THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234

TO: P-12 Education Committee

FROM: Angelique Johnson-Dingle

SUBJECT: Proposed Addition of Part 123 of the Regulations of the

Commissioner of Education Relating to Prohibiting the
Use of Indigenous Names, Mascots, and Logos by Public
Schools

DATE: April 6, 2023

AUTHORIZATION(S):

SUMMARY

Issue for Decision

Should the Board of Regents adopt a new part 123 of the Regulations of the
Commissioner of Education relating to prohibiting the use of Indigenous names, mascots,
and logos by public schools?

Reason for Consideration

State statute (Education Law §10 et seq., the “Dignity for all Students Act”) and
review of policy.

Proposed Handling

The proposed amendment is submitted to the P-12 Education Committee for

discussion and recommendation to the Full Board for adoption as a permanent rule at
the April 2023 meeting of the Board of Regents. A copy of the proposed amendment is
attached (Attachment A).

Procedural History

The proposed amendment was presented to the P-12 Education Committee for
discussion at the December 2022 meeting of the Board of Regents. A Notice of Proposed
Rulemaking was published in the State Register on December 28, 2022, for a 60-day
public comment period.

BR (CA) 4
 Following publication in the State Register, the Department received comments on
the proposed amendment. An Assessment of Public Comment is included (Attachment B).
In response to public comment, the Department has made a non-substantial revision to
the proposed rule as outlined below. Supporting materials are available upon request
from the Secretary to the Board of Regents.

Background Information

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.”

In the intervening 22 years, many school districts have heeded Commissioner

Mills’ directive. Recently, the Waterloo, Lyme, Watkins Glen, and Candor Central School
Districts are retiring 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 …”

161 Ed Dept Rep, Decision No. 18,058, available at

http://www.counsel.nysed.gov/Decisions/volume61/d18058.

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 • The Dignity for All Students Act (the Dignity Act, sometimes referred to as DASA)
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 Framework3 and policy on Diversity,
Equity, and Inclusion.

Cambridge appealed the Commissioner’s decision. The 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, 20224, 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.

If adopted, the Department plans to draft and release guidance for the field in
partnership with educators and Indigenous Nations.

Proposed Amendment

The Department now proposes a regulation to clarify public schools’ obligations

in this respect. In addition to prohibiting the use of 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;

2 The Department is the agency tasked by the Legislature to administer the Dignity Act.
3 http://www.nysed.gov/common/nysed/files/programs/crs/culturally-responsive-sustaining-education-
framework.pdf
4 http://www.nysed.gov/common/nysed/files/programs/main/indigenous-native-american-mascot-

memo.pdf

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

• creates exceptions for federally or State-recognized tribes to (1) utilize such names,
mascots, and/or logos for sports teams comprised of their tribal members; and
(2) allows a public school to utilize an Indigenous name, mascot, or logo if an
agreement exists in writing between the tribal nation and public school prior to
the effective date of the proposed rule; 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.

Non-Substantial Revisions to the Proposed Amendment

Following the 60-day public comment period the Department proposes to make
two non-substantial revisions to the proposed amendment. First, as discussed above,
the original proposed rule required that public schools 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.

The Department recognizes that public schools may not be able to successfully
enforce this provision as it relates to individuals who are not officers or employees of
such public schools. Therefore, the Department proposes to revise this provision to
remove the requirement that public schools prohibit “individuals” from utilizing or
promoting any Indigenous name, logo, or mascot when located on school property or at
a school function.

Second, the Department received a comment suggesting that school districts could
not display or use Indigenous team names, logos, or mascots for educational purposes.
While the Department does not believe that this use is prohibited by the regulations as
written, the Department has made a non-substantial revision to clarify that the regulation
does not pertain to the display or use of such names, symbols, or images in the context
of classroom instruction.

Related Regents Items

December 2022: Proposed Addition of Part 123 of the Regulations of the Commissioner
of Education Relating to Prohibiting the Use of Indigenous Names, Mascots, and Logos
by Public Schools
(https://www.regents.nysed.gov/common/regents/files/1222p12d2.pdf)

May 2021: The New York State Board of Regents Policy Statement on Diversity, Equity,
and Inclusion In New York State Schools
(https://www.regents.nysed.gov/common/regents/files/521bra7.pdf)

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Recommendation

It is recommended that the Board of Regents take the following action:

VOTED: That Part 123 of the Regulations of the Commissioner of Education be

added, as submitted, effective May 3, 2023.

