadvantaged students, as applicable; (v)\nmeasures to address school climate and positive behavior support,\nincluding mentoring and other youth development programs; and (vi) a\nbudget for the school intervention plan.\n (b) As necessary, the commissioner and the commissioners of the\ndepartment of health, the office of children and family services, the\ndepartment of labor and other applicable state and local social service,\nhealth, mental health and child welfare officials shall coordinate\nregarding the implementation of the measures described in subparagraphs\n(i) through (iii) of paragraph (a) of this subdivision that are included\nin the school intervention plan and shall, subject to appropriation,\nreasonably support such implementation consistent with the requirements\nof state and federal law applicable to the relevant programs that each\nsuch official is responsible for administering, and grant failing\nschools priority in competitive grants, as allowable before and during\nthe period of receivership.\n 6. In order to assess the school across multiple measures of school\nperformance and student success, the school intervention plan shall\ninclude measurable annual goals including, but not limited to, the\nfollowing: (a) student attendance; (b) student discipline including but\nnot limited to short-term and long-term suspension rates; (c) student\nsafety; (d) student promotion and graduation and drop-out rates; (e)\nstudent achievement and growth on state measures; (f) progress in areas\nof academic underperformance; (g) progress among the subgroups of\nstudents used in the state's accountability system; (h) reduction of\nachievement gaps among specific groups of students; (i) development of\ncollege and career readiness, including at the elementary and middle\nschool levels; (j) parent and family engagement; (k) building a culture\nof academic success among students; (l) building a culture of student\nsupport and success among faculty and staff; (m) using developmentally\nappropriate child assessments from pre-kindergarten through third grade,\nif applicable, that are tailored to the needs of the school; and (n)\nmeasures of student learning.\n 7. (a) Notwithstanding any general or special law to the contrary, in\ncreating and implementing the school intervention plan, the receiver\nshall, after consulting with stakeholders and the community engagement\nteam, convert schools to community schools to provide expanded health,\nmental health and other services to the students and their families.\nIn addition, the receiver may: (i) review and if necessary expand, alter\nor replace the curriculum and program offerings of the school, including\nthe implementation of research-based early literacy programs, early\ninterventions for struggling readers and the teaching of advanced\nplacement courses or other rigorous nationally or internationally\nrecognized courses, if the school does not already have such programs or\ncourses; (ii) replace teachers and administrators, including school\nleadership who are not appropriately certified or licensed; (iii)\nincrease salaries of current or prospective teachers and administrators\nto attract and retain high-performing teachers and administrators; (iv)\nestablish steps to improve hiring, induction, teacher evaluation,\nprofessional development, teacher advancement, school culture and\norganizational structure; (v) reallocate the uses of the existing budget\nof the school; (vi) expand the school day or school year or both of the\nschool; (vii) for a school that offers the first grade, add\npre-kindergarten and full-day kindergarten classes, if the school does\nnot already have such classes; (viii) in accordance with paragraphs (b)\nand (c) of this subdivision, to abolish the positions of all members of\nthe teaching and administrative and supervisory staff assigned to the\nfailing or persistently failing school and terminate the employment of\nany building principal assigned to such a school, and require such staff\nmembers to reapply for their positions in the school if they so choose;\n(ix) include a provision of a job-embedded professional development for\nteachers at the school, with an emphasis on strategies that involve\nteacher input and feedback; (x) establish a plan for professional\ndevelopment for administrators at the school, with an emphasis on\nstrategies that develop leadership skills and use the principles of\ndistributive leadership; and/or (xi) order the conversion of a school in\nreceivership that has been designated as failing or persistently failing\npursuant to this section into a charter school, provided that such\nconversion shall be subject to article fifty-six of this chapter and\nprovided further that such charter conversion school shall operate\npursuant to such article and provided further that such charter\nconversion school shall operate consistent with a community schools\nmodel and provided further that such conversion charter school shall be\nsubject to the provisions in subdivisions three, four, five, six, nine,\nten, eleven, twelve and thirteen of this section.