1. STATUTORY AUTHORITY

Article 2 of the Education Law, Dignity for All Students Act (the Dignity Act): Section 10 sets forth the legislative intent of such article which states, in part, that it is the “policy of the state to afford all students in public schools an environment free of discrimination and harassment.” Section 11 defines terms, including “harassment” and “bullying” to mean the creation of a hostile environment by conduct…that…reasonably causes or would reasonably be expected to cause…harm to a student.” Section 12 provides, in part, that no student shall be subject to harassment or bullying by employees or students on school property or at a school function…” Section 14(3) requires the Commissioner to promulgate regulations to assist school districts in implementing DASA.

Education Law § 101 continues the existence of the Education Department, with the Board of Regents at its head and the Commissioner of Education as the chief administrative officer, and charges the Department with the general management and supervision of public schools and the educational work of the State.

Education Law § 207 grants general rule-making authority to the Board of Regents to carry into effect the laws and policies of the State relating to education.

Education Law § 305(1) empowers the Commissioner of Education to be the chief executive officer of the State system of education and the Board of Regents and authorizes the Commissioner to enforce laws relating to the educational system and to execute educational policies determined by the Board of Regents. Education Law section 305(2) authorizes the Commissioner to have general supervision over all schools subject to the Education Law.

Education Law § 309 provides that the schools of every union free school district and of every city in all their departments are subject to the visitation of the commissioner and charges the commissioner with the general supervision of their board of education and their management and conduct of all departments of instruction.

Education Law § 2854(1)(b) provides that charter schools shall meet the same health and safety, civil rights, and student assessment requirements applicable to other public schools, except as otherwise specifically provided in Article 56 of the Education Law.

2. LEGISLATIVE OBJECTIVES:

Consistent with the above statutory authority, the proposed rule is necessary to implement Regents policy and the Dignity for All Students Act by prohibiting the use of Indigenous names, mascots, or logos by public schools.

3. NEEDS AND BENEFITS:

The New York State Education Department (SED) has consistently opposed the use of Indigenous mascots. In 2001, former Commissioner of Education Richard P. Mills issued a memorandum “conclud[ing] that the use of Native American symbols or depictions as mascots can become a barrier to building a safe and nurturing school community and improving academic achievement for all students.” Commissioner Mills recognized that, while a role for local discretion existed, “there is a state interest in providing a safe and supportive learning environment for every child.” He asked boards of education “to end the use of Native American mascots as soon as practical.”

Many school districts have heeded Commissioner Mills’ directive. Most recently, the Waterloo and Lyme Central School Districts retired their mascots. SED commends the efforts of these districts and the many others that have or are embarking on this process.

Other school districts have not complied. Among them, until recently, was the Cambridge Central School District. After extensive study in 2020 and 2021, Cambridge voted to retire its “Indians” team name, logo, and mascot in June 2021. It hastily reversed itself in July 2021 upon the election of a new board member. Community members challenged this action in an appeal to the Commissioner of Education under Education Law § 310.

In Appeal of McMillan, et al.,¹ the Commissioner held that: (1) Cambridge “offered no meaningful explanation as to why [it] no longer found the information it had previously cited persuasive”; and (2) Cambridge’s retention of the “Indians” logo “inhibit[ed] the creation of a safe and supportive environment for all students.” On the latter point, the Commissioner noted that:

• A 2020 literature review on studies of Native American mascots by Laurel R. Davis-Delano, et al. concluded that each study reviewed “demonstrate[d] either direct negative effects on Native Americans or that these mascots activate[d], reflect[ed], and/or reinforce[d] stereotyping and prejudice among non-Native persons.”

• The New York Association of School Psychologists (NYASP) concluded that “research studies have consistently shown that the use of mascots and Indigenous symbols and imagery have a negative impact on not only Indigenous [students], but all students …”

• The Dignity Act prohibits “the creation of a hostile environment... that... reasonably causes or would reasonably be expected to cause... emotional harm to a student,” a condition that could be created through the use of Native American mascots.²

• The Board of Regents (BOR) has taken affirmative measures, consistent with the Dignity Act, to promote positive learning environments in schools, including its Culturally Responsive-Sustaining Education Framework and policy on Diversity, Equity, and Inclusion.

Cambridge appealed the Commissioner’s decision. Supreme Court (Albany County) affirmed the Commissioner’s determination in its entirety on June 22, 2022. Crucially, the court held that the Commissioner:

determined correctly that the continued use of the ‘Indians’ nickname and imagery, given the 20 years that have passed since Commissioner Mills’ directive, and given the imperatives of the District’s Diversity Policy, was itself an abuse of discretion ….