Timetable for Implementation

If adopted at the April 2023 meeting, the proposed amendment will become
effective as a permanent rule on May 3, 2023.

5
 Attachment A

AMENDMENT TO THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

Pursuant to Article 2 and sections 101, 207, 305, 308, 309, and 2854 of the

Education Law.

Subchapter E of the Regulations of the Commissioner of Education is amended

by adding a new Part 123 to read as follows:

Part 123

Use of Indigenous Names, Logos, or Mascots Prohibited

§123.1 Definitions.

As used in this Part, “Indigenous name, logo, or mascot” means a name, symbol,

or image that depicts or refers to Indigenous persons, tribes, nations, individuals,

customs, symbols, or traditions, including actual or stereotypical aspects of Indigenous

cultures, used to represent a public school, including but not limited to such schools

sports teams. It does not include a public school, school building, or school district

named after an Indigenous tribe.

§123.2 Prohibition.

Except as provided in section 123.4 of this Part, no public school in the State of

New York may utilize or display an Indigenous name, logo, or mascot other than for

purposes of classroom instruction.

§123.3 Timelines.

(a) Boards of education must commit, via resolution, to eliminating the use of all

Indigenous names, logos, and mascots by the end of the 2022-23 school year. Such

resolution shall identify a plan to eliminate all use of the prohibited name, logo, or

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mascot within a reasonable time, which shall be no later than the end of the 2024-2025

school year.

(b) Upon a showing of good cause, the commissioner may grant an extension of

the timelines prescribed in subdivision (a) of this section.

§123.4 Exceptions; Tribal Use or Approval.

(a) Tribal Use. Nothing in this section shall be construed to prohibit a federally

recognized tribal nation within the State of New York or a New York State-recognized

tribal nation from choosing to use an Indigenous name, logo, or mascot for a sports

team comprised of its tribal members, including an Indigenous name, logo, or mascot

for a sports team comprised of its tribal members, including a tribal school or intramural

league.

(b) Tribal Approval. This Part shall not apply where a written agreement exists

prior to the effective date of this part between a federally recognized tribal nation within

the State of New York or a New York State-recognized tribal nation and a public school

permitting the use of an Indigenous name, mascot, or logo that is culturally affiliated

with such tribe. A public school shall not offer or accept any money, consideration, or

thing of value pursuant to any such agreement. The tribal nation shall have the right

and ability to revoke any such agreement at any time. Upon termination of such an

agreement, the public school shall have the remainder of the school year in which such

agreement is revoked and one additional school year to discontinue its use of an

Indigenous name, logo, or mascot.

§123.5 Implementation.

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 Public schools shall prohibit school officers and employees when located on

school property or at a school function from utilizing or promoting any Indigenous name,

logo, or mascot. This provision shall not apply to any school officer or employee who is

a member of a tribal nation and is utilizing or promoting an Indigenous name, logo, or

mascot of such tribal nation.

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 Attachment B

ASSESSMENT OF PUBLIC COMMENT

Since publication of the Notice of Proposed Rule Making in the State Register on

December 28, 2022, the Department received the following comments on the proposed

rule:

1. COMMENT: The Department received several comments supporting the

proposed regulatory change from organizations including the Shinnecock Indian Nation,

Oneida Indian Nation, and Washington County Democratic Committee. The

Department also received supportive comments from residents of school districts

throughout New York State. These included residents of the Cambridge Central School

District, who spoke to the personal and social toll wrought by the mascot debate and

expressed their hope that no more school districts experience such vitriol and division.

Additionally, multiple residents of the Mahopec Central School District expressed their

support for the proposed regulation.

DEPARTMENT RESPONSE: The Department appreciates these supportive

comments, which do not necessitate amendment of the proposed regulation.

2. COMMENT: The Department received multiple comments expressing general

opposition to the proposed regulation, which included comments from several residents

of the Mahopec Central School District. Multiple Mahopec residents expressed the

sentiment, as one commenter put it, that “[t]he Indian name came about to honor those

people[,] not deride them.”

