N.Y. Education Law § 211-f: Takeover and restructuring failing schools

§ 211-f. Takeover and restructuring failing schools. 1. Eligibility

for appointment of an external receiver. (a) Failing schools. The

commissioner shall designate as failing each of the schools that has

been identified under the state's accountability system to be among the

lowest achieving five percent of public schools in the state (priority

schools) for at least three consecutive school years, or identified as a

"priority school" in each applicable year of such period except one

school year in which the school was not identified because of an

approved closure plan that was not implemented, based upon measures of

student achievement and outcomes and a methodology prescribed in the

regulations of the commissioner, provided that this list shall not

include schools within a special act school district as defined in

subdivision eight of section four thousand one of this chapter or

schools chartered pursuant to article fifty-six of this chapter. Except

as otherwise provided in paragraph (c) of this subdivision, and pursuant

to regulations promulgated by the commissioner, a school designated as

failing under this paragraph shall be eligible for receivership under

this section upon a determination by the commissioner.

(b) Persistently failing schools. Based upon measures of student

achievement and outcomes and a methodology prescribed in the regulations

of the commissioner, the commissioner shall designate as persistently

failing each of the schools that have been identified under the state's

accountability system to be among the lowest achieving public schools in

the state for ten consecutive school years, based upon identification of

the school by the commissioner as: a "priority school" for each

applicable year from the two thousand twelve--two thousand thirteen

school year to the current school year, or identified as a "priority

school" in each applicable year of such period except one year in which

the school was not identified because of an approved closure plan that

was not implemented; and as a "School Requiring Academic Progress Year

5", "School Requiring Academic Progress Year 6", "School Requiring

Academic Progress Year 7" and/or a "School in Restructuring," for each

applicable year from the two thousand six--two thousand seven school

year to the two thousand eleven--two thousand twelve school year. This

designation shall not include schools within a special act school

district as defined in subdivision eight of section four thousand one of

this chapter or schools chartered pursuant to article fifty-six of this

chapter.

(c) Specific provisions. (i) For schools designated as persistently

failing pursuant to paragraph (b) of this subdivision, the local

district shall continue to operate the school for an additional school

year provided that there is a department-approved intervention model or

comprehensive education plan in place that includes rigorous performance

metrics and goals, including but not limited to measures of student

academic achievement and outcomes including those set forth in

subdivision six of this section. Notwithstanding any other provision of

law, rule or regulation to the contrary, the superintendent shall be

vested with all powers granted to a receiver appointed pursuant to this

section for such time period; provided, however that such superintendent

shall not be allowed to override any decision of the board of education

with respect to his or her employment status. At the end of such year,

the department shall conduct a performance review in consultation and

cooperation with the district and school staff to determine, based on

the performance metrics in the school's model or plan, whether (1) the

designation of persistently failing should be removed; (2) the school

should remain under continued school district operation with the

superintendent vested with the powers of a receiver; or (3) the school

should be placed into receivership; provided, however, that a school

that makes demonstrable improvement based on the performance metrics and

goals herein shall remain under district operation for an additional

school year and if such school remains under district operation, it

shall continue to be subject to annual review by the department, in

consultation and cooperation with the district, under the same terms and

conditions.

(ii) For schools designated as failing, but not persistently failing,

the local district shall continue to operate the school for two

additional school years provided that there is a department-approved

intervention model or comprehensive education plan in place that

includes rigorous performance metrics and goals, including but not

limited to measures of student academic achievement and outcomes

including those set forth in subdivision six of this section.

Notwithstanding any other provision of law, rule or regulation to the

contrary, the superintendent shall be vested with all powers granted to

a receiver appointed pursuant to this section; provided, however that

such superintendent shall not be allowed to override any decision of the

board of education with respect to his or her employment status. At the

end of such two years, the department shall conduct a school performance

review in consultation and cooperation with the district and school

staff to determine, based on the performance metrics in the school's

model or plan, whether (1) the designation of failing should be removed;

(2) the school should remain under continued school district operation

with the superintendent vested with the powers of a receiver; or (3) the

school should be placed into receivership; provided, however, that a

school that makes demonstrable improvement based on the performance

metrics and goals herein shall remain under district operation for an

additional school year and if such school remains under district

operation, it shall continue to be subject to such annual review by the

department under the same terms and conditions. For schools newly

designated as failing after the two thousand sixteen--two thousand

seventeen school year, the school shall be immediately eligible for

receivership upon such designation.