\n (b) Notwithstanding any other provision of law, rule or regulation to\nthe contrary, upon designation of any school of the school district as a\nfailing or persistently failing school pursuant to this section, the\nabolition of positions of members of the teaching and administrative and\nsupervisory staff of the school shall thereafter be governed by the\napplicable provisions of section twenty-five hundred ten, twenty-five\nhundred eighty-five, twenty-five hundred eighty-eight or three thousand\nthirteen of this chapter as modified by this paragraph. A classroom\nteacher or building principal who has received two or more composite\nratings of ineffective on an annual professional performance review\nshall be deemed not to have rendered faithful and competent service\nwithin the meaning of section twenty-five hundred ten, twenty-five\nhundred eighty-five, twenty-five hundred eighty-eight or three thousand\nthirteen of this chapter. When a position of a classroom teacher or\nbuilding principal is abolished, the services of the teacher or\nadministrator or supervisor within the tenure area of the position with\nthe lowest rating on the most recent annual professional performance\nreview shall be discontinued, provided that seniority within the tenure\narea of the position shall be used solely to determine which position\nshould be discontinued in the event of a tie.\n (c) The receiver may abolish the positions of all teachers and\npedagogical support staff, administrators and pupil personnel service\nproviders assigned to a school designated as failing or persistently\nfailing pursuant to this section and require such staff members to\nreapply for new positions if they so choose. The receiver shall define\nnew positions for the school aligned with the school intervention plan,\nincluding selection criteria and expected duties and responsibilities\nfor each position. For administrators and pupil personnel service\nproviders, the receiver shall have full discretion over all such\nrehiring decisions. For teachers and pedagogical support staff, the\nreceiver shall convene a staffing committee including the receiver, two\nappointees of the receiver and two appointees selected by the school\nstaff or their collective bargaining unit. The staffing committee will\ndetermine whether former school staff reapplying for positions are\nqualified for the new positions. The receiver shall have full discretion\nregarding hiring decisions but must fill at least fifty percent of the\nnewly defined positions with the most senior former school staff who are\ndetermined by the staffing committee to be qualified. Any remaining\nvacancies shall be filled by the receiver in consultation with the\nstaffing committee. Notwithstanding any other provision of law to the\ncontrary, a member of the teaching and pedagogical support,\nadministrative, or pupil personnel service staff who is not rehired\npursuant to this paragraph shall not have any right to bump or displace\nany other person employed by the district, but shall be placed on a\npreferred eligibility list in accordance with the applicable provisions\nof section twenty-five hundred ten, twenty-five hundred eighty-five,\ntwenty-five hundred eighty-eight or three thousand thirteen of this\nchapter. Teachers rehired pursuant to this paragraph shall maintain\ntheir prior status as tenured or probationary, and a probationary\nteacher's probation period shall not be changed.\n (d) For a school with English language learners, the professional\ndevelopment and planning time for teachers and administrators identified\nin clauses (vi) and (vii) of the closing paragraph of paragraph (a) of\nthis subdivision, shall include specific strategies and content designed\nto maximize the rapid academic achievement of the English language\nlearners.\n 8. (a) In order to maximize the rapid achievement of students at the\napplicable school, the receiver may request that the collective\nbargaining unit or units representing teachers and administrators and\nthe receiver, on behalf of the board of education, negotiate a\nreceivership agreement that modifies the applicable collective\nbargaining agreement or agreements with respect to any failing schools\nin receivership applicable during the period of receivership. The\nreceivership agreement may address the following subjects: the length of\nthe school day; the length of the school year; professional development\nfor teachers and administrators; class size; and changes to the\nprograms, assignments, and teaching conditions in the school in\nreceivership. The receivership agreement shall not provide for any\nreduction in compensation unless there shall also be a proportionate\nreduction in hours and shall provide for a proportionate increase in\ncompensation where the length of the school day or school year is\nextended. The receivership agreement shall not alter the remaining terms\nof the existing/underlying collective bargaining agreement which shall\nremain in effect.\n (b) The bargaining shall be conducted between the receiver and the\ncollective bargaining unit in good faith and completed not later than\nthirty days from the point at which the receiver requested that the\nbargaining commence. The agreement shall be subject to ratification\nwithin ten business days by the bargaining unit members in the school.\nIf the parties are unable to reach an agreement within thirty days or if\nthe agreement is not ratified within ten business days by the bargaining\nunit members of the school, the parties shall submit any remaining\nunresolved issues to the commissioner who shall resolve any unresolved\nissues within five days, in accordance with standard collective\nbargaining principles.