N.Y. Education Law § 2854: General requirements

§ 2854. General requirements. 1. Applicability of other laws. (a)

Notwithstanding any provision of law to the contrary, to the extent that

any provision of this article is inconsistent with any other state or

local law, rule or regulation, the provisions of this article shall

govern and be controlling.

(b) A charter school shall meet the same health and safety, civil

rights, and student assessment requirements applicable to other public

schools, except as otherwise specifically provided in this article. A

charter school shall be exempt from all other state and local laws,

rules, regulations or policies governing public or private schools,

boards of education, school districts and political subdivisions,

including those relating to school personnel and students, except as

specifically provided in the school's charter or in this article.

Nothing in this subdivision shall affect the requirements of compulsory

education of minors established by part one of article sixty-five of

this chapter.

(c) A charter school shall be subject to the financial audits, the

audit procedures, and the audit requirements set forth in the charter,

and shall be subject to audits of the comptroller of the city school

district of the city of New York for charter schools located in New York

city, and to the audits of the comptroller of the state of New York for

charter schools located in the rest of the state, at his or her

discretion, with respect to the school's financial operations. Such

procedures and standards shall be consistent with generally accepted

accounting and audit standards. Independent fiscal audits shall be

required at least once annually.

(d) A charter school shall design its educational programs to meet or

exceed the student performance standards adopted by the board of regents

and the student performance standards contained in the charter. Students

attending charter school shall be required to take regents examinations

to the same extent such examinations are required of other public school

students. A charter school offering instruction in the high school

grades may grant regents diplomas and local diplomas to the same extent

as other public schools, and such other certificates and honors as are

specifically authorized by their charter, and in testimony thereof give

suitable certificates, honors and diplomas under its seal; and every

certificate and diploma so granted shall entitle the conferee to all

privileges and immunities which by usage or statute are allowed for

similar diplomas of corresponding grade granted by any other public

school.

(e) A charter school shall be subject to the provisions of articles

six and seven of the public officers law.

(f) A charter school shall be subject to the provisions of sections

eight hundred, eight hundred one, eight hundred two, eight hundred

three, eight hundred four, eight hundred four-a, eight hundred five,

eight hundred five-a, eight hundred five-b and eight hundred six of the

general municipal law to the same extent such sections apply to school

districts.

2. Admissions; enrollment; students. (a) A charter school shall be

nonsectarian in its programs, admission policies, employment practices,

and all other operations and shall not charge tuition or fees; provided

that a charter school may require the payment of fees on the same basis

and to the same extent as other public schools. A charter school shall

not discriminate against any student, employee or any other person on

the basis of ethnicity, national origin, gender, or disability or any

other ground that would be unlawful if done by a school. Admission of

students shall not be limited on the basis of intellectual ability,

measures of achievement or aptitude, athletic ability, disability, race,

creed, gender, national origin, religion, or ancestry; provided,

however, that nothing in this article shall be construed to prevent the

establishment of a single-sex charter school or a charter school

designed to provide expanded learning opportunities for students at-risk

of academic failure or students with disabilities and English language

learners; and provided, further, that the charter school shall

demonstrate good faith efforts to attract and retain a comparable or

greater enrollment of students with disabilities, English language

learners, and students who are eligible applicants for the free and

reduced price lunch program when compared to the enrollment figures for

such students in the school district in which the charter school is

located. A charter shall not be issued to any school that would be

wholly or in part under the control or direction of any religious

denomination, or in which any denominational tenet or doctrine would be

taught.

(b) Any child who is qualified under the laws of this state for

admission to a public school is qualified for admission to a charter

school. Applications for admission to a charter school shall be

submitted on a uniform application form created by the department and

shall be made available by a charter school in languages predominately

spoken in the community in which such charter school is located. The

school shall enroll each eligible student who submits a timely

application by the first day of April each year, unless the number of

applications exceeds the capacity of the grade level or building. In

such cases, students shall be accepted from among applicants by a random

selection process, provided, however, that an enrollment preference

shall be provided to pupils returning to the charter school in the

second or any subsequent year of operation and pupils residing in the

school district in which the charter school is located, and siblings of

pupils already enrolled in the charter school. Preference may also be

provided to children of employees of the charter school or charter

management organization, provided that such children of employees may

constitute no more than fifteen percent of the charter school's total

enrollment. The commissioner shall establish regulations to require that

the random selection process conducted pursuant to this paragraph be

performed in a transparent and equitable manner and to require that the

time and place of the random selection process be publicized in a manner

consistent with the requirements of section one hundred four of the

public officers law and be open to the public. For the purposes of this

paragraph and paragraph (a) of this subdivision, the school district in

which the charter school is located shall mean, for the city school

district of the city of New York, the community district in which the

charter school is located.

(c) A charter school shall serve one or more of the grades one through

twelve, and shall limit admission to pupils within the grade levels

served. Nothing herein shall prohibit a charter school from establishing

a kindergarten program.

