44th legislature - STATE OF NEW MEXICO - second session, 2000

RELATING TO EDUCATION; PROVIDING STUDENTS BROADER EDUCATIONAL OPPORTUNITIES IN ELEMENTARY AND SECONDARY SCHOOLS; ENACTING THE EDUCATION OPPORTUNITY ACT; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] SHORT TITLE.--Sections 1 through 11 of this act may be cited as the "Education Opportunity Act"."

Section 2. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] EDUCATION OPPORTUNITY ACT--LEGISLATIVE FINDINGS AND PURPOSE.--

A. The legislature finds that:

(1) all New Mexico children should have the opportunity to attend schools that can meet their educational needs and provide them the knowledge and skills required to graduate from high school and be prepared for post-secondary education and the world of work;

(2) although Article 12, Section 1 of the constitution of New Mexico mandates that the state provide a uniform system of free public schools sufficient for the education of, and open to, all the children of school age, some public schools in the current system do not provide a sufficient education; and

(3) currently, parents of a school-age child that are dissatisfied with the public education the child is receiving in the system may choose a private school education for the child, but that choice is severely limited because many parents lack the financial resources to provide their children with this alternative opportunity.

B. Based upon the foregoing legislative findings, the legislature states that the express purposes of the Education Opportunity Act are:

(1) to provide parents more flexibility in choosing a public school education appropriate to their child's needs; and

(2) under specific conditions, to provide parents with the opportunity to choose a private school education for their child."

Section 3. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] EDUCATION OPPORTUNITY ACT--DEFINITIONS.--As used in the Education Opportunity Act:

A. "dependent child" means a school-age person for whom a parent has the legal authority to make decisions;

B. "parent" means the natural parent, adoptive parent, guardian or legal custodian of a dependent child;

C. "program" means the education opportunity program authorized pursuant to the Education Opportunity Act;

D. "student" includes both a dependent child and a school-age person who is not a dependent child; and

E. "voucher" means a written instrument issued by the department of education that may be used to pay education expenses of a student enrolled in a private school."

Section 4. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] EDUCATION OPPORTUNITY ACT--STUDENT ELIGIBILITY.--A student is eligible to participate in the program if in the previous school year the student:

A. was regularly enrolled as a public school student and was enrolled for one-half or more of the minimum course requirements approved by the state board for public school students; and

B. was enrolled in a public school that has received, for two consecutive years, a performance measurement in the grade category of "F" pursuant to Section 22-1-6 NMSA 1978; or

C. was attending a private school pursuant to the program established in the Education Opportunity Act."

Section 5. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] EDUCATION OPPORTUNITY ACT--REQUIREMENTS FOR PARTICIPATION IN PROGRAM BY PRIVATE SCHOOL--LIMITATION ON NUMBER OF PARTICIPATING STUDENTS.--To participate in the program a private school shall:

A. before October 15 of the prior school year, notify the state superintendent and local school board of the school district in which the private school is located of its intent to participate in the program and of the anticipated number of students participating in the program for which it has space;

B. comply with the provisions of 42 USCA 2000d;

C. meet all health and safety laws and codes that apply to public schools;

D. agree to accept a voucher as full payment of tuition and fees of an eligible student who is participating in the program, has been accepted by the private school and whose family's total income does not exceed an amount equal to two hundred percent of the poverty level determined in accordance with criteria established by the director of the federal office of management and budget;

E. agree to accept a voucher as full or partial payment of tuition and fees for a student participating in the program and not described in Subsection D of this section, but the school shall have a published sliding scale for supplemental payment based on the ability to pay;

F. not discriminate between students participating in the program and other students; and

G. make available to the parent of a student who is eligible for participation in the program, and to the student, information sufficient to enable the parent and the student to evaluate the school's performance, which information shall include as a minimum results of a nationally norm-referenced test or a performance-based instrument that measures proficiency, student readiness for college, school safety, dropout rates, attendance and parent or community involvement."

Section 6. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] EDUCATION OPPORTUNITY ACT--APPLICATION FOR PARTICIPATION IN THE PROGRAM.--

A. Either a parent with whom a student who is a dependent child resides or a student who is not a dependent child may submit an application for participation in the program on a form provided by the state superintendent. The application shall be submitted to a participating private school chosen by the applicant, and a copy shall be sent to the department of education. The application shall be submitted by delivery or mail and shall be considered received when delivered or three days after mailing. An application must be received no earlier than March 1 and no later than May 1 prior to the beginning of a school year. The application shall contain at least the following information:

(1) the student's name and address;

(2) the applicant's name and address if the applicant is a parent;

(3) the student's social security number;

(4) the school district in which the student resides, the school attended in the previous school year and the student's public school attendance zone;

(5) the name and address of the school and the grade in which the student was enrolled the previous year and whether the student was a participant in the program in that year; and

(6) other information required by the state board to be included in the application.