(iii) Nothing in this paragraph shall be construed to limit (1) a

school district's ability to modify, subject to approval by the

department, such department approved intervention model or comprehensive

education plan, or (2) the commissioner's ability to require a school

district to modify such department approved intervention model or

comprehensive education plan and require his or her approval of such

modifications.

(iv) The district shall provide notice to parents and guardians of the

students of the school which may be placed into receivership pursuant to

this subdivision and provided further that the district or the

commissioner shall hold a public meeting or hearing for purposes of

discussing the performance of the school and the construct of

receivership.

1-a. Community engagement team. Upon designation as failing or

persistently failing pursuant to subdivision one of this section, the

district shall establish a community engagement team which shall include

community stakeholders, including but not limited to the school

principal, parents and guardians, teachers and other school staff and

students. Membership of such team may be modified at any time. Such team

shall develop recommendations for improvement of the school and shall

solicit input through public engagement. The team shall present its

recommendations periodically to the school leadership and, as

applicable, the receiver.

2. Appointment of a receiver. (a) Upon a determination by the

commissioner that a school shall be placed into receivership, the

applicable school district shall appoint an independent receiver,

subject to the approval of the commissioner, to manage and operate all

aspects of the school and to develop and implement a school intervention

plan for the school that shall consider the recommendations developed by

the community engagement team when creating such plan. The independent

receiver may be a non-profit entity, another school district, or an

individual. If the school district fails to appoint an independent

receiver that meets with the commissioner's approval within sixty days

of such determination, the commissioner shall appoint the receiver.

(b) The receiver shall be authorized to manage and operate the failing

or persistently failing school and shall have the power to supersede any

decision, policy or regulation of the superintendent of schools or chief

school officer, or of the board of education or another school officer

or the building principal that in the sole judgment of the receiver

conflicts with the school intervention plan; provided however that the

receiver may not supersede decisions that are not directly linked to the

school intervention plan, including but not limited to building usage

plans, co-location decisions and transportation of students. The

receiver shall have authority to review proposed school district budgets

prior to presentation to the district voters, or in the case of a city

school district in a city having a population of one hundred twenty-five

thousand or more, of the adoption of a contingency budget, prior to

approval by the board of education, and to modify the proposed budget to

conform to the school intervention plan provided that such modifications

shall be limited in scope and effect to the failing or persistently

failing school and may not unduly impact other schools in the district.

A school under receivership shall operate in accordance with laws

regulating other public schools, except as such provisions may conflict

with this section.

(c) The commissioner shall contract with the receiver, and the

compensation and other costs of the receiver appointed by the

commissioner shall be paid from a state appropriation for such purpose,

or by the school district, as determined by the commissioner, provided

that costs shall be paid by the school district only if there is an open

administrative staffing line available for the receiver, and the

receiver will be taking on the responsibilities of such open line.

Notwithstanding any other provision of law to the contrary, the receiver

and any of its employees providing services in the receivership shall be

entitled to defense and indemnification by the school district to the

same extent as a school district employee. The receiver's contract may

be terminated by the commissioner for a violation of law or the

commissioner's regulations or for neglect of duty. A receiver appointed

to operate a district under this section shall have full managerial and

operational control over such school; provided, however, that the board

of education shall remain the employer of record, and provided further

that any employment decisions of the board of education may be

superseded by the receiver. It shall be the duty of the board of

education and the superintendent of schools to fully cooperate with the

receiver and willful failure to cooperate or interference with the

functions of the receiver shall constitute willful neglect of duty for

purposes of section three hundred six of this title. The receiver or the

receiver's designee shall be an ex officio non-voting member of the

board of education entitled to attend all meetings of the board of

education.

3. Before developing the school intervention plan, the receiver shall

consult with local stakeholders such as: (a) the board of education; (b)

the superintendent of schools; (c) the building principal; (d) teachers

assigned to the school and their collective bargaining representative;

(e) school administrators assigned to the school and their collective

bargaining representative; (f) parents and guardians of students

attending the school or their representatives; (g) representatives of

applicable state and local social service, health and mental health

agencies; (h) as appropriate, representatives of local career education

providers, state and local workforce development agencies and the local

business community; (i) for elementary schools, representatives of local

prekindergarten programs; (j) students attending the school as

appropriate; (k) as needed for middle schools, junior high schools,

central schools or high schools, representatives of local higher

education institutions; and (l) the school stakeholder team set forth in

subdivision one-a of this section.

