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AN ACT

RELATING TO PUBLIC SCHOOLS; DISTINGUISHING A STUDENT'S

ACADEMIC PROFICIENCY FROM THE ADEQUATE YEARLY PROGRESS OF

PUBLIC SCHOOLS AND SCHOOL DISTRICTS; CONFORMING RANKINGS OF

SCHOOLS IN NEED OF IMPROVEMENT WITH FEDERAL REQUIREMENTS;

PROVIDING A PROCESS FOR REOPENING FAILING SCHOOLS AS STATE-

CHARTERED CHARTER SCHOOLS; PROVIDING FOR THE DISAGGREGATION OF

DATA BY GENDER; RECONCILING MULTIPLE AMENDMENTS TO THE SAME

SECTION OF LAW IN LAWS 2005.

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

Section 1. Section 22-1-2 NMSA 1978 (being Laws 2003,

Chapter 153, Section 3, as amended by Laws 2005, Chapter 313,

Section 3 and by Laws 2005, Chapter 315, Section 1) is amended

to read:

"22-1-2. DEFINITIONS.--As used in the Public School

Code:

A. "academic proficiency" means mastery of the

subject-matter knowledge and skills specified in state

academic content and performance standards for a student's

grade level;

B. "adequate yearly progress" means the measure

adopted by the department based on federal requirements to

assess the progress that a public school or school district or

the state makes toward improving student achievement;

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C. "commission" means the public education

commission;

D. "department" means the public education

department;

E. "forty-day report" means the report of

qualified student membership of each school district and of

those eligible to be qualified students but enrolled in a

private school or a home school for the first forty days of

school;

F. "home school" means the operation by the parent

of a school-age person of a home study program of instruction

that provides a basic academic educational program, including

reading, language arts, mathematics, social studies and

science;

G. "instructional support provider" means a person

who is employed to support the instructional program of a

school district, including educational assistant, school

counselor, social worker, school nurse, speech-language

pathologist, psychologist, physical therapist, occupational

therapist, recreational therapist, interpreter for the deaf

and diagnostician;

H. "licensed school employee" means teachers,

school administrators and instructional support providers;

I. "local school board" means the policy-setting

body of a school district;

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J. "local superintendent" means the chief

executive officer of a school district;

K. "parent" includes a guardian or other person

having custody and control of a school-age person;

L. "private school" means a school, other than a

home school, that offers on-site programs of instruction and

that is not under the control, supervision or management of a

local school board;

M. "public school" means that part of a school

district that is a single attendance center in which

instruction is offered by one or more teachers and is

discernible as a building or group of buildings generally

recognized as either an elementary, middle, junior high or

high school or any combination of those and includes a charter

school;

N. "school" means a supervised program of

instruction designed to educate a student in a particular

place, manner and subject area;

O. "school administrator" means a person licensed

to administer in a school district and includes school

principals and central district administrators;

P. "school-age person" means a person who is at

least five years of age prior to 12:01 a.m. on September 1 of

the school year and who has not received a high school diploma

or its equivalent. A maximum age of twenty-one shall be used

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for a person who is classified as special education membership

as defined in Section 22-8-21 NMSA 1978 or as a resident of a

state institution;

Q. "school building" means a public school, an

administration building and related school structures or

facilities, including teacher housing, that is owned, acquired

or constructed by the school district as necessary to carry

out the functions of the school district;

R. "school bus private owner" means a person,

other than a school district, the department, the state or any

other political subdivision of the state, that owns a school

bus;

S. "school district" means an area of land

established as a political subdivision of the state for the

administration of public schools and segregated geographically

for taxation and bonding purposes;

T. "school employee" includes licensed and

nonlicensed employees of a school district;

U. "school principal" means the chief

instructional leader and administrative head of a public

school;

V. "school year" means the total number of

contract days offered by public schools in a school district

during a period of twelve consecutive months;

W. "secretary" means the secretary of public

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education;

