Bill Text: NY A01981 | 2019-2020 | General Assembly | Amended
Bill Title: 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.
Spectrum: Partisan Bill (Democrat 59-0)
Status: (Introduced - Dead) 2020-01-08 - referred to ways and means [A01981 Detail]
Download: New_York-2019-A01981-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 1981--B 2019-2020 Regular Sessions IN ASSEMBLY January 18, 2019 ___________ Introduced by M. of A. NOLAN, DICKENS, O'DONNELL, PERRY, HYNDMAN, JEAN- PIERRE, PRETLOW, WRIGHT, CAHILL, ORTIZ, GANTT, TITUS, SAYEGH, DE LA ROSA, SIMOTAS, WALKER, JAFFEE, RODRIGUEZ, BICHOTTE, FERNANDEZ, AUBRY, EPSTEIN, REYES, TAYLOR, PHEFFER AMATO, JOYNER, GLICK, CRUZ, SIMON, BRONSON, RIVERA, NIOU, CRESPO, WALLACE, ARROYO, MOSLEY, BLAKE, GOTTFRIED, COOK, McDONALD, LIFTON, WILLIAMS, GRIFFIN, GALEF, STIRPE, RYAN, QUART, FRONTUS, ROMEO, BARRON, L. ROSENTHAL, SANTABARBARA, RAMOS, DARLING, OTIS, WEPRIN -- Multi-Sponsored by -- M. of A. BUCHWALD, DenDEKKER, WEINSTEIN -- read once and referred to the Committee on Education -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- 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. This act shall be known and may be cited as the "Judith 2 Kaye School Solutions not Suspensions Act." 3 § 2. Section 2801 of the education law, as added by chapter 181 of the 4 laws of 2000, subdivision 1 as amended by chapter 402 of the laws of 5 2005, the opening paragraph, paragraph a and paragraph c of subdivision 6 2 and paragraph a of subdivision 5 as amended by chapter 380 of the laws 7 of 2001, paragraphs l and m as amended and paragraph n of subdivision 2 8 as added by chapter 482 of the laws of 2010, and subdivision 3 as 9 amended by chapter 123 of the laws of 2003, is amended to read as 10 follows: 11 § 2801. Codes of conduct on school property. 1. For purposes of this 12 section, school property means in or within any building, structure, EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD02878-10-9A. 1981--B 2 1 athletic playing field, playground, parking lot or land contained within 2 the real property boundary line of a public elementary or secondary 3 school, including a charter school; or in or on a school bus, as defined 4 in section one hundred forty-two of the vehicle and traffic law; [and a] 5 or a school's electronic files and databases. A school function shall 6 mean a school-sponsored or school-authorized extra-curricular event or 7 activity regardless of where such event or activity takes place, includ- 8 ing any event or activity that may take place in another state. 9 2. The board of education or the trustees[, as defined in section two10of this chapter,] of every school district [within the state, however11created, and every] or the chancellor of the city school district in the 12 case of the city school district of the city of New York, and every 13 board of cooperative educational services and [county vocational exten-14sion board] charter school, shall adopt and amend, as appropriate, a 15 code of conduct for the maintenance of order on school property, includ- 16 ing a school function, which shall promote and sustain a safe, respect- 17 ful, and supportive school environment and govern the conduct of 18 students, teachers and other school personnel as well as visitors and 19 shall provide for the enforcement thereof. Such policy may be adopted by 20 the [school] board of education or trustees, or the chancellor of the 21 city school district in the case of the city school district of the city 22 of New York, or other governing body only after at least one public 23 hearing that provides for the participation of school personnel, 24 parents, students and any other interested parties before its adoption. 25 The school district, board of cooperative educational services, or char- 26 ter school shall notify the school community and general public about 27 the hearing at least fifteen days prior to the date of the hearing. Such 28 notice shall include the date, time, and place of the hearing, the agen- 29 da, a copy of the proposed code of conduct, and information about a 30 public comment period as determined by the school district, board of 31 cooperative educational services, or charter school. The school 32 district, board of cooperative educational services, or charter school 33 shall take necessary steps to notify families who do not speak English 34 and whose children attend a school in the district, a board of cooper- 35 ative educational services, or a charter school. Such code of conduct 36 shall define violations of the code of conduct and set clear expecta- 37 tions for student conduct on school property, including at school func- 38 tions, and shall include, at a minimum: 39 a. provisions regarding conduct, dress and language deemed appropriate 40 and acceptable on school property, including a school function, and 41 conduct, dress and language deemed unacceptable and inappropriate on 42 school property, including a school function[, and]; 43 b. provisions regarding acceptable civil and respectful treatment of 44 teachers, school administrators, other school personnel, students and 45 visitors on school property[, including a] and at school [function] 46 functions, including [the appropriate] a range of age-appropriate gradu- 47 ated and proportionate disciplinary measures which [may be imposed for48violation of such] must be considered in responding to a code violation, 49 and the roles of teachers, administrators, other school personnel, the 50 board of education or trustees, or the chancellor of the city school 51 district in the case of the city school district of the city of New 52 York, or other governing body, and parents. 