45th legislature - STATE OF NEW MEXICO - second session, 2002

RELATING TO EDUCATION; PROVIDING ELEMENTARY AND SECONDARY EDUCATION REFORMS; CHANGING SCHOOL ENROLLMENT PRIORITY TO INCLUDE STUDENTS FROM PROBATIONARY OR NEEDS-IMPROVEMENT SCHOOLS; REQUIRING ANNUAL CRITERION-REFERENCED READING AND MATHEMATICS TESTING IN GRADES THREE THROUGH EIGHT; REQUIRING A STATE-ISSUED STUDENT IDENTIFICATION NUMBER; REQUIRING BEFORE- OR AFTER-SCHOOL TUTORING FOR STUDENTS WHO FAIL TO ATTAIN GRADE-LEVEL PROFICIENCY; ENACTING THE ELEMENTARY AND SECONDARY SCHOOL VOUCHER ACT; INCREASING THE NUMBER OF CONVERSION CHARTER SCHOOLS; CLARIFYING CHARTER SCHOOL ACCESS TO SCHOOL DISTRICT PROPERTY AND COSTS FOR USING SUCH PROPERTY; DECREASING THE TIME FOR APPROVAL OF CHARTER SCHOOLS; ALLOWING CONVERSION SCHOOLS TO CONTINUE TO USE THEIR FACILITIES AND EQUIPMENT; PROVIDING LIMITED RECIPROCITY FOR OUT-OF-STATE TEACHERS AND SCHOOL ADMINISTRATORS; ENACTING THE TEACHER MERIT PAY ACT; CREATING A COMMITTEE; PROVIDING POWERS AND DUTIES; REQUIRING SCHOOL DISTRICTS TO NOTIFY EMPLOYEES OF CERTAIN RIGHTS REGARDING USE OF COLLECTED UNION DUES; ALLOWING PERSONS WHO HAVE COMPLETED TENTH GRADE TO TEST OUT OF COMPULSORY SCHOOL ATTENDANCE; ELIMINATING THE MULTIPLE LIST OF INSTRUCTIONAL MATERIALS; ALLOWING PUBLIC AND PRIVATE SCHOOLS, STATE INSTITUTIONS AND ADULT BASIC EDUCATION CENTERS TO SELECT THEIR INSTRUCTIONAL MATERIALS; ALLOWING PARENTS TO CHOOSE AN ENGLISH IMMERSION PROGRAM FOR THEIR NON-ENGLISH-SPEAKING OR LIMITED-ENGLISH-PROFICIENT SCHOOL-AGE CHILD; AMENDING, REPEALING AND ENACTING SECTIONS OF THE NMSA 1978; MAKING AN APPROPRIATION.

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

Section 1. Section 22-1-4 NMSA 1978 (being Laws 1975, Chapter 338, Section 1, as amended by Laws 2001, Chapter 239, Section 1 and by Laws 2001, Chapter 244, Section 1) 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 the 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 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 rules governing enrollment and re-enrollment at public schools other than charter schools within the school district. These rules shall include:

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

(2) for each public school, definition of the boundaries of areas outside the school district or private school boundary or within the school district but outside the public school's attendance area and within a distance of the public 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) priorities for enrollment of students as follows:

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

(b) second, students from a probationary or needs-improvement school who are not at grade-level proficiency;

[(b) second] (c) third, persons who previously attended the public school; and

[(c) third] (d) fourth, all other applicants;

(4) establishment of maximum allowable class size if smaller than that permitted by law; and

(5) rules pertaining to grounds for denial of enrollment or re-enrollment at schools within the school district and the school district's hearing and appeals process for such a denial. Grounds for denial of enrollment or re-enrollment shall be limited to:

(a) a student's expulsion from any school district or private school in this state or any other state during the preceding twelve months; or

(b) a student's behavior in another school district or private school in this state or any other state during the preceding twelve months that is detrimental to the welfare or safety of other students or school personnel.

F. In adopting and promulgating rules governing enrollment and re-enrollment at public schools other than charter schools within the district, a local school board may establish additional enrollment preferences for rules admitting students in accordance with the second [and third] through fourth priorities of enrollment set forth in Subparagraphs (b) [and (c)] through (d) of Paragraph (3) of Subsection E of this section. The additional enrollment preferences may include:

(1) after-school child care for students;

(2) child care for siblings of students attending the public school;

(3) children of employees employed at the public school;

(4) extreme hardship;

(5) location of a student's previous school;

(6) siblings of students already attending the public school; and

(7) student safety.

G. As long as the maximum allowable class size established by law or by rule of a local school board, whichever is lower, is not met or exceeded in a public school by enrollment of first-priority persons, the public school shall enroll other persons applying in the priorities stated in the school district rules adopted pursuant to Subsections E and F of this section. If the maximum would be exceeded by enrollment of an applicant in the second or third priority, the public 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 2. 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 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.

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

[B. Effective July 1, 1999] C. 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 programs shall be exempted from this requirement. 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.] D. 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.

E. School districts shall annually administer and report department-of-education-approved criterion-referenced tests for reading and mathematics in grades three through eight.

[D.] F. 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.

G. 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 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.] H. The annual accountability report shall also include a report of all federal funds distributed directly to the school district or received by the district from the department of education. For each distribution, the purpose for which the money was received shall be stated with a detailed accounting of the purposes for which the funds were expended.

[F.] I. 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.

[G.] J. 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.

[H.] K. The department of education shall verify data submitted by the school districts.

[I.] L. The state board shall measure the performance of every public school in New Mexico. Public schools achieving the highest level of performance shall be eligible for supplemental incentive funding. The state board shall establish the corrective actions and interventions necessary for public schools whose performance level is low.

[J.] M. The school district shall submit a copy of its annual accountability report to the legislative finance committee, the legislative education study committee and the library of the legislative council service."

Section 3. Section 22-2-2 NMSA 1978 (being Laws 1967, Chapter 16, Section 5, as amended by Laws 2001, Chapter 286, Section 1 and by Laws 2001, Chapter 299, Section 5) 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, including vocational programs that are part of a juvenile construction industries initiative for juveniles who are committed to the custody of the children, youth and families department;

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 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 gain in standard required subject matter, adequacy of pupil 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;

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;

BB. approve education curricula and programs offered in [all] two-year public post-secondary educational [institutions, including northern New Mexico state school, except those in Chapter 21, Article 12 NMSA 1978] institutions that lead to certificates for alternative certification for degree individuals pursuant to Section 22-10-3.5 NMSA 1978 or certification for educational assistant; [and]

CC. withhold program approval from a college of education or teacher preparation program that fails to offer a course on teaching reading that:

(1) is based upon current research;

(2) aligns with state board-adopted reading standards;

(3) includes strategies and assessment measures to ensure that beginning teachers are proficient in teaching reading; and

(4) was designed after seeking input from experts in the education field; and

DD. provide for the issuance of a state identification number for each public school student for use in the statewide student data management system."

