Relates to school climate and codes of conduct on school property and disciplinary action following violation of such codes of conduct; and makes conforming amendments.
STATE OF NEW YORK
________________________________________________________________________
3873--A
2017-2018 Regular Sessions
IN ASSEMBLY
January 30, 2017
___________
Introduced by M. of A. NOLAN, WALKER, TITONE, FAHY, SIMON, LUPARDO,
JAFFEE, BRINDISI, WEINSTEIN, CAHILL, GALEF, O'DONNELL, JOYNER, PERRY,
PRETLOW, PICHARDO, COOK, CRESPO, SEPULVEDA, KIM, ROSENTHAL, HYNDMAN,
MAYER, HARRIS, BICHOTTE, MOSLEY, WEPRIN, JEAN-PIERRE, M. G. MILLER,
BARRON -- Multi-Sponsored by -- M. of A. BUCHWALD, CYMBROWITZ -- read
once and referred to the Committee on Education -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
AN ACT to amend the education law, in relation to school climate and
codes of conduct on school property and disciplinary action following
violation of such codes of conduct; and to amend the education law, in
relation to making conforming amendments
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 2801 of the education law, as added by chapter 181
2 of the laws of 2000, subdivision 1 as amended by chapter 402 of the laws
3 of 2005, the opening paragraph, paragraph a and paragraph c of subdivi-
4 sion 2 and paragraph a of subdivision 5 as amended by chapter 380 of the
5 laws of 2001, paragraphs l and m as amended and paragraph n of subdivi-
6 sion 2 as added by chapter 482 of the laws of 2010, and subdivision 3 as
7 amended by chapter 123 of the laws of 2003, is amended to read as
8 follows:
9 § 2801. [Codes] School climate and codes of conduct on school proper-
10 ty. 1. a. The board of education or board of trustees of every school
11 district or the chancellor of the city school district in the case of
12 the city school district of the city of New York, and every board of
13 cooperative educational services and charter school shall promote and
14 sustain a safe, inclusive, civil, and respectful school environment for
15 school personnel, students, and visitors on school property and at
16 school functions through prevention, intervention, and discipline that
17 supports education and learning; promotes positive behaviors; reduces
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07973-02-7
A. 3873--A 2
1 the disparate impact of discipline; holds students accountable for their
2 behavior; and keeps students in school and class.
3 b. (1) Every school shall establish prevention programs and services
4 that may include school-based initiatives and individual interventions
5 that promote a safe and secure environment for all persons on school
6 property or at school functions, and restorative practices designed to
7 promote social and emotional learning, resolve student behavioral
8 issues, and keep students in school and in class.
9 (2) Every school shall use interventions and supports that assist
10 students in developing social and emotional competencies such as self-
11 management, self-awareness, responsible decision-making, conflict resol-
12 ution, and refocusing on learning.
13 (3) Every school shall have, and support teachers in maintaining,
14 classrooms and classroom practices that support each student's opportu-
15 nity to obtain an education, that develop each student's social-emotion-
16 al skills, and that are healthy, safe, and inclusive.
17 (4) Every school shall ensure pre-service and annual training in
18 accordance with this section for all school personnel, law enforcement
19 and public or private security personnel employed, retained or
20 contracted with a school district or charter school regarding the code
21 of conduct, and the use of interventions, positive school climate prac-
22 tices, graduated and proportionate discipline, and disparities that
23 exist in discipline.
24 (5) Every school shall define the roles and areas of responsibility of
25 school personnel, security personnel and law enforcement in response to
26 student misconduct that violates the code of conduct. A school district
27 or charter school that employs, contracts with, or otherwise retains law
28 enforcement or public or private security personnel, including school
29 resource officers, shall establish a written contract or memorandum of
30 understanding that is developed with stakeholder input including but not
31 limited to: parents, students, school administrators, teachers, collec-
32 tive bargaining units, parent and student organizations, community
33 members, as well as probation officers, prosecutors, defense counsels
34 and courts that are familiar with school discipline. Such written
35 contract or memorandum of understanding shall define the relationship
36 between a school district or charter school, school personnel, students,
37 visitors, law enforcement, and public or private security personnel.
38 Such contract or memorandum of understanding shall be consistent with
39 the code of conduct, limit law enforcement or security personnel's
40 involvement when a student's behavior does not threaten the safety of
41 the school, define which behaviors should not result in an arrest or
42 summons, require law enforcement or security personnel to receive train-
43 ing as required by subparagraph four of this subdivision, and clearly
44 delegate the role of school discipline to the school administration.
45 Such written contract or memorandum of understanding shall be incorpo-
46 rated into and published as part of the code of conduct.
47 c. Every school shall use graduated and proportionate discipline,
48 which shall mean a disciplinary approach that requires school personnel
49 to use the least severe action necessary to respond to inappropriate
50 behavior and requires the use of appropriate prevention programs and
51 interventions prior to and in conjunction with the use of any discipline
52 that prevents students from receiving their in-classroom education.
53 Discipline such as removals, suspensions and expulsions that prevent
54 students from receiving their in-classroom education shall be used as a
55 discipline of last resort and may only be imposed as provided in this
56 section and section thirty-two hundred fourteen of this chapter.
A. 3873--A 3
1 d. (1) Restorative approaches to school climate and discipline include
2 the use of restorative practices in classrooms and schools to proactive-
3 ly build a school community based upon cooperation, mutual understand-
4 ing, acceptance of responsibility, trust and respect. Restorative prac-
5 tices may address misbehavior and harm in a way that strengthens
6 relationships between school staff and students and among students and
7 addresses the root causes of discipline problems.
8 (2) Restorative discipline allows students who may have violated the
9 code of conduct to take full responsibility for their behavior by
10 addressing any individuals affected by the behavior. The purpose of such
11 discipline is to help students understand why a specific behavior is
12 wrong and to help them choose a better behavior in the future. Restora-
13 tive practices and discipline may include class meetings, facilitated
14 circles, conferences, peer mediation and other restorative interventions
15 that can effectively address student misconduct, hold students account-
16 able for their behavior, repair harm to persons and property caused by
17 misconduct and foster healthy relationships within the school community.
18 Consistent with this section and section thirty-two hundred fourteen of
19 this chapter, school personnel may use restorative discipline to respond
20 to student behavior.
21 (3) No student shall be required to participate in a restorative prac-
22 tice without their consent. In addition, in the case of an incident
23 where a student has been physically injured, no student shall be
24 required to participate in restorative practices if their parent or
25 person in parental relation affirmatively objects upon notice. If a
26 student chooses not to participate in a restorative practice, the school
27 may use other approaches to respond to a code of conduct violation.
28 2. For purposes of this section, school property [means in or within]
29 shall mean real, personal or other property owned, leased or occupied by
30 a public school including a charter school. Such property shall include
31 but not be limited to any building, structure, athletic playing field,
32 playground, parking lot or land contained within the real property boun-
33 dary line of a public elementary or secondary school; or in or on a
34 school bus, as defined in section one hundred forty-two of the vehicle
35 and traffic law; or electronic files and databases and a school function
36 shall mean a school-sponsored or school-authorized extra-curricular
37 event or activity regardless of where or when such event or activity
38 takes place, including any event or activity that may take place in
39 another state.
40 [2.] 3. The board of education or [the trustees] board of trustees of
41 every school district or the chancellor of the city school district in
42 the case of the city school district of the city of New York, [as
43 defined in section two of this chapter, of every school district within
44 the state, however created,] and every board of cooperative educational
45 services and [county vocational extension board] charter school, shall
46 adopt and amend, as appropriate, a code of conduct [for the maintenance
47 of order on school property, including a school function, which shall
48 govern the conduct of students, teachers and other school personnel as
49 well as visitors] which shall govern the conduct of students, school
50 employees and visitors in order to promote a safe, respectful and
51 supportive learning and teaching environment on school property and at
52 school functions and shall provide for the enforcement thereof. [Such
53 policy may be adopted by the school board or trustees only after at
54 least one public hearing that provides for the participation of school
55 personnel, parents, students and any other interested parties.] Such
56 code of conduct shall apply to all students, school employees, school
A. 3873--A 4
1 board members, independent contractors and visitors and shall include,
2 at a minimum provisions that:
3 a. [provisions regarding conduct, dress and language deemed appropri-
4 ate and acceptable on school property, including a school function, and
5 conduct, dress and language deemed unacceptable and inappropriate on
6 school property, including a school function, and provisions regarding
7 acceptable civil and respectful treatment of teachers, school adminis-
8 trators, other school personnel, students and visitors on school proper-
9 ty, including a school function, including the appropriate range of
10 disciplinary measures which may be imposed for violation of such code,
11 and the roles of teachers, administrators, other school personnel, the
12 board of education and parents;
13 b. standards and procedures to assure security and safety of students
14 and school personnel;
15 c. provisions for the removal from the classroom and from school prop-
16 erty, including a school function, of students and other persons who
17 violate the code;
18 d. disciplinary measures to be taken in incidents involving the
19 possession or use of illegal substances or weapons, the use of physical
20 force, vandalism, violation of another student's civil rights and
21 threats of violence;
22 e. provisions for detention, suspension and removal from the classroom
23 of students, consistent with section thirty-two hundred fourteen of this
24 chapter and other applicable federal, state and local laws including
25 provisions for the school authorities to establish policies and proce-
26 dures to ensure the provision of continued educational programming and
27 activities for students removed from the classroom, placed in detention,
28 or suspended from school;
29 f. procedures by which violations are reported, determined, discipline
30 measures imposed and discipline measures carried out;
31 g. provisions ensuring] establish standards and procedures to assure
32 security and safety of students and school personnel;
33 b. require age-appropriate, graduated and proportionate interventions
34 and discipline, including restorative discipline, that respond to
35 student misconduct, hold students accountable for their behavior and
36 maximize the ability of students to attend class and school;
37 c. set out clear expectations for student conduct at school and school
38 functions, using specific and objective criteria, and define violations
39 of the code of conduct;
40 d. establish the range of graduated and proportionate interventions
41 and consequences including restorative discipline for student behaviors
42 that violate the code of conduct; provided that removal of a student
43 from class or classes, school property or school functions, including
44 classroom removal or suspension, for a specific period of time shall not
45 be used to respond to tardiness, unexcused absence from class or school,
46 leaving school without permission, violation of school dress code, and
47 lack of identification upon request of school personnel. The range of
48 graduated and proportionate interventions for initial or repeated acts