DEPARTMENT RESPONSE: The Department’s position, as set forth in Senior

Deputy Commissioner Jim Baldwin’s November 2022 memorandum and the underlying

9
item, is that the creation and maintenance of Indigenous mascots cause harm to all

students regardless of their identity or background. No commenters submitted any

proof of the intent underlying the creation of any specific Indigenous team name, logo,

or mascot.

In any event, the Department’s proposed rule is based upon the harmful impact

of Indigenous mascots, not the avowed intentions of previous or current school district

officials. In this respect, the Department notes that a 2020 literature review by Laurel R.

Davis-Delano, et al. concluded that every 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.” Those

findings remained consistent regardless of “the stated intent of those who support[ed]

Native mascots (i.e., to ‘honor’ Native Americans)” (see Appeal of McMillan, et al., 61

Ed Dept Rep, Decision No. 18,058). No changes to the proposed rule are necessary.

3. COMMENT: Several commenters expressed interest in increasing the amount

of Native American history and culture in P-12 curricula.

DEPARTMENT RESPONSE: While outside the scope of the proposed

regulation, the Department supports efforts to further incorporate Native American

culture into local school curricula. As the Commissioner of Education indicated in

Appeal of McMillan, et al.: “[r]etiring ... mascot[s] is not an end in and of itself; it is a

small but important part of increasing the nature and quality of Native American

education.”5

5 61 Ed Dept Rep, Decision No. 18,058.

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 New York State, however, does not mandate the content of local curricula. One

of the Department's responsibilities is to set student learning expectations (standards)

for what all students should know and be able to do as a result of instruction. It is the

responsibility of each local school district to develop curricula based on these Learning

Standards, select textbooks and instructional materials, develop pacing charts for

learning (scope and sequence), and provide professional development for staff to

ensure that all students have access to instruction leading to attainment of these

learning standards. No changes to the proposed rule are necessary.

4. COMMENT: Several commenters objected to the “costs” that replacement of

their team name, mascot, or logo will entail. Others characterized the prohibition as an

“unfunded mandate.”

DEPARTMENT RESPONSE: The proposed rule respects the dignity of

Indigenous persons and the psychological harm caused by stereotypical team names,

logos, or mascots. The Department believes that the importance of prohibiting offensive

or stereotypical imagery outweighs any attendant costs.

Additionally, as other commenters explained, most of these expenses could have

been avoided by phasing out team names, mascots, or logos decades ago. As one

commenter put it with respect to her school district: “... there was a very long lead time

announced, 20 years ..., for this impending change. The school did not plan

appropriately, did not educate itself regarding the issues of appropriation, did not make

a financially sound ‘[phase] out’ arrangement that would take into consideration the

need for replacing scoreboards, uniforms, and other logo appearances.” Thus, as the

11
commenter explained, this district’s claims of sudden, unexpected costs could have

been mitigated, if not avoided, with better planning.

Finally, as noted in the Regulatory Impact Statement accompanying the

proposed rule, “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.” No changes to

the proposed rule are necessary.

5. COMMENT: Several commenters expressed the sentiment that the elimination

of their team name, logo, or mascot would “erase the history and general understanding

of [Indigenous] culture throughout New York.”

DEPARTMENT RESPONSE: This argument suggests a false dichotomy;

namely, that Indigenous communities are entitled to stereotypical representations or no

representation. The Department rejects this premise. Indigenous persons deserve

representation in curricula and to be depicted accurately and respectfully. With respect

to representation in curricula, see the Department’s response above concerning

curricula. No changes to the proposed rule are necessary.

6. COMMENT: Several commenters expressed opposition to a proposed

provision of the regulation requiring that school districts “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.” Some commenters

argued that this prohibition, as applied to “all individuals,” is inconsistent with the First

12
Amendment. Other commenters indicated that this would present practical difficulties in

enforcement.