X. "state agency" or "state institution" means the

New Mexico military institute, New Mexico school for the blind

and visually impaired, New Mexico school for the deaf, New

Mexico boys' school, girls' welfare home, New Mexico youth

diagnostic and development center, Sequoyah adolescent

treatment center, Carrie Tingley crippled children's hospital,

New Mexico behavioral health institute at Las Vegas and any

other state agency responsible for educating resident

children;

Y. "state educational institution" means an

institution enumerated in Article 12, Section 11 of the

constitution of New Mexico;

Z. "substitute teacher" means a person who holds a

certificate to substitute for a teacher in the classroom;

AA. "teacher" means a person who holds a level

one, two or three-A license and whose primary duty is

classroom instruction or the supervision, below the school

principal level, of an instructional program or whose duties

include curriculum development, peer intervention, peer

coaching or mentoring or serving as a resource teacher for

other teachers;

BB. "certified school instructor" means a teacher

or instructional support provider; and

CC. "certified school employee" or "certified

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school personnel" means a licensed school employee."

Section 2. Section 22-2C-1 NMSA 1978 (being Laws 2003,

Chapter 153, Section 10) is amended to read:

"22-2C-1. SHORT TITLE.--Chapter 22, Article 2C NMSA

1978 may be cited as the "Assessment and Accountability Act"."

Section 3. Section 22-2C-5 NMSA 1978 (being Laws 2003,

Chapter 153, Section 14) is amended to read:

"22-2C-5. STUDENT ACHIEVEMENT RATINGS--CALCULATION OF

ADEQUATE YEARLY PROGRESS.--The department shall adopt the

process and methodology for calculating adequate yearly

progress. The statewide standards-based assessments used to

assess adequate yearly progress shall be valid and reliable

and shall conform with nationally recognized professional and

technical standards. Academic performance shall be measured

by school and by the following subgroups:

A. ethnicity;

B. race;

C. limited English proficiency;

D. students with disabilities; and

E. poverty."

Section 4. Section 22-2C-6 NMSA 1978 (being Laws 1986,

Chapter 33, Section 7, as amended) is amended to read:

"22-2C-6. REMEDIATION PROGRAMS--PROMOTION POLICIES--

RESTRICTIONS.--

A. Remediation programs, academic improvement

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programs and promotion policies shall be aligned with school-

district-determined assessment results and

requirements of the state assessment and accountability

program.

B. Local school boards shall approve school-

district-developed remediation programs and academic

improvement programs to provide special instructional

assistance to students in grades one through eight who do not

demonstrate academic 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.

C. The cost of summer and extended day remediation

programs and academic improvement programs offered in grades

nine through twelve shall be borne by the parent; however,

where parents are determined to be indigent according to

guidelines established by the department, the school district

shall bear those costs.

D. Diagnosis of weaknesses identified by a

student's academic achievement may serve as criteria in

assessing the need for remedial programs or retention.

E. A parent shall be notified no later than the

end of the second grading period that the parent's child is

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not academically proficient, and a conference consisting of

the parent and the teacher shall be held to discuss possible

remediation programs available to assist the student in

becoming academically proficient. Specific academic

deficiencies and remediation strategies shall be explained to

the student's parent and a written intervention plan developed

containing time lines, academic expectations and the

measurements to be used to verify that a student has overcome

academic deficiencies. Remediation programs and academic

improvement programs include tutoring, extended day or week

programs, summer programs and other research-based

interventions and models for student improvement.

F. At the end of grades one through seven, three

options are available, dependent on a student's academic

proficiency:

(1) the student is academically proficient

and shall enter the next higher grade;

(2) the student is not academically

proficient and shall participate in the required level of

remediation. Upon certification by the school district that

the student is academically proficient, the student shall

enter the next higher grade; or

(3) the student is not academically

proficient after completion of the prescribed remediation

program and upon the recommendation of the teacher and school

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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 become

academically proficient, at which time the student shall enter

the next higher grade; or

(b) promoted to the next grade if the

parent refuses to allow the child to be retained pursuant to

Subparagraph (a) of this paragraph. In this case, the parent

shall sign a waiver indicating the parent's 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 time lines

and monitoring activities to ensure progress toward overcoming

those academic deficiencies. Students failing to become

academically proficient at the end of that year as measured by

grades, performance on school district assessments and other

measures identified by the school district shall be retained

in the same grade for no more than one year in order to have

additional time to achieve academic proficiency.