4. In creating the school intervention plan, the receiver shall (i)

consider the recommendations developed by the community engagement team

set forth in subdivision one-a of this section; (ii) include provisions

intended to maximize the rapid academic achievement of students at the

school; and (iii) ensure that the plan addresses school leadership and

capacity, school leader practices and decisions, curriculum development

and support, teacher practices and decisions, student social and

emotional developmental health, and family and community engagement. The

receiver shall, to the extent practicable, base the plan on the findings

of any recent diagnostic review or assessment of the school that has

been conducted and, as applied to the school, student outcome data

including, but not limited to: (a) student achievement growth data based

on state measures; (b) other measures of student achievement; (c)

student promotion and graduation rates; (d) achievement and growth data

for the subgroups of students used in the state's accountability system;

(e) student attendance; and (f) long-term and short-term suspension

rates.

5. (a) The receiver shall include the following in the school

intervention plan: (i) measures to address social service, health and

mental health needs of students in the school and their families in

order to help students arrive and remain at school ready to learn;

provided that this may include mental health and substance abuse

screening; (ii) measures to improve or expand access to child welfare

services and, as appropriate, services in the school community to

promote a safe and secure learning environment; (iii) as applicable,

measures to provide greater access to career and technical education and

workforce development services provided to students in the school and

their families in order to provide students and families with meaningful

employment skills and opportunities; (iv) measures to address

achievement gaps for English language learners, students with

disabilities and economically disadvantaged students, as applicable; (v)

measures to address school climate and positive behavior support,

including mentoring and other youth development programs; and (vi) a

budget for the school intervention plan.

(b) As necessary, the commissioner and the commissioners of the

department of health, the office of children and family services, the

department of labor and other applicable state and local social service,

health, mental health and child welfare officials shall coordinate

regarding the implementation of the measures described in subparagraphs

(i) through (iii) of paragraph (a) of this subdivision that are included

in the school intervention plan and shall, subject to appropriation,

reasonably support such implementation consistent with the requirements

of state and federal law applicable to the relevant programs that each

such official is responsible for administering, and grant failing

schools priority in competitive grants, as allowable before and during

the period of receivership.

6. In order to assess the school across multiple measures of school

performance and student success, the school intervention plan shall

include measurable annual goals including, but not limited to, the

following: (a) student attendance; (b) student discipline including but

not limited to short-term and long-term suspension rates; (c) student

safety; (d) student promotion and graduation and drop-out rates; (e)

student achievement and growth on state measures; (f) progress in areas

of academic underperformance; (g) progress among the subgroups of

students used in the state's accountability system; (h) reduction of

achievement gaps among specific groups of students; (i) development of

college and career readiness, including at the elementary and middle

school levels; (j) parent and family engagement; (k) building a culture

of academic success among students; (l) building a culture of student

support and success among faculty and staff; (m) using developmentally

appropriate child assessments from pre-kindergarten through third grade,

if applicable, that are tailored to the needs of the school; and (n)

measures of student learning.

7. (a) Notwithstanding any general or special law to the contrary, in

creating and implementing the school intervention plan, the receiver

shall, after consulting with stakeholders and the community engagement

team, convert schools to community schools to provide expanded health,

mental health and other services to the students and their families.

In addition, the receiver may: (i) review and if necessary expand, alter

or replace the curriculum and program offerings of the school, including

the implementation of research-based early literacy programs, early

interventions for struggling readers and the teaching of advanced

placement courses or other rigorous nationally or internationally

recognized courses, if the school does not already have such programs or

courses; (ii) replace teachers and administrators, including school

leadership who are not appropriately certified or licensed; (iii)

increase salaries of current or prospective teachers and administrators

to attract and retain high-performing teachers and administrators; (iv)

establish steps to improve hiring, induction, teacher evaluation,

professional development, teacher advancement, school culture and

organizational structure; (v) reallocate the uses of the existing budget

of the school; (vi) expand the school day or school year or both of the

school; (vii) for a school that offers the first grade, add

pre-kindergarten and full-day kindergarten classes, if the school does

not already have such classes; (viii) in accordance with paragraphs (b)

and (c) of this subdivision, to abolish the positions of all members of

the teaching and administrative and supervisory staff assigned to the

failing or persistently failing school and terminate the employment of

any building principal assigned to such a school, and require such staff

members to reapply for their positions in the school if they so choose;

(ix) include a provision of a job-embedded professional development for

teachers at the school, with an emphasis on strategies that involve

teacher input and feedback; (x) establish a plan for professional

development for administrators at the school, with an emphasis on

strategies that develop leadership skills and use the principles of

distributive leadership; and/or (xi) order the conversion of a school in

receivership that has been designated as failing or persistently failing

pursuant to this section into a charter school, provided that such

conversion shall be subject to article fifty-six of this chapter and

provided further that such charter conversion school shall operate

pursuant to such article and provided further that such charter

conversion school shall operate consistent with a community schools

model and provided further that such conversion charter school shall be

subject to the provisions in subdivisions three, four, five, six, nine,

ten, eleven, twelve and thirteen of this section.