B. Within sixty days after receiving the application, the private school shall notify the applicant, in writing, that the application has been accepted or rejected and in the latter event shall state the reasons for rejection. The state board shall require by rule a selection process to ensure that participating private schools determine which students to accept on a random basis, except that a private school may give preference in accepting applications to siblings of students accepted on a random basis. Any procedures for giving preference or priority to applicants must be in writing and must be approved by the state superintendent in writing before becoming effective.

C. If the private school rejects an application because it has too few available spaces, the applicant may transfer the application to a participating private school that has available space by submitting the application to that school and notifying the department of education in writing of the transfer no later than five days after its submission. The school to which the transferred application is submitted shall notify the applicant of acceptance or rejection within thirty days of receipt of the application.

D. Within five days after receipt of notification of acceptance of a student from the private school, the applicant shall notify the state superintendent in writing of the fact of acceptance."

Section 7. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] EDUCATION OPPORTUNITY ACT--ISSUANCE OF VOUCHER.--No later than five days after receipt of notification of acceptance from an applicant, the state superintendent shall issue a voucher to the applicant. The voucher shall be presented to the private school within ten days after receipt by the applicant."

Section 8. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] EDUCATION OPPORTUNITY ACT--REDEMPTION VALUE OF VOUCHER--REDEMPTION OF VOUCHER BY SCHOOL.--

A. Except as otherwise provided in Subsection C of this section, the redemption value of a voucher is the sum of:

(1) the amount of money that would be generated by the student through the state equalization guarantee distribution pursuant to the Public School Finance Act if the student attended a public school in the previous year, excluding any size or training and experience adjustment for the school district or the public school;

(2) a proportionate allocation for the local school district's at-risk funding; and

(3) a proportionate per student amount for transportation expenses that would be generated by the student if he attended a public school within his attendance zone.

B. The department of education shall calculate the redemption value of a student's voucher. The amount calculated pursuant to Paragraph (3) of Subsection A of this section shall be paid to the applicant by the private school at the time the voucher is redeemed by the private school.

C. The redemption value of a voucher, exclusive of any amount paid to the applicant pursuant to Subsection B of this section, shall not exceed the tuition and fees charged by the participating private school for students not participating in the program unless the cost of educating the student presenting the voucher is greater than the tuition and fees charged, in which case the value of the voucher shall not exceed those costs. The state board shall establish a method of determining costs of educating participating students and that method shall be used in determining the redemption value of a voucher.

D. Within fifteen days after receiving a voucher, a private school shall certify enrollment of the student named on the voucher and shall certify the amount of tuition and fees charged by the private school to the department of education.

E. A private school or school district shall redeem the value of the voucher from the department of education in the following installments: twenty-five percent of the value in September, twenty-five percent of the value in November, twenty-five percent of the value in February and twenty-five percent of the value in May. The installments shall be paid on the first day of the applicable month. Redemption of a voucher installment constitutes full payment of all tuition and fees incurred by the student for the period covered by the voucher.

F. If a private school expels a student during the school year or if the student is absent for ten consecutive days without explanation from his parent if the student is a dependent child or, if not a dependent child, from the student, the private school shall notify the department of education, and the voucher redemption shall cease.

G. If a participating student voluntarily withdraws from a private school and is enrolled in another participating private school or in a public school during the school year, the parent, if the student is a dependent child, and if not a dependent child, the student, shall notify the department of education. Upon receipt of proof of enrollment in another private school and certification of tuition and fees charged by the new private school, the unredeemed voucher installments shall be made to the new private school. Upon proof of enrollment in a public school, the remaining redemption installments shall be made to the school district in which the public school is located."

Section 9. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] EDUCATION OPPORTUNITY ACT--DUTIES OF STATE SUPERINTENDENT.--The state superintendent shall:

A. recommend to the state board those procedures and rules that are necessary to fully implement the Education Opportunity Act;

B. be responsible for administering the program; and

C. ensure that students and parents are informed annually of the private schools participating in the program under this section."

Section 10. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] EDUCATION OPPORTUNITY ACT--TRANSPORTATION.--The parent of a participating student or the student, if the student is not a dependent child, shall be responsible for transportation of the student to and from the private school."