53 b-1. provisions that require schools to use the least severe action 54 necessary to respond to any violation of the code of conduct before 55 imposing a removal or suspension. Such options may include restorative 56 practices, social and emotional supports, and other interventions.A. 1981--B 3 1 Restorative practices may include class meetings, facilitated circles, 2 conferences, peer mediation, and other interventions that can effec- 3 tively address student misconduct, hold students accountable for their 4 behavior, and foster healthy relationships within the school community. 5 No student, however, shall be required to participate in a restorative 6 practice without their consent. Reasonable attempts shall also be made 7 to obtain the consent of their parents or persons in parental relations; 8 [b.] b-2. provisions that prohibit classroom removals and suspensions 9 to respond to tardiness, unexcused absence from class or school, leaving 10 school without permission, violation of school dress code, and lack of 11 identification upon request of school personnel; 12 b-3. provisions that prohibit suspensions for initial or repeated acts 13 of willful disobedience. "Willful disobedience" shall mean disruptive, 14 insubordinate, or rowdy behavior, including behaviors such as the use of 15 foul or inappropriate language, gestures, comments, or refusal to follow 16 directions; 17 c. provisions that prohibit the suspension of students in pre-kinder- 18 garten through grade three, except if suspension is necessary to comply 19 with applicable federal laws; 20 d. standards and procedures to assure security and safety of students 21 and school personnel; 22 [c.] e. provisions for the removal from the classroom and from school 23 property, including a school function, of students and other persons who 24 violate the code of conduct; 25 [d.] f. disciplinary measures to be taken in incidents involving the 26 possession or use of illegal substances or weapons, the use of physical 27 force, vandalism, violation of another student's civil rights and 28 threats of violence; 29 [e.] g. provisions for detention, suspension and removal from the 30 classroom of students, consistent with section thirty-two hundred four- 31 teen of this chapter and other applicable federal, state and local laws 32 [including]; 33 h. provisions for the school authorities to establish policies and 34 procedures to ensure the provision of continued educational programming 35 and activities for students removed from the classroom, placed in 36 detention, or suspended from school. When a student is suspended from 37 school or removed from the classroom, the principal, or the principal's 38 designee, in consultation with the student's teachers, shall, within 39 twenty-four hours, create an education plan for the student for each 40 class in which the student is enrolled, provided that if such twenty- 41 four hour period does not end on a school day, it shall be extended to 42 the corresponding time on the next school day. The education plan shall 43 make provisions for a student's on-going academic instruction during the 44 removal or suspension and shall include the steps the school will take 45 to provide the student with a successful re-entry to school. The student 46 shall have the opportunity to earn all academic credit he or she would 47 have been eligible to earn had he or she been in class, including the 48 opportunity to complete any missed assignments or take any missed exam- 49 inations or assessments during the student's removal or suspension. If 50 an examination or assessment cannot be rescheduled, the student shall be 51 allowed on school property to take such assessment or examination on the 52 day and time that the assessment or examination is given; 53 [f.] i. procedures by which violations of the code of conduct are 54 reported to the appropriate school personnel, the facts are investigated 55 and determined, and discipline measures [imposed and discipline measures56carried out] are determined and implemented;A. 1981--B 4 1 [g.] j. provisions ensuring such code and the enforcement thereof are 2 in compliance with state and federal laws relating to students with 3 disabilities; 4 [h. provisions setting forth the procedures by which local law5enforcement agencies shall be notified of code violations which consti-6tute a crime;7i.] k. provisions setting forth the circumstances under and procedures 8 by which parents or persons in parental relation to the student accused 