49 of willful disobedience shall not include suspension. "Willful disobe-
50 dience" shall mean disruptive, insubordinate, or rowdy behavior, includ-
51 ing behaviors such as the use of foul or inappropriate language,
52 gestures, comments, or refusal to follow directions;
53 e. where available, require the consideration of the use of restora-
54 tive practices and discipline in response to violations of the code of
55 conduct;
A. 3873--A 5
1 f. establish procedures by which violations of the code of conduct are
2 reported to the appropriate school personnel, the facts are investigated
3 and determined, and intervention and discipline measures, including
4 restorative discipline, are decided and implemented. Such provisions
5 shall ensure that procedures established are consistent with this
6 section, section thirty-two hundred fourteen of this chapter, and other
7 federal and state law;
8 g. establish procedures for removal from the classroom, school proper-
9 ty or a school function, of students who violate the code of conduct,
10 including procedures by which a school may respond immediately to
11 student behavior that (i) physically injures or poses an immediate
12 threat of physical injury to the student or other person or persons; or
13 (ii) damages property and such damage injures or poses an immediate
14 threat of serious physical injury to the student or other person or
15 persons, consistent with section thirty-two hundred fourteen of this
16 chapter and other federal and state laws;
17 h. prohibit the suspension of students in kindergarten through grade
18 three, except in situations of serious physical injury as defined in
19 subdivision ten of section 10.00 of the penal law to students, staff, or
20 others while taking into account the totality of the circumstances;
21 i. comply with the federal Gun-Free Schools Act;
22 j. set forth the circumstances under and procedures by which a parent
23 or persons in parental relation to a student accused of and affected by
24 student behavior that violates the code of conduct shall be notified of
25 code of conduct violations, including notice that any statement by the
26 student, written or oral, might be used against the student in a crimi-
27 nal, immigration, or juvenile delinquency investigation and/or proceed-
28 ing and/or in a court of law;
29 k. set forth the circumstances under and procedures by which a student
30 may be referred to law enforcement or a person in need of supervision
31 petition as defined in article seven of the family court act will be
32 filed consistent with subparagraph five of paragraph b of subdivision
33 one of this section;
34 l. set out the circumstances under and procedures by which students
35 who are suspended from school may also be referred to academic services,
36 school-based support services, or to appropriate human services agen-
37 cies;
38 m. ensure the continued educational programming and activities for
39 students removed from the classroom or suspended from school. Students
40 who have been removed from the classroom or suspended from school shall
41 have the right to continue their education and receive instruction while
42 they are excluded from the classroom regardless of the reason for or
43 type of exclusion as follows:
44 (1) when a student is removed from a classroom, the teacher, principal
45 or the principal's designee shall provide the student with all missed
46 classroom work within twenty-four hours of the removal and the student
47 shall have the opportunity to earn all academic credit including the
48 opportunity to complete any missed assignments and take any missed exam-
49 inations or assessments;
50 (2) when a student is suspended from class or school, the principal or
51 the principal's designee, in consultation with the student's teachers,
52 shall create an education plan for the student for each subject or class
53 in which the student is enrolled. The education plan shall make
54 provisions for a student's on-going academic instruction during the
55 suspension. The student shall have the opportunity to earn all academic
56 credit including the opportunity to complete any assignments and take
A. 3873--A 6
1 any assessment or examination missed during the student's suspension and
2 if an assessment or examination cannot be rescheduled, the student shall
3 be allowed on school property to take such assessment or examination on
4 the day that the assessment or examination is given;
5 (3) the education plan pursuant to subparagraph two of this paragraph
6 may include placement of the suspended student at an alternative learn-
7 ing site including the student's home if an alternative site is not
8 available and appropriate for the student's education. The principal or
9 the principal's designee at the school in which the student is enrolled
10 shall consult with the administrator of an alternative site or, in the
11 case of the student's home, with the teacher overseeing home instruc-
12 tion, to make arrangements for the student's continued instruction;
13 (4) every school district and charter school shall provide to students
14 with disabilities all services and educational programming protections
15 set forth in this section, section thirty-two hundred fourteen of this
16 chapter and all other applicable federal and state laws;
17 (5) schools shall schedule a conference with the parent or person in
18 parental relation and student within five school days from a student's
19 return to school after any short term or long term suspension and
20 provide notice of the conference to the parent or person in parental
21 relation and the student. The failure of the parent or person in
22 parental relation or student to attend shall not delay re-entry follow-
23 ing suspension. The conference shall include a discussion of the follow-
24 ing:
25 (A) a file of the student's educational activities while on suspension
26 that can be counted toward credit accumulation. This file shall include
27 the student's test scores, grades, completed assignments, and total
28 credits earned while suspended. The student's existing academic record
29 may be used for these purposes, if the academic record provides all
30 required information set forth in this clause;
31 (B) the steps the student will take to follow all school rules;
32 (C) the supports the school will provide for the student to success-
33 fully re-enter school;
34 (D) a discussion of when the record of suspension will be expunged;
35 and
36 (E) any other pertinent circumstances.
37 n. ensure such code and [the] its enforcement [thereof] are in compli-
38 ance with state and federal laws relating to students with disabilities;
39 [h. provisions setting forth the procedures by which local law
40 enforcement agencies shall be notified of code violations which consti-
41 tute a crime;
42 i. provisions setting forth the circumstances under and procedures by
43 which persons in parental relation to the student shall be notified of
44 code violations;
45 j. provisions setting forth the circumstances under and procedures by
46 which a complaint in criminal court, a juvenile delinquency petition or
47 person in need of supervision petition as defined in articles three and
48 seven of the family court act will be filed;
49 k. circumstances under and procedures by which referral to appropriate
50 human service agencies shall be made;
51 l. a minimum suspension period, for students who repeatedly are
52 substantially disruptive of the educational process or substantially
53 interfere with the teacher's authority over the classroom, provided that
54 the suspending authority may reduce such period on a case by case basis
55 to be consistent with any other state and federal law. For purposes of
56 this section, the definition of "repeatedly are substantially disrup-
A. 3873--A 7
1 tive" shall be determined in accordance with the regulations of the
2 commissioner;
3 m. a minimum suspension period for acts that would qualify the pupil
4 to be defined as a violent pupil pursuant to paragraph a of subdivision
5 two-a of section thirty-two hundred fourteen of this chapter, provided
6 that the suspending authority may reduce such period on a case by case
7 basis to be consistent with any other state and federal law;] and
8 [n.] o. provisions to comply with article two of this chapter.
9 [3.] 4. The [district] code of conduct shall be developed in collab-
10 oration with [student, teacher, administrator, and parent organizations,
11 school safety personnel and other school personnel] representatives from
12 all interested stakeholders including students, teachers, administra-
13 tors, parents, school safety personnel, support services personnel,
14 parent and student organizations, collective bargaining units, and
15 others as identified by the school district or charter school and shall
16 be approved by the board of education, [or] board of trustees, other
17 governing body, or by the chancellor of the city school district in the
18 case of the city school district of the city of New York. In the city
19 school district of the city of New York, each community district educa-
20 tion council shall be authorized to adopt and implement additional poli-
21 cies, which are consistent with and no more restrictive than the city
22 district's district-wide code of conduct, to reflect the individual
23 needs of each community school district provided that such additional
24 policies shall require the approval of the chancellor.
25 [4. The board of education, chancellor or other governing body shall
26 provide copies of a summary of the code of conduct to all students at a
27 general assembly held at the beginning of the school year and shall make
28 copies of the code available to persons in parental relation to students
29 at the beginning of each school year, and shall mail a plain language
30 summary of such code to all persons in parental relation to students
31 before the beginning of each school year, and make it available there-
32 after upon request. The board of education, chancellor or other govern-
33 ing body shall take reasonable steps to ensure community awareness of
34 the code provisions.]
35 5. [a.] The board of education, board of trustees, other governing
36 body, or the chancellor of the city school district in the case of the
37 city school district of the city of New York shall hold at least one
38 public hearing about the proposed code of conduct before its adoption or
39 amendment. The school district or charter school shall notify the school
40 community and general public about the hearing at least thirty days
41 prior to the date of the hearing. Such notice shall include the date,
42 time and place of the hearing, the agenda, a copy of the proposed code
43 of conduct and information about a public comment period as determined
44 by the school district or charter school. The school district or char-
45 ter school shall take necessary steps to notify families who do not
46 speak English and whose children attend a school in the district or a
47 charter school.
48 6. Upon adoption or amendment of the code of conduct, the school
49 district or charter school shall:
50 a. file a copy of its code of conduct and any amendments to such code
51 with the commissioner no later than thirty days after their adoption;
52 b. translate the code of conduct into those languages spoken by three
53 percent or more of the families whose children attend a school in the
54 school district or a charter school;
55 c. at the beginning of each school year, post the code of conduct on
56 the school district or charter school's website and school web site, if
A. 3873--A 8
1 any, and provide a copy of the code of conduct to parents or persons in
2 parental relation to students in the district's schools or charter
3 school;
4 d. distribute the code of conduct to all students in school at one or
5 more general assemblies or other classroom level lessons dedicated to
6 the provisions of the code of conduct; and
7 e. at the beginning of each school year, each school shall explain its
8 code of conduct to students in one or more general assemblies or class-
9 room level lessons.
10 7. The board of education, board of trustees, chancellor or other
11 governing body shall annually review and update the district's [codes]
12 or charter school's code of conduct if necessary, taking into consider-
13 ation the effectiveness of the code of conduct's provisions and the
14 fairness and consistency of its administration. Each school district and
15 charter school is authorized to establish a committee and to facilitate
16 the review of the code of conduct and the district's or charter school's
17 response to code of conduct violations. Any such committee shall be
18 comprised of similar individuals described in subdivision [three] four
19 of this section. [The school board, chancellor, or other governing body
20 shall reapprove any such updated code only after at least one public
21 hearing that provides for the participation of school personnel,
22 parents, students and any other interested parties.
23 b. Each district shall file a copy of its codes of conduct with the
24 commissioner and all amendments to such code shall be filed with the
25 commissioner no later than thirty days after their adoption.]