Section 11. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] EDUCATION OPPORTUNITY ACT--STANDARDS FOR PARTICIPATING PRIVATE SCHOOLS.--

A. A private school participating in the program shall submit annually to the department of education a performance audit of the private school prepared by an independent qualified performance auditor that demonstrates that the school meets at least one of the following standards:

(1) at least seventy percent of the students in the program advance one grade level each year;

(2) the private school's average attendance rate for the students in the program is at least ninety percent;

(3) at least eighty percent of the students in the program demonstrate significant academic progress; or

(4) at least seventy percent of the families of students in the program meet parental involvement criteria established by the private school.

B. The state superintendent shall monitor the performance of the students participating in the program. If the state superintendent determines in any school year that the private school is not meeting at least one of the standards set forth in Subsection A of this section, that private school may not participate in the program in the following school year.

C. A private school may not require a student attending the school pursuant to the Education Opportunity Act to participate in any religious activity if the parent or the student, if the student is not a dependent child, submits to the school's principal a written request that the student be exempt from those activities."

Section 12. Section 22-1-4 NMSA 1978 (being Laws 1975, Chapter 338, Section 1, as amended) is amended to read:

"22-1-4. FREE PUBLIC SCHOOLS--EXCEPTIONS--WITHDRAWING AND ENROLLING--OPEN ENROLLMENT.--

A. Except as provided by Section 24-5-2 NMSA 1978, a free public school education shall be available to any school-age person who is a resident of this state and has not received a high school diploma or its equivalent.

B. A free public school education in those courses already offered to persons pursuant to provisions of Subsection A of this section shall be available to any person who is a resident of this state and has received a high school diploma or its equivalent if there is available space in such courses.

C. Any person entitled to a free public school education pursuant to the provisions of this section may enroll or re-enroll in a public school at any time and, unless required to attend school pursuant to the Compulsory School Attendance Law, may withdraw from a public school at any time.

D. In adopting and promulgating [regulations] rules concerning the enrollment of students transferring from a home school or private school to the public schools, the local school board shall provide that the grade level at which the transferring student is placed is appropriate to the age of the student or to the student's score on a student achievement test administered according to the statewide and local school district testing programs as determined by the state superintendent or both.

E. A local school board shall adopt and promulgate [regulations] rules governing enrollment and re-enrollment at schools within the school district. These [regulations] rules shall include:

(1) definition of the school district boundary and the boundaries of attendance areas for each school;

[(2) for each school, definition of the boundaries of areas outside the district boundary or within the district but outside the school's attendance area, and within a distance of the school that would not be served by a school bus route as determined pursuant to Section 22-16-4 NMSA 1978 if enrolled, which areas shall be designated as "walk zones";

(3)] (2) priorities for enrollment of students as follows:

(a) first, persons residing within the school district and within the attendance area of a school;

(b) second, persons who previously attended the school; and

(c) third, all other applicants; and

[(4)] (3) establishment of maximum allowable class size if smaller than that permitted by law and ratification and description of the maximum class size in the charter of all charter schools within the school district.

F. As long as the maximum allowable class size established by law, by [regulation] rule of a local school board or in the charter of a charter school, whichever is lower, is not met or exceeded in a school by enrollment of first-priority persons, the school shall enroll other persons applying in the priorities stated in the school district [regulations] rules adopted pursuant to Subsection E of this section. If the maximum would be exceeded by enrollment of an applicant in the second or third priority, the school shall establish a waiting list. As classroom space becomes available, persons highest on the waiting list within the highest priority on the list shall be notified and given the opportunity to enroll."

Section 13. Section 22-1-6 NMSA 1978 (being Laws 1989, Chapter 308, Section 1, as amended) is amended to read:

"22-1-6. ANNUAL SCHOOL DISTRICT ACCOUNTABILITY REPORT REQUIRED.--

A. School districts [shall be] are required to publish an annual school district accountability report to provide district-wide data for the previous school year. The state board shall establish the format for the accountability reports and ensure that the relevant data is provided annually to parents, students, educators, policymakers, legislators, the governor and business and economic development organizations. The department of education shall establish the following five indices through which public school performance shall be measured and reported to school districts:

(1) student achievement as measured by a nationally norm-referenced test approved by the department of education or through a performance-based instrument to measure proficiency;

(2) school safety;

(3) the dropout rate;

(4) attendance; and

(5) parent and community involvement.

The department of education shall establish the methodology for measuring each of the five indices.