Section 4. Section 22-2-6.3 NMSA 1978 (being Laws 1986, Chapter 94, Section 3, as amended) is amended to read:

"22-2-6.3. DEFINITIONS.--As used in the Public School Insurance Authority Act:

A. "authority" means the public school insurance authority;

B. "board" means the board of directors of the public school insurance authority;

C. "charter school" means a school organized as a charter school pursuant to the provisions of the 1999 Charter Schools Act or the Charter Schools Act;

D. "director" means the director of the public school insurance authority;

E. "educational entities" means state educational institutions as enumerated in Article 12, Section 11 of the constitution of New Mexico and other state diploma, degree-granting and certificate-granting post-secondary educational institutions and regional education cooperatives;

F. "fund" means the public school insurance fund;

G. "group health insurance" means coverage that includes life insurance, accidental death and dismemberment, medical care and treatment, dental care, eye care and other coverages as determined by the authority;

H. "risk-related coverage" means coverage that includes property and casualty, general liability, auto and fleet, workers' compensation and other casualty insurance; and

I. "school district" means a school district as defined in Subsection K of Section 22-1-2 NMSA 1978, excluding any school district with a student enrollment in excess of sixty thousand students."

Section 5. Section 22-2-8.4 NMSA 1978 (being Laws 1986, Chapter 33, Section 5, as amended by Laws 2001, Chapter 257, Section 1 and by Laws 2001, Chapter 276, Section 1) is amended to read:

"22-2-8.4. GRADUATION REQUIREMENTS.--

A. At the end of the eighth grade or during the ninth grade, each student shall prepare an individual program of study for grades nine through twelve. The program of study shall be signed by a student's parent or guardian.

B. Beginning with students entering the ninth grade in the 1986-87 school year, successful completion of a minimum of twenty-three units shall be required for graduation. These units shall be as follows:

(1) four units in English, with major emphasis on grammar and literature;

(2) three units in mathematics;

(3) two units in science, one of which shall have a laboratory component;

(4) three units in social science, which shall include United States history and geography, world history and geography, and government and economics;

(5) one unit in physical fitness;

(6) one unit in communication skills, with major emphasis on writing and speaking, which may include a language other than English; and

(7) nine elective units. Only the following elective units shall be counted toward meeting the requirements for graduation: fine arts, i.e., music, band, chorus and art; practical arts; physical education; languages other than English; speech; drama; vocational education; mathematics; science; English; R.O.T.C.; social science; computer science; health education; American sign language; and other electives approved by the state board.

With the approval of the local school board, participation on an athletic team or in an athletic sport during the school day may count toward fulfillment of the physical education required unit.

C. Final examinations shall be administered to all students in all classes offered for credit.

D. Except as provided in Section 22-12-2 NMSA 1978, no student shall receive a high school diploma who has not passed a state graduation examination in the subject areas of reading, English, math, writing, science and social science. Beginning with the 1996-97 school year, the state graduation examinations on social science shall include a section on the constitution of the United States and the constitution of New Mexico. If a student exits from the school system at the end of grade twelve without having passed a state graduation examination, he shall receive an appropriate state certificate indicating the number of credits earned and the grade completed. If within five years after a student exits from the school system he takes and passes the state graduation examination, he may receive a high school diploma.

E. The state board may establish a policy to provide for administrative interpretations to clarify curricular and testing provisions of the Public School Code."

Section 6. Section 22-2-8.6 NMSA 1978 (being Laws 1986, Chapter 33, Section 7, as amended) is amended to read:

"22-2-8.6. EDUCATIONAL CONTENT STANDARDS--REMEDIATION PROGRAMS--PROMOTION POLICIES--RESTRICTIONS.--

A. The state board shall identify educational content standards as measured by the state assessment program and establish performance levels of proficiency. Remediation programs, academic improvement programs and promotion policies shall be aligned with content standards and based on the following:

(1) statewide assessment results;

(2) alternative school-district-determined assessment results; and

(3) student performance in school.

B. Local school boards shall approve district-developed remediation programs and academic improvement programs to provide special instructional assistance to students in grades one through eight who fail to attain a level of proficiency established by the content standards. The programs shall require individual tutoring before or after school for every student who fails to attain grade-level proficiency. The cost of remediation programs and academic improvement programs shall be borne by the school district. Remediation programs and academic improvement programs shall be incorporated into the school district's educational plan for student success and filed with the department of education.

C. The cost of summer and extended day remediation programs and academic improvement programs, including required individual tutoring before or after school, offered in grades nine through twelve shall be borne by the parent or guardian; however, where parents are determined to be indigent according to guidelines established by the state board, the local school [board] district shall bear those costs.

D. Diagnosis of weaknesses identified by the reading or writing performance assessment instrument administered pursuant to Section 22-2-8.5 NMSA 1978 may serve as criteria in assessing the need for remedial programs or retention.

E. A parent or guardian shall be notified no later than the end of the second grading period that his child is failing to attain appropriate grade-level proficiency in content standards, and a conference consisting of the parent or guardian and the teacher shall be held to discuss possible remediation programs available to assist the student in attaining the required level of proficiency established by the content standards. Specific academic deficiencies and remediation strategies shall be explained to the student's parent or guardian and a written plan developed containing timelines, academic expectations and the measurements to be used to verify that a student has overcome his academic deficiencies. Remediation programs and academic improvement programs include tutoring, extended day or week programs, summer programs and other research-based models for student improvement.

F. At the end of grades one through seven, three options are available, dependent on a student's attainment of the required level of proficiency established by the content standards:

(1) the student has attained the level of proficiency required by the content standards and shall enter the next higher grade;

(2) the student has not attained the required level of proficiency and shall participate in the required level of remediation. Upon certification by the school district that the student has successfully overcome his areas of deficiency, he shall enter the next higher grade; or

(3) the student has not attained the level of proficiency required by the content standards upon completion of the prescribed remediation program and upon the recommendation of the certified school instructor and school principal shall either be:

(a) retained in the same grade for no more than one school year with an academic improvement plan developed by the student assistance team in order to attain proficiency of content standards, at which time the student shall enter the next higher grade; or

(b) promoted to the next grade if the parent or guardian refuses to allow his child to be retained pursuant to Subparagraph (a) of this paragraph. In this case, the parent or guardian shall sign a waiver indicating his desire that the student be promoted to the next higher grade with an academic improvement plan designed to address specific academic deficiencies. The academic improvement plan shall be developed by the student assistance team outlining timelines and monitoring activities to ensure progress toward overcoming those academic deficiencies. Students failing to attain proficiency of content standards at the end of that year shall then be retained in the same grade for no more than one year in order to have additional time to master the required content standards.

