PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Amendment of section 100.2(c) of Title 8 NYCRR.

Preservation of general welfare.

The proposed amendment is necessary to implement the Dignity for All Students Act (L. 2010, ch. 482) to ensure that all public school students, including those attending charter schools, are provided instruction that supports development of a school environment free of discrimination and harassment, as required by the Dignity Act, including but not limited to instruction that raises awareness and sensitivity to discrimination or harassment based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex.

The proposed amendment was adopted as an emergency rule at the May Regents meeting, effective May 22, 2012. A Notice of Emergency Adoption and Proposed Rule Making was published in the State Register on June 6, 2012. Because the Board of Regents meets at fixed intervals, and generally does not meet in the month of August, the earliest the proposed amendment can be presented for permanent adoption, after expiration of the 45-day public comment period provided for in State Administrative Procedure Act (SAPA) section 202(1) and (5), is the September 10-11, 2012 Regents meeting. Furthermore, pursuant to SAPA, the earliest effective date of the proposed amendment, if adopted at the September meeting, would be October 3, 2012, the date a Notice of Adoption would be published in the State Register. However, the May emergency action will expire on August 20, 2012, ninety days after its filing with the Department of State on May 22, 2012. A lapse in the effective date of the rule may disrupt the provision of instruction in the 2012-2013 school year that supports development of a school environment free of discrimination and harassment, as required by the Dignity for All Students Act.

Emergency action is therefore necessary for the preservation of the general welfare to ensure that the emergency rule adopted at the May 2012 Regents meeting remains continuously in effect until the effective date of its adoption as a permanent rule.

It is anticipated that the proposed rule will be presented to the Board of Regents for adoption as a permanent rule at their September 10-11, 2012 meeting, which is the first scheduled meeting after expiration of the 45 day public comment period mandated by the State Administrative Procedure Act.

Dignity for All Students Act (L. 2010, ch. 482).

To prescribe instructional requirements to implement the Dignity Act.

1. The amendment of subdivision (c) of section 100.2 of the Regulations of the Commissioner of Education, which was adopted by the Board of Regents on March 20, 2012 and for which a Notice of Adoption was published in the State Register on April 11, 2012 (EDU-04-12-00002-A), is repealed, effective August 21, 2012.

2. Subdivision (c) of section 100.2 of the Regulations of the Commissioner of Education is amended, effective August 21, 2012, as follows:

(c) Instruction in certain subjects. Pursuant to articles 2, 17 and 65 of the Education Law, instruction in certain subjects in elementary and secondary school shall be provided as follows:

(1) for all students, instruction in patriotism and citizenship, as required by section 801 of the Education Law;

(2) for all public school students, instruction that supports development of a school environment free of discrimination and harassment, as required by the Dignity For All Students Act (article 2 of the Education Law), including but not limited to instruction that raises awareness and sensitivity to discrimination or harassment based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex; provided that in public schools other than charter schools, such instruction shall be provided as part of a component on civility, citizenship and character education in accordance with section 801-a of the Education Law;

[(2)] (3) for all students in the eighth and higher grades, instruction in the history, meaning, significance and effect of the provisions of the Constitution of the United States and the amendments thereto, the Declaration of Independence, the Constitution of the State of New York and the amendments thereto, as required by section 801 of the Education Law;

[(3)] (4) for all students, health education regarding alcohol, drugs and tobacco abuse, as required by section 804 of the Education Law;

[(4)] (5) for all students, instruction in highway safety and traffic regulation, as required by section 806 of the Education Law;

[(5)] (6) for all students, instruction in fire drills and in fire and arson prevention, injury prevention and life safety education, as required by sections 807 and 808 of the Education Law. Such course of instruction shall include materials to educate children on the dangers of falsely reporting a criminal incident or impending explosion or fire emergency involving danger to life or property or impending catastrophe, or a life safety emergency;

[(6)] (7) for all students in grades one through eight, instruction in New York State history and civics as required by section 3204(3) of the Education Law;

[(7)] (8) for public school students, instruction relating to the flag and certain legal holidays, as required by section 802 of the Education Law;

[(8)] (9) for all public elementary school students, instruction in the humane treatment of animals and birds, as required by section 809 of the Education Law; and

[(9)] (10) for all public school students, instruction relating to the conservation of the natural resources of the State, as required by section 810 of the Education Law.

to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. EDU-23-12-00012-EP, Issue of June 6, 2012. The emergency rule will expire October 19, 2012.

Mary Gammon, State Education Department, Office of Counsel, State Education Building Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, email: [email protected]

1. STATUTORY AUTHORITY:

Education Law section 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 section 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 section 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 section 801-a requires the Regents to ensure that the course of instruction in grades kindergarten through twelve includes a component on civility, citizenship and character education and instruct students on the principles of honesty, tolerance, personal responsibility, respect for others, observance of laws and rules, courtesy, dignity and other traits that will enhance the quality of their experiences in, and contributions to, the community.

Education Law section 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.