B. Effective July 1, 1999, school districts shall annually administer a nationally norm-referenced test or a standards-based assessment to all students enrolled in a public school in grades three through nine. Only students with disabilities deemed incapable of taking the test as determined on their individual educational [program] programs shall be exempted from this requirement. [Additionally] Students who have been assessed as non-English or limited English proficient using state approved language assessments and meeting required thresholds shall be exempted from this test and provided an alternative norm-referenced or standards-based assessment in their primary language. School districts shall report the following to the department of education:

(1) the results of the norm-referenced test or standards-based assessment;

(2) the number of enrolled students who did not take the test, the school in which they are enrolled and the reason for the exemption from the test; and

(3) separately and as part of the aggregate report, the results of assessments of students enrolled in special education class A, B, C and D programs who took the test and the school in which they are enrolled, except in cases where the number of students being reported is less than ten.

C. School districts shall set two-, four- and six-year benchmarks in each of the five indices for each public school. Local school boards may establish additional indices, if reviewed by the department of education, through which to measure the school district's performance in other areas.

D. The annual accountability report shall also include the results of a survey of parents' views of the quality of their children's school. The survey shall be conducted each year in time to include the results in the annual accountability report. The survey shall compile the results of a written questionnaire that shall be sent home with the students to be given to their parents. The survey may be completed anonymously. The survey shall be no more than one page, shall be clearly and concisely written and shall include not more than twenty questions that shall be answered with options of a simple sliding scale ranging from "strongly agree" to "strongly disagree" and shall include the optional response "don't know". The survey shall also include a request for optional written comments, which may be written on the back of the questionnaire form. The questionnaire shall include questions in the following areas:

(1) parent-teacher-school relationship and communication;

(2) quality of educational and extracurricular programs;

(3) instructional practices and techniques;

(4) resources;

(5) school personnel, including the school principal; and

(6) parents' view of teaching staff expectations for the students.

The state board shall develop no more than ten of the questions, which shall be reviewed by the legislative education study committee prior to implementation. No more than five questions shall be developed by the local school board and no more than five questions shall be developed by the staffs of each individual school site; provided that at least half of those questions [are] shall be developed by teachers rather than administrators, in order to gather information that is specific to the particular community surveyed. The questionnaires shall indicate the public school site and shall be tabulated by the department of education within thirty days of receipt and shall be returned to the respective schools to be disseminated to all parents.

E. The annual accountability report for each school district shall be adopted by the local school board, may be published no later than November 15 of each year and may be published at least once each school year in a newspaper of general circulation in the county where the school district is located. In publication, the report shall be titled "The School District Report Card" and disseminated in accordance with guidelines established by the state board to ensure effective communication with parents, students, educators, local policymakers and business and community organizations.

F. The department of education shall create an accountability data system through which data from each public school and each school district may be compiled and reviewed. The department of education shall provide the resources to train school district personnel in the use of the accountability data system.

G. The department of education shall verify data submitted by the school districts.

H. The state board shall measure the performance of every public school in New Mexico.

I. Beginning with the 1999-2000 school year's student and school performance data, the state board shall identify each school as being in one of the following grade categories and publish each school's grades in the school district's annual school district accountability report pursuant to Subsection A of this section:

(1) "A" for schools making excellent progress;

(2) "B" for schools making above average progress;

(3) "C" for schools making satisfactory progress;

(4) "D" for schools making less than satisfactory progress; or

(5) "F" for schools failing to make adequate progress.

J. School performance grade categories shall be based upon a formula established by the state board that includes measurements of student achievement by a nationally norm-referenced test approved by the department of education or through a performance-based instrument to measure proficiency, student readiness for college, school safety, dropout rates, attendance and parent or community involvement.

K. Public schools achieving the highest level of performance shall be eligible for supplemental incentive funding. Subject to the provisions of the Education Opportunity Act, the state board shall establish the corrective actions and interventions necessary for public schools whose performance level is low.

[I. Appropriation is contingent upon inclusion of one million four hundred thirty-three thousand dollars ($1,433,000) in the general appropriation act to meet the provisions of this act.]"