G. At the end of the eighth grade, a student who fails to attain proficiency of content standards shall be retained in the eighth grade for no more than one school year in order to attain proficiency of content standards or if the student assistance team determines that retention of the student in the eighth grade will not assist the student attain the appropriate level of academic achievement and proficiency of standards, the team shall design a high school graduation plan to meet the student's needs for entry into the work force or a post-secondary educational institution. If a student is retained in the eighth grade, the student assistance team shall develop a specific academic improvement plan that clearly delineates the student's academic deficiencies and prescribes a specific remediation plan to address those academic deficiencies.

H. A student who fails to attain proficiency of content standards for two successive school years shall be referred to the student assistance team for placement in an alternative program designed by the school district. Alternative program plans shall be filed with the department of education.

I. Promotion and retention decisions affecting a student enrolled in special education shall be made in accordance with the provisions of the individual educational plan established for that student.

J. The school district shall establish a reasonable hourly tutoring rate for tutors who provide individual tutoring services for students who have not attained grade-level proficiency.

[J.] K. For the purposes of this section:

(1) "academic improvement plan" means a written document developed by the student assistance team that describes the specific content standards required for a certain grade level that a student has not achieved and that prescribes specific remediation programs such as summer school, extended day or week school and tutoring;

(2) "alternative school-district-determined assessment results" means the results obtained from student assessments developed by a local school board and conducted at an elementary grade level or middle school level;

(3) "educational plan for student success" means a student-centered tool developed to define the role of the academic improvement plan within the district that addresses methods to improve a student's learning and success in school and that identifies specific measures of a student's progress;

(4) "statewide assessment results" means the results obtained from the New Mexico achievement assessment that is administered annually to grades three through nine pursuant to state board rule; and

(5) "student assistance team" means a group consisting of a student's:

(a) teacher;

(b) school counselor;

(c) school administrator; and

(d) parent or legal guardian."

Section 7. Section 22-8-2 NMSA 1978 (being Laws 1978, Chapter 128, Section 3, as amended) is amended to read:

"22-8-2. DEFINITIONS.--As used in the Public School Finance Act:

A. "ADM" or "MEM" means membership;

B. "membership" means the total enrollment of qualified students on the current roll of a class or school on a specified day and includes students on the roll of that class or school who have qualified for receipt of voucher payments pursuant to the Elementary and Secondary School Voucher Act. The current roll is established by the addition of original entries and reentries minus withdrawals. Withdrawals of students, in addition to students formally withdrawn from the public school, include students absent from the public school for as many as ten consecutive school days;

C. "basic program ADM" or "basic program MEM" means the MEM of qualified students but excludes the full-time-equivalent MEM in early childhood education and three- and four-year-old students receiving special education services;

D. "cost differential factor" is the numerical expression of the ratio of the cost of a particular segment of the school program to the cost of the basic program in grades four through six;

E. "department" or "division" means the state

department of public education;

F. "early childhood education ADM" or "early childhood education MEM" means the full-time-equivalent MEM of students attending approved early childhood education programs;

G. "full-time-equivalent ADM" or "full-time- equivalent MEM" is that membership calculated by applying to the MEM in an approved public school program the ratio of the number of hours per school day devoted to the program to six hours or the number of hours per school week devoted to the program to thirty hours;

H. "operating budget" means the annual financial plan required to be submitted by a local school board;

I. "program cost" is the product of the total number of program units to which a school district is entitled multiplied by the dollar value per program unit established by the legislature;

J. "program element" is that component of a public school system to which a cost differential factor is applied to determine the number of program units to which a school district is entitled, including but not limited to MEM, full-time-equivalent MEM, teacher, classroom or public school;

K. "program unit" is the product of the program element multiplied by the applicable cost differential factor;

L. "public money" or "public funds" means all money from public or private sources received by a local school board or officer or employee of a local school board for public use;

M. "qualified student" means a public school student who:

(1) has not graduated from high school;

(2) is regularly enrolled in one-half or more of the minimum course requirements approved by the state board for public school students; and

(3) is at least five years of age prior to 12:01 a.m. on September 1 of the school year; or

(4) is at least three years of age at any time during the school year and is receiving special education services pursuant to regulation of the state board; or

(5) has not reached his twenty-second birthday on the first day of the school year and is receiving special education services pursuant to regulation of the state board; and

N. "state superintendent" means the superintendent of public instruction or his designee."

Section 8. Section 22-8B-1 NMSA 1978 (being Laws 1999, Chapter 281, Section 1) is amended to read:

"22-8B-1. SHORT TITLE.--[Sections 1 through 15 of this act] Chapter 22, Article 8B NMSA 1978 may be cited as the "1999 Charter Schools Act"."

Section 9. Section 22-8B-4 NMSA 1978 (being Laws 1999, Chapter 281, Section 4, as amended) is amended to read:

"22-8B-4. CHARTER SCHOOLS' RIGHTS AND

RESPONSIBILITIES--OPERATION.--

A. A charter school shall be subject to all federal and state laws and constitutional provisions prohibiting discrimination on the basis of disability, race, creed, color, gender, national origin, religion, ancestry or need for special education services.

B. A charter school shall be administered and governed by a governing body in the manner set forth in the charter.

C. A charter school shall be responsible for its own operation, including preparation of a budget, contracting for services and personnel matters.

D. A conversion school may choose to use the school district facilities and equipment it had been using prior to conversion. A charter school may [negotiate or] contract with a local school district, a university or college or any third party for the use of a facility, its operation and maintenance and the provision of any service or activity that the charter school is required to perform in order to carry out the educational program described in its charter.

[E. In no event shall a charter school be required to pay rent for space that is deemed available, as negotiated by contract, in school district facilities; provided that the facilities can be made available at no cost to the district. All costs for the operation and maintenance of the facilities used by the charter school shall be subject to negotiation between the charter school and the district.

F. A charter school shall negotiate with a local school district to provide transportation to students eligible for transportation under the provisions of the Public School Code. The local school district, in conjunction with the charter school, may establish a limit for student transportation to and from the charter school site not to extend beyond the local school district boundary.

G. A charter school may negotiate with a local school district for capital expenditures.]

E. A charter school shall not be required to pay rent for school district facilities if they can be provided at no cost to the school district. The charter school may pay the costs of operation and maintenance of the facilities or it may contract with the school district to provide facility operation and maintenance services. If facilities are available, but cannot be provided at no cost to the school district, the school district may charge no more than the actual cost of providing the facilities.

F. Charter school facilities owned by a school district or charter school are eligible for state and local capital outlay funds and shall be included in the school district's facilities master plan.

G. In accordance with the Public School Code, a school district shall provide transportation to charter school students who live in the school district and who are eligible for transportation. The charter school shall provide information required for the school district to budget the cost of transporting charter school students.