(d) A student may withdraw from a charter school at any time and

enroll in a public school. A charter school may refuse admission to any

student who has been expelled or suspended from a public school until

the period of suspension or expulsion from the public school has

expired, consistent with the requirements of due process.

3. School personnel. (a) An employee of a charter school shall be an

employee of the education corporation formed to operate the charter

school and not an employee of the local school district in which the

charter school is located. An employee of a charter school shall be

deemed to be a public employee solely for purposes of article fourteen

of the civil service law, except for section two hundred twelve of such

law, and for no other purposes unless otherwise specified in this

article, the board of trustees of the charter school shall constitute a

board of education solely for purposes of article fourteen of the civil

service law, except for section two hundred twelve of such law, and for

no other purposes unless otherwise specified in this article, a charter

school shall be deemed to be a public employer solely for purposes of

article fourteen of the civil service law, except for section two

hundred twelve of such law, and for no other purposes unless otherwise

specified in this article, and the chief executive officer of the

charter school shall be the person designated as such by the board of

trustees of the charter school.

(a-1) The board of trustees of a charter school shall employ and

contract with necessary teachers, administrators and other school

personnel. Such teachers shall be certified in accordance with the

requirements applicable to other public schools; provided, however, that

a charter school may employ as teachers (i) uncertified teachers with at

least three years of elementary, middle or secondary classroom teaching

experience; (ii) tenured or tenure track college faculty; (iii)

individuals with two years of satisfactory experience through the Teach

for America program; and (iv) individuals who possess exceptional

business, professional, artistic, athletic, or military experience,

provided, however, that such teachers described in clauses (i), (ii),

(iii), and (iv) of this paragraph shall not in total comprise more than

the sum of: (A) thirty per centum of the teaching staff of a charter

school, or five teachers, whichever is less; plus (B) five teachers of

mathematics, science, computer science, technology, or career and

technical education; plus (C) five additional teachers. A teacher

certified or otherwise approved by the commissioner shall not be

included in the numerical limits established by the preceding sentence.

(a-2) (i) The board of trustees of a charter school shall require, for

purposes of a criminal history record check, the fingerprinting of all

prospective employees pursuant to section three thousand thirty-five of

this chapter, who do not hold valid clearance pursuant to such section

or pursuant to section three thousand four-b of this chapter or section

five hundred nine-cc or twelve hundred twenty-nine-d of the vehicle and

traffic law. Prior to initiating the fingerprinting process, the

prospective employer shall furnish the applicant with the form described

in paragraph (c) of subdivision thirty of section three hundred five of

this chapter and shall obtain the applicant's consent to the criminal

history records search. Every set of fingerprints taken pursuant to this

paragraph shall be promptly submitted to the commissioner for purposes

of clearance for employment.

(ii) Upon the recommendation of the chief executive officer of the

charter school, the board of trustees of a charter school may

conditionally appoint a prospective employee. A request for conditional

clearance shall be forwarded to the commissioner along with the

prospective employee's fingerprints, as required by subparagraph (i) of

this paragraph. Such appointment shall not commence until notification

by the commissioner that the prospective employee has been conditionally

cleared for employment and shall terminate forty-five days after such

notification of conditional clearance or when the prospective employer

is notified of a determination by the commissioner to grant or deny

clearance, whichever occurs earlier, and may not be extended or renewed

unless the commissioner issues a new conditional clearance after finding

that there was good cause for failing to obtain clearance within such

period, provided that if clearance is granted, the appointment shall

continue and the conditional status shall be removed. Prior to

commencement of such conditional appointment, the prospective employer

shall obtain a signed statement for conditional appointment from the

prospective employee, indicating whether, to the best of his or her

knowledge, he or she has a pending criminal charge or criminal

conviction in any jurisdiction outside the state.

(iii) Upon the recommendation of the chief executive officer of the

charter school, the board of trustees of a charter school may make an

emergency conditional appointment when an unforeseen emergency vacancy

has occurred. When such appointment is made, the process for conditional

appointment pursuant to subparagraph (ii) of this paragraph must also be

initiated. Emergency conditional appointment may commence prior to

notification from the commissioner on conditional clearance but shall

terminate twenty business days from the date such appointment commences

or when the prospective employer is notified by the commissioner

regarding conditional clearance, whichever occurs earlier, provided that

if conditional clearance is granted, the appointment shall continue as a

conditional appointment. Prior to the commencement of such appointment,

the prospective employer must obtain a signed statement for emergency

conditional appointment from the prospective employee, indicating

whether, to the best of his or her knowledge, he or she has a pending

criminal charge or criminal conviction in any jurisdiction. An

unforeseen emergency vacancy shall be defined as: (1) a vacancy that

occurred less than ten business days before the start of any school

session, including summer school, or during any school session,

including summer school, without sufficient notice to allow for

clearance or conditional clearance; (2) when no other qualified person

is available to fill the vacancy temporarily; and (3) when emergency

conditional appointment is necessary to maintain services which the

charter school is legally required to provide or services necessary to

protect the health, education or safety of students or staff. The

provisions of clause one of this subparagraph shall not apply if the

board finds that the charter school has been unable to fill the vacancy

despite good faith efforts to fill such vacancy in a manner which would

have allowed sufficient time for clearance or conditional clearance.