9 of violating the code of conduct shall be notified of such code of 10 conduct violations including notice that any statement by the student, 11 written or oral, may be used against the student in a criminal, immi- 12 gration, or juvenile delinquency investigation and/or proceeding and/or 13 in a court of law; 14 [j.] l. provisions setting forth the circumstances under and proce- 15 dures by which a [complaint in criminal court, a juvenile delinquency16petition] student may be referred to law enforcement, consistent with 17 the provisions of section twenty-eight hundred one-a of this article, or 18 referred for a person in need of supervision petition as defined in 19 articles three and seven of the family court act will be filed; 20 [k.] m. circumstances under and procedures by which [referral to] a 21 student may be referred to academic services, school-based support 22 services, or appropriate human service agencies [shall be made]; and 23 [l. a minimum suspension period, for students who repeatedly are24substantially disruptive of the educational process or substantially25interfere with the teacher's authority over the classroom, provided that26the suspending authority may reduce such period on a case by case basis27to be consistent with any other state and federal law. For purposes of28this section, the definition of "repeatedly are substantially disrup-29tive" shall be determined in accordance with the regulations of the30commissioner;31m. a minimum suspension period for acts that would qualify the pupil32to be defined as a violent pupil pursuant to paragraph a of subdivision33two-a of section thirty-two hundred fourteen of this chapter, provided34that the suspending authority may reduce such period on a case by case35basis to be consistent with any other state and federal law; and] 36 n. provisions to comply with article two of this chapter. 37 3. The [district] code of conduct shall be developed in collaboration 38 with [student, teacher, administrator, and parent organizations] repre- 39 sentatives from interested stakeholders including, but not limited to, 40 students, teachers, administrators, parents, school safety personnel, 41 collective bargaining units, and other school personnel and shall be 42 approved by the board of education or trustees, [or] other governing 43 body, or by the chancellor of the city school district in the case of 44 the city school district of the city of New York. In the city school 45 district of the city of New York, each community district education 46 council shall be authorized to adopt and implement additional policies, 47 which are consistent with the city district's district-wide code of 48 conduct, to reflect the individual needs of each community school 49 district provided that such additional policies shall require the 50 approval of the chancellor. 51 3-a. The board of education or trustees, chancellor of the city school 52 district in the case of the city school district of the city of New 53 York, or other governing body shall provide professional development in 54 accordance with this section for school personnel, law enforcement and 55 public or private security personnel employed, retained or contractedA. 1981--B 5 1 with a school district or charter school regarding the code of conduct, 2 the use of interventions, and graduated and proportionate discipline. 3 4. [The] At the beginning of each school year, the board of education 4 or trustees, chancellor of the city school district in the case of the 5 city school district of the city of New York, or other governing body 6 shall: translate the code of conduct into at least the three most 7 commonly spoken languages of the children attending the school district, 8 board of cooperative educational services, or charter school, post the 9 code of conduct on the school district's, charter school's or board of 10 cooperative educational services website, provide copies of a summary of 11 the code of conduct to all students at a general assembly [held at the12beginning of the school year and shall make copies of the code available13to persons in parental relation to students at the beginning of each14school year, and shall] or classroom lesson, mail a plain language 15 summary of such code to all parents or persons in parental relation to 16 students before the beginning of each school year, and make it available 17 thereafter upon request. The board of education or trustees, the chan- 18 cellor of the city school district in the case of the city school 19 district of the city of New York, or other governing body shall take 20 reasonable steps to ensure community awareness of the code of conduct's 21 provisions. 