H. A charter school shall be a nonsectarian, nonreligious and non-home-based public school that operates within a public school district.

I. Except as otherwise provided in the Public School Code, a charter school shall not charge tuition or have admission requirements.

J. A charter school shall be subject to the provisions of Sections 22-1-6 and 22-2-8 NMSA 1978.

K. A charter school may acquire [pledge] and dispose of property; provided that, upon termination of the charter, all assets of the charter school shall revert to the local school board that authorized the charter.

L. A charter school may accept or reject any charitable gift, grant, devise or bequest; provided that no such gift, grant, devise or bequest shall be accepted if subject to any condition contrary to law or to the terms of the charter. The particular gift, grant, devise or bequest shall be considered an asset of the charter school to which it is given.

M. A charter school may contract and sue and be sued. A local school board that approves a charter school shall not be liable for any acts or omissions of the charter school.

N. A charter school shall comply with all state and federal health and safety requirements applicable to public schools."

Section 10. Section 22-8B-6 NMSA 1978 (being Laws 1999, Chapter 281, Section 6) is amended to read:

"22-8B-6. CHARTER SCHOOL REQUIREMENTS--APPLICATION PROCESS--AUTHORIZATION.--

A. The local school board shall have the authority to approve the establishment of a charter school within the local school district in which it is located.

B. A charter school applicant shall apply to a local school board for a charter. An applicant shall only submit an application in the school district in which the school is located. Applications shall be submitted by October 1 to be eligible for consideration for the following school year. The October 1 deadline may be waived upon agreement of the applicant and the local school board.

C. An application for a start-up school may be made by one or more teachers, parents or community members.

D. An application for a conversion school shall include a petition of support signed by not less than sixty-five percent of the employees in the school. Additionally, a petition in support of the charter school signed by a majority of the households whose children are enrolled in a proposed conversion school must accompany the application.

E. The local school board shall receive and review all applications for charter schools. The local school board shall not charge application fees. If the local school board finds the charter school application is incomplete, the local school board shall request the necessary information from the charter applicant.

F. The local school board shall hold at least one meeting to obtain information and community input to assist the local school board in its decision whether to grant a charter school application. The local school board shall rule on the application for a charter school in a public meeting within [sixty] forty-five days after receiving the application. If not ruled upon within [sixty] forty-five days, the charter application will be automatically reviewed by the state board in accordance with the provisions of Section [7 of the 1999 Charter Schools Act] 22-8B-7 NMSA 1978. The charter applicant and the local school board may, however, jointly waive the deadlines set forth in this section.

G. If the local school board denies a charter school application or imposes conditions that are unacceptable to the charter applicant, the charter applicant may appeal the decision to the state board pursuant to Section [7 of the 1999 Charter Schools Act] 22-8B-7 NMSA 1978.

H. If a local school board denies a charter school application, it shall state its reasons for the denial. If a local school board grants a charter, it shall send a copy of the approved charter to the department of education within fifteen days after granting the charter."

Section 11. Section 22-8B-7 NMSA 1978 (being Laws 1999, Chapter 281, Section 7) is amended to read:

"22-8B-7. CHARTER SCHOOL APPLICATION APPEAL--PROCEDURES.--

A. The state board, upon receipt of a notice of appeal or upon its own motion, shall review decisions of any local school board concerning charter schools in accordance with the provisions of this section.

B. A charter applicant or governing body of a charter school that wishes to appeal a decision of a local school board concerning the denial, nonrenewal or revocation of a charter school or the imposition of conditions that are unacceptable to the charter school or charter school applicant shall provide the state board with a notice of appeal within thirty days after the local school board's decision. The charter school applicant or governing body of the charter school bringing the appeal shall limit the grounds of the appeal to the grounds for denial, nonrenewal or revocation specified by the local school board. The notice shall include a brief statement of the reasons the charter school applicant contends the local school board's decision was in error. The appeal and review process shall be as follows:

(1) within [sixty] forty-five days after receipt of the notice of appeal, the state board, at a public hearing that may be held in the school district in which the proposed charter school has applied for a charter, shall review the decision of the local school board and make its findings. If the state board finds that the local school board's decision was contrary to the best interests of the students, school district or community, the state board shall remand the decision to the local school board with written instructions for approval of the charter. The instructions shall include specific recommendations concerning approval of the charter. The decision of the state board shall be final and not subject to appeal; and

(2) within thirty days following the remand of a decision by the state board, the local school board, at a public hearing, shall approve the charter.

C. The state board, on its own motion, may review a local school board's decision to grant or deny a charter. Within [sixty] thirty days after the [making of a motion] decision to review by the state board, the board, at a public hearing that may be held in the district in which the proposed charter school has applied for a charter, shall review the decision of the local school board and determine whether the decision was arbitrary and capricious or whether the establishment or operation of the proposed charter school would:

(1) violate any federal or state laws concerning civil rights;

(2) violate any court order;

(3) threaten the health and safety of students within the school district; or

(4) violate the provisions of Section [11 of the 1999 Charter Schools Act] 22-8B-11 NMSA 1978, prescribing the permissible number of charter schools.

D. If the state board determines that the charter would violate the provisions set forth in Subsection C of this section, the state board shall remand the decision to the local school board with instructions to deny the charter application. The state board may extend the time lines established in this section for good cause. The decision of the state board shall be final and not subject to appeal."

Section 12. Section 22-8B-11 NMSA 1978 (being Laws 1999, Chapter 281, Section 11) is amended to read:

"22-8B-11. CHARTER SCHOOLS--MAXIMUM NUMBER ESTABLISHED.--

A. Local school boards shall authorize the approval of both conversion and start-up charter schools within their school districts.

B. No more than fifteen start-up schools and [five] twenty-five conversion schools may be established per year statewide. The number of charter school slots remaining in that year shall be transferred to succeeding years up to a maximum of seventy-five start-up schools and one hundred twenty-five conversion schools in any five-year period. The state board shall promptly notify the local school board of each school district when the limits set forth in this section have been reached."

Section 13. Section 22-8B-13 NMSA 1978 (being Laws 1999, Chapter 281, Section 13) is amended to read:

"22-8B-13. CHARTER SCHOOL FINANCING.--

A. [The amount of funding allocated to the] A charter school shall [be] not receive less than ninety-eight percent of [the] its school-generated program cost.

B. That portion of money from state or federal programs generated by students enrolled in a charter school shall be allocated to that charter [schools serving] school for the students eligible for that aid. [Any other public school program not offered by the charter school shall not be entitled to the share of money generated by a charter school program] A charter school that does not offer a school program shall not be entitled to a share of the money received by the school district for that program.

C. All services centrally or otherwise provided by the local school district, including custodial, maintenance and media services, libraries and warehousing, shall be subject to negotiation between the charter school and the local school district. Any services for which a charter school contracts with a school district shall be provided by the district at [a reasonable] the actual cost incurred by the district."