26 8. a. The commissioner shall promulgate regulations in accordance
27 with this section, which shall address the development, implementation
28 and evaluation of a school district's or charter school's code of
29 conduct and shall include but not be limited to:
30 (1) one or more model codes of conduct designed to reduce the use of
31 suspensions that meet the requirements of sections twenty-eight hundred
32 one and thirty-two hundred fourteen of this chapter;
33 (2) best practices for age-appropriate, graduated and proportionate
34 discipline as set out in section twenty-eight hundred one of this chap-
35 ter;
36 (3) a matrix of student misconduct and the interventions and discipli-
37 nary measures that provide age appropriate, graduated and proportionate
38 intervention designed to reduce reliance on suspensions and referrals to
39 law enforcement;
40 (4) guidelines for appropriate school-wide implementation of restora-
41 tive practices; and
42 (5) forms necessary to implement student notification and due process
43 requirements of section twenty-eight hundred one and thirty-two hundred
44 fourteen of this chapter.
45 b. The department shall collect and every school district and charter
46 school shall report to the department data about the implementation of
47 student codes of conduct as required by federal law. On or before Novem-
48 ber first of each year, the department shall make available to the
49 public, by school district and charter school, the data regarding
50 student discipline from the preceding year. On or before December first
51 of each year the department shall submit to the governor, the temporary
52 president of the senate, the speaker of the assembly and the chairs of
53 the assembly and senate education committees a report that summarizes
54 and analyzes the data collected about student discipline including but
55 not limited to a review and evaluation of school application of codes of
56 conduct for fair and consistent application, recommendations about poli-
A. 3873--A 9
1 cies and practices for school codes of conduct, and the technical
2 assistance the department is providing regarding student discipline.
3 § 2. Subdivision 3 of section 2801 of the education law, as added by
4 chapter 181 of the laws of 2000, is amended to read as follows:
5 [3.] 4. The [district] code of conduct shall be developed in collab-
6 oration with [student, teacher, administrator, and parent organizations,
7 school safety personnel and other school personnel] representatives from
8 all interested stakeholders including students, teachers, administra-
9 tors, parents, school safety personnel, support services personnel,
10 parent and student organizations, collective bargaining units, and
11 others as identified by the school district or charter school and shall
12 be approved by the board of education, [or] board of trustees, other
13 governing body, or by the chancellor of the city school district in the
14 case of the city school district of the city of New York. In the city
15 school district of the city of New York, each community school district
16 board shall be authorized to adopt and implement additional policies,
17 which are consistent with and no more restrictive than the city
18 district's district-wide code of conduct, to reflect the individual
19 needs of each community school district provided that such additional
20 policies shall require the approval of the chancellor.
21 § 3. Section 3214 of the education law, as amended by chapter 181 of
22 the laws of 2000, subparagraph 1 of paragraph c of subdivision 3 as
23 amended by chapter 430 of the laws of 2006, paragraphs d and f of subdi-
24 vision 3 as amended by chapter 425 of the laws of 2002, paragraph e of
25 subdivision 3 as amended by chapter 170 of the laws of 2006, paragraph g
26 of subdivision 3 as amended by chapter 352 of the laws of 2005, clause
27 (v) of subparagraph 3 of paragraph g of subdivision 3 as amended by
28 chapter 378 of the laws of 2007, paragraphs a, b and c of subdivision
29 3-a as amended by chapter 147 of the laws of 2001 and subdivision 7 as
30 amended by section 9 of part YYY of chapter 59 of the laws of 2017, is
31 amended to read as follows:
32 § 3214. Student interventions, placement, suspensions and transfers.
33 1. [School delinquent. A minor under seventeen years of age, required by
34 any of the provisions of part one of this article to attend upon
35 instruction, who is an habitual truant from such instruction or is
36 irregular in such attendance or insubordinate or disorderly or disrup-
37 tive or violent during such attendance, is a school delinquent.
38 2. Special day schools.] Alternative learning sites. The school
39 authorities of any city [or], school district or charter school may
40 establish schools or set apart rooms in [public] school buildings or
41 properties for the instruction of [school delinquents] students removed
42 or suspended for violations of the code of conduct in accordance with
43 this section and section twenty-eight hundred one of this chapter, and
44 fix the number of days per week and the hours per day of required
45 attendance and instruction, which shall not be less than is required of
46 minors attending the full time day schools.
47 [2-a. a. Violent pupil. For the purposes of this section, a violent
48 pupil is an elementary or secondary student under twenty-one years of
49 age who:
50 (1) commits an act of violence upon a teacher, administrator or other
51 school employee;
52 (2) commits, while on school district property, an act of violence
53 upon another student or any other person lawfully upon said property;
54 (3) possesses, while on school district property, a gun, knife,
55 explosive or incendiary bomb, or other dangerous instrument capable of
56 causing physical injury or death;
A. 3873--A 10
1 (4) displays, while on school district property, what appears to be a
2 gun, knife, explosive or incendiary bomb or other dangerous instrument
3 capable of causing death or physical injury;
4 (5) threatens, while on school district property, to use any instru-
5 ment that appears capable of causing physical injury or death;
6 (6) knowingly and intentionally damages or destroys the personal prop-
7 erty of a teacher, administrator, other school district employee or any
8 person lawfully upon school district property; or
9 (7) knowingly and intentionally damages or destroys school district
10 property.
11 b. Disruptive pupil. For the purposes of this section, a disruptive
12 pupil is an elementary or secondary student under twenty-one years of
13 age who is substantially disruptive of the educational process or
14 substantially interferes with the teacher's authority over the class-
15 room.
16 3. Suspension] 2. Discipline of a [pupil] student. a. [The board of
17 education, board of trustees or sole trustee, the superintendent of
18 schools, district superintendent of schools or principal of a school may
19 suspend the following pupils] (1) Students may be suspended from
20 required attendance [upon instruction:] in accordance with paragraphs b
21 and c of this subdivision; provided, however, that decisions about
22 appropriate discipline and interventions in response to student behavior
23 that has been determined to violate a school's code of conduct shall
24 weigh the likelihood that a lesser intervention or discipline would
25 adequately address the student's misconduct, redress any harm or damage,
26 and prevent future violations of the code of conduct. Suspensions should
27 only be used as a last resort.
28 (2) The school shall conduct an investigation of any report of a
29 violation of the code of conduct. Such investigation shall include an
30 interview of the alleged victim and the witnesses to the incident; a
31 request for signed, written statements from the alleged victim and
32 witnesses; and identification and review of documentary, photographic,
33 video and other evidence. The school shall inform any student that
34 submission of a written statement is voluntary.
35 (3) If a student has been arrested or if the school is considering
36 referring the student to law enforcement, the school shall not request a
37 statement from such student, except when there is imminent risk of seri-
38 ous physical injury to the student or other person or persons.
39 (4) The school shall determine whether appropriate interventions,
40 including restorative discipline, can address the alleged violation of
41 the code of conduct without suspension. The school should evaluate the
42 effectiveness of the intervention and use multiple types of intervention
43 where appropriate and available.
44 (5) Disciplinary determinations shall be based on the facts of each
45 case including, but not limited to:
46 (i) the nature and impact of the student's alleged misconduct, includ-
47 ing but not limited to the harm to the student or other persons, damage
48 to personal or school property, or threat to the safety and welfare of
49 the school community;
50 (ii) the student's age, ability to speak or understand English, phys-
51 ical health, mental health, disabilities and provisions of an individ-
52 ualized education program, as it relates to his or her behavior;
53 (iii) the student's willingness to resolve the conflict and repair any
54 harm or damage;
55 (iv) the student's prior conduct, appropriateness of prior inter-
56 ventions and the student's response to prior interventions; and
A. 3873--A 11
1 (v) other factors as determined by school personnel and the student to
2 be relevant including the circumstances surrounding the student's
3 actions and a review of the student's academic placement and program for
4 its relationship, if any, to the student's behavior and alleged
5 violation of the code of conduct.
6 [A pupil who is insubordinate or disorderly or violent or disruptive,
7 or whose conduct otherwise endangers the safety, morals, health or
8 welfare of others.]
9 b. [(1)] Short term suspension. The board of education, board of trus-
10 tees, [or sole trustee] other governing body, the chancellor of the city
11 school district in the case of the city school district of the city of
12 New York, superintendent of schools, district superintendent of schools
13 and the principal of the school where the [pupil] attends shall have the
14 power to suspend [a pupil] for a period not to exceed five school days[.
15 In the case of] any student who engages in behavior that results in
16 serious physical injury to students, staff, or others or any student who
17 is in grades four to twelve, if a determination is made that the student
18 engaged in behavior that violated the code of conduct for which short
19 term suspension may be warranted. Except as set forth below, prior to
20 such a suspension, the [suspending authority] student, parent or person
21 in parental relation shall [provide the pupil] be provided with written
22 notice of the charged misconduct, including a brief explanation of the
23 basis for the suspension and description of the alleged behavior that
24 violated the code of conduct, that includes the date, time and place of
25 the scheduled informal conference with the principal. [If the pupil
26 denies the misconduct, the suspending authority shall provide an expla-
27 nation of the basis for the suspension.] The [pupil] student and the
28 parent or person in parental relation to the [pupil] student shall[, on
29 request,] be given an opportunity for an informal conference with the
30 principal [at which]. At the conference, the [pupil and/or] student and
31 parent or person in parental relation shall be authorized to review all
32 evidence of the alleged misconduct, present the [pupil's] student's
33 version of the event [and to], ask questions of the complaining
34 witnesses, and be represented by an attorney or advocate. The aforesaid
35 notice and opportunity for an informal conference shall take place prior
36 to suspension of the [pupil] student unless the [pupil's presence in the
37 school poses a continuing danger to persons or property or an ongoing
38 threat of disruption to the academic process,] student's misconduct
39 physically injures or poses an immediate threat of serious physical
40 injury to the student or other person or persons, in which case the
41 [pupil's] student's notice and opportunity for an informal conference
42 shall take place as soon after the suspension as is reasonably practica-
43 ble but in no case more than forty-eight hours after such removal;
44 provided that if such forty-eight hour period does not end on a school
45 day, it shall be extended to the corresponding time on the second school
46 day next following the student's removal. If suspension is imposed, the
47 principal or his or her designee shall create an education plan for the
48 student consistent with section twenty-eight hundred one of this chap-
49 ter, and a plan for the student's reinstatement to school. The principal
50 shall issue a written decision to the parent or person in parental
51 relation to the student about any disciplinary action within two days of
52 the conference. If the principal determines that a suspension of five
53 school days or less is warranted, the written decision shall state the
54 length of the suspension, findings of fact, reasons for the determi-
55 nation, the procedures for an appeal and the date by which an appeal
56 shall be filed. A student suspended for violating the code of conduct
A. 3873--A 12
1 may appeal a suspension of five days or less to the school district
2 superintendent, board of education, board of trustees, other governing
3 body or chancellor of the city school district in the case of the city
4 school district of the city of New York as designated in the school code
5 of conduct within thirty days. A written decision on the appeal shall be
6 sent to the parent or person in parental relation and the student within
7 thirty days.
