Excerpts taken from the Summer School 2001 Handbook, State Education Department, Albany, NY 12234.
To view the entire Handbook, click here!

I. INTRODUCTION

Purpose of Summer School

Summer school is an additional opportunity for school districts to meet the needs of all students, including students with disabilities. Summer school programs may provide opportunities for acceleration, enrichment, skills improvement or to allow students to make up course work, which they were unable to master during the regular school year. Summer school programs may be provided by school districts, by BOCES or nonpublic schools. Summer school may be provided by arrangement with other institutions only if post secondary credit (college credit) is involved, as described below.

The adoption, in July 1999, of the New York State learning standards for high school graduation means that many students will need additional help to reach the standards. Summer school offers an excellent vehicle for delivering the "academic intervention services" mandated by Commissioner's Regulations 100.1(g) and Commissioner's Regulations 100.2 (ee) passed in July 1999. Such services require additional instruction or support services for students who have failed or who are at risk of failing State examinations or whose academic performance fails to meet the learning standards.

Caution

This handbook sets forth general guidelines concerning the administration of summer school programs. School district staff should refer to specific applicable provisions of the Education law and Commissioner’s Regulations, Commissioner's Decisions and other laws rules and regulations, in creating and operating summer school programs.

Resident Students Entitled to Free Public Education

The New York State Constitution Article XI and Education Law §3202 guarantee that a pupil is entitled to free public education in the district in which the pupil resides. There is no modifier on the word "free." There can be no fees or charges for any part of the program which eventually leads to a high school diploma. In conferring the right to a tuition-free education in the district of the pupil’s residence, the statute does not distinguish between attendance during the school year and over the summer. A district that offers its resident students summer school programming may not require summer school students to pay anything for any part of the program.

Equal Access for Students Who Had Attended Nonpublic Schools.

Resident students who, in the previous school year, had attended nonpublic schools or any school other than that of the district in which they reside, are none-the-less entitled to attend the summer school of the public school district in which they reside. This is based on the Formal Opinion Of Counsel #149 Volume 4, Page 231 of Education Department Reports.

Every resident student is entitled to attend summer school subject only to meeting academic qualifications, if any, for the particular course. As discussed below, entitlement may not be restricted based on the source of funds supporting the summer school nor may it be limited by setting an enrollment limit.

Source of Funding Irrelevant

Education Law section 3602 1.g. and Commissioner’s Regulations Part 110 state that summer school is public school instruction during the months of July and August. There are no exceptions in law, rule, regulation, or Commissioner’s Decisions. Any public school district instructional program in July and August is a summer school. Students may also be participating in other programs while in summer school.

Many sources of funds may be tapped to pay for summer school. These include: local taxes, state aid, federal grants, private grants, state or local grants, and private donations. The source of funds does not exempt a program from being a summer school nor from being subject to all the laws, rules and regulations which govern summer school. The source of funding can not be used as a basis for excluding any resident student.

No Closed Enrollments

If a district accepts a grant to support summer school, the grant may not include any provisions which are at variance with legal requirements placed on the school district. Specifically, the grant may not preclude any resident students from being admitted.

Education Law 1709 requires that students be placed "as their scholarship shall warrant", therefore a designation that the program has a "closed enrollment" does not provide a basis for denying access to summer school to any resident student if that student's scholarship warrants inclusion in the program.

Fees

The Constitution of the State of New York guarantees a system of free public education to the children of the State. Education Law section 3202 defines this entitlement. Residents of a school district age 5 to 21, military veterans, and students with disabilities ages 3-21 are entitled to a free public education leading to a high school diploma. There is no modifier on the term "free". "Free" means that a school district may not charge any student or parent of a student, for any part of the program (such as summer school) so long as it leads, eventually, to a diploma.

There is no legal authority to impose any fee for summer school. There is no legal basis for the traditional $3.00 summer school registration fee, other than that the $3.00 fee has not been legally challenged.

School districts may seek recovery of costs for lost books or other liability that an individual student may incur. The provision of the complete educational program, including: admission to the next semester, report cards, transcripts, letters of recommendation, the loaning of textbooks, etc., may not be withheld for lack of payment. School districts may charge a reasonable fee, reflecting the district's costs, for services which are not part of the program leading to a diploma or for services to non-residents.

Some Elements of a Free Public Education

Laws, regulations, and policies have determined what must be and what may be included in the program leading to a high school diploma.

• Summer school may be provided by a public school district but districts are not required to do so. If summer school is provided, it must be free, as summer school is part of the program leading to a diploma. There is no legal arrangement whereby a district may cooperate with any other entity (such as a BOCES, a not for profit corporation, a for profit corporation, an institution of higher education, a group of parents, or a group of teachers) to provide summer school but impose a cost on resident students.

• A student with a disability is eligible for summer school program and must be provided appropriate accommodations and services, including testing accommodations, as determined by the Committee on Special Education (CSE) and as specified on the student’s Individualized Education Program (IEP) as necessary for the student to participate in the summer school program.

• A student who has a "Section 504 Accommodation Plan," under section 504 of the Rehabilitation Act of 1973, must be provided with the supports and services, including testing accommodations, as specified in his or her Accommodation Plan.

• Districts must allow their resident students who have once qualified to take a Regents examination to retake that Regents examination every time it is offered.
• Taking the examination without having been registered in the course during the immediately preceding semester is called taking the examination on a "walk-in basis." Districts must allow residents to take walk-in examinations without any fee.
• Districts may allow non-resident students to take the Regents examinations in summer school on a walk-in basis, that is without having participated in that district’s summer school. The school conducting the examination must have written authorization from the principal of the school the student has attended during the previous semester indicating, the student's eligibility. If non-residents are allowed to take the exam on a walk-in basis, a reasonable fee, based on the cost of administration and marking, may be charged.
• Students with disabilities must use testing accommodations for those assessments as indicated on the student's IEP or § 504 accommodation plan.
• During the summer, districts may offer any course that they could have offered during the regular school year including a short course for preparation for examinations, such as the Regents, the SATs the ACTs etc. Residents may not be charged any fee. A charge reflecting the district's costs may be made to non-residents. If such a course is at least 20 hours in duration and not more than 90 hours, the actual pupil hours of attendance qualify for inclusion in the summer school state aid formula.

• Tuition charged to non-residents is calculated according to Commissioner's Regulation 174. It reflects the difference between the district's cost of providing instruction and the state aid the district receives.

January 23, 2004
MAHasselwander