Section 14. A new section of the 1999 Charter Schools Act is enacted to read:

"[NEW MATERIAL] CHARTER SCHOOLS--VACANT BUILDING LISTS.--The department of education, in conjunction with the general services department, shall publish an annual statewide list of unused buildings or portions of buildings owned by the state and school districts that may be suitable for the operation of charter schools. The department of education shall make the list available to applicants for charter school status and to existing charter schools."

Section 15. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] SHORT TITLE.--Sections 15 through 22 of this act may be cited as the "Elementary and Secondary School Voucher Act"."

Section 16. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] LEGISLATIVE FINDINGS AND PURPOSE.--

A. The legislature finds that:

(1) every family in New Mexico should have the option to take advantage of the best educational opportunities available to their school-age children;

(2) providing families in New Mexico a choice between schools leads to competition that benefits students and improves the quality of public schools;

(3) students should be allowed to improve their learning potential through educational opportunities that are best suited to their individual needs and interests;

(4) low-income families should not be denied educational choices for their school-age children; and

(5) a phased-in program for vouchers should be established for students living in school attendance zones and school districts with high percentages of dropouts and low-income students, low test scores, a high incidence of schools in need of improvement and probationary schools. The program should include enough public schools or private schools so that affected students, through their parents or legal guardians, will have the option of school choice.

B. The purpose of the Elementary and Secondary School Voucher Act is to phase in a voucher program that begins with serving those students most in need of a choice of schools and that eventually provides all of New Mexico's students the opportunity to attend their choice of public or private schools in order to best suit their individual needs and interests."

Section 17. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] DEFINITIONS.--As used in the Elementary and Secondary School Voucher Act:

A. "family income" means the income of the student's parent or legal guardian who resides with the student at the student's principal residence;

B. "federal poverty guidelines" means the level of income defining poverty by family size published annually in the federal register by the United States department of health and human services;

C. "resident school district" means the school district in which a student resides;

D. "program" means the elementary and secondary school voucher program; and

E. "voucher" means a note issued to a qualifying parent or legal guardian through the department of education that can be used to educate his child at a public or eligible private school."

Section 18. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] ADMINISTRATION OF THE PROGRAM.--

A. The department of education shall administer the program pursuant to rules adopted by the state board.

B. The state board shall, by rule, establish criteria and guidelines for the implementation and operation of the program.

C. A private school is not required to participate in the program.

D. The department of education, in cooperation with the school districts, shall embark on a public awareness campaign to inform the public about the program using the schools, other government agencies and the media."

Section 19. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] ELIGIBLE STUDENTS.--

A. A student who is a resident of New Mexico and is at least five years of age prior to 12:01 a.m. on September 1 of the school year or is a developmentally disabled three- or four-year-old child is eligible to participate in the program if the student meets the following criteria:

(1) for the 2002-2003 school year:

(a) the student's family income in 2001 does not exceed one hundred percent of the 2001 federal poverty guidelines;

(b) the student will be enrolled in grades one through ten;

(c) the student resides in the Albuquerque public school district; and

(d) the student resides in the school attendance zone of one of four high schools identified by the department of education. Prior to May 30, 2002, the department shall select four high schools in the Albuquerque public school district with a high percentage of dropouts and low test scores and a high incidence of violence and school vandalism;

(2) for the 2003-2004 school year:

(a) the student's family income in 2002 does not exceed one hundred percent of the 2002 federal poverty guidelines;

(b) the student will be enrolled in grades one through eleven; and

(c) the student resides in the Albuquerque public school district, the Las Cruces public school district, the Gadsden independent school district, the Santa Fe public school district, the Pojoaque Valley public school district, the Espanola public school district, the Gallup-McKinley county public school district, the Zuni public school district, the Grants-Cibola county school district, the central consolidated school district, the Farmington municipal school district or the Aztec municipal school district;

(3) for the 2004-2005 school year, the student's family income in 2003 does not exceed one hundred percent of the 2003 federal poverty guidelines; and

(4) for the 2005-2006 school year, the student's family income in 2004 does not exceed two hundred thirty-five percent of the 2004 federal poverty guidelines.

B. For the 2006-2007 school year and subsequent years, all students shall be eligible to participate in the program.

C. A student who receives a voucher pursuant to the Elementary and Secondary School Voucher Act shall participate in the testing required by Section 22-1-6 NMSA 1978. The testing shall be administered by the student's resident school district."

Section 20. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] ELIGIBLE PRIVATE SCHOOLS.--

A. To be eligible to participate in the program, a private school shall:

(1) register with the department of education as an eligible private school;

(2) maintain or develop antidiscrimination policies to prevent discrimination on the basis of race, color, national origin or ancestry; and

(3) develop policies that do not discriminate against students who are recipients of vouchers.

B. A private school that accepts students who are participants in the program is not required to comply with rules that apply to public schools promulgated by either the state board or a local school board."

Section 21. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] PROCEDURES FOR USING VOUCHERS.--

A. A parent may use a voucher to enroll his child in a public school outside of the child's resident school district.

B. A school district shall adopt specific, written standards for acceptance and rejection of vouchers based on the capacity of a program, class size, grade level or school buildings.

C. For the 2003-2004 school year and each subsequent school year, not earlier than March 1 and not later than July 1 prior to the beginning of a school year, a student's parent or legal guardian may apply to the resident school district superintendent to participate in the program. The resident school district superintendent may waive the application deadline. The application shall contain the following information:

(1) the student's name and address;

(2) the student's date of birth;

(3) the student's social security number;

(4) the student's school attendance zone;

(5) the student's grade level;

(6) the name and address of the student's parent or legal guardian who is residing with the child;

(7) if necessary to determine eligibility, proof of family income through copies of:

(a) the parent's or legal guardian's three most recent paycheck receipts for all employment;

(b) a signed statement by the parent's or legal guardian's employer indicating the weekly, biweekly or annual net earnings; or

(c) a signed statement by the parent or legal guardian that he is self-employed and that indicates his annual net earnings accompanied by a copy of his most recent income tax return;

(8) whether the student was enrolled in a class A, B, C or D special education program in the prior school year or, for a child entering school for the first time, whether the child has a diagnosed developmental disability or learning disorder;

(9) whether the student speaks a language other than English as his principal language; and

(10) the name, tuition, fees and address of the public or private school to which the student intends to apply.

D. No later than forty-five days after the application is received, the resident school district superintendent shall act on the application, notify the parent or legal guardian of the value of the voucher and issue the voucher if the application is approved.