(b) Notwithstanding any other provision of law, rule or regulation to

the contrary, upon designation of any school of the school district as a

failing or persistently failing school pursuant to this section, the

abolition of positions of members of the teaching and administrative and

supervisory staff of the school shall thereafter be governed by the

applicable provisions of section twenty-five hundred ten, twenty-five

hundred eighty-five, twenty-five hundred eighty-eight or three thousand

thirteen of this chapter as modified by this paragraph. A classroom

teacher or building principal who has received two or more composite

ratings of ineffective on an annual professional performance review

shall be deemed not to have rendered faithful and competent service

within the meaning of section twenty-five hundred ten, twenty-five

hundred eighty-five, twenty-five hundred eighty-eight or three thousand

thirteen of this chapter. When a position of a classroom teacher or

building principal is abolished, the services of the teacher or

administrator or supervisor within the tenure area of the position with

the lowest rating on the most recent annual professional performance

review shall be discontinued, provided that seniority within the tenure

area of the position shall be used solely to determine which position

should be discontinued in the event of a tie.

(c) The receiver may abolish the positions of all teachers and

pedagogical support staff, administrators and pupil personnel service

providers assigned to a school designated as failing or persistently

failing pursuant to this section and require such staff members to

reapply for new positions if they so choose. The receiver shall define

new positions for the school aligned with the school intervention plan,

including selection criteria and expected duties and responsibilities

for each position. For administrators and pupil personnel service

providers, the receiver shall have full discretion over all such

rehiring decisions. For teachers and pedagogical support staff, the

receiver shall convene a staffing committee including the receiver, two

appointees of the receiver and two appointees selected by the school

staff or their collective bargaining unit. The staffing committee will

determine whether former school staff reapplying for positions are

qualified for the new positions. The receiver shall have full discretion

regarding hiring decisions but must fill at least fifty percent of the

newly defined positions with the most senior former school staff who are

determined by the staffing committee to be qualified. Any remaining

vacancies shall be filled by the receiver in consultation with the

staffing committee. Notwithstanding any other provision of law to the

contrary, a member of the teaching and pedagogical support,

administrative, or pupil personnel service staff who is not rehired

pursuant to this paragraph shall not have any right to bump or displace

any other person employed by the district, but shall be placed on a

preferred eligibility list in accordance with the applicable provisions

of section twenty-five hundred ten, twenty-five hundred eighty-five,

twenty-five hundred eighty-eight or three thousand thirteen of this

chapter. Teachers rehired pursuant to this paragraph shall maintain

their prior status as tenured or probationary, and a probationary

teacher's probation period shall not be changed.

(d) For a school with English language learners, the professional

development and planning time for teachers and administrators identified

in clauses (vi) and (vii) of the closing paragraph of paragraph (a) of

this subdivision, shall include specific strategies and content designed

to maximize the rapid academic achievement of the English language

learners.

8. (a) In order to maximize the rapid achievement of students at the

applicable school, the receiver may request that the collective

bargaining unit or units representing teachers and administrators and

the receiver, on behalf of the board of education, negotiate a

receivership agreement that modifies the applicable collective

bargaining agreement or agreements with respect to any failing schools

in receivership applicable during the period of receivership. The

receivership agreement may address the following subjects: the length of

the school day; the length of the school year; professional development

for teachers and administrators; class size; and changes to the

programs, assignments, and teaching conditions in the school in

receivership. The receivership agreement shall not provide for any

reduction in compensation unless there shall also be a proportionate

reduction in hours and shall provide for a proportionate increase in

compensation where the length of the school day or school year is

extended. The receivership agreement shall not alter the remaining terms

of the existing/underlying collective bargaining agreement which shall

remain in effect.

(b) The bargaining shall be conducted between the receiver and the

collective bargaining unit in good faith and completed not later than

thirty days from the point at which the receiver requested that the

bargaining commence. The agreement shall be subject to ratification

within ten business days by the bargaining unit members in the school.

If the parties are unable to reach an agreement within thirty days or if

the agreement is not ratified within ten business days by the bargaining

unit members of the school, the parties shall submit any remaining

unresolved issues to the commissioner who shall resolve any unresolved

issues within five days, in accordance with standard collective

bargaining principles.