22 5. a. The board of education or trustees, the chancellor of the city 23 school district in the case of the city of New York or other governing 24 body shall annually review and update the district's codes of conduct if 25 necessary, taking into consideration the effectiveness of code of 26 conduct provisions and the fairness and consistency of its adminis- 27 tration. Each school district is authorized to establish a committee and 28 to facilitate the review of the code of conduct and the district's 29 response to code of conduct violations. Any such committee shall be 30 comprised of similar individuals described in subdivision three of this 31 section. The [school] board of education or trustees, the chancellor of 32 the city school district in the case of the city of New York, or other 33 governing body shall reapprove any such updated code only after at least 34 one public hearing that provides for the participation of school person- 35 nel, parents, students and any other interested parties. 36 b. Each district, board of cooperative educational services, and char- 37 ter school shall file a copy of its codes of conduct with the commis- 38 sioner and [all] any amendments to such code shall be filed with the 39 commissioner no later than thirty days after their adoption. 40 § 3. Subdivision 3 of section 2801 of the education law, as added by 41 chapter 181 of the laws of 2000, is amended to read as follows: 42 3. The [district] code of conduct shall be developed in collaboration 43 with [student, teacher, administrator, and parent organizations] repre- 44 sentatives from interested stakeholders including, but not limited to, 45 students, teachers, administrators, parents, school safety personnel, 46 collective bargaining units, and other school personnel and shall be 47 approved by the board of education or trustees, [or] other governing 48 body, or by the chancellor of the city school district in the case of 49 the city school district of the city of New York. In the city school 50 district of the city of New York, each community school district board 51 shall be authorized to adopt and implement additional policies, which 52 are consistent with the city district's district-wide code of conduct, 53 to reflect the individual needs of each community school district 54 provided that such additional policies shall require the approval of the 55 chancellor.A. 1981--B 6 1 § 4. Section 3214 of the education law, as amended by chapter 181 of 2 the laws of 2000, subparagraph 1 of paragraph c of subdivision 3 as 3 amended by chapter 430 of the laws of 2006, paragraphs d and f of subdi- 4 vision 3 as amended by chapter 425 of the laws of 2002, paragraph e of 5 subdivision 3 as amended by chapter 170 of the laws of 2006, paragraph g 6 of subdivision 3 as amended by chapter 352 of the laws of 2005, clause 7 (v) of subparagraph 3 of paragraph g of subdivision 3 as amended by 8 chapter 378 of the laws of 2007, paragraphs a, b and c of subdivision 9 3-a as amended by chapter 147 of the laws of 2001 and subdivision 7 as 10 amended by section 9 of part YYY of chapter 59 of the laws of 2017, is 11 amended to read as follows: 12 § 3214. Student placement, suspensions and transfers. 1. [School13delinquent. A minor under seventeen years of age, required by any of the14provisions of part one of this article to attend upon instruction, who15is an habitual truant from such instruction or is irregular in such16attendance or insubordinate or disorderly or disruptive or violent17during such attendance, is a school delinquent.182. Special day schools] Alternative learning schools. The school 19 authorities of any city [or], school district, board of cooperative 20 educational services, or charter school may establish schools or set 21 apart rooms in [public] school buildings or properties for the instruc- 22 tion of [school delinquents] students removed or suspended for 23 violations of the code of conduct, and fix the number of days per week 24 and the hours per day of required attendance and instruction, which 25 shall not be less than is required of minors attending the full time day 26 schools. 27 [2-a. a. Violent pupil. For the purposes of this section, a violent28pupil is an elementary or secondary student under twenty-one years of29age who:30(1) commits an act of violence upon a teacher, administrator or other31school employee;32(2) commits, while on school district property, an act of violence33upon another student or any other person lawfully upon said property;34(3) possesses, while on school district property, a gun, knife,35explosive or incendiary bomb, or other dangerous instrument capable of36causing physical injury or death;37(4) displays, while on school district property, what appears to be a38gun, knife, explosive or incendiary bomb or other dangerous instrument39capable of causing death or physical injury;40(5) threatens, while on school district property, to use any instru-41ment that appears capable of causing physical injury or death;42(6) knowingly and intentionally damages or destroys the personal prop-43erty of a teacher, administrator, other school district employee or any44person lawfully upon school district property; or45(7) knowingly and intentionally damages or destroys school district46property.47b. Disruptive pupil. For the purposes of this section, a disruptive48pupil is an elementary or secondary student under twenty-one years of49age who is substantially disruptive of the educational process or50substantially interferes with the teacher's authority over the class-51room.523.] 