E. Not earlier than May 30, 2002 and not later than June 30, 2002, applications for the 2002-2003 school year containing the information required by Subsection C of this section shall be submitted to the department of education. Not later than August 1, 2002, the department shall:

(1) determine the total amount available for the program;

(2) determine the number of available vouchers;

(3) determine the eligibility and completeness of each application; and

(4) if the number of eligible and complete applications exceeds the number of available vouchers, hold a random lottery to select the students who will be issued vouchers.

F. The voucher shall be issued to the student in the care of the student's parent or legal guardian. The voucher shall not be issued to the private school or to the school district containing the public school that the student chooses to attend.

G. The student and his parent or legal guardian shall solely select the public or private school the student chooses to attend. Neither the state nor a school district shall decide which school a student may attend or advise or influence the student's selection of a school.

H. Not later than August 15 of each year, the resident school district superintendent shall report to the department of education the ages, school attendance zones and estimated voucher values of students participating in the program."

Section 22. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] VOUCHERS--REDEMPTION.--

A. Except as limited by Subsection C of this section, for the 2003-2004 school year and each subsequent school year, the value of the voucher shall be equal to the amount of money generated by the student through the state equalization guarantee distribution provided in the Public School Finance Act and a proportionate per student amount for transportation expenses if the student had attended a public school in the student's school attendance zone. The value of the voucher shall also include a proportionate allocation for the resident school district's at-risk funding. The department of education shall calculate the value of a student's voucher using the state equalization guarantee distribution formula.

B. Except as limited by Subsection C of this section, for the 2002-2003 school year, the value of the voucher shall equal three thousand dollars ($3,000).

C. Notwithstanding the value of a voucher determined pursuant to Subsection A or B of this section, the voucher redemption value shall not exceed the tuition and fees charged by a 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 voucher redemption value shall not exceed those costs.

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

E. A private school or a school district located outside of the student's attendance zone shall redeem the value of the voucher from the resident school district; or, for the 2002-2003 school year, from the department of education. The value of the voucher shall be paid 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.

F. If a private school disenrolls a student during the school year or if the student is absent for ten consecutive days without explanation from the student's parent or legal guardian, the private school shall, in writing, notify the resident school district or, for the 2002-2003 school year, the department of education, and the voucher redemption shall cease.

G. If a parent or legal guardian disenrolls a student from a private school and enrolls the student in another private school or in a public school during the school year, the parent or legal guardian shall, in writing, notify the resident school district or, for the 2002-2003 school year, 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 remaining voucher payment installments shall be made to the new private school. Upon proof of enrollment in a public school, the remaining installments shall be made to the school district in which the public school is located."

Section 23. A new section of the School Personnel Act is enacted to read:

"[NEW MATERIAL] LIMITED RECIPROCITY.--A teacher or school administrator who holds a valid license or certificate in another state shall be granted a similar New Mexico certificate if the other state's licensure or certification requirements meet or exceed New Mexico certificate requirements."

Section 24. A new section of the School Personnel Act is enacted to read:

"[NEW MATERIAL] SCHOOL DISTRICTS REQUIRED TO NOTIFY EMPLOYEES OF CERTAIN RIGHTS REGARDING USE OF COLLECTED UNION DUES.--

A. A school district that collects union dues from its employees shall post a notice in one or more conspicuous locations in the workplace disclosing the employees' rights regarding the use of collected union dues. The notice shall be in substantially the following form and substance:

IN ACCORDANCE WITH THE UNITED STATES SUPREME COURT DECISION IN COMMUNICATIONS WORKERS OF AMERICA v. BECK (1988)

YOU HAVE THE FOLLOWING RIGHTS REGARDING THE USE OF UNION DUES COLLECTED FROM YOU:

1. A union is not permitted to expend dues or fees collected from dues-paying nonmember employees, often referred to as "agency fees", on activities unrelated to collective bargaining activities and may collect from those employees only those dues and fees necessary to finance collective bargaining activities.

2. Political causes and community outreach programs are activities unrelated to collective bargaining and agency fees shall not be used for financing political causes or community outreach programs.".

B. The director of the labor and industrial division of the labor department shall prepare and furnish posters containing the notice in Subsection A of this section to school districts. Posting of that notice in one or more conspicuous locations in each school and other school district workplaces is compliance with the requirement of Subsection A of this section.

C. If withheld union dues or fees are to be used for political purposes, before withholding from an employee, the school district shall obtain written permission from the employee. After once obtaining that permission, the school district shall obtain it annually thereafter for each employee that remains employed and who remains subject to withholding.

D. A union that engages in mandatory withholding of dues or fees from nonmember employees shall report annually to the secretary of state the fact of the withholding and the amounts withheld together with expenditures from amounts withheld in at least the following categories:

(1) collective bargaining;

(2) organizing;

(3) developing safety programs in the workplace;

(4) partisan political campaigns and contributions;

(5) political issue education; and

(6) voter registration."

Section 25. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] SHORT TITLE.--Sections 25 through 30 of this act may be cited as the "Teacher Merit Pay Act"."

Section 26. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] PURPOSE OF ACT.--The purpose of the Teacher Merit Pay Act is to reward teachers who demonstrate outstanding teacher practices, resulting in outstanding student academic performances and student improvement, and to encourage all teachers to excel in their teaching beyond state standards and benchmarks in order to optimally impact students."

Section 27. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] ADMINISTRATION OF THE PROGRAM--ADOPTING RULES.--

A. The state board shall establish a teacher merit pay program.

B. The state board shall establish guidelines for the implementation and operation of a teacher merit pay program to provide to teachers merit awards that shall be incorporated into the teacher's base salary in accordance with the provisions of the Teacher Merit Pay Act.

C. The department of education shall provide administrative assistance, meeting space and other necessary facilities and support services as the teacher merit pay committee may request.

D. The state superintendent shall report annually to the legislature and the governor on the effectiveness of the teacher merit pay program. The report shall include evaluations, surveys and the recommendations of parents and teachers involved in the program and an analysis of the extent to which the program encourages teacher excellence and increases student achievement."

Section 28. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] TEACHER MERIT PAY COMMITTEE--DUTIES--MEMBERSHIP.--

A. The "teacher merit pay committee" is created as an advisory committee to advise the state board and the department of education on all policies, strategies, organizational structures and other matters necessary to establish and implement a teacher merit pay program.

B. The teacher merit pay committee shall consist of ten members appointed as follows:

(1) two members of the state board's standing committee on accountability, appointed by the president of the state board;

(2) one member who represents the business community and who is not employed in education, appointed by the governor;

(3) one member who represents the business community and who is not employed in education, appointed jointly by the president pro tempore of the senate and the speaker of the house of representatives;

(4) one member who is a parent of a school-age child and who is not employed in education, appointed by the governor;

(5) one member who is a parent of a school-age child and who is not employed in education, appointed jointly by the president pro tempore of the senate and the speaker of the house of representatives;

(6) two members who are certified school instructors, one of whom shall be a member of either the New Mexico national education association or the federation of education employees, appointed by the governor; and

(7) two members who are certified school instructors, one of whom shall be a member of either the New Mexico national education association or the federation of education employees, appointed jointly by the president pro tempore of the senate and the speaker of the house of representatives.