(c) For purposes only for schools designated as failing pursuant to

subparagraph (ii) of paragraph (c) of subdivision one of this section,

bargaining shall be conducted between the receiver and the collective

bargaining unit in good faith and completed not later than thirty days

from the point at which the receiver requested that the bargaining

commence. The agreement shall be subject to ratification within ten

business days by the bargaining unit members of the school. If the

parties are unable to reach an agreement within thirty days or if the

agreement is not ratified within ten business days by the bargaining

unit members of the school, a conciliator shall be selected through the

American Arbitration Association, who shall forthwith forward to the

parties a list of three conciliators, each of whom shall have

professional experience in elementary and secondary education, from

which the parties may agree upon a single conciliator provided, however,

that if the parties cannot select a conciliator from among the three

within three business days, the American Arbitration Association shall

select a conciliator from the list of names within one business day, and

the conciliator shall resolve all outstanding issues within five days.

After such five days, if any unresolved issues remain, the parties shall

submit such issues to the commissioner who shall resolve such issues

within five days, in accordance with standard collective bargaining

principles.

9. A final school intervention plan shall be submitted to the

commissioner for approval and, upon approval, shall be issued by the

receiver within six months of the receiver's appointment. A copy of such

plan shall be provided to the board of education, the superintendent of

schools and the collective bargaining representatives of teachers and

administrators of the school district. The plan shall be publicly

available and shall be posted on the department's website and the school

district's website, and the school district shall provide notice to

parents of such school intervention plan and its availability.

10. Each school intervention plan shall be authorized for a period of

not more than three years. The receiver may develop additional

components of the plan and shall develop annual goals for each component

of the plan in a manner consistent with this section, all of which must

be approved by the commissioner. The receiver shall be responsible for

meeting the goals of the school intervention plan.

11. The receiver shall provide a written report to the board of

education, the commissioner, and the board of regents on a quarterly

basis to provide specific information about the progress being made on

the implementation of the school intervention plan. One of the quarterly

reports shall be the annual evaluation of the intervention plan under

subdivision twelve of this section.

12. (a) The commissioner shall, in consultation and cooperation with

the district and the school staff, evaluate each school with an

appointed receiver at least annually. The purpose of the evaluation

shall be to determine whether the school has met the annual goals in its

school intervention plan and to assess the implementation of the plan at

the school. The evaluation shall be in writing and shall be submitted to

the superintendent and the board of education not later than September

first for the preceding school year. The evaluation shall be submitted

in a format determined by the commissioner.

(b) If the commissioner determines that the school has met the annual

performance goals stated in the school intervention plan, the evaluation

shall be considered sufficient and the implementation of the school

intervention plan shall continue. If the commissioner determines that

the school has not met one or more goals in the plan, the commissioner

may require modification of the plan.

13. Upon the expiration of a school intervention plan for a school

with an appointed receiver, the commissioner, in consultation and

cooperation with the district, shall conduct an evaluation of the school

to determine whether the school has improved sufficiently, requires

further improvement or has failed to improve. On the basis of such

review, the commissioner, in consultation and cooperation with the

district, may: (a) renew the plan with the receiver for an additional

period of not more than three years; (b) if the failing or persistently

failing school remains failing and the terms of the plan have not been

substantially met, terminate the contract with the receiver and appoint

a new receiver; or (c) determine that the school has improved

sufficiently for the designation of failing or persistently failing to

be removed.

14. Nothing in this section shall prohibit the commissioner or a local

district from closing a school pursuant to the regulations of the

commissioner.

15. The commissioner shall be authorized to adopt regulations to carry

out the provisions of this section.

16. The commissioner shall report annually to the governor and the

legislature on the implementation and fiscal impact of this section. The

report shall include, but not be limited to, a list of all schools

currently designated as failing or persistently failing and the

strategies used in each of the schools to maximize the rapid academic

achievement of students.

17. The commissioner shall provide any relevant data that is needed to

implement and comply with the requirements of the chapter of the laws of

two thousand fifteen which added this section to any school district

that has a school or schools designated as failing or persistently

failing pursuant to this section by August fifteenth of each year, to

the fullest extent practicable. Provided that the commissioner shall

provide guidance to districts and may establish a model intervention

plan. And provided further, that the commissioner shall make available

to the public any school intervention plan, or other department-approved

intervention model or comprehensive education plan of a school or

district provided that such measures are consistent with all federal and

state privacy laws.