Chapter 482 of the Laws of 2010 added a new Article 2 to the Education Law, relating to Dignity for All Students ("Dignity Act") to afford all students in public schools an environment free of discrimination and harassment and foster civility in public schools and to prevent and prohibit conduct which is inconsistent with a school's educational mission. Section 3 of Chapter 482 amended Education Law section 801-a to provide that instruction regarding "tolerance", "respect for others" and "dignity" shall include awareness and sensitivity to discrimination or harassment and civility in the relations of people of different races, weights, national origins, ethnic groups, religions, religious practices, mental or physical abilities, sexual orientations, genders, and sexes.

2. LEGISLATIVE OBJECTIVES:

The proposed amendment is consistent with the above statutory authority and is necessary to implement the instructional requirements of the Dignity Act, including provisions to conform the Commissioner's regulations to Education Law section 801-a, as amended by the Act.

3. NEEDS AND BENEFITS:

At their March 19-20, 2012 meeting, the Board of Regents adopted an amendment to section 100.2(c) of the Commissioner's Regulations to add language requiring that courses of instruction in civility, citizenship and character education provided pursuant to Education Law section 801-a include instruction relating to awareness and sensitivity to discrimination or harassment and civility in the relations of people of different races, weights, national origins, ethnic groups, religions, religious practices, mental or physical abilities, sexual orientations, genders, and sexes. This was necessary to conform section 100.2(c) to section 3 of the Dignity Act, which expanded section 801-a to include such instruction relating to the principles of the Dignity Act. Because it has been the Department's interpretation since the enactment of section 801-a in 2000 that charter schools are exempt from the statute's required instruction on civility, citizenship and character education, the March amendment included language excluding charter schools from the requirements of section 801-a.

However, concerns have been expressed by many parties, including the Assembly sponsor of the Dignity Act and the Dignity for All Students Task Force, that an exclusion of charter schools from any instructional requirement relating to prevention of harassment and discrimination would be inconsistent with the intent of Article 2, which is to afford all students in public schools an environment free of discrimination and harassment. It was pointed out that even if charter schools are not required to provide the component on civility, citizenship and character education prescribed under section 801-a, in order to carry out the intent of the Dignity Act and protect the civil rights and the health and safety of charter school students, charter school students must receive instruction targeted at prevention of harassment and discrimination.

The Department finds that argument persuasive and recommends the regulation be amended to clarify that while charter schools are not required to provide a curriculum component on civility, citizenship and character education in accordance with § 801-a, they must nonetheless provide instruction targeted at preventing harassment and discrimination in charter schools to comply with the requirements of the Dignity Act and protect the civil rights and health and safety of their students.

Accordingly, the proposed amendment would require charter schools to provide instruction that supports development of a school environment free of discrimination and harassment, as required by the Dignity Act, including but not limited to instruction that raises awareness and sensitivity to discrimination or harassment based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex. The proposed amendment further provides that in public schools other than charter schools, such instruction shall be provided as part of a component on civility, citizenship and character education in accordance with section 801-a of the Education Law.

4. COSTS:

(a) Costs to State government: None.

(b) Costs to local government: None.

(c) Costs to private regulated parties: None.

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

The proposed amendment is necessary to implement the Dignity Act and will not impose any additional costs beyond those imposed by the statute.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment is necessary to implement the Dignity Act and will not impose any additional program, service, duty or responsibility beyond those by the statute. The proposed amendment would require charter schools to provide instruction that supports development of a school environment free of discrimination and harassment, as required by the Dignity Act, including but not limited to instruction that raises awareness and sensitivity to discrimination or harassment based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex. The proposed amendment further provides that in public schools other than charter schools, such instruction shall be provided as part of a component on civility, citizenship and character education in accordance with section 801-a of the Education Law.

6. PAPERWORK:

The proposed amendment will not impose any additional reporting requirements, forms or other paperwork, beyond those imposed by the Dignity Act.

7. DUPLICATION:

The proposed amendment does not duplicate existing State or Federal regulations, and is necessary to implement the Dignity Act and protect the civil rights and the health and safety of charter school students.

8. ALTERNATIVES:

There are no viable alternatives and none were considered. The proposed amendment is necessary to implement the Dignity Act and protect the civil rights and the health and safety of charter school students.

9. FEDERAL STANDARDS:

There are no related Federal standards.

10. COMPLIANCE SCHEDULE:

The proposed amendment is necessary to implement the Dignity Act and protect the civil rights and the health and safety of charter school students, and will not impose any additional compliance requirements or costs on regulated parties beyond those imposed by the statute. It is anticipated that regulated parties will be able to achieve compliance with proposed amendment by its effective date.

Small Businesses:

The proposed amendment is applicable to school districts, boards of cooperative educational services and charter schools and is necessary to implement the instructional requirements of the Dignity for All Students Act (L. 2010, Ch 452). The proposed amendment does not impose any adverse economic impact, reporting, record keeping or any other compliance requirements on small businesses. 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.

Local Governments:

1. EFFECT OF RULE:

The proposed amendment applies to each school district, board of cooperative educational services (BOCES) and charter school in the State. At present, there are 695 school districts (including New York City) and 37 BOCES. There are currently 189 operating charter schools.