8 [(2) A teacher shall immediately report and refer a violent pupil to
9 the principal or superintendent for a violation of the code of conduct
10 and a minimum suspension period pursuant to section twenty-eight hundred
11 one of this chapter.]
12 c. (1) [No pupil may be suspended for a period in excess of five
13 school days] Long term suspension. The board of education, board of
14 trustees, other governing body, the chancellor of the city school
15 district in the case of the city school district of the city of New
16 York, superintendent of schools or district superintendent of schools
17 where the student attends shall have the power to suspend for a period
18 not to exceed twenty school days any student who engages in behavior
19 that results in serious physical injury to students, staff, or others or
20 any student who is in grades four to twelve, if a determination is made
21 that the student engaged in behavior that violated the code of conduct
22 for which long term suspension may be warranted. Such suspension shall
23 not be imposed unless such [pupil] student and the parent or person in
24 parental relation to such [pupil] student shall have had an opportunity
25 for a fair hearing[, upon reasonable]. Once a decision has been made to
26 seek a long term suspension, written notice shall be provided to the
27 student and the parent or person in parental relation to the student.
28 Such written notice, [at which such pupil] shall include a description
29 of the facts and circumstances upon which the alleged violations of the
30 code of conduct are based, the section of the code of conduct that the
31 student is charged to have violated and the disciplinary action that may
32 be warranted, the length of a possible suspension, copies of all
33 evidence regarding the alleged incident, and the date, time and place
34 scheduled for the hearing. Such hearing shall be convened within five
35 days of the written notice, unless the parent or person in parental
36 relation or student requests a later date. At the hearing, the student
37 shall have the right of representation by counsel, with the right to
38 request the presence of and question witnesses against such [pupil]
39 student and to request the presence of and present witnesses and other
40 evidence on his or her behalf. Where the [pupil] student is a student
41 with a disability or a student presumed to have a disability, the
42 provisions of [paragraph g of this] subdivision six of this section
43 shall also apply. [Where a pupil has been suspended in accordance with
44 this subparagraph by a superintendent of schools, district superinten-
45 dent of schools, or community superintendent, the superintendent shall
46 personally hear and determine the proceeding or may, in his or her
47 discretion, designate a hearing officer to conduct the hearing. The
48 hearing officer] The board of education, board of trustees, other
49 governing body, the chancellor of the city school district in the case
50 of the city school district of the city of New York, superintendent of
51 schools or district superintendent shall conduct the hearing and issue a
52 decision, or may designate a hearing officer to do so. The entity or
53 individual that conducts the hearing shall be authorized to administer
54 oaths and to issue subpoenas in conjunction with the proceeding [before
55 him or her]. A record of the hearing shall be maintained, but no steno-
56 graphic transcript shall be required and [a tape] an audio recording
A. 3873--A 13
1 shall be deemed a satisfactory record. The entity or individual conduct-
2 ing such hearing shall consider only the evidence presented at the hear-
3 ing, determine whether the charge has been established by a preponder-
4 ance of the evidence and may uphold, reduce or dismiss the proposed
5 charge. The [hearing officer] entity or individual conducting such hear-
6 ing shall make written findings of fact and [recommendations as to]
7 shall decide the appropriate measure of discipline [to the superinten-
8 dent. The report of the hearing officer shall be advisory only, and the
9 superintendent may accept all or any part thereof. An appeal will lie
10 from the decision of the superintendent to the board of education who
11 shall make its decision solely upon the record before it. The board may
12 adopt in whole or in part the decision of the superintendent of
13 schools.], if any. The entity or individual conducting such hearing
14 shall issue a written decision to the school and the parent or person in
15 parental relation to the student within three days of the hearing. If
16 the entity or individual conducting the hearing determines that a
17 suspension of six to twenty days is warranted, the written decision
18 shall state the length of the suspension, findings of fact, reasons for
19 the determination, procedures for appeal, and the date by which the
20 appeal shall be filed. Where the basis for the suspension is, in whole
21 or in part, the possession on school grounds or school property by the
22 student of any firearm, rifle, shotgun, dagger, dangerous knife, dirk,
23 razor, stiletto or any of the weapons, instruments or appliances speci-
24 fied in subdivision one of section 265.01 of the penal law, the hearing
25 officer or superintendent shall not be barred from considering the
26 admissibility of such weapon, instrument or appliance as evidence,
27 notwithstanding a determination by a court in a criminal or juvenile
28 delinquency proceeding that the recovery of such weapon, instrument or
29 appliance was the result of an unlawful search or seizure. If suspension
30 is imposed, the school district or charter school shall establish an
31 education plan for the student consistent with the requirements in
32 section twenty-eight hundred one of this chapter, including academic and
33 support services, and a plan for the student's reinstatement to school.
34 (2) [Where a pupil has been suspended in accordance with this section
35 by a board of education, the board may in its discretion hear and deter-
36 mine the proceeding or appoint a hearing officer who shall have the same
37 powers and duties with respect to the board that a hearing officer has
38 with respect to a superintendent where the suspension was ordered by
39 him. The findings and recommendations of the hearing officer conducting
40 the proceeding shall be advisory and subject to final action by the
41 board of education, each member of which shall before voting review the
42 testimony and acquaint himself with the evidence in the case. The board
43 may reject, confirm or modify the conclusions of the hearing officer.]
44 Appeal. The student or parent or person in parental relation to the
45 student shall have a right to appeal the decision of the hearing offi-
46 cer, superintendent of school or district superintendent to the board of
47 education, board of trustees, other governing body, or the chancellor of
48 the city school district in the case of the city school district of the
49 city of New York. The appeal shall be heard only by an entity or indi-
50 vidual who was not involved in the initial determination or hearing
51 regarding the suspension of the student. The entity or individual hear-
52 ing the appeal shall issue a written decision within twenty days of the
53 filing of the appeal. The suspension may be upheld, reduced or
54 dismissed. The student or parent or person in parental relation to the
55 student may appeal any adverse determination by the board of education,
56 board of trustees, other governing body, or the chancellor of the city
A. 3873--A 14
1 school district in the case of the city school district of the city of
2 New York to the commissioner pursuant to the regulations of the commis-
3 sioner. The student or parent or person in parental relation to the
4 student may appeal an adverse decision of the commissioner to the state
5 supreme court within four months of receipt of the decision by the
6 commissioner.
7 [d. (1)] 3. Firearms. a. Consistent with the federal gun-free schools
8 act, any public school [pupil] student who is determined under [this]
9 subdivision two of this section to have brought a firearm to or
10 possessed a firearm at a public school shall be suspended for a period
11 of not less than one calendar year and any nonpublic school [pupil]
12 student participating in a program operated by a public school district
13 using funds from the elementary and secondary education act of nineteen
14 hundred sixty-five who is determined under [this] subdivision two of
15 this section to have brought a firearm to or possessed a firearm at a
16 public school or other premises used by the school district to provide
17 such programs shall be suspended for a period of not less than one
18 calendar year from participation in such program. The procedures of this
19 subdivision shall apply to such a suspension of a nonpublic school
20 [pupil] student. A superintendent of schools, district superintendent of
21 schools or community superintendent shall have the authority to modify
22 this suspension requirement for each student on a case-by-case basis.
23 The determination of a superintendent shall be subject to review by the
24 board of education, board of trustees, other governing body or the chan-
25 cellor of the city school district in the case of the city school
26 district of the city of New York, pursuant to paragraph c of [this]
27 subdivision two of this section and the commissioner pursuant to section
28 three hundred ten of this chapter. Nothing in this subdivision shall be
29 deemed to authorize the suspension of a student with a disability in
30 violation of the individuals with disabilities education act or article
31 eighty-nine of this chapter. A superintendent shall refer the [pupil]
32 student under the age of sixteen who has been determined to have brought
33 a weapon or firearm to school in violation of [this] subdivision two of
34 this section to a presentment agency for a juvenile delinquency proceed-
35 ing consistent with article three of the family court act except a
36 student fourteen or fifteen years of age who qualifies for juvenile
37 offender status under subdivision forty-two of section 1.20 of the crim-
38 inal procedure law. A superintendent shall refer any [pupil] student
39 sixteen years of age or older or a student fourteen or fifteen years of
40 age who qualifies for juvenile offender status under subdivision forty-
41 two of section 1.20 of the criminal procedure law, who has been deter-
42 mined to have brought a weapon or firearm to school in violation of
43 [this] subdivision two of this section to the appropriate law enforce-
44 ment officials.
45 [(2)] b. Nothing in this paragraph shall be deemed to mandate such
46 action by a school district pursuant to subdivision [one] two of this
47 section where such weapon or firearm is possessed or brought to school
48 with the written authorization of such educational institution in a
49 manner authorized by article two hundred sixty-five of the penal law for
50 activities approved and authorized by the board of trustees [or], board
51 of education [or], other governing body [of the public school], or the
52 chancellor of the city school district in the case of the city school
53 district of the city of New York and such governing body adopts appro-
54 priate safeguards to ensure student safety.
55 [(3)] c. As used in this paragraph:
A. 3873--A 15
1 (i) "firearm" shall mean a firearm as defined in subsection a of
2 section nine hundred twenty-one of title eighteen of the United States
3 Code; and
4 (ii) "weapon" shall be as defined in paragraph 2 of subsection g of
5 section nine hundred thirty of title eighteen of the United States Code.