Thus, the court’s decision establishes that public schools are prohibited from utilizing Indigenous mascots. Arguments that community members support the use of such imagery or that it is “respectful” to Indigenous persons are no longer tenable.

In a memorandum dated November 17, 2022³, the Department informed the field of the Commissioner’s decision in Appeal of McMillan et al. and their concomitant need to eliminate the use of Native American mascots.

The Department now proposes a regulation to clarify public schools’ obligations in this respect. In addition to prohibiting the use of Native American or Indigenous names, mascots, or logos by public schools, the regulation:

• defines Indigenous name, mascot, or logo and provides that such definition does not include a public school building, public school, or school district named after an Indigenous tribe;

• provides timelines by which such names, mascots, and/or logos must be eliminated;

• creates certain exceptions; and

• provides that public schools shall prohibit school officers, employees, and all individuals when located on school property or at a school function from utilizing or promoting any Indigenous name, logo, or mascot. This provision does not apply to individuals who are members of tribal nations.

4. COSTS:

(a) Costs to State government: None.

(b) Costs to local government: The proposed rule prohibits the use of Indigenous names, mascots, or logos by public schools (this does not apply to names of public school buildings, public schools, or school districts named after an Indigenous tribe). There will likely be costs to public schools who currently use Indigenous names, mascots, or logos to remove such names, mascots, or logos from being utilized and/or displayed. The Department is unable to estimate the cost to such public school districts to do so, as the degree of utilization and display of Indigenous names, mascots, or logos in public schools varies. However, the Department has calculated the following estimates:

• Synthetic Turf Field: A school logo on a synthetic field is typically an inlay. Therefore, an existing logo can be cut out and replaced without disturbing the rest of the file. On average, for a 1,000 square foot installation (31 feet x 31 feet), the Department estimates a cost of $6.00-$12.00 per square foot.

• Gymnasium Floor: The Department estimates that a gymnasium floor can be re-painted and re-finished for approximately $40,000. The Department has based this estimate off of similar projects that have been completed by school districts within the past year (these projects are typically completed as capital outlay projects).

Additionally, the Department notes that costs to school districts associated with the removal of the use and display of such Indigenous names, mascots, or logos from buildings, signage, gym floors and sports fields can be offset by building aid. Building aid is available for certain approved capital outlays and debt services for school buildings where the construction costs of the project equal or exceed $10,000, excluding incidental costs. Additionally, the Commissioner has the authority to grant an extension of time to eliminate the use of such mascots, which may include projects that present a significant financial hardship.

Most or all of these items (signs, floors, field turf and certainly uniforms) are replaced/repaired on periodic cycles that are far shorter than the 21 years that have passed since Commissioner Mills’ directive, so the districts that have failed to change their mascots and logos in the intervening time have foregone opportunities to do so at no greater cost than would have otherwise occurred. The time frames in this regulation allow districts sufficient time to plan and budget for the instances where the renewal cycles are accelerated by the proposed rule.

(c) Costs to private regulated parties: The proposed rule only applies to public school districts. Therefore, there are no costs imposed on private parties.

(d) Costs to regulating agency for implementation and continued administration of this rule: None.

5. LOCAL GOVERNMENT MANDATES:

The proposed provides that boards of education must commit, via resolution, to eliminating use of all Indigenous names, logos, and mascots by the end of the 2022-23 school year. Such resolution must identify a plan to eliminate all use of the prohibited name, logo or mascot within a reasonable time, which shall be no later than the end of the 2024-2025 school year, proved that, upon a showing of good cause, the commissioner may extend such timeline. Additionally, public schools must prohibit school officers, employees, and all individuals when located on school property or at a school function from utilizing or promoting any Indigenous name, logo, or mascot (this provision does not apply to any individual who is a member of a tribal nation).

6. PAPERWORK:

The proposed provides that boards of education must commit, via resolution, to eliminating use of all Indigenous names, logos, and mascots by the end of the 2022-23 school year. The proposed rule does provide an exception for tribal use and tribal approval. Regarding triable approval, the proposed rule provides that the provisions of the proposed rule shall not apply where a written agreement exists prior to the effective date of the proposed rule.

7. DUPLICATION:

The proposed rule does not duplicate existing State or Federal regulations.

8. ALTERNATIVES:

The proposed rule is necessary to implement Regents policy and the Dignity for All Students Act by prohibiting the use of Indigenous names, mascots, or logos by public schools. Consistent with DASA, such prohibition is necessary to ensure that all students in public schools are not subject to a hostile environment or suffer from emotional harm in their school. There are no viable alternatives and none were considered.