DEPARTMENT RESPONSE: The overall intent of the section the commenter

describes, 8 NYCRR 123.5, is to avoid circumvention of the Indigenous mascot

prohibition by allowing district to display “retired” mascots in connection with school or

athletic events. While the Department continues to have concerns on this point, in

response to public comment, the Department has engaged in a nonsubstantial revision

of the regulation to remove “all individuals” from its scope. Thus, school districts will

only be responsible for ensuring that their officers and employees refrain from

promoting a Native American team name, logo, or mascot. This is consistent with a

public employer’s duty to prevent its employees from engaging in violations of the

Dignity for All Students Act (Education Law §§, 11 [4], 12 [1], 1125 [3]).

7. COMMENT: A public school district seeks clarification regarding the provision

prohibiting the use of retired mascots on school property. The school district asks

whether it would be prohibited from “display[ing] ... photographs, trophies, [or] banners”

that feature a retired team name, logo, or mascot. The school district further requests

additional time “to fully implement the changes” required by the regulation.

DEPARTMENT RESPONSE: The Department does not recommend the

destruction or alteration of historical artifacts such as photographs, trophies, or banners.

The intent of this regulation is not to pretend that Indigenous mascots were never used

but to eliminate their use going forward. Harmful as they may be, the use of indigenous

mascots, like the forced relocation of Native American tribes, is a historical fact that

must be acknowledged (see generally McGirt v. Oklahoma, 591 US --- [2020]).

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 With respect to extensions of time, the regulation permits school districts to

request an extension of the deadlines identified in the regulation based “[u]pon a

showing of good cause” (8 NYCRR 123.3 [b]). Therefore, school districts that require

additional time may utilize this process. No changes to the proposed rule are necessary.

8. COMMENT: A public school district seeks clarification as to why the

Department is seeking to change team names, logos, and mascots, but not the names

of school buildings.

DEPARTMENT RESPONSE: School districts within the United States have

historically reduced Native Americans to caricatures in the form of team names, logos,

and mascots. As scholars C. Richard King and Charles Fruehling Springwood have

argued, “these kinds of images dehumanize and demonize Native Americans,

constraining the ability of the non-Indian community to relate to Indians as

contemporary, significant, and real human actors.”6 Indeed, the commenter

acknowledged this history, stating: “We do understand that Indigenous imagery can be

perceived as disrespectful by some members of the Indigenous community.” To the

Department’s knowledge, there is no comparable tradition with respect to the legal

names of school buildings or districts. No changes to the proposed rule are necessary.

9. COMMENT: A “parental rights group” asserts that the Mahopec Central School

District’s “Indian mascot is being vilified by those who do not live in our community and

or [sic] understand the importance of our history.” The commenter alleges that the

Department’s actions have sown “division” within their school community and suggest

6Introduction in Team Spirits: The Native American Mascots Controversy [Lincoln: Univ. of Nebraska
Press, 2001], 8; see also id. at p. 7 (“Native American mascots perpetuate inappropriate, inaccurate, and
harmful understandings of living people, their cultures, and their histories.”).

14
that a prohibition on Indigenous mascots is inconsistent with “free speech and

expression.”

DEPARTMENT RESPONSE: See the Department’s response above to the

argument that Indigenous mascots “honor” Indigenous persons or communities. The

Department further notes that is well aware of the importance of the history of

Indigenous mascots; that it did not create the movement to eliminate Indigenous

mascots, which originated with Indigenous persons and groups; and that school districts

have some discretion, but not a First Amendment right, to select a team name, mascot,

or logo (see Appeal of McMillan, et al., 61 Ed Dept Rep, Decision No. 18,058; Appeal of

Tobin, 25 id. 301, Decision No. 11,591 [holding that the Commissioner of Education

may overturn a local decision regarding a team name, mascot, or logo where the school

district abused its discretion]). No changes to the proposed rule are necessary.

10. COMMENT: A public school administrator asked whether the term “Indians”

could be appropriate under any circumstances. The administrator argues that this term

is akin to “American,” which is utilized by certain schools. The commenter further

suggests that “the nation of Indians” is analogous to “American.” The commenter

further asks whether the use of a “feather” in a logo would be inappropriate.