Section 14. Section 22-2-2 NMSA 1978 (being Laws 1967, Chapter 16, Section 5, as amended) is amended to read:

"22-2-2. STATE BOARD--DUTIES.--Without limiting those powers granted to the state board pursuant to Section 22-2-1 NMSA 1978, the state board shall perform the following duties:

A. properly and uniformly enforce the provisions of the Public School Code;

B. determine policy for the operation of all public schools and vocational education programs in the state;

C. appoint a state superintendent;

D. purchase and loan instructional material to students pursuant to the Instructional Material Law and adopt rules relating to the use and operation of instructional material depositories in the instructional material distribution process;

E. designate courses of instruction to be taught in all public schools in the state;

F. assess and evaluate all state institutions and those private schools that desire state accreditation;

G. determine the qualifications for and issue a certificate to any person teaching, assisting teachers, supervising an instructional program, counseling, providing special instructional services or administering in public schools, according to law and according to a system of classification adopted and published by the state board;

H. suspend or revoke a certificate held by a certified school instructor or certified school administrator, according to law, for incompetency, immorality or [for] any other good and just cause;

I. make full and complete reports on consolidation of school districts to the legislature;

J. prescribe courses of instruction, requirements for graduation and standards for all public schools, for private schools seeking state accreditation and for the educational programs conducted in state institutions other than the New Mexico military institute;

K. adopt rules for the administration of all public schools and bylaws for its own administration;

L. require periodic reports on forms prescribed by it from all public schools and attendance reports from private schools;

M. authorize adult educational programs to be conducted in schools under its jurisdiction and adopt and promulgate rules governing all such adult educational programs;

N. require any school under its jurisdiction that sponsors athletic programs involving sports to mandate that the participating student obtain catastrophic health and accident insurance coverage, such coverage to be offered through the school and issued by an insurance company duly licensed pursuant to the laws of New Mexico;

O. require all accrediting agencies for public schools in the state to act with its approval;

P. accept and receive all grants of money from the federal government or any other agency for public school purposes and disburse the money in the manner and for the purpose specified in the grant;

Q. require prior approval for any educational program in a public school that is to be conducted, sponsored, carried on or caused to be carried on by a private organization or agency;

R. approve or disapprove all rules promulgated by any association or organization attempting to regulate any public school activity and invalidate any rule in conflict with any rule promulgated by the state board. The state board shall require any association or organization attempting to regulate any public school activity to comply with the provisions of the Open Meetings Act and be subject to the inspection of the Public Records Act. The state board may require performance and financial audits of any association or organization attempting to regulate any public school activity. The state board shall have no power or control over the rules or the bylaws governing the administration of the internal organization of the association or organization;

S. review decisions made by the governing board or officials of any organization or association regulating any public school activity, and any decision of the state board shall be final in respect thereto;

T. accept or reject any charitable gift, grant, devise or bequest. The particular gift, grant, devise or bequest accepted shall be considered an asset of the state;

U. establish and maintain regional centers, at its discretion, for conducting cooperative services between public schools and school districts within and among those regions and to facilitate regulation and evaluation of school programs;

V. assess and evaluate for accreditation purposes at least one-third of all public schools each year through visits by department of education personnel to investigate the adequacy of [pupil] student gain in standard required subject matter, adequacy of [pupil] student activities, functional feasibility of public school and school district organization, adequacy of staff preparation and other matters bearing upon the education of the students;

W. provide for management and other necessary personnel to operate any public school or school district that has failed to meet requirements of law, state board standards or state board rules; provided that the operation of the public school or school district shall not include any consolidation or reorganization without the approval of the local board of that school district. Until such time as requirements of law, standards or rules have been met and compliance is assured, the powers and duties of the local school board shall be suspended;

X. establish and implement a plan that provides for technical assistance to local school boards through workshops and other in-service training methods; provided, however, that no plan shall require mandatory attendance by any member of a local school board;

Y. submit a plan applying for funds available under Public Law 94-142 and disburse these funds in the manner and for the purposes specified in the plan;

Z. enforce requirements for home schools. Upon finding that a home school is not in compliance with law, the state board has authority to order that a student attend a public school or a private school; [and]

AA. develop a systemic framework for professional development that provides training to ensure quality teachers and principals and that improves and enhances student achievement. The state board shall work with public school educators, the commission on higher education and institutions of higher education to establish the framework. The framework shall include:

(1) the criteria for school districts to apply for professional development funds, including an evaluation component that will be used by the department of education in approving local school district professional development plans; and

(2) guidelines for developing extensive professional development activities for school districts, including teaching strategies, curriculum materials, distance learning networks and web sites to ensure that the state board's rules pertaining to content standards and benchmarks are used by New Mexico teachers; and

BB. determine rules and policies for the operation of the Education Opportunity Act."

Section 15. EFFECTIVE DATE.--

A. The effective date of Sections 1 through 11 of this act is July 1, 2002.

B. The effective date of Sections 12 through 15 of this act is July 1, 2000.