9. FEDERAL STANDARDS:

There are no related Federal standards.

10. COMPLIANCE SCHEDULE:

It is anticipated that the proposed rule will be presented for permanent adoption at the April 2023 Board of Regents meeting. If adopted at the April meeting, the proposed rule will take effect on May 3, 2023. The proposed rule requires boards of education to commit, via resolution, to eliminate the use of all Indigenous names, logos, and mascots by the end of the 2022-23 school year (except where such public school meets an exception outlined in the proposed rule). Such resolution must identify a plan to eliminate all use of the prohibited name, logo, or mascot within a reasonable time, which shall be no later than the end of the 2024-2025 school year. However, the proposed rule provides that the Commissioner may grant an extension of such timelines upon good cause shown. Therefore, the Department anticipates that regulated parties will be able to comply with the proposed rule on its effective date and the timelines set forth in such rule.

¹ 61 Ed Dept Rep, Decision No. 18,058, available at http://www.counsel.nysed.gov/Decisions/volume61/d18058.

² The Department is the agency tasked by the Legislature to administer the Dignity Act.

³ http://www.nysed.gov/common/nysed/files/programs/main/indigenous-native-american-mascot-memo.pdf

(a) Small businesses:

The proposed rule is necessary to implement Regents policy and the Dignity for All Students Act by prohibiting the use of Indigenous names, mascots, or logos by public schools.

Because it is evident from the nature of the proposed amendment that it does not affect small businesses, no further measures were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.

(b) Local governments:

1. EFFECT OF RULE:

The proposed amendment applies to all public schools in the state, which includes each of the 731 public school district and 356 charter schools.

2. COMPLIANCE REQUIREMENTS:

The proposed rule prohibits the use of Indigenous names, mascots, or logos by public schools, and provides timelines by which such names, mascots, and/or logos must be eliminated. Boards of education must commit, via resolution, to eliminating use of all Indigenous names, logos, and mascots by the end of the 2022-23 school year. Such resolution must identify a plan to eliminate all use of the prohibited name, logo or mascot within a reasonable time, which shall be no later than the end of the 2024-2025 school year, proved that, upon a showing of good cause, the commissioner may extend such timeline.

Additionally, public schools must prohibit school officers, employees, and all individuals when located on school property or at a school function from utilizing or promoting any Indigenous name, logo, or mascot (this provision does not apply to any individual who is a member of a tribal nation).

3. PROFESSIONAL SERVICES:

The proposed rule does not impose any additional professional services requirements on local governments.

4. COMPLIANCE COSTS:

The proposed rule prohibits the use of Indigenous names, mascots, or logos by public schools (this does not apply to names of public school buildings, public schools, or school districts named after an Indigenous tribe). There will likely be costs to public schools who currently use Indigenous names, mascots, or logos to remove such names, mascots, or logos from being utilized and/or displayed. The Department is unable to estimate the cost to such public school districts to do so, as the degree of utilization and display of Indigenous names, mascots, or logos in public schools varies. However, the Department has calculated the following estimates:

• Synthetic Turf Field: A school logo on a synthetic field is typically an inlay. Therefore, an existing logo can be cut out and replaced without disturbing the rest of the file. On average, for a 1,000 square foot installation (31 feet x 31 feet), the Department estimates a cost of $6.00-$12.00 per square foot.

• Gymnasium Floor: The Department estimates that a gymnasium floor can be re-painted and re-finished for approximately $40,000. The Department has based this estimate off of similar projects that have been completed by school districts within the past year (these projects are typically completed as capital outlay projects).

Additionally, the Department notes that costs to school districts associated with the removal of the use and display of such Indigenous names, mascots, or logos from buildings, signage, gym floors and sports fields can be offset by building aid. Building aid is available for certain approved capital outlays and debt services for school buildings where the construction costs of the project equal or exceed $10,000, excluding incidental costs. Additionally, the Commissioner has the authority to grant an extension of time to eliminate the use of such mascots, which may include projects that present a significant financial hardship.

Most or all of these items (signs, floors, field turf and certainly uniforms) are replaced/repaired on periodic cycles that are far shorter than the 21 years that have passed since Commissioner Mills’ directive, so the districts that have failed to change their mascots and logos in the intervening time have foregone opportunities to do so at no greater cost than would have otherwise occurred. The time frames in this regulation allow districts sufficient time to plan and budget for the instances where the renewal cycles are accelerated by the proposed rule.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed amendment does not impose any new technological requirements on school districts or charter schools. Economic feasibility is addressed in the Costs section above.