G. At the end of the eighth grade, a student who

is not academically proficient shall be retained in the eighth

grade for no more than one school year to become academically

proficient or if the student assistance team determines that

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retention of the student in the eighth grade will not assist

the student to become academically proficient, 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 does not demonstrate academic

proficiency 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.

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. 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;

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(2) "school-district-determined assessment

results" means the results obtained from student assessments

developed or adopted 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 public school and the

school district that addresses methods to improve student

learning and success in school and that identifies specific

measures of a student's progress; and

(4) "student assistance team" means a group

consisting of a student's:

(a) teacher;

(b) school counselor;

(d) parent."

Section 5. Section 22-2C-7 NMSA 1978 (being Laws 2003,

Chapter 153, Section 16, as amended) is amended to read:

"22-2C-7. ADEQUATE YEARLY PROGRESS--SCHOOL IMPROVEMENT

PLANS--CORRECTIVE ACTION--RESTRUCTURING.--

A. A public school that fails to make adequate

yearly progress for two consecutive school years shall be

identified as a school in need of improvement. A school in

need of improvement shall be ranked as:

(1) school improvement 1;

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(2) school improvement 2;

(3) corrective action;

(4) restructuring 1; or

(5) restructuring 2.

B. Within ninety days of being notified that a

public school within the school district has been identified

as a public school in need of improvement, the school district

shall submit an improvement plan for that public school to the

department. In developing the improvement plan, the local

superintendent, the president of the local school board and

the school principal of the public school in need of

improvement shall hold a public meeting to inform parents and

the public of the public school's rank. The meeting shall be

used to elicit suggestions from parents and the public on how

to improve the public school. After the public meeting, the

school district shall develop the public school's improvement

plan, and the local school board shall approve the improvement

plan before it is submitted to the department. The

improvement plan shall be approved by the department within

thirty days of its submission.

C. The improvement plan shall include:

(1) documentation of performance measures in

which the public school failed to make adequate yearly

progress;

(2) measurable objectives to indicate the

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action that will be taken to address failed measures;

(3) benchmarks to be used to indicate

progress in meeting academic content and performance

standards;

(4) an estimate of the time and the

resources needed to achieve each objective in the improvement

plan;

(5) the support services that shall be

provided to students;

(6) applications that have been made for

federal and state funds; and

(7) any other information that the public

school that needs improvement, the local superintendent, the

local school board or the department deems necessary.

D. A public school in need of improvement may

apply to the department for financial or other assistance in

accordance with the improvement plan. The public school shall

make application for assistance substantially in the form

required by the department. The department shall evaluate

applications for assistance and may recommend changes to an

application or to an improvement plan if warranted by the

final application. The department shall consider innovative

methods to assist the public school in meeting its improvement

plan, including department or other school employees serving

as a mobile assistance team to provide administrative,

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classroom, human resource and other assistance to the public

school that needs improvement as needed and as provided in

applications approved by the department.

E. If a public school has failed to make adequate

yearly progress for two consecutive school years it shall be

placed in school improvement 1 and shall provide

transportation or pay the cost of transportation, within

available funds, for students who choose to enroll in a higher

ranked public school.

F. If a public school has failed to make adequate

yearly progress for three consecutive school years it shall be

placed in school improvement 2 and shall provide supplemental

services, including after-school programs, tutoring and summer

services to its Title I-eligible students, within available

funds.

G. The department shall adopt rules that govern

the priority for students for whom supplemental services shall

be provided and for students for whom transportation costs are

paid. The rules shall include the adoption of a sliding-fee

schedule based on the educational level of tutors in New

Mexico and require that providers use a pre- and post-

assessment instrument approved by the department to measure

the gains that students achieve through supplemental services.