2. COMPLIANCE REQUIREMENTS:

The proposed amendment is necessary to implement the instructional requirements of the Dignity for All Students Act (L. 2010, ch. 482), including provisions to conform the Commissioner's regulations to Education Law section 801-a, as amended by the Act. The proposed amendment would require charter schools to provide instruction that supports development of a school environment free of discrimination and harassment, as required by the Dignity Act, including but not limited to instruction that raises awareness and sensitivity to discrimination or harassment based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex. The proposed amendment further provides that in public schools other than charter schools, such instruction shall be provided as part of a component on civility, citizenship and character education in accordance with section 801-a of the Education Law.

3. PROFESSIONAL SERVICES:

The proposed amendment will not impose any additional professional services requirements.

4. COMPLIANCE COSTS:

The proposed amendment is necessary to conform the Commissioner's Regulations with the Dignity Act and will not impose any additional costs beyond those imposed by the statute.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed amendment does not impose any additional costs or technological requirements.

6. MINIMIZING ADVERSE IMPACT:

The proposed amendment is necessary to implement the instructional requirements of the Dignity for All Students Act (L. 2010, ch. 482), including provisions to conform the Commissioner's regulations to Education Law section 801-a, as amended by the Act. The proposed amendment will not impose any additional compliance requirements or costs beyond those imposed by the statute. Because these statutory requirements specifically apply, it is not possible to provide exemptions from the proposed amendment's requirements or impose a lesser standard. The proposed amendment has been carefully drafted to meet statutory requirements and Regents policy while minimizing its the impact.

Consistent with the Dignity Act, the proposed amendment would require charter schools to provide instruction that supports development of a school environment free of discrimination and harassment, as required by the Dignity Act, including but not limited to instruction that raises awareness and sensitivity to discrimination or harassment based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex. The proposed amendment further provides that in public schools other than charter schools, such instruction shall be provided as part of a component on civility, citizenship and character education in accordance with section 801-a of the Education Law.

7. LOCAL GOVERNMENT PARTICIPATION:

The proposed amendment was developed in cooperation with the Dignity Act Task Force State Policy Work Group which is comprised of other State agencies, the New York City Department of Education, and several not-for-profit organizations. Comments on the proposed amendment were solicited from school districts through the offices of the district superintendents of each supervisory district in the State.

1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:

The proposed amendment applies to all school districts, boards of cooperative educational services (BOCES) and charter 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. There is currently one charter school located in a rural area.

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

The proposed amendment is necessary to implement the instructional requirements of the Dignity for All Students Act (L. 2010, ch. 482), including provisions to conform the Commissioner's regulations to Education Law section 801-a, as amended by the Act. The proposed amendment would require charter schools to provide instruction that supports development of a school environment free of discrimination and harassment, as required by the Dignity Act, including but not limited to instruction that raises awareness and sensitivity to discrimination or harassment based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex. The proposed amendment further provides that in public schools other than charter schools, such instruction shall be provided as part of a component on civility, citizenship and character education in accordance with section 801-a of the Education Law.

The proposed amendment will not impose any additional professional services requirements.

3. COSTS:

The proposed amendment is necessary to conform the Commissioner's Regulations with the Dignity Act and will not impose any additional costs beyond those imposed by the statute.

4. MINIMIZING ADVERSE IMPACT:

The proposed amendment is necessary to implement the instructional requirements of the Dignity for All Students Act (L. 2010, ch. 482), including provisions to conform the Commissioner's regulations to Education Law section 801-a, as amended by the Act. The proposed amendment will not impose any additional compliance requirements or costs on entities in rural areas beyond those imposed by the statute. Because these statutory requirements specifically apply, it is not possible to provide an exemption from the proposed amendment's requirements or impose a lesser standard. The proposed amendment has been carefully drafted to meet statutory requirements and Regents policy while minimizing its impact on entities in rural areas.

Consistent with the Dignity Act, the proposed amendment would require charter schools to provide instruction that supports development of a school environment free of discrimination and harassment, as required by the Dignity Act, including but not limited to instruction that raises awareness and sensitivity to discrimination or harassment based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex. The proposed amendment further provides that in public schools other than charter schools, such instruction shall be provided as part of a component on civility, citizenship and character education in accordance with section 801-a of the Education Law.

The statute which the proposed amendment implements applies to all school districts and BOCES throughout the State, including those in rural areas. Therefore, it was not possible to establish different requirements for entities in rural areas, or to exempt them from the rule's provisions.

5. RURAL AREA PARTICIPATION:

Comments on the proposed amendment were solicited from the Department's Rural Advisory Committee, whose membership includes school districts located in rural areas. The proposed amendments were developed in cooperation with the Dignity Act Task Force State Policy Work Group which is comprised of other State agencies, the New York City Department of Education, and several not-for-profit organizations.

The proposed amendment is applicable to school districts, boards of cooperative educational services and charter schools and is necessary to implement the instructional requirements of the Dignity for All Students Act (L. 2010, Ch 452). The proposed amendment will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the proposed amendment that it will have a positive impact, or no impact, on jobs or employment opportunities, no further steps were needed to ascertain those facts and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.