Meeting of the Board of Regents | September 2003

SUMMARY:

Attached is a proposed amendment of section 120.5 of the Regulations of the Commissioner of Education. The proposed amendment was adopted as an emergency measure at your June meeting and is now being proposed for adoption as a permanent rule. Supporting materials are available upon request from the Secretary to the Board of Regents.

The proposed amendment is necessary to ensure State and local educational agency (LEA) compliance with the federal No Child Left Behind Act of 2001(NCLB), Pub.L. 107-110, by establishing criteria relating to the identification and designation of persistently dangerous public schools. The State and LEAs are required to comply with the requirements of the NCLB as a condition to their receipt of federal Title I ESEA funds. Section 120.5 establishes procedures to ensure that LEAs implement provisions allowing any student who attends a persistently dangerous public elementary or secondary school or who is a victim of a violent criminal offense, to attend a safe public school within the LEA to the extent required by the unsafe school choice provisions of NCLB section 9532.

The proposed amendment to section 120.5 provides that on or before July 1 of each year commencing in 2003, the Commissioner shall annually notify LEAs of those schools which may be persistently dangerous public elementary and secondary schools. Upon notification that a school has been identified for potential designation as a persistently dangerous school, the LEA shall be given the opportunity to present evidence to the Commissioner that conditions in the school do not unreasonably threaten the safety of students, that it has taken appropriate action or actions to improve safety at the school, and any other such evidence in support of its position that the school should not be designated as persistently dangerous. The Commissioner shall request LEAs to submit, by a date prescribed by the Commissioner, data for the current school year that is reportable under the Uniform Violent Incident Reporting System and is deemed necessary to make a final determination that a school should be designated as persistently dangerous. If an LEA fails to submit the data by the prescribed date, the final determination shall be based on data on file with the Commissioner. The Commissioner shall notify the LEA no later than August 1 immediately following his initial notification of the final determination on whether the school has been designated as a persistently dangerous public elementary or secondary school.

A joint Notice of Emergency Adoption and Proposed Rule Making was published in the State Register on July 2, 2003. In addition to adopting the amendment as a permanent rule, a second emergency adoption is necessary to ensure that the rule remains continuously in effect until the effective date of the permanent rule. A Statement of the Facts and Circumstances Which Necessitate Emergency Action is attached.

VOTED: That paragraphs (1), (2) and (3) of subdivision (a) of section 120.5 of the Regulations of the Commissioner of Education be amended as submitted, effective September 12, 2003, as an emergency action upon a finding by the Board of Regents that such action is necessary for the preservation of the general welfare to ensure that the amendments to section 120.5 of the Commissioner's Regulations that were adopted at the June 2003 Regents meeting, relating to the identification of persistently dangerous schools under the federal No Child Left Behind Act of 2001, remain continuously in effect until the effective date of their adoption as a permanent rule, and thus ensure State and local educational agency compliance with federal requirements; and

VOTED: That paragraphs (1), (2) and (3) of subdivision (a) of section 120.5 of the Regulations of the Commissioner of Education be amended as submitted, effective October 2, 2003.

AMENDMENT OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

Pursuant to Education Law sections 101, 207, 215, 305(1) and (2), 2802(7) and 3713(1) and (2)

Paragraphs (1), (2) and (3) of subdivision (a) of section 120.5 of the Regulations of the Commissioner of Education are amended, effective October 2, 2003, as follows:

(1) [Commencing] On or before July 1 of each year commencing in 2003, the commissioner shall annually notify the local educational agencies of those schools which the information described in this subdivision indicate may be persistently dangerous public elementary and secondary schools.

(2) Upon notification that a school has been identified for potential designation as a persistently dangerous public elementary or secondary school, the local educational agency shall be given the opportunity to present evidence to the commissioner that conditions in the school do not unreasonably threaten the safety of students, that it has taken appropriate action or actions to improve safety at the school, [or] and any other such evidence in support of its position that the school should not be designated as persistently dangerous. The commissioner shall request local educational agencies to submit, by a date prescribed by the commissioner, data for the current school year that is reportable under the uniform violent incident reporting system and is deemed necessary to make a final determination that a school should be designated as persistently dangerous. If a local educational agency fails to submit such data by such date, such final determination shall be based on data on file with the commissioner.

(3) The commissioner shall consider any evidence presented to him pursuant to paragraph (2) of this subdivision and shall notify the local educational agency no later than [July] August 1 immediately following his initial notification of the final determination on whether the school has been designated as a persistently dangerous public elementary or secondary school.

PROPOSED PROMULGATION OF PART 120 OF THE REGULATIONS OF THE COMMISIONER OF EDUCATION PURSUANT TO EDUCATION LAW SECTIONS 101, 207, 215, 305(1) and (2), 2802(7) AND 3713(1) AND (2), RELATING TO PERSISTENTLY DANGEROUS SCHOOLS UNDER THE NO CHILD LEFT BEHIND ACT OF 2001

STATEMENT OF FACTS AND CIRCUMSTANCES WHICH NECESSITATE EMERGENCY ACTION

The proposed amendment is necessary to ensure State and local educational agency (LEA) compliance with the federal No Child Left Behind Act of 2001(NCLB), Pub.L. 107-110, by establishing criteria relating to the identification and designation of persistently dangerous public schools. The State and LEAs are required to comply with the requirements of the NCLB as a condition to their receipt of federal Title I ESEA funds.

Section 120.5 establishes procedures to ensure that LEAs implement provisions allowing any student who attends a persistently dangerous public elementary or secondary school or who is a victim of a violent criminal offense, to attend a safe public school within the LEA to the extent required by the unsafe school choice provisions of NCLB section 9532. In order to successfully carry out these procedures consistent with State and federal requirements, additional time is needed to notify LEAs that their schools have been identified for potential designation as persistently dangerous, to allow these LEAs to present evidence as to why the identified schools should not be designated, and to notify LEAs of the final determination concerning the persistently dangerous designation. In addition, supplemental information from the Uniform Violent Incident Reporting System for the current school year is needed in order to make the final determination. The proposed amendment to section 120.5 provides for this additional time and information, and will ensure final implementation of the required state policy related to the Unsafe School Choice Option contained in the NCLB.

The proposed rule was adopted as an emergency measure, effective June 17, 2003, at the June 16-17, 2003 meeting of the Board of Regents, and will expire on September 14, 2003, 90 days after its filing with the Department of State. The proposed rule is to be adopted as a permanent rule at the September 10-12, 2003 Regents meeting, which is the first meeting scheduled after expiration of the 45-day public comment period provided for in State Administrative Procedure Act section 202(1)(a). However, pursuant to SAPA section 202(5), the permanent adoption cannot become effective until after its publication in the State Register on October 2, 2003. A lapse in the rule's effective date could result in the State's noncompliance with federal requirements under the No Child Left Behind Act of 2001 and affect State and LEA funding under federal Title I of the ESEA .

A second emergency adoption is therefore necessary to ensure that the rule remains continuously in effect until the effective date of its adoption as a permanent rule.

Emergency action to adopt the proposed rule is necessary for the preservation of the general welfare to ensure that the amendments to section 120.5 of the Commissioner's Regulations that were adopted at the June 2003 Regents meeting, relating to the identification of persistently dangerous schools under the No Child Left Behind Act of 2001, remain continuously in effect until the effective date of their adoption as a permanent rule, and thus ensure State and local educational agency compliance with the federal No Child Left Behind Act of 2001.