H. If a public school has failed to make adequate

yearly progress for four consecutive school years, it shall be

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placed in corrective action and the school district, in

conjunction with the department, shall take one or more of the

following actions in addition to earlier improvements:

(1) replace staff as allowed by law;

(2) implement a new curriculum;

(3) decrease management authority of the

public school;

(4) appoint an outside expert to advise the

public school;

(5) extend the school day or year; or

(6) change the public school's internal

organizational structure.

I. If a public school has failed to make adequate

yearly progress for five consecutive school years, it shall be

placed in restructuring 1 and shall continue the improvement

measures implemented pursuant to Subsections B through H of

this section and begin planning for restructuring of the

public school if it fails to make adequate yearly progress in

the sixth year.

J. If a public school has failed to make adequate

yearly progress for six consecutive years, it shall be placed

in restructuring 2. The school district, in conjunction with

the department, shall take one or more of the following

actions in addition to other improvements:

(1) recommend reopening the public school as

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a state-chartered charter school as provided in Section

22-2C-7.1 NMSA 1978;

(2) replace all or most of the staff as

allowed by law;

(3) turn over the management of the public

school to the department; or

(4) make other governance changes.

K. A school district that has failed to make

adequate yearly progress for two consecutive school years may

be subject to the same requirements as a public school subject

to corrective action, as determined by the department. A

school district that fails to make adequate yearly progress

for four consecutive school years shall be subject to

corrective action.

L. The state, a school district or a charter

school shall not enter into management contracts with private

entities for the management of a public school or a school

district subject to corrective action.

M. If a public school that is identified as a

school in need of improvement makes adequate yearly progress

in the year that it has been placed in school improvement 1,

school improvement 2, corrective action or restructuring 1, it

shall not move to the next school improvement rank for one

year. If the public school makes adequate yearly progress for

a second consecutive year, it shall be removed from the ranks

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of schools in need of improvement.

N. Nothing in this section shall be construed to

restrict the powers and duties of the secretary or the

department under the Public School Code."

Section 6. A new section of the Assessment and

Accountability Act, Section 22-2C-7.1 NMSA 1978, is enacted to

read:

"22-2C-7.1. FAILING SCHOOL SUBJECT TO REOPENING AS

STATE-CHARTERED CHARTER SCHOOL--REQUIREMENTS.--

A. If, pursuant to Subsections I and J of Section

22-2C-7 NMSA 1978, the school district in which a public

school that has failed to make adequate yearly progress for

five consecutive years recommends that the public school be

reopened as a state-chartered charter school, the department,

after holding a public hearing in the school district, may

take steps to have the public school reopened as a state-

chartered charter school.

B. To reopen as a state-chartered charter school:

(1) the school's current enrollment for all

grades cannot exceed ten percent of the total MEM of the

school district where it is located when the school district

has a total enrollment of less than one thousand three hundred

students;

(2) the department, after obtaining

information and community input during the public hearing,

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shall find at least five qualified persons willing to serve in

an interim capacity as a governing body;

(3) the governing body shall employ a

qualified school administrator within thirty days of its

appointment by the department;

(4) the governing body shall qualify as a

board of finance and satisfy any conditions imposed by the

commission prior to commencing full operation;

(5) the governing body shall develop a

written plan and proposed charter that is satisfactory to the

commission and that at a minimum addresses the following

issues:

(a) the employment, discharge,

termination or displacement of current school employees,

including the effect of employment decisions on current

employment contracts and collective bargaining agreements;

(b) fiscal and records management;

facilities;

(d) student transportation;

(e) special education;

(f) curriculum;

(g) education-related and other

services;

(h) accreditation;

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(i) food service;

(j) graduation requirements, if a

waiver of state graduation requirements is sought;

(k) governance turnover; and

(l) student assessments and school

accountability;

(6) the governing body and the school shall

comply with any other substantive or procedural requirements

imposed on them by law or rule of the department; and

(7) the department and the governing body

shall have a plan to provide for an orderly transition.