6 [e.] 4. Procedure after suspension. Where a [pupil] student has been
7 suspended pursuant to [this] subdivision two of this section and said
8 [pupil is of compulsory attendance age] student has the legal right to
9 attend school, immediate steps shall be taken [for] to ensure his or her
10 attendance upon instruction elsewhere [or for supervision or detention
11 of said pupil pursuant to the provisions of article seven of the family
12 court act] consistent with the requirements of paragraph m of subdivi-
13 sion three of section twenty-eight hundred one of this chapter. Where a
14 [pupil] student has been suspended for cause, the suspension may be
15 revoked by the board of education, board of trustees, other governing
16 body or the chancellor of the city school district in the case of the
17 city school district of the city of New York, whenever it appears to be
18 [for] in the best interest of the school and the [pupil] student to do
19 so. The [board of education may also condition a] student's early return
20 to school and suspension revocation may be conditioned on the [pupil's]
21 student's voluntary participation in counseling or specialized classes,
22 including anger management or dispute resolution, where applicable.
23 [f.] 5. Definition. Whenever the term "board of education, board of
24 trustees, other governing body, the chancellor of the city school
25 district in the case of the city school district of the city of New
26 York, or superintendent of schools" is used in this [subdivision]
27 section, it shall be deemed to include charter schools, community boards
28 of education and community superintendents governing community districts
29 in accordance with the provisions of article fifty-two-A of this chap-
30 ter.
31 [g.] 6. Discipline of students with disabilities and students presumed
32 to have a disability for discipline purposes. [(1)] a. Notwithstanding
33 any other provision of this [subdivision] section to the contrary, a
34 student with a disability as such term is defined in section forty-four
35 hundred one of this chapter and a student presumed to have a disability
36 for discipline purposes, may be suspended or removed from his or her
37 current educational placement for violation of [school rules only] the
38 code of conduct in accordance with the procedures established in this
39 section, the regulations of the commissioner implementing this [para-
40 graph] section, and subsection (k) of section fourteen hundred fifteen
41 of title twenty of the United States code and the federal regulations
42 implementing such statute, as such federal law and regulations are from
43 time to time amended. Nothing in this [paragraph] section shall be
44 construed to confer greater rights on such students than are conferred
45 under applicable federal law and regulations, or to limit the ability of
46 a school district to change the educational placement of a student with
47 a disability in accordance with the procedures in article eighty-nine of
48 this chapter.
49 [(2)] b. As used in this [paragraph] subdivision:
50 (1) a "student presumed to have a disability for discipline purposes"
51 shall mean a student who the school district is deemed to have knowledge
52 was a student with a disability before the behavior that precipitated
53 disciplinary action under the criteria in subsection (k) (5) of section
54 fourteen hundred fifteen of title twenty of the United States code and
55 the federal regulations implementing such statute; and
A. 3873--A 16
1 [(ii)] (2) a "manifestation team" means a representative of the school
2 district, the parent or person in parental relation, and relevant
3 members of the committee on special education, as determined by the
4 parent or person in parental relation and the district.
5 [(3)] c. In applying the federal law consistent with this section:
6 [(i)] (1) in the event of a conflict between the procedures estab-
7 lished in this section and those established in subsection (k) of
8 section fourteen hundred fifteen of title twenty of the United States
9 code and the federal regulations implementing such statute, such federal
10 statute and regulations shall govern.
11 [(ii)] (2) the board of trustees or board of education of any school
12 district or other governing body or the chancellor of the city school
13 district in the case of the city school district of the city of New
14 York, a district superintendent of schools or a building principal shall
15 have authority to order the placement of a student with a disability
16 into an appropriate interim alternative educational setting, another
17 setting or suspension for a period not to exceed five consecutive school
18 days where such student is suspended pursuant to this subdivision and,
19 except as otherwise provided in [clause (vi)] paragraph f of this
20 [subparagraph] subdivision, the suspension does not result in a change
21 in placement under federal law.
22 [(iii)] (3) the superintendent of schools of a school district, either
23 directly or upon recommendation of a hearing officer designated pursuant
24 to paragraph c of [this] subdivision two of this section, may order the
25 placement of a student with a disability into an interim alternative
26 educational setting, another setting or suspension for up to ten consec-
27 utive school days, inclusive of any period in which the student is
28 placed in an appropriate interim alternative educational setting, anoth-
29 er setting or suspension pursuant to clause [(ii)] two of this subpara-
30 graph for the behavior, where the superintendent determines in accord-
31 ance with the procedures set forth in this subdivision that the student
32 has engaged in behavior that violates the code of conduct and warrants a
33 suspension, and, except as otherwise provided in [clause (vi)] paragraph
34 f of this [subparagraph] subdivision, the suspension does not result in
35 a change in placement under federal law.
36 [(iv)] d. the superintendent of schools of a school district, either
37 directly or upon recommendation of a hearing officer designated pursuant
38 to paragraph c of [this] subdivision two of this section, may order the
39 change in placement of a student with a disability to an interim alter-
40 native educational setting for up to forty-five school days under the
41 circumstances specified in subsection (k)(1)(G) of section fourteen
42 hundred fifteen of title twenty of the United States code and the feder-
43 al regulations implementing such statute or a longer period where
44 authorized by federal law under the circumstances specified in
45 subsection (k)(1)(C) of section fourteen hundred fifteen of title twenty
46 of the United States code and the federal regulations implementing such
47 statute, but in neither case shall such period exceed the period of
48 suspension ordered by a superintendent in accordance with this subdivi-
49 sion.
50 [(v)] e. the terms "day," "business day," and "school day" shall be as
51 defined in section 300.11 of title thirty-four of the code of federal
52 regulations.
53 [(vi)] f. notwithstanding any other provision of this subdivision to
54 the contrary, upon a determination by a manifestation team that the
55 behavior of a student with a disability was not a manifestation of the
56 student's disability, such student may be disciplined pursuant to this
A. 3873--A 17
1 section in the same manner and for the same duration as a nondisabled
2 student, except that such student shall continue to receive services to
3 the extent required under federal law and regulations, and such services
4 may be provided in an interim alternative educational setting.
5 [(vii)] g. an impartial hearing officer appointed pursuant to subdivi-
6 sion one of section forty-four hundred four of this chapter may order a
7 change in placement of a student with a disability to an appropriate
8 interim alternative educational setting for not more than forty-five
9 school days under the circumstances specified in subsections (k)(3) and
10 (k)(4) of section fourteen hundred fifteen of title twenty of the United
11 States code and the federal regulations implementing such statutes,
12 provided that such procedure may be repeated, as necessary.
13 [(viii)] h. nothing in this section shall be construed to authorize
14 the suspension or removal of a student with a disability from his or her
15 current educational placement [for violation of school rules] following
16 a determination by a manifestation team that the behavior is a manifes-
17 tation of the student's disability, except as authorized under federal
18 law and regulations.
19 [(ix)] i. the commissioner shall implement this paragraph by adopting
20 regulations which coordinate the procedures required for discipline of
21 students with disabilities, and students presumed to have a disability
22 for discipline purposes, pursuant to subsection (k) of section fourteen
23 hundred fifteen of title twenty of the United States code and the feder-
24 al regulations implementing such statute, with the general procedures
25 for student discipline under this section.
26 [3-a.] [Teacher removal of a disruptive pupil. In addition, any] 7.
27 Classroom management. A teacher shall have the power and authority to
28 [remove a disruptive pupil, as defined in subdivision two-a of this
29 section,] manage their classrooms consistent with the code of conduct,
30 this section and section twenty-eight hundred one of this chapter.
31 Teachers may remove a student from such teacher's classroom consistent
32 with discipline and intervention measures contained in the code of
33 conduct adopted [by the board] pursuant to section twenty-eight hundred
34 one of this chapter when a student's behavior violates a provision of
35 the code of conduct for which removal may be warranted and no alterna-
36 tive intervention alone is appropriate to address the alleged behavior.
37 Such classroom removal may not exceed one half school day on the same
38 school day. The [school authorities of any] school district or charter
39 school shall establish policies and procedures to ensure the provision
40 of continued educational programming and activities for students removed
41 from the classroom pursuant to this subdivision and to section twenty-
42 eight hundred one of this chapter, and provided further that nothing in
43 this subdivision shall authorize the removal of a [pupil] student in
44 violation of any state or federal law or regulation. No [pupil] student
45 shall return to the classroom until the principal makes a final determi-
46 nation pursuant to paragraph [c] d of this subdivision, or the period of
47 removal expires, whichever is less.
48 a. When a student is removed from the classroom, the school shall
49 provide the appropriate services, interventions, or restorative disci-
50 pline to enable the student to return to the classroom as expeditiously
51 as possible, and in no case no longer than one half day on the same
52 school day as the removal. After a student's third removal in a school
53 year, the school shall create a plan to provide appropriate inter-
54 ventions, supports, and services that address the behavior and circum-
55 stances that led to the removals.
A. 3873--A 18
1 b. Such teacher shall inform the [pupil] student and the school prin-
2 cipal of the reasons for the removal. [If the teacher finds that the
3 pupil's continued presence in the classroom does not pose a continuing
4 danger to persons or property and does not present an ongoing threat of
5 disruption to the academic process, the teacher shall, prior to removing
6 the student from the classroom, provide the student with an explanation
7 of the basis for the removal and allow the pupil to informally present
8 the pupil's version of relevant events. In all other cases, the teacher
9 shall provide the pupil with an explanation of the basis for the removal
10 and an informal opportunity to be heard within twenty-four hours of the
11 pupil's removal, provided that if such twenty-four hour period does not
12 end on a school day, it shall be extended to the corresponding time on
13 the next school day.
14 b.] c. The principal shall inform the parent or person in parental
15 relation to such [pupil] student of the removal and the reasons therefor
16 within twenty-four hours of the [pupil's] student's removal, provided
17 that if such twenty-four hour period does not end on a school day, it
18 shall be extended to the corresponding time on the next school day. The
19 [pupil] student and the parent or person in parental relation shall,
20 upon request, be given an opportunity for an informal conference with
21 the principal to discuss the reasons for the removal. [If the pupil
22 denies the charges, the] The principal shall provide an explanation of
23 the basis for the removal and allow the [pupil] student and/or parent or
24 person in parental relation to the [pupil] student an opportunity to
25 present the [pupil's] student's version of relevant events. Such
26 informal [hearing] conference shall be held within forty-eight hours of
27 the [pupil's] student's removal, provided that if such forty-eight hour
28 period does not end on a school day, it shall be extended to the corre-
29 sponding time on the second school day next following the [pupil's]
30 student's removal. A parent or person in parental relation to the
31 student may request that the informal conference take place later than
32 forty-eight hours after the student's removal. For purposes of this
33 subdivision, "school day" shall mean a school day as defined pursuant to
34 [clause (v) of subparagraph three of] paragraph [g] e of subdivision
35 [three] six of this section.