\n (c) For purposes only for schools designated as failing pursuant to\nsubparagraph (ii) of paragraph (c) of subdivision one of this section,\nbargaining shall be conducted between the receiver and the collective\nbargaining unit in good faith and completed not later than thirty days\nfrom the point at which the receiver requested that the bargaining\ncommence. The agreement shall be subject to ratification within ten\nbusiness days by the bargaining unit members of the school. If the\nparties are unable to reach an agreement within thirty days or if the\nagreement is not ratified within ten business days by the bargaining\nunit members of the school, a conciliator shall be selected through the\nAmerican Arbitration Association, who shall forthwith forward to the\nparties a list of three conciliators, each of whom shall have\nprofessional experience in elementary and secondary education, from\nwhich the parties may agree upon a single conciliator provided, however,\nthat if the parties cannot select a conciliator from among the three\nwithin three business days, the American Arbitration Association shall\nselect a conciliator from the list of names within one business day, and\nthe conciliator shall resolve all outstanding issues within five days.\nAfter such five days, if any unresolved issues remain, the parties shall\nsubmit such issues to the commissioner who shall resolve such issues\nwithin five days, in accordance with standard collective bargaining\nprinciples.\n 9. A final school intervention plan shall be submitted to the\ncommissioner for approval and, upon approval, shall be issued by the\nreceiver within six months of the receiver's appointment. A copy of such\nplan shall be provided to the board of education, the superintendent of\nschools and the collective bargaining representatives of teachers and\nadministrators of the school district. The plan shall be publicly\navailable and shall be posted on the department's website and the school\ndistrict's website, and the school district shall provide notice to\nparents of such school intervention plan and its availability.\n 10. Each school intervention plan shall be authorized for a period of\nnot more than three years. The receiver may develop additional\ncomponents of the plan and shall develop annual goals for each component\nof the plan in a manner consistent with this section, all of which must\nbe approved by the commissioner. The receiver shall be responsible for\nmeeting the goals of the school intervention plan.\n 11. The receiver shall provide a written report to the board of\neducation, the commissioner, and the board of regents on a quarterly\nbasis to provide specific information about the progress being made on\nthe implementation of the school intervention plan. One of the quarterly\nreports shall be the annual evaluation of the intervention plan under\nsubdivision twelve of this section.\n 12. (a) The commissioner shall, in consultation and cooperation with\nthe district and the school staff, evaluate each school with an\nappointed receiver at least annually. The purpose of the evaluation\nshall be to determine whether the school has met the annual goals in its\nschool intervention plan and to assess the implementation of the plan at\nthe school. The evaluation shall be in writing and shall be submitted to\nthe superintendent and the board of education not later than September\nfirst for the preceding school year. The evaluation shall be submitted\nin a format determined by the commissioner.\n (b) If the commissioner determines that the school has met the annual\nperformance goals stated in the school intervention plan, the evaluation\nshall be considered sufficient and the implementation of the school\nintervention plan shall continue. If the commissioner determines that\nthe school has not met one or more goals in the plan, the commissioner\nmay require modification of the plan.\n 13. Upon the expiration of a school intervention plan for a school\nwith an appointed receiver, the commissioner, in consultation and\ncooperation with the district, shall conduct an evaluation of the school\nto determine whether the school has improved sufficiently, requires\nfurther improvement or has failed to improve. On the basis of such\nreview, the commissioner, in consultation and cooperation with the\ndistrict, may: (a) renew the plan with the receiver for an additional\nperiod of not more than three years; (b) if the failing or persistently\nfailing school remains failing and the terms of the plan have not been\nsubstantially met, terminate the contract with the receiver and appoint\na new receiver; or (c) determine that the school has improved\nsufficiently for the designation of failing or persistently failing to\nbe removed.\n 14. Nothing in this section shall prohibit the commissioner or a local\ndistrict from closing a school pursuant to the regulations of the\ncommissioner.\n 15. The commissioner shall be authorized to adopt regulations to carry\nout the provisions of this section.\n 16. The commissioner shall report annually to the governor and the\nlegislature on the implementation and fiscal impact of this section. The\nreport shall include, but not be limited to, a list of all schools\ncurrently designated as failing or persistently failing and the\nstrategies used in each of the schools to maximize the rapid academic\nachievement of students.\n 17. The commissioner shall provide any relevant data that is needed to\nimplement and comply with the requirements of the chapter of the laws of\ntwo thousand fifteen which added this section to any school district\nthat has a school or schools designated as failing or persistently\nfailing pursuant to this section by August fifteenth of each year, to\nthe fullest extent practicable. Provided that the commissioner shall\nprovide guidance to districts and may establish a model intervention\nplan. And provided further, that the commissioner shall make available\nto the public any school intervention plan, or other department-approved\nintervention model or comprehensive education plan of a school or\ndistrict provided that such measures are consistent with all federal and\nstate privacy laws.\n