C. The remaining members of the state board's standing committee on accountability who are not already appointed may serve as advisory members to the teacher merit pay committee.

D. The teacher merit pay committee shall meet at the call of the chairman and shall meet not less than monthly. The chairman shall be elected from among the members of the committee.

E. Members of the teacher merit pay committee shall receive per diem and mileage as provided in the Per Diem and Mileage Act."

Section 29. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] TEACHER EVALUATION REPORT--STUDENT ACHIEVEMENT REPORT.--

A. The teacher merit pay committee shall advise the state board on the design of the teacher evaluation and student achievement reports used to determine the basis of merit awards in accordance with the provisions of the Teacher Merit Pay Act.

B. The teacher evaluation report shall include self-, peer- and supervisor-evaluation components. The self evaluation shall be provided by the teacher who is eligible for a merit award. The peer evaluation shall be provided by an associate of the teacher who is eligible for the merit award and who instructs at the same grade level for elementary schools or in the same subject area for middle and secondary schools. The supervisor evaluation shall be completed by a supervisor of the teacher who is eligible for the merit award. The state board may determine specific evaluation standards for measurement in the teacher evaluation report, including whether the teacher:

(1) demonstrates substantial content knowledge of his instructional subject matter;

(2) demonstrates a professional practice of teaching;

(3) understands student cognitive learning processes;

(4) uses effective curriculum and instructional strategies; and

(5) uses successful classroom strategies.

C. The student achievement report shall measure student achievement through various student academic performance measures, including:

(1) standardized norm-referenced assessments;

(2) criterion-referenced assessments; and

(3) other standards determined by the state board."

Section 30. A new section of the Public School Code is enacted to read:

"[NEW MATERIAL] SALARY INCREASES.--The state board, with the advice of the teacher merit pay committee, shall determine base salary merit pay increases for teachers pursuant to the Teacher Merit Pay Act. In determining merit pay, the state board shall use the teacher evaluation report and the student achievement report to determine whether a teacher is "superior", "outstanding" or "exceeds proficient". A teacher who is:

A. "superior" shall receive up to a three percent base salary increase;

B. "outstanding" shall receive up to a two percent base salary increase; and

C. "exceeds proficient" shall receive up to a one percent base salary increase."

Section 31. Section 22-12-2 NMSA 1978 (being Laws 1967, Chapter 16, Section 170, as amended) is amended to read:

"22-12-2. COMPULSORY SCHOOL ATTENDANCE--RESPONSIBILITY.--

A. Any qualified student and any person who because of his age is eligible to become a qualified student as defined by the Public School Finance Act [until attaining the age of majority] shall attend a public school, a private school, a home school or a state institution until attaining the age of majority. A person shall be excused from this requirement if:

(1) the person is specifically exempted by law from the provisions of this section;

(2) the person has graduated from a high school;

(3) the person is at least seventeen years of age and has been excused by the local school board or its authorized representative upon a finding that the person will be employed in a gainful trade or occupation or engaged in an alternative form of education sufficient for the person's educational needs and the parent, guardian or other person having custody and control consents; [or]

(4) with the consent of the parent, guardian or person having custody and control of the person to be excused, the person is excused from the provisions of this section by the superintendent of schools of the school district in which the person is a resident and the person is under eight years of age; or

(5) with the consent of the parent, guardian or person having custody and control of the person to be excused, the person is excused from the provisions of this section by the superintendent of schools of the school district in which the person is a resident because the person has completed the tenth grade and has received a graduate equivalent diploma.

B. A person subject to the provisions of the Compulsory School Attendance Law shall attend school for at least the length of time of the school year that is established in the school district in which the person is a resident.

C. Any parent, guardian or person having custody and control of a person subject to the provisions of the Compulsory School Attendance Law is responsible for the school attendance of that person."

Section 32. Section 22-15-2 NMSA 1978 (being Laws 1967, Chapter 16, Section 206, as amended) is amended to read:

"22-15-2. DEFINITIONS.--As used in the Instructional Material Law:

A. "division" or "bureau" means the instructional material bureau in the department of education;

B. "director" or "chief" means the chief of the bureau;

C. "instructional material" means school textbooks and other educational media that are used as the basis for instruction, including combinations of textbooks, learning kits, supplementary materials and electronic media;

[D. "multiple list" means a written list of those instructional materials approved by the state board;

E.] D. "membership" means the [total] average enrollment of qualified students on the fortieth, [day] eightieth and one hundred twentieth days of the prior school year entitled to the free use of instructional material pursuant to the Instructional Material Law; and

[F.] E. "additional pupil" means a pupil in a school district's, state institution's [or], private school's or adult basic education center's current year's certified [forty-day] membership above the number certified in the school district's, state institution's [or], private school's or adult basic education center's prior year's [forty-day] membership."

Section 33. Section 22-15-4 NMSA 1978 (being Laws 1967, Chapter 16, Section 208, as amended) is amended to read:

"22-15-4. BUREAU--DUTIES.--Subject to the policies and [regulations] rules of the state board, the bureau shall:

A. administer the provisions of the Instructional Material Law;

B. enforce [regulations] rules for the handling, safekeeping and distribution of instructional material and instructional material funds and for inventory and accounting procedures to be followed by school districts, state institutions, private schools and adult basic education centers pursuant to the Instructional Material Law;

C. withdraw or withhold the privilege of participating in the free use of instructional material in case of any violation of or noncompliance with the provisions of the Instructional Material Law or any [regulations] rules adopted pursuant thereto; [and

D. enforce regulations relating to the use and operation of instructional material depositories in the instructional material distribution process]

D. enforce rules that require local school boards to implement a process that ensures that parents and other community members are involved in the instructional material review process;

E. ensure that instructional material purchased by private schools is not of a sectarian, partisan or denominational character or a religious nature by requiring private schools to submit a list with titles and a brief summary of content of all instructional material purchased with state instructional material funds; and

F. require an annual report from each local school board, state institution, private school or adult basic education center that acquires instructional material pursuant to the Instructional Material Law."

Section 34. Section 22-15-5 NMSA 1978 (being Laws 1967, Chapter 16, Section 209, as amended) is amended to read:

"22-15-5. INSTRUCTIONAL MATERIAL FUND.--

A. The state treasurer shall establish a fund to be known as the "instructional material fund".

B. The instructional material fund shall be used for the purpose of paying for the cost of purchasing instructional material pursuant to the Instructional Material Law. Transportation charges for the delivery of instructional material to a school district, a state institution, a private school as agent or an adult basic education center and emergency expenses incurred in providing instructional material to students may be included as a cost of purchasing instructional material. Charges for rebinding of used instructional [materials that appear on the multiple list pursuant to Section 22-15-8 NMSA 1978] material may also be included as a cost of purchasing instructional material."