36 [c.] d. The principal shall not set aside the discipline imposed by
37 the teacher unless the principal finds that the charges against the
38 [pupil] student are not supported by substantial evidence or that the
39 [pupil's] student's removal is otherwise in violation of law or that the
40 conduct warrants suspension from school pursuant to this section and a
41 suspension will be imposed. The principal's determination made pursuant
42 to this paragraph shall be made by the close of business on the school
43 day next succeeding the end of the forty-eight hour period for an
44 informal [hearing] conference contained in paragraph [b] c of this
45 subdivision.
46 [d.] e. The principal may, in his or her discretion, designate a
47 school district administrator, to carry out the functions required of
48 the principal under this subdivision.
49 [4.] 8. Expense. a. The expense attending the commitment and costs of
50 maintenance of [any school delinquent] a student placed as a result of a
51 finding related to school or educational issues shall be a charge
52 against the city or district where he or she resides, if such city or
53 district employs a superintendent of schools; otherwise it shall be a
54 county charge.
55 b. The school authorities may institute proceedings before a court
56 having jurisdiction to determine the liability of a parent or person in
A. 3873--A 19
1 parental relation to contribute towards the maintenance of a [school
2 delinquent] student under sixteen years of age ordered to attend upon
3 instruction under confinement. If the court shall find the parent or
4 person in parental relation able to contribute towards the maintenance
5 of such a minor, it may issue an order fixing the amount to be paid
6 weekly.
7 [5.] 9. Involuntary transfers of [pupils] students who have not been
8 determined to be a student with a disability or a student presumed to
9 have a disability for discipline purposes.
10 a. The board of education, board of trustees [or sole trustee], other
11 governing body, the chancellor in the case of the city school district
12 of the city of New York, the superintendent of schools, or district
13 superintendent of schools may transfer a [pupil] student who has not
14 been determined to be a student with a disability as defined in section
15 forty-four hundred one of this chapter, or a student presumed to have a
16 disability for discipline purposes as defined in [paragraph g of] subdi-
17 vision [three] six of this section from regular classroom instruction to
18 an appropriate educational setting in another school upon the written
19 recommendation of the school principal and following independent review
20 thereof. For purposes of this section of the law, "involuntary transfer"
21 does not include a transfer made by a school district as part of a plan
22 to reduce racial imbalance within the schools or as a change in school
23 attendance zones or geographical boundaries.
24 b. A school principal may initiate a non-requested transfer where it
25 is believed that such a [pupil] student would benefit from the transfer
26 [, or] and when the [pupil] student would receive an adequate and appro-
27 priate education in another school program or facility.
28 No recommendation for [pupil] student transfer shall be initiated by
29 the principal until such [pupil] student and a parent or person in
30 parental relation has been sent written notification of the consider-
31 ation of transfer recommendation which shall include a description of
32 the facts and circumstances upon which the transfer is based and copies
33 of all relevant documentary evidence. Such notice shall set a time and
34 place of an informal conference with the principal and shall inform such
35 parent or person in parental relation and such [pupil] student of their
36 right to be accompanied by counsel or an individual of their choice.
37 c. After the conference and if the principal concludes that the
38 [pupil] student would benefit from a transfer [or] and that the [pupil]
39 student would receive an adequate and appropriate education in another
40 school program or facility, the principal may issue a recommendation of
41 transfer to the superintendent. Such recommendation shall include a
42 description of behavior and/or academic problems indicative of the need
43 for transfer; a description of alternatives explored and prior action
44 taken to resolve the problem. A copy of that letter shall be sent to the
45 parent or person in parental relation and to the [pupil] student.
46 d. Upon receipt of the principal's recommendation for transfer and a
47 determination to consider that recommendation, the superintendent shall
48 notify the parent or person in parental relation and the [pupil] student
49 of the proposed transfer and of their right to a fair hearing as
50 provided in paragraph c of subdivision [three] two of this section and
51 shall list community agencies and free legal assistance which may be of
52 assistance. The written notice shall include a statement that the
53 [pupil] student or parent or person in parental relation has ten days to
54 request a hearing and that the proposed transfer shall not take effect,
55 except upon written parental consent, until the ten day period has
A. 3873--A 20
1 elapsed, or, if a fair hearing is requested, until after a formal deci-
2 sion following the hearing is rendered, whichever is later.
3 Parental consent to a transfer shall not constitute a waiver of the
4 right to a fair hearing.
5 [6.] 10. Transfer of a [pupil] student. Where a suspended [pupil]
6 student is to be transferred pursuant to subdivision [five] nine of this
7 section, he or she shall remain on the register of the original school
8 for two school days following transmittal of his or her records to the
9 school to which he or she is to be transferred. The receiving school
10 shall immediately upon receiving those records transmitted by the
11 original school, review them to insure proper placement of the [pupil]
12 student. Staff members who are involved in the [pupil's] student's
13 education must be provided with pertinent records and information relat-
14 ing to the background and problems of the [pupil] student before the
15 [pupil] student is placed in a classroom.
16 [7.] 11. Transfer of disciplinary records. Notwithstanding any other
17 provision of law to the contrary, each local educational agency, as such
18 term is defined in subsection thirty of section eighty-one hundred one
19 of the Elementary and Secondary Education Act of 1965, as amended, shall
20 establish procedures in accordance with section eighty-five hundred
21 thirty-seven of the Elementary and Secondary Education Act of 1965, as
22 amended, and the Family Educational Rights and Privacy Act of 1974, to
23 facilitate the transfer of disciplinary records relating to the suspen-
24 sion [or expulsion] of a student to any public or nonpublic elementary
25 or secondary school in which such student enrolls or seeks, intends or
26 is instructed to enroll, on a full-time or part-time basis unless such
27 record has been expunged pursuant to section twenty-eight hundred one of
28 this chapter.
29 § 3-a. Section 305 of the education law is amended by adding three new
30 subdivisions 56, 57 and 58 to read as follows:
31 56. The commissioner shall provide technical assistance to school
32 districts, boards of cooperative educational services, and charter
33 schools about the development, implementation and evaluation of a school
34 district's or charter school's code of conduct including:
35 (a) one or more model codes of conduct, designed to reduce the use of
36 suspensions, that meet the requirements of sections twenty-eight hundred
37 one and thirty-two hundred fourteen of this chapter;
38 (b) best practices for age-appropriate, graduated and proportionate
39 discipline as set out in section twenty-eight hundred one of this chap-
40 ter;
41 (c) a matrix of student misconduct and the interventions and discipli-
42 nary measures that provide age-appropriate, graduated and proportionate
43 intervention designed to reduce reliance on suspensions and referrals to
44 law enforcement;
45 (d) guidelines for appropriate and school-wide implementation of
46 restorative practices; and
47 (e) forms necessary to implement student notification and due process
48 requirements of section twenty-eight hundred one and thirty-two hundred
49 fourteen of this chapter.
50 57. The commissioner shall, pursuant to an appropriation in the state
51 budget, provide funds to school districts for implementation of a
52 school's code of conduct including mandatory pre-service and in-service
53 training of school personnel about prevention, restorative practices and
54 other interventions and disciplinary measures to respond to student
55 misconduct as required by section twenty-eight hundred one of this chap-
56 ter.
A. 3873--A 21
1 58. The commissioner shall be authorized to provide funds for training
2 school personnel included in section twenty-eight hundred one of this
3 chapter only to the extent that the state budget includes an appropri-
4 ation for such training.
5 § 4. Subparagraph 1 of paragraph c of subdivision 3 of section 3214 of
6 the education law, as amended by chapter 380 of the laws of 2001, is
7 amended to read as follows:
8 (1) [No pupil may be suspended for a period in excess of five school
9 days] Long term suspension. The board of education, board of trustees,
10 other governing body, the chancellor of the city school district in the
11 case of the city school district of the city of New York, superintendent
12 of schools or district superintendent of schools where the student
13 attends shall have the power to suspend for a period not to exceed twen-
14 ty school days any student who engages in behavior that results in seri-
15 ous physical injury to students, staff, or others or any student who is
16 in grades four through twelve, if a determination is made that the
17 student engaged in behavior that violated the code of conduct for which
18 long term suspension may be warranted. Such suspension shall not be
19 imposed unless such [pupil] student and the parent or person in parental
20 relation to such [pupil] student shall have had an opportunity for a
21 fair hearing[, upon reasonable]. Once a decision has been made to seek a
22 long term suspension, written notice shall be provided to the student
23 and the parent or person in parental relation to the student. Such writ-
24 ten notice, [at which such pupil] shall include a description of the
25 facts and circumstances upon which the alleged violations of the code of
26 conduct are based, the section of the code of conduct that the student
27 is charged to have violated, the disciplinary action that may be
28 warranted, the length of a possible suspension, copies of all evidence
29 regarding the alleged incident, and the date, time and place scheduled
30 for the hearing. Such hearing shall be convened within five days of the
31 written notice, unless the parent or person in parental relation or
32 student requests a later date. At the hearing, the student shall have
33 the right of representation by counsel, with the right to request the
34 presence of and question witnesses against such [pupil] student and to
35 request the presence of and present witnesses and other evidence on his
36 or her behalf. Where [a pupil has been suspended in accordance with this
37 subdivision by a superintendent of schools, district superintendent of
38 schools, or community superintendent, the superintendent shall
39 personally hear and determine the proceeding or may, in his discretion,
40 designate a hearing officer to conduct the hearing] the student is a
41 student with a disability or a student presumed to have a disability,
42 the provisions of subdivision six of this section shall also apply.