6. MINIMIZING ADVERSE IMPACT:

There were no significant alternatives and none were considered. The proposed rule is necessary to implement Regents policy and the Dignity for All Students Act by prohibiting the use of Indigenous names, mascots, or logos by public schools. Consistent with DASA, such prohibition is necessary to ensure that all students in public schools are not subject to a hostile environment or suffer from emotional harm in their school.

Because the statute upon which the proposed amendment is based applies to all public schools in the state, it is not possible to establish differing compliance or reporting requirements or timetables or to exempt schools from coverage by the proposed amendment.

7. LOCAL GOVERNMENT PARTICIPATION:

A copy of the proposed rule has been shared with school districts through the offices of the district superintendents of each supervisory district in the State, from the chief school officers of the five big city school districts and from charter schools for review and comment.

1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:

The proposed amendment applies to all public schools in the state, including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less.

2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:

The proposed rule prohibits the use of Indigenous names, mascots, or logos by public schools, and provides timelines by which such names, mascots, and/or logos must be eliminated. Boards of education must commit, via resolution, to eliminating use of all Indigenous names, logos, and mascots by the end of the 2022-23 school year. Such resolution must identify a plan to eliminate all use of the prohibited name, logo or mascot within a reasonable time, which shall be no later than the end of the 2024-2025 school year, proved that, upon a showing of good cause, the commissioner may extend such timeline.

Additionally, public schools must prohibit school officers, employees, and all individuals when located on school property or at a school function from utilizing or promoting any Indigenous name, logo, or mascot (this provision does not apply to any individual who is a member of a tribal nation).

3. COSTS:

The proposed rule prohibits the use of Indigenous names, mascots, or logos by public schools (this does not apply to names of public school buildings, public schools, or school districts named after an Indigenous tribe). There will likely be costs to public schools who currently use Indigenous names, mascots, or logos to remove such names, mascots, or logos from being utilized and/or displayed. The Department is unable to estimate the cost to such public school districts to do so, as the degree of utilization and display of Indigenous names, mascots, or logos in public schools varies. However, the Department has calculated the following estimates:

• Synthetic Turf Field: A school logo on a synthetic field is typically an inlay. Therefore, an existing logo can be cut out and replaced without disturbing the rest of the file. On average, for a 1,000 square foot installation (31 feet x 31 feet), the Department estimates a cost of $6.00-$12.00 per square foot.

• Gymnasium Floor: The Department estimates that a gymnasium floor can be re-painted and re-finished for approximately $40,000. The Department has based this estimate off of similar projects that have been completed by school districts within the past year (these projects are typically completed as capital outlay projects).

Additionally, the Department notes that costs to school districts associated with the removal of the use and display of such Indigenous names, mascots, or logos from buildings, signage, gym floors and sports fields can be offset by building aid. Building aid is available for certain approved capital outlays and debt services for school buildings where the construction costs of the project equal or exceed $10,000, excluding incidental costs. Additionally, the Commissioner has the authority to grant an extension of time to eliminate the use of such mascots, which may include projects that present a significant financial hardship.

Most or all of these items (signs, floors, field turf and certainly uniforms) are replaced/repaired on periodic cycles that are far shorter than the 21 years that have passed since Commissioner Mills’ directive, so the districts that have failed to change their mascots and logos in the intervening time have foregone opportunities to do so at no greater cost than would have otherwise occurred. The time frames in this regulation allow districts sufficient time to plan and budget for the instances where the renewal cycles are accelerated by the proposed rule.

4. MINIMIZING ADVERSE IMPACT:

There were no significant alternatives and none were considered. The proposed rule is necessary to implement Regents policy and the Dignity for All Students Act by prohibiting the use of Indigenous names, mascots, or logos by public schools. Consistent with DASA, such prohibition is necessary to ensure that all students in public schools are not subject to a hostile environment or suffer from emotional harm in their school.

Because the statute upon which the proposed amendment is based applies to all public schools in the state, it is not possible to establish differing compliance or reporting requirements or timetables or to exempt schools in rural areas from coverage by the proposed amendment.

5. RURAL AREA PARTICIPATION:

A copy of the proposed rule has been shared with school districts through the offices of the district superintendents of each supervisory district in the State, from the chief school officers of the five big city school districts and from charter schools, including those located in rural areas, for review and comment.

The proposed amendment is necessary to implement Regents policy and the Dignity for All Students Act by prohibiting the use of Indigenous names, mascots, or logos by public schools.

The proposed amendment will not have a substantial adverse impact on jobs or employment opportunities. Because it is evident from the nature of the proposed amendment that it will have no impact, or a positive impact, on jobs or employment opportunities, no further steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.