DEPARTMENT RESPONSE: The commenter’s first question was squarely

addressed by the Commissioner of Education in Appeal of McMillan et al. (61 Ed Dept

Rep, Decision No. 18,058). In that appeal, the Commissioner found that a school

district’s “continued use of the ‘Indians’ team name, logo, and mascot constitutes an

abuse of its discretion.” The commenter presents no information that would distinguish

15
his proposed hypothetical from the evidence presented in that appeal regarding the

Cambridge Central School District’s use of “Indians.”

The commenter’s equation of “Indian” with “American” is inaccurate. “Indian” is a

historical term used to apply to Native American tribes; it originates with Christopher

Columbus’s mistaken conclusion that he and his crew had arrived in the West Indies. It

does not describe a specific tribe. “Indian nation[s] or tribe[s],” by contrast, are

comprised of nine sovereign nations within the State of New York (Indian Law § 2).

Thus, the generic term “Indian” is not analogous to the term “American,” which refers to

citizens of the United States of America—and which includes individuals of Indigenous

descent.

The appropriateness of a logo containing a feather must be evaluated in context.

While there is nothing inherently offensive about a feather, such images take on a

different meaning when used by school districts, such as the commenter’s employer,

that have a history of utilizing stereotypical names and imagery. The Department does

not anticipate that any team names, logos, or mascots that contain vestiges of

prohibited team names, logos, or mascots will be considered acceptable. No changes to

the proposed rule are necessary.

11. COMMENT: A resident of the Glens Falls City School District states that his

district will no longer use an arrowhead as its logo. He argues that an arrowhead “isn't

offensive to anyone's culture or race or nationality since all our ancestors used it and

benefitted from its use.”

DEPARTMENT RESPONSE: The Department cannot opine as to the Glens Falls

City School District’s reasoning for making the decision about which the commenter

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complains. However, to the extent that Glens Falls may have a history of utilizing

stereotypical names and imagery, see the above response regarding the Mahopec

Central School District’s question about using a feather in a logo. No changes to the

proposed rule are necessary.

12. COMMENT: The superintendent of the Mahopec Central School District

requests that the Department consider the “[a]llowance of mascot names that exhibit

strength such as “Braves” or “Warriors,” citing dictionary definitions of these words. She

opines that these words “do not refer to Native Americans but certainly describe the

strength, courage, and determination of our students.”

DEPARTMENT RESPONSE: As with the above comment considering the use of

a feather, these issues must be considered in context. The question is not whether the

words “braves” or “warriors” are offensive in the abstract, but whether their use is

appropriate in school districts that have a history of utilizing stereotypical names and

imagery. No changes to the proposed rule are necessary.

13. COMMENT: After expressing support for the proposed regulations, a

commenter offers five specific proposals:

1. Give school districts two years to eliminate the use of Indigenous team names,

logos, and mascots so that school districts are not “harmed by the upfront cost of

removing and enacting new iconography”;

2. Revise the definition of “Indigenous name, logo, or mascot” to the following: “any

person, animal or object used to represent a school district which names, refers

to, represents, or is associated with Native American, including aspects of Native

American cultures and specific Native American tribes”;

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3. Provide additional guidance regarding the definition of federally recognized

tribes. In this respect, the commenter notes that school districts have, and

continue to attempt to, engage in “tribal shopping” whereby they seek a tribe’s

approval to use an Indigenous team name, logo, or mascot;

4. Ascertain whether school districts “can tap into cultural funds within NYSED” to

defray costs; and

5. Promote additional education about Indigenous peoples in local curricula.

DEPARTMENT RESPONSE:

1. Following final adoption of this regulation, school districts will have more than two

years to eliminate the use of Indigenous team names, logos, and mascots.

Additionally, the Department provided advance notice of its intentions in James

N. Baldwin’s November 17, 2022 memorandum, which provided districts with an

additional five months’ notice. See also the Department’s response above

regarding extensions of time.

2. While the Department appreciates the suggested changes, Department staff

have elected to maintain the original proposed language, as it believes that it is

broader and will more accurately capture the team names, logos, and mascots

that the Department seeks to prohibit.