2. Suspension of a [pupil] student. a. (1) The board of educa- 53 tion[, board of] or trustees [or sole trustee], the chancellor of the 54 city school district in the case of the city school district of the city 55 of New York, other governing body, the superintendent of schools, 56 district superintendent of schools or principal of a school may suspendA. 1981--B 7 1 [the following pupils] students from required attendance upon instruc- 2 tion[:3A pupil who is insubordinate or disorderly or violent or disruptive,4or whose conduct otherwise endangers the safety, morals, health or5welfare of others] as provided in paragraphs b, c, and d of this subdi- 6 vision, in accordance with the code of conduct, provided that the 7 suspension of such student is not prohibited by section twenty-eight 8 hundred one of this chapter. 9 (2) School officials shall weigh the likelihood that a lesser inter- 10 vention or discipline would adequately address the student's misconduct, 11 redress any harm or damage, and prevent future violations of the code of 12 conduct. Suspensions shall only be used as a last resort. 13 (3) The school shall conduct an investigation of any report of a 14 violation of the code of conduct. 15 (4) The school shall inform any student that submission of a written 16 statement is voluntary and that any statement by the student, written or 17 oral, may be used against the student in a criminal, immigration, or 18 juvenile delinquency investigation and/or proceeding and/or in a court 19 of law. If a student has been arrested or if the school is considering 20 referring the student to law enforcement, the school shall not request a 21 statement from such student, except where there is imminent risk of 22 serious physical injury to the student or other person or persons. 23 b. [(1)] In considering appropriate discipline measures, school 24 authorities shall consider the facts of each case, including, but not 25 limited to: 26 (1) the nature and impact of the student's alleged misconduct, includ- 27 ing but not limited to the harm to the student or other persons, damage 28 to personal or school property or threat to the safety and welfare of 29 the school community; 30 (2) the student's age, ability to speak or understand English, phys- 31 ical health, mental health, disabilities, and provisions of an individ- 32 ualized education program as it relates to his or her behavior; 33 (3) the student's willingness to resolve the conflict and repair any 34 harm or damage; 35 (4) the student's prior conduct, the appropriateness of prior inter- 36 ventions, and the effectiveness of any prior interventions; 37 (5) the relationship, if any, between the student's academic placement 38 and program and the alleged violation of the code of conduct; and 39 (6) other factors determined to be relevant. 40 c. The board of education[, board of] or trustees, [or sole trustee,] 41 the chancellor of the city school district in the case of the city 42 school district of the city of New York, other governing body, super- 43 intendent of schools, district superintendent of schools and the princi- 44 pal of the school where the [pupil] student attends shall have the power 45 to suspend a [pupil] student for a period not to exceed five school days 46 provided that the suspension of such student is not prohibited by 47 section twenty-eight hundred one of this chapter. In the case of such a 48 suspension, the suspending authority shall provide the [pupil] student 49 with written notice of the charged misconduct including a brief explana- 50 tion of the basis for the suspension and a description of the alleged 51 behavior that violated the code of conduct that includes the date, time, 52 and place of the scheduled informal conference with the principal, the 53 right to appeal a suspension, and the procedures for appeal. [If the54pupil denies the misconduct, the suspending authority shall provide an55explanation of the basis for the suspension.] The [pupil] student and 56 the parent or person in parental relation to the [pupil] student shall[,A. 1981--B 8 1on request,] be given an opportunity for an informal conference with the 2 principal [at which]. At the conference, the [pupil and/or] student and 3 parent or person in parental relation shall be authorized to review all 4 evidence of the alleged misconduct, present the [pupil's] student's 5 version of the event [and], to ask questions of the complaining 6 witnesses, and to be represented by an attorney or advocate. The afore- 7 said notice and opportunity for an informal conference shall take place 8 prior to suspension of the [pupil] student unless the [pupil's] 9 student's presence in the school poses a continuing danger to persons or 10 property or an ongoing threat of disruption to the academic process, in 11 which case the [pupil's] student's notice and opportunity for an 12 informal conference shall take place as soon after the suspension begins 13 as is reasonably practicable. 