(iv) Shall develop a policy for the safety of the children who have

contact with an employee holding conditional appointment or emergency

conditional appointment.

(a-3) The board of trustees of a charter school shall upon

commencement and termination of employment of an employee by the charter

school district, provide the commissioner with the name of and position

held by such employee.

(b) The school employees of a charter school that has been converted

from an existing public school who are eligible for representation under

article fourteen of the civil service law shall be deemed to be included

within the negotiating unit containing like titles or positions, if any,

for the school district in which such charter school is located and

shall be subject to the collective bargaining agreement covering that

school district negotiating unit; provided, however, that a majority of

the members of a negotiating unit within a charter school may modify, in

writing, a collective bargaining agreement for the purposes of

employment in the charter school with the approval of the board of

trustees of the charter school.

(b-1) The employees of a charter school that is not a conversion from

an existing public school shall not be deemed members of any existing

collective bargaining unit representing employees of the school district

in which the charter school is located, and the charter school and its

employees shall not be subject to any existing collective bargaining

agreement between the school district and its employees. Provided,

however, that (i) if the student enrollment of the charter school on the

first day on which the charter school commences student instruction

exceeds two hundred fifty or if the average daily student enrollment of

such school exceeds two hundred fifty students at any point during the

first two years after the charter school commences student instruction,

all employees of the school who are eligible for representation under

article fourteen of the civil service law shall be deemed to be

represented in a separate negotiating unit at the charter school by the

same employee organization, if any, that represents like employees in

the school district in which such charter school is located; (ii) the

provisions of subparagraph (i) of this paragraph may be waived in up to

ten charters issued on the recommendation of the charter entity set

forth in paragraph (b) of subdivision three of section twenty-eight

hundred fifty-one of this article; (iii) the provisions of subparagraph

(i) of this paragraph shall not be applicable to the renewal or

extension of a charter; and (iv) nothing in this sentence shall be

construed to subject a charter school subject to the provisions of this

paragraph or its employees to any collective bargaining agreement

between any public school district and its employees or to make the

employees of such charter school part of any negotiating unit at such

school district. The charter school may, in its sole discretion, choose

whether or not to offer the terms of any existing collective bargaining

to school employees.

(c) The employees of the charter school may be deemed employees of the

local school district for the purpose of providing retirement benefits,

including membership in the teachers' retirement system and other

retirement systems open to employees of public schools. The financial

contributions for such benefits shall be the responsibility of the

charter school and the school's employees. The commissioner, in

consultation with the comptroller, shall develop regulations to

implement the provisions of this paragraph in a manner that allows

charter schools to provide retirement benefits to its employees in the

same manner as other public school employees.

(c-1) Reasonable access. (i) If employees of the charter school are

not represented, any charter school chartered pursuant to this article

must afford reasonable access to any employee organization during the

reasonable proximate period before any representation question is

raised; or

(ii) If the employee organization is a challenging organization,

reasonable access must be provided to any organization seeking to

represent employees beginning with a date reasonably proximate to a

challenge period. Reasonableness is defined, at a minimum, as access

equal to that provided to the incumbent organization.

(c-2) Employer neutrality. It shall be an improper practice for a

charter school board of directors, chief administrative officer and

their agents to commit any of the acts set forth in subdivision one of

section two hundred nine-a of the civil service law and could in

accordance with section twenty-eight hundred fifty-five of this article,

result in the revocation of the charter.

(d) A teacher employed by a school district may make a written request

to the board of education for an extended leave of absence to teach at a

charter school. Approval for such a leave of absence for a period of

three years or less shall not be unreasonably withheld. If such approval

is granted to a teacher by the school district, the teacher may return

to teach in the school district during such period of leave without the

loss of any right of certification, retirement, seniority, salary status

or any other benefit provided by law or by collective bargaining

agreement. If an appropriate position is unavailable, the teacher's name

shall be placed on a preferred eligible list of candidates for

appointment to a vacancy that may thereafter occur in an office or

position similar to the one such teacher filled in such school district

immediately prior to the leave of service.

(d-1) In a school district of a city having a population of one

million or more, a principal employed by such school district may make a

written request to the board of education for an extended leave of

absence to serve as a principal of a charter school. Approval for such a

leave of absence for a period of three years or less shall not be

unreasonably withheld. If such approval is granted to a principal by the

school district, the principal may return to serve as a principal in the

school district during such period of leave without the loss of any

right of certification, retirement, seniority, salary status or any

other benefit provided by law or by collective bargaining agreement. If

an appropriate position is unavailable, the principal's name shall be

placed on a preferred eligible list of candidates for appointment to a

vacancy that may thereafter occur in an office or position similar to

the one such principal filled in such school district immediately prior

to the leave of service.