3. The Department of the Interior’s Bureau of Indian Affairs maintains an electronic

database that allows users to search all federally recognized tribes:

https://www.bia.gov/service/tribal-leaders-directory/federally-recognized-tribes

(last accessed Mar. 18, 2023). With respect to “tribal shopping,” the Department

did not intend the “tribal approval” provision (8 NYCRR 123.4 [b]) to constitute an

18
 invitation for school districts to obtain such agreements. As Deputy

Commissioner Baldwin’s November 2022 memorandum suggested, the intention

of this provision was to recognize any pre-existing agreements between a

federally or State recognized tribe (“Those school districts that continue to utilize

Native American team names, logos, and/or imagery without current approval

from a recognized tribe must immediately come into compliance”). The

Department, however, selected the effective date of the regulation as it may only

promulgate regulations with prospective effect.

4. See the Department’s response regarding costs.

5. See the Department’s response above regarding curricula.

14. COMMENT: Two members of the assembly, on behalf of nine other

members, write to express their “severe disappointment” that the regulation affects two

school districts within their Assembly district. They argue that the issue should be

decided by local school boards. They further assert that the State Education

Department “threaten[ed] to remove duly elected school board members and withhold

millions of dollars ....” Finally, they characterize the regulation as an “unfunded

mandate” and assert that the Department “should pay for its implementation.”

DEPARTMENT RESPONSE: While the Department also hoped that this matter

could have been handled at the local level, dozens of school districts ignored, or took

pro forma steps to implement, Commissioner Mills’ 2001 directive. It has become

readily apparent that many school boards will not make this necessary change on their

own. Given the literature on the harm of Native American mascots and the intervening

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passage of the Dignity for All Students Act, the Department considers it its responsibility

to ensure the protection of all students.

The Department objects to any insinuation that it “threaten[ed]” school districts

with the removal of school officers or withholding of State Aid. While Deputy

Commissioner Baldwin informed school districts that their willful maintenance of an

Indigenous mascot could result in such consequences, these are set forth in statute

(Education Law § 306 [2]). School boards that comply with the regulations will face no

consequences.

On the characterization of the regulation as an “unfunded mandate,” see the

Department’s response above concerning costs. No changes to the proposed rule are

necessary.

15. COMMENT: The New York State School Boards Association and New York

State Association of School Attorneys argue that the prohibition on “all individuals ...

utilizing or promoting any Indigenous name, logo, or mascot” exceeds the Department’s

jurisdiction and is inconsistent with the First Amendment. These organizations further

argue that the regulation does not contain an exception for displaying or discussing

mascots for “educational or historical purpose[s].”

DEPARTMENT RESPONSE: As indicated above, the Department has engaged

in a nonsubstantial revision of 8 NYCRR 123.5 to remove the reference to “all

individuals.”

With respect to the display or use of Indigenous team names, logos, or mascots,

the Department does not believe that such uses are prohibited by the regulations as

written. Nevertheless, the Department has made a nonsubstantial revision to 8 NYCRR

20
123.2 to clarify that the regulation does not pertain to the display or use of such names,

symbols, or images in the context of classroom instruction.

16. COMMENT: A commenter asks who is responsible for “making the final

determination on what is or isn't acceptable.” The commenter further suggests that “if

the group that makes this ultimate decision doesn't include native Americans, it is being

just as offending as what this ruling is trying to prohibit.” The commenter further

suggests the creation of an appeals “process for schools that have their logos

challenged or denied by the State.”

DEPARTMENT RESPONSE: The Board of Regents, the head of the State

Education Department, is responsible for the adoption of all regulations proposed by the

Department (N.Y. Const. Art. V § 4; Art. XI § 2; Education Law § 207). As relevant

here, the Department notes that it has convened an Indigenous Mascot Advisory Group

comprised of tribal leaders. This group advised and continues to advise, the

Department in making determinations regarding actual or proposed team names, logos,

or mascots.

With respect to an appeals process, the regulation places the responsibility of

eliminating Indigenous team names, logos, or mascots on local school boards.

Therefore, it is the responsibility of each school board to determine the applicability of

the regulation and ensure their district’s compliance therewith. If a school district

refuses to take action, the Department will notify the school district and attempt to

achieve compliance. The Department anticipates that school districts will cooperate in

good faith. If that cannot be accomplished, the statutory means of enforcement, as

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described above, including the removal of school officers and withholding of State aid.

No changes to the proposed rule are necessary.

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