43 [The hearing officer] The board of education, board of trustees, other
44 governing body, the chancellor of the city school district in the case
45 of the city school district of the city of New York, superintendent of
46 schools or district superintendent shall conduct the hearing and issue a
47 decision, or may designate a hearing officer to do so. The entity or
48 individual that conducts the hearing shall be authorized to administer
49 oaths and to issue subpoenas in conjunction with the proceeding [before
50 him]. A record of the hearing shall be maintained, but no stenographic
51 transcript shall be required and [a tape] an audio recording shall be
52 deemed a satisfactory record. The entity or individual conducting the
53 hearing shall consider only the evidence presented at the hearing,
54 determine whether the charge has been established by a preponderance of
55 the evidence and may uphold, reduce or dismiss the proposed charge. The
56 [hearing officer] entity or individual conducting the hearing shall make
A. 3873--A 22
1 written findings of fact and [recommendations as to] shall decide the
2 appropriate measure of discipline [to the superintendent. The report of
3 the hearing officer shall be advisory only, and the superintendent may
4 accept all or any part thereof. An appeal will lie from the decision of
5 the superintendent to the board of education who shall make its decision
6 solely upon the record before it. The board may adopt in whole or in
7 part the decision of the superintendent of schools.], if any. The enti-
8 ty or individual conducting the hearing shall issue a written decision
9 to the school and the parent or person in parental relation to the
10 student within three days of the hearing. If the entity or individual
11 conducting the hearing determines that a suspension of six to twenty
12 days is warranted, the written decision shall state the length of the
13 suspension, findings of fact, reasons for the determination, procedures
14 for appeal, and the date by which the appeal shall be filed. Where the
15 basis for the suspension is, in whole or in part, the possession on
16 school grounds or school property by the student of any firearm, rifle,
17 shotgun, dagger, dangerous knife, dirk, razor, stiletto or any of the
18 weapons, instruments or appliances specified in subdivision one of
19 section 265.01 of the penal law, the hearing officer or superintendent
20 shall not be barred from considering the admissibility of such weapon,
21 instrument or appliance as evidence, notwithstanding a determination by
22 a court in a criminal or juvenile delinquency proceeding that the recov-
23 ery of such weapon, instrument or appliance was the result of an unlaw-
24 ful search or seizure. If suspension is imposed, the school district or
25 charter school shall establish an education plan for the student
26 consistent with the requirements in section twenty-eight hundred one of
27 this chapter, including academic and support services, and a plan for
28 the student's reinstatement to school.
29 § 5. Paragraphs d and f of subdivision 3 of section 3214 of the educa-
30 tion law, as amended by chapter 181 of the laws of 2000, are amended to
31 read as follows:
32 [d.] 3. a. Consistent with the federal gun-free schools act of nine-
33 teen hundred ninety-four, any public school [pupil] student who is
34 determined under [this] subdivision two of this section to have brought
35 a weapon to school shall be suspended for a period of not less than one
36 calendar year and any nonpublic school [pupil] student participating in
37 a program operated by a public school district using funds from the
38 elementary and secondary education act of nineteen hundred sixty-five
39 who is determined under [this] subdivision two of this section to have
40 brought a weapon to a public school or other premises used by the school
41 district to provide such programs shall be suspended for a period of not
42 less than one calendar year from participation in such program. The
43 procedures of this subdivision shall apply to such a suspension of a
44 nonpublic school [pupil] student. A superintendent of schools, district
45 superintendent of schools or community superintendent shall have the
46 authority to modify this suspension requirement for each student on a
47 case-by-case basis. The determination of a superintendent shall be
48 subject to review by the board of education, board of trustees, other
49 governing body or the chancellor of the city school district in the case
50 of the city school district of the city of New York, pursuant to para-
51 graph c of [this] subdivision two of this section and the commissioner
52 pursuant to section three hundred ten of this chapter. Nothing in this
53 subdivision shall be deemed to authorize the suspension of a student
54 with a disability in violation of the individuals with disabilities
55 education act or article eighty-nine of this chapter. A superintendent
56 shall refer the [pupil] student under the age of sixteen who has been
A. 3873--A 23
1 determined to have brought a weapon to school in violation of [this]
2 subdivision two of this section to a presentment agency for a juvenile
3 delinquency proceeding consistent with article three of the family court
4 act except a student fourteen or fifteen years of age who qualifies for
5 juvenile offender status under subdivision forty-two of section 1.20 of
6 the criminal procedure law. A superintendent shall refer any [pupil]
7 student sixteen years of age or older or a student fourteen or fifteen
8 years of age who qualifies for juvenile offender status under subdivi-
9 sion forty-two of section 1.20 of the criminal procedure law, who has
10 been determined to have brought a weapon to school in violation of
11 [this] subdivision two of this section to the appropriate law enforce-
12 ment officials.
13 b. Nothing in this paragraph shall be deemed to mandate such action by
14 a school district or charter school pursuant to subdivision two of this
15 section where such weapon or firearm is possessed or brought to school
16 with the written authorization of such educational institution in a
17 manner authorized by article two hundred sixty-five of the penal law for
18 activities approved and authorized by the board of trustees, board of
19 education, other governing body or the chancellor of the city school
20 district in the case of the city school district of the city of New York
21 and such governing body adopts appropriate safeguards to ensure student
22 safety.
23 c. As used in this paragraph:
24 (1) "firearm" shall mean a firearm as defined in subsection a of
25 section nine hundred twenty-one of title eighteen of the United States
26 Code; and
27 (2) "weapon" shall be as defined in paragraph 2 of subsection g of
28 section nine hundred thirty of title eighteen of the United States Code.
29 [f.] 5. Definition. Whenever the term "board of education, board of
30 trustees, other governing body, the chancellor of the city school
31 district in the case of the city school district of the city of New
32 York, or superintendent of schools" is used in this [subdivision]
33 section, it shall be deemed to include charter schools, community boards
34 of education and community superintendents governing community districts
35 in accordance with the provisions of article fifty-two-A of this chap-
36 ter. [For the purpose of this subdivision, the term "weapon" means a
37 firearm as such term is defined in section nine hundred twenty-one of
38 title eighteen of the United States code.]
39 § 6. Paragraph g of subdivision 3 of section 3214 of the education
40 law, as amended by chapter 181 of the laws of 2000, clause (ii) of
41 subparagraph 3 as amended by chapter 380 of the laws of 2001, is amended
42 to read as follows:
43 [g.] 6. Discipline of students with disabilities and students presumed
44 to have a disability for discipline purposes. [(1)] a. Notwithstanding
45 any other provision of this [subdivision] section to the contrary, a
46 student with a disability as such term is defined in section forty-four
47 hundred one of this chapter and a student presumed to have a disability
48 for discipline purposes, may be suspended or removed from his or her
49 current educational placement for violation of [school rules only] the
50 code of conduct in accordance with the procedures established in this
51 section, the regulations of the commissioner implementing this [para-
52 graph] section, and subsection (k) of section fourteen hundred fifteen
53 of title twenty of the United States code and the federal regulations
54 implementing such statute, as such federal law and regulations are from
55 time to time amended. Nothing in this [paragraph] section shall be
56 construed to confer greater rights on such students than are conferred
A. 3873--A 24
1 under applicable federal law and regulations, or to limit the ability of
2 a school district to change the educational placement of a student with
3 a disability in accordance with the procedures in article eighty-nine of
4 this chapter.
5 [(2)] b. As used in this [paragraph;] subdivision:
6 (1) a "student presumed to have a disability for discipline purposes"
7 shall mean a student who the school district is deemed to have knowledge
8 was a student with a disability before the behavior that precipitated
9 disciplinary action under the criteria in subsection (k)(8) of section
10 fourteen hundred fifteen of title twenty of the United States code and
11 the federal regulations implementing such statute[.]; and
12 (2) a "manifestation team" means a representative of the school
13 district, the parent or person in parental relation, and relevant
14 members of the committee on special education, as determined by the
15 parent or person in parental relation and the district.
16 [(3)] c. In applying the federal law consistent with this section:
17 [(i)] (1) in the event of a conflict between the procedures estab-
18 lished in this section and those established in subsection (k) of
19 section fourteen hundred fifteen of title twenty of the United States
20 code and the federal regulations implementing such statute, such federal
21 statute and regulations shall govern.
22 [(ii)] (2) the board of trustees or board of education of any school
23 district, a district superintendent of schools or a building principal
24 shall have authority to order the placement of a student with a disabil-
25 ity into an appropriate interim alternative educational setting, another
26 setting or suspension for a period not to exceed five consecutive school
27 days where such student is suspended pursuant to this subdivision and,
28 except as otherwise provided in [clause (vi)] paragraph f of this
29 [subparagraph] subdivision, the suspension does not result in a change
30 in placement under federal law.
31 [(iii)] (3) the superintendent of schools of a school district, either
32 directly or upon recommendation of a hearing officer designated pursuant
33 to paragraph c of [this] subdivision two of this section, may order the
34 placement of a student with a disability into an interim alternative
35 educational setting, another setting or suspension for up to ten consec-
36 utive school days, inclusive of any period in which the student is
37 placed in an appropriate interim alternative educational placement,
38 another setting or suspension pursuant to clause [(ii)] two of this
39 subparagraph for the behavior, where the superintendent determines in
40 accordance with the procedures set forth in this subdivision that the
41 student has engaged in behavior that violates the code of conduct and
42 warrants a suspension, and, except as otherwise provided in [clause
43 (vi)] paragraph f of this [subparagraph] subdivision, the suspension
44 does not result in a change in placement under federal law.
45 [(iv)] d. the superintendent of schools of a school district, either
46 directly or upon recommendation of a hearing officer designated pursuant
47 to paragraph c of [this] subdivision two of this section, may order the
48 change in placement of a student with a disability to an interim alter-
49 native educational setting for up to forty-five days, but not to exceed
50 the period of suspension ordered by a superintendent in accordance with
51 this subdivision, under the circumstances specified in subsection (k)(1)
52 of section fourteen hundred fifteen of title twenty of the United States
53 code and the federal regulations implementing such statute.
54 [(v)] e. the terms "day," "business day," and "school day" shall be as
55 defined in section 300.9 of title thirty-four of the code of federal
56 regulations.
A. 3873--A 25
1 [(vi)] f. notwithstanding any other provision of this subdivision to
2 the contrary, upon a determination by the committee on special education
3 that the behavior of a student with a disability was not a manifestation
4 of the student's disability, such student may be disciplined pursuant to
5 this section in the same manner as a nondisabled student, except that
6 such student shall continue to receive services to the extent required
7 under federal law and regulations.