C. If, within ninety days of its determination

that the school should be reopened as a state-chartered

charter school, the department is unable to constitute a

qualified governing body or the governing body does not have

its charter approved by the commission and does not find a

qualified school administrator able to commence operation of

the proposed state-chartered charter school, the failing

school shall not be reopened as a state-chartered charter

school. Failure to reopen the school as a state-chartered

charter school does not affect other actions that may be taken

to improve the school.

D. The provisions of the Charter Schools Act shall

apply to a public school that is reopened as a state-chartered

charter school."

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Section 7. Section 22-2C-11 NMSA 1978 (being Laws 2003,

Chapter 153, Section 20, as amended) is amended to read:

"22-2C-11. ASSESSMENT AND ACCOUNTABILITY SYSTEM

REPORTING--PARENT SURVEY--DATA SYSTEM--FISCAL INFORMATION.--

A. The department shall:

(1) issue a state identification number for

each public school student for use in the accountability data

system;

(2) adopt the format for reporting

individual student assessments to parents. The student

assessments shall report each student's progress and academic

needs as measured against state standards;

(3) adopt the format for reporting annual

yearly progress of public schools, school districts and the

department. If the department has adopted a state improving

schools program, the annual accountability report shall

include the results of that program for each public school.

The annual accountability report format shall be clear,

concise and understandable to parents and the general public.

All annual accountability reports shall ensure that the

privacy of individual students is protected; and

(4) require that when public schools, school

districts and the state disaggregate and report school data

for demographic subgroups, they include data disaggregated by

gender.

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B. Local school boards may establish additional

indicators through which to measure the school district's

performance in areas other than adequate yearly progress.

C. The school district's annual accountability

report shall include a report of graduation rates for each

public high school in the school district. As part of the

graduation rate data, the school district shall indicate

contributing factors to nongraduation such as transfer out of

the school district, pregnancy, dropout and other factors as

known.

D. The school district's annual accountability

report shall 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

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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 employees, including the school

principal; and

(6) parents' views of teaching staff

expectations for the students.

E. The department shall develop no more than ten

of the survey questions, which shall be reviewed by the

legislative education study committee prior to implementation.

No more than five survey questions shall be developed by the

local school board, and no more than five survey questions

shall be developed by the staffs of each public school;

provided that at least one-half of those questions shall be

developed by teachers rather than school 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

within thirty days of receipt and shall be returned to the

respective schools to be disseminated to all parents.

F. The school district's annual accountability

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report shall be adopted by the local school board, shall be

published no later than November 15 of each year and shall 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 department to ensure

effective communication with parents, students, educators,

local policymakers and business and community organizations.

G. The annual accountability report shall include

the names of those local school board members who failed to

attend annual mandatory training.

H. The annual accountability report shall include

data on expenditures for central office administration and

expenditures for the public schools of the school district.

I. The department shall create an accountability

data system through which data from each public school and

each school district may be compiled and reviewed. The

department shall provide the resources to train school

district personnel in the use of the accountability data

system.

J. The department shall verify data submitted by

the school districts.

K. At the end of fiscal year 2005, after the

budget approval cycle, the department shall produce a report

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to the legislature that shows for all school districts using

performance-based program budgeting the relationship between

that portion of a school district's program cost generated by

each public school in the school district and the budgeted

expenditures for each public school in the school district as

reported in the district's performance-based program budget.

At the end of fiscal year 2006 and subsequent fiscal years,

after the budget approval cycle, the department shall report

on this relationship in all public schools in all school

districts in the state.

L. When all public schools are participating in

performance-based budgeting, the department shall recommend

annually to the legislature for inclusion in the general

appropriation act the maximum percentage of appropriations

that may be expended in each school district for central

office administration.

M. The department shall disseminate its statewide

accountability report to school districts; the governor,

legislators and other policymakers; and business and economic

development organizations."

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