Section 35. Section 22-15-8 NMSA 1978 (being Laws 1967, Chapter 16, Section 212, as amended) is amended to read:

"22-15-8. [MULTIPLE LIST] SELECTION OF INSTRUCTIONAL MATERIAL.--[A. The state board shall adopt a multiple list to be made available to students pursuant to the Instructional Material Law. The state board shall ensure that parents and other community members are involved in the adoption process at the state level.

B.] Pursuant to the provisions of the Instructional Material Law, each local school [district] board, state institution, private school as agent or adult basic education center may select instructional material for the use of its students [from the multiple list adopted by the state board]; provided that none of the instructional material purchased is of a sectarian, partisan or denominational character or a religious nature. Local school boards shall give written notice to parents and other community members and shall invite parental involvement in the [adoption] selection process at the school district level. Local school boards shall also give public notice, which notice may include publication in a newspaper of general circulation in the school district."

Section 36. Section 22-15-9 NMSA 1978 (being Laws 1967, Chapter 16, Section 213, as amended) is amended to read:

"22-15-9. DISTRIBUTION OF FUNDS FOR INSTRUCTIONAL MATERIAL.--

A. On or before July 1 of each year, the department of education shall allocate to each school district, state institution or private school not less than [ninety] seventy-five percent of its estimated entitlement as determined from the estimated [forty-day] membership for the next school year. A school district's, state institution's or private school's entitlement is that portion of the total amount of the annual appropriation less a deduction for a reasonable reserve for emergency expenses that its [forty-day] membership bears to the [forty-day] membership of the entire state. For the purpose of this allocation, additional pupils shall be counted as six pupils. The allocation for adult basic education shall be based on a full-time equivalency obtained by multiplying the total previous year's enrollment by .25.

B. On or before January 15 of each year, the department of education shall recompute each entitlement [using the forty-day membership for that year, except for adult basic education] and shall allocate the balance of the annual appropriation adjusting for any over- or under-estimation made in the first allocation.

[C. An amount not to exceed thirty percent of the allocations attributed to each local school district, state institution or adult basic education center may be used for instructional material not included on the multiple list provided for in Section 22-15-8 NMSA 1978. Adult basic education centers may expend up to one hundred percent of their instructional material funds for items that are not on the multiple list.

D.] C. The department of education shall establish procedures for the distribution of funds directly to [local] school districts, state institutions and adult basic education centers. The department of education shall distribute funds to private schools on a reimbursement basis for instructional material [included on the multiple list provided for in Section 22-15-8 NMSA 1978]; provided that none of the instructional material purchased is of a sectarian, partisan or denominational character or a religious nature.

[E.] D. A school district, state institution or adult basic education center that has funds remaining for the purchase of instructional material at the end of the fiscal year shall retain those funds for expenditure in subsequent years. Any balance remaining in an instructional material account of a private school at the end of the fiscal year shall remain available for reimbursement by the department of education for instructional material purchases in subsequent years."

Section 37. Section 22-15-12 NMSA 1978 (being Laws 1967, Chapter 16, Section 216, as amended) is amended to read:

"22-15-12. ANNUAL REPORT.--Annually, at a time specified by the department of education, each local school board [of a school district] and each governing authority of a state institution, private school or adult basic education center acquiring instructional material pursuant to the Instructional Material Law shall file a report with the department of education that includes an accurate record of all instructional material purchased, including cost records, on forms and by procedures prescribed by the department."

Section 38. Section 22-15-13 NMSA 1978 (being Laws 1967, Chapter 16, Section 217, as amended by Laws 1993, Chapter 156, Section 6 and also by Laws 1993, Chapter 226, Section 44) is amended to read:

"22-15-13. CONTRACTS WITH PUBLISHERS.--

A. [The state] A local school board, state institution, private school as agent or adult basic education center may enter into a contract with a publisher or a publisher's authorized agent for the purchase and delivery of instructional material [selected from the multiple list adopted by the state board].

B. Payment for instructional material purchased by [the state] a local school board, state institution, private school as agent or adult basic education center shall be made only upon performance of the contract and the delivery and receipt of the instructional material.

C. Each publisher or publisher's authorized agent contracting with [the state] a local school board, state institution, private school as agent or adult basic education center for the sale of instructional material shall agree:

[(1) to file a copy of each item of instructional material to be furnished under the contract with the state board with a certificate attached identifying it as an exact copy of the item of instructional material to be furnished under the contract;

(2)] (1) that the instructional material furnished pursuant to the contract shall be of the same quality in regard to paper, binding, printing, illustrations, subject matter and authorship as the [copy filed with the state board] copies sold to other states; and

[(3)] (2) that if the instructional material under the contract is sold elsewhere in the United States for a price less than that agreed upon in the contract with the [state] local school board, state institution, private school as agent or adult basic education center, the price to the state shall be reduced to the same amount.

D. Each contract executed for the acquisition of instructional material shall include the right of the local school board, state institution, private school as agent or adult basic education center to transcribe and reproduce instructional material in media appropriate for the use of students with visual impairment who are unable to use instructional material in conventional print and form. Publishers of adopted textbooks shall be required to provide those materials to the local school board, state institution, private school as agent or adult basic education center in an electronic format specified by the educational entity that is readily translatable into braille and can be used for large print or speech access within a time period specified by the educational entity."

Section 39. Section 22-23-1 NMSA 1978 (being Laws 1973, Chapter 285, Section 1) is amended to read:

"22-23-1. SHORT TITLE.--[This act] Chapter 22, Article 23 NMSA 1978 may be cited as the "Bilingual Multicultural Education Act"."

Section 40. A new section of the Bilingual Multicultural Education Act is enacted to read:

"[NEW MATERIAL] LIMITED-ENGLISH-PROFICIENT STUDENTS--ENGLISH IMMERSION OPTION.--A non-English-speaking or limited-English-proficient student shall be placed in an English immersion program if the parent of the student requests the placement. The placement shall not decrease the school district's calculation for at-risk program units and bilingual multicultural education units."

Section 41. APPROPRIATION.--Eight million seven hundred thousand dollars ($8,700,000) is appropriated from the general fund to the state department of public education for expenditure in fiscal year 2003 for the purpose of paying vouchers in the 2002-2003 school year pursuant to the Elementary and Secondary School Voucher Act. Any unexpended or unencumbered balance remaining at the end of fiscal year 2003 shall revert to the general fund.

Section 42. REPEAL.--Section 22-15-11 NMSA 1978 (being Laws 1967, Chapter 16, Section 215, as amended) is repealed.