8 [(vii)] g. an impartial hearing officer appointed pursuant to subdivi-
9 sion one of section forty-four hundred four of this chapter may order a
10 change in placement of a student with a disability to an appropriate
11 interim alternative educational setting for not more than forty-five
12 days under the circumstances specified in subsections (k)(2) and (k)(7)
13 of section fourteen hundred fifteen of title twenty of the United States
14 code and the federal regulations implementing such statutes, provided
15 that such procedure may be repeated, as necessary.
16 [(viii)] h. nothing in this section shall be construed to authorize
17 the suspension or removal of a student with a disability from his or her
18 current educational placement [for violation of school rules] following
19 a determination by the committee on special education that the behavior
20 is a manifestation of the student's disability, except as authorized
21 under federal law and regulations.
22 [(ix)] i. the commissioner shall implement this paragraph by adopting
23 regulations which coordinate the procedures required for discipline of
24 students with disabilities, and students presumed to have a disability
25 for discipline purposes, pursuant to subsection (k) of section fourteen
26 hundred fifteen of title twenty of the United States code and the feder-
27 al regulations implementing such statute, with the general procedures
28 for student discipline under this section.
29 § 7. Paragraphs a, b and c of subdivision 3-a of section 3214 of the
30 education law, as added by chapter 181 of the laws of 2000, are amended
31 to read as follows:
32 [a.] b. Such teacher shall inform the [pupil] student, the parent or
33 person in parental relation to the student and the school principal of
34 the reasons for the removal. [If the teacher finds that the pupil's
35 continued presence in the classroom does not pose a continuing danger to
36 persons or property and does not present an ongoing threat of disruption
37 to the academic process, the teacher shall, prior to removing the
38 student from the classroom, provide the student with an explanation of
39 the basis for the removal and allow the pupil to informally present the
40 pupil's version of relevant events. In all other cases, the teacher
41 shall provide the pupil with an explanation of the basis for the removal
42 and an informal opportunity to be heard within twenty-four hours of the
43 pupil's removal.
44 b.] c. The principal shall inform the parent or person in parental
45 relation to such [pupil] student of the removal and the reasons therefor
46 within twenty-four hours of the [pupil's] student's removal. The
47 [pupil] student and the parent or person in parental relation shall,
48 upon request, be given an opportunity for an informal conference with
49 the principal to discuss the reasons for the removal. [If the pupil
50 denies the charges, the] The principal shall provide an explanation of
51 the basis for the removal and allow the [pupil] student and/or parent or
52 person in parental relation to the [pupil] student an opportunity to
53 present the [pupil's] student's version of relevant events. Such
54 informal [hearing] conference shall be held within forty-eight hours of
55 the [pupil's] student's removal, provided that if such forty-eight hour
56 period does not end on a school day, it shall be extended to the corre-
A. 3873--A 26
1 sponding time on the second school day next following the pupil's
2 student's removal. A parent or person in parental relation to the
3 student may request that the informal conference take place later than
4 forty-eight hours after the student's removal. For purposes of this
5 subdivision, "school day" shall mean a school day as defined pursuant to
6 paragraph e of subdivision six of this section.
7 [c.] d. The principal shall not set aside the discipline imposed by
8 the teacher unless the principal finds that the charges against the
9 [pupil] student are not supported by substantial evidence or that the
10 [pupil's] student's removal is otherwise in violation of law or that the
11 conduct warrants suspension from school pursuant to this section and a
12 suspension will be imposed. The principal's determination made pursuant
13 to this paragraph shall be made by the close of business on the day
14 succeeding the forty-eight hour period for an informal [hearing] confer-
15 ence contained in paragraph [b] c of this subdivision.
16 § 8. Clause (j) of subparagraph 3 of paragraph b of subdivision 1 of
17 section 4402 of the education law, as added by chapter 311 of the laws
18 of 1999, is amended to read as follows:
19 (j) In accordance with the regulations of the commissioner and
20 subsection (k) of section fourteen hundred fifteen of title twenty of
21 the United States code and the implementing federal regulations, to
22 conduct a review to determine whether behavior of a student with a disa-
23 bility which violates the applicable school rules or code of conduct and
24 results in a change in placement under federal law, including but not
25 limited to placement in an interim alternative educational setting
26 pursuant to [clause (iv) or (vii) of subparagraph three of paragraph g]
27 paragraphs d or g of subdivision [three] six of section thirty-two
28 hundred fourteen of this chapter, was a manifestation of the student's
29 disability, provided that other qualified school district personnel may
30 participate in such review.
31 § 9. Paragraph b of subdivision 4 of section 4404 of the education
32 law, as amended by chapter 378 of the laws of 2007, is amended to read
33 as follows:
34 b. For students with disabilities placed in an interim alternative
35 educational setting pursuant to [clause (iv) or (vii) of subparagraph
36 three of paragraph g] paragraphs d or g of subdivision [three] six of
37 section thirty-two hundred fourteen of this chapter, during the pendency
38 of proceedings conducted pursuant to this section in which the parents
39 or persons in parental relation challenge the interim alternative educa-
40 tional setting or a manifestation determination, the student shall
41 remain in the interim alternative educational setting pending the deci-
42 sion of the impartial hearing officer or until expiration of the time
43 period of the student's placement in an interim alternative educational
44 setting, whichever comes first, unless the local school district and the
45 parents or persons in parental relation otherwise agree. After the expi-
46 ration of such placement in an interim alternative educational setting,
47 if the school district proposes to change the student's placement,
48 during the pendency of any proceedings to challenge the proposed change
49 in placement, the student shall return to and remain in the current
50 educational placement, which shall be the student's placement prior to
51 the interim alternative educational setting, unless the local school
52 district and the parents or persons in parental relation otherwise agree
53 or unless as a result of a decision by an impartial hearing officer in
54 an expedited hearing, the interim alternative educational setting is
55 extended for a period not to exceed forty-five school days based on a
56 determination that maintaining the current educational placement of the
A. 3873--A 27
1 student is substantially likely to result in injury to the student or to
2 others. Such procedure for extension of an interim alternative educa-
3 tional setting may be repeated as necessary.
4 § 10. Paragraph b of subdivision 4 of section 4404 of the education
5 law, as amended by chapter 311 of the laws of 1999, is amended to read
6 as follows:
7 b. For students with disabilities placed in an interim alternative
8 educational setting pursuant to [clause (iv) or (vii) of subparagraph
9 three of paragraph g] paragraphs d or g of subdivision [three] six of
10 section thirty-two hundred fourteen of this chapter, during the pendency
11 of proceedings conducted pursuant to this section in which the parents
12 or persons in parental relationship challenge the interim alternative
13 educational setting or a manifestation determination, the student shall
14 remain in the interim alternative educational setting pending the deci-
15 sion of the hearing officer or until expiration of the time period of
16 the student's interim alternative placement, whichever comes first,
17 unless the local school district and the parents or persons in parental
18 relationship otherwise agree. After the expiration of such interim
19 alternative educational placement, if the school district proposes to
20 change the student's placement, during the pendency of any proceedings
21 to challenge the proposed change in placement, the student shall return
22 to and remain in the current educational placement, which shall be the
23 student's placement prior to the interim alternative educational
24 setting, unless the local school district and the parents or persons in
25 parental relationship otherwise agree or unless as a result of a deci-
26 sion by an impartial hearing officer in an expedited hearing, the inter-
27 im alternative educational setting is extended or another appropriate
28 placement is ordered for a period not to exceed forty-five days based on
29 a determination that maintaining the current educational placement of
30 the student is substantially likely to result in injury to the student
31 or to others. Such procedure for extension of an interim alternative
32 educational setting may be repeated as necessary.
33 § 11. This act shall take effect immediately; provided, however that:
34 a. the amendments to subdivision 3 of section 2801 of the education
35 law made by section one of this act shall be subject to the expiration
36 and reversion of such subdivision pursuant to section 34 of chapter 91
37 of the laws of 2002, as amended, when upon such date the provisions of
38 section two of this act shall take effect;
39 b. the amendments to subparagraph 1 of paragraph c of subdivision 3 of
40 section 3214 of the education law made by section three of this act
41 shall be subject to the expiration and reversion of such subparagraph
42 pursuant to subdivision (a) of section 8 of chapter 430 of the laws of
43 2006, as amended, when upon such date the provisions of section four of
44 this act shall take effect;
45 c. the amendments to paragraphs d and f of subdivision 3 of section
46 3214 of the education law made by section three of this act shall be
47 subject to the expiration and reversion of such paragraphs pursuant to
48 section 4 of chapter 425 of the laws of 2002, as amended, when upon such
49 date the provisions of section five of this act shall take effect;
50 d. the amendments to paragraph g of subdivision 3 of section 3214 of
51 the education law made by section three of this act shall be subject to
52 the expiration and reversion of such paragraph pursuant to section 22 of
53 chapter 352 of the laws of 2005, as amended, and shall be subject to the
54 expiration and reversion of clause (v) of subparagraph 3 of such para-
55 graph pursuant to subdivision d of section 27 of chapter 378 of the laws
A. 3873--A 28
1 of 2007, as amended, when upon such date the provisions of section six
2 of this act shall take effect;
3 e. the amendments to paragraphs a, b and c of subdivision 3-a of
4 section 3214 of the education law made by section three of this act
5 shall be subject to the expiration and reversion of such paragraphs
6 pursuant to section 12 of chapter 147 of the laws of 2001, as amended,
7 when upon such date the provisions of section seven of this act shall
8 take effect;
9 f. the amendments to subdivision 7 of section 3214 of the education
10 law, made by section three of this act, shall not affect the repeal of
11 such subdivision and shall be deemed repealed therewith;
12 g. the amendments to clause (j) of subparagraph 3 of paragraph b of
13 subdivision 1 of section 4402 of the education law made by section eight
14 of this act shall take effect on the same date as the reversion of
15 clause (j) of subparagraph 3 of paragraph b of subdivision 1 of section
16 4402 of the education law as provided in section 22 of chapter 352 of
17 the laws of 2005, as amended and section 27 of chapter 378 of the laws
18 of 2007, as amended; and
19 h. the amendments to paragraph b of subdivision 4 of section 4404 of
20 the education law made by section nine of this act shall be subject to
21 the expiration and reversion of such paragraph pursuant to section 22 of
22 chapter 352 of the laws of 2005, as amended, and subdivision d of
23 section 27 of chapter 378 of the laws of 2007, as amended, when upon
24 such date the provisions of section ten of this act shall take effect.