14 [(2) A teacher shall immediately report and refer a violent pupil15principal or superintendent for a violation of the code of conduct and a16minimum suspension period pursuant to section twenty-eight hundred one17of this chapter18c. (1)] d. The board of education or trustees, the chancellor of the 19 city school district in the case of the city school district of the city 20 of New York, other governing body, superintendent of schools, or 21 district superintendent of schools, shall have the power to suspend a 22 student for a period not to exceed twenty school days, provided that the 23 suspension of such student is not prohibited by paragraph c of subdivi- 24 sion two of section twenty-eight hundred one of this chapter. No [pupil] 25 student may be suspended for a period in excess of five school days 26 unless such [pupil] student and the parent or person in parental 27 relation to such [pupil] student shall have had an opportunity for a 28 fair hearing, upon reasonable written notice, [at] which shall include a 29 brief description of the facts 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 alleged to have violated, and the date, time and place of the 32 hearing. Prior to the hearing, copies of all evidence regarding the 33 alleged incident shall be provided to the student and parent or person 34 in parental relation to the student. The hearing shall be convened with- 35 in five days of the written notice, unless the parent or person in 36 parental relation to the student or student requests a later date. At 37 the hearing, such [pupil] student shall have the right of representation 38 by [counsel] an attorney or advocate, with the right to request the 39 presence of and question witnesses against such [pupil] student and to 40 request the presence of and present witnesses and other evidence on his 41 or her behalf. Where the [pupil] student is a student with a disability 42 or a student presumed to have a disability, the provisions of paragraph 43 [g] h of this subdivision shall also apply. Where a [pupil] student has 44 been suspended in accordance with this [subparagraph by a] paragraph, 45 the board of education or trustees, the chancellor of the city school 46 district in the case of the city school district of the city of New 47 York, other governing body, superintendent of schools, district super- 48 intendent of schools, or community superintendent[, the superintendent] 49 shall personally hear and determine the proceeding or may, in his or her 50 discretion, designate a hearing officer to conduct the hearing. The 51 entity or individual that conducts the hearing [officer] shall be 52 authorized to administer oaths and to issue subpoenas in conjunction 53 with the proceeding [before him or her]. A record of the hearing shall 54 be maintained, but no stenographic transcript shall be required and [a55tape] an audio recording shall be deemed a satisfactory record. The 56 entity or individual that conducts the hearing [officer] shall makeA. 1981--B 9 1 written findings of fact based on a preponderance of the evidence and 2 shall make recommendations as to the appropriate measure of discipline 3 [to the superintendent] if any. The report of the hearing officer shall 4 be advisory only, and the board of education or trustees, the chancellor 5 of the city school district in the case of the city school district of 6 the city of New York, other governing body, superintendent of schools or 7 district superintendent of schools may accept all or any part thereof. 8 [An appeal will lie from the decision of the superintendent to the board9of education who shall make its decision solely upon the record before10it. The board may adopt in whole or in part the decision of the super-11intendent of schools] The board of education or trustees, the chancellor 12 of the city school district in the case of the city school district of 13 the city of New York, other governing body, superintendent of schools, 14 or district superintendent of schools shall issue a written decision to 15 the school and parent or person in parental relation to the student 16 within three days of the hearing. The written decision shall state the 17 length of suspension, if any, findings of fact, reasons for determi- 18 nation, length of suspension, if any, procedures for appeal, and the 19 date by which the appeal shall be filed. Where the basis for the 20 suspension is, in whole or in part, the possession on school grounds or 21 school property by the student of any firearm, rifle, shotgun, dagger, 22 dangerous knife, dirk, razor, stiletto or any of the weapons, instru- 23 ments or appliances specified in subdivision one of section 265.01 of 24 the penal law, the hearing officer or superintendent shall not be barred 25 from considering the admissibility of such weapon, instrument or appli- 26 ance as evidence, notwithstanding a determination by a court in a crimi- 27 nal or juvenile delinquency proceeding that the recovery of such weapon, 28 instrument or appliance was the result of an unlawful search or seizure. 29 [(2) Where a [pupil] student has been suspended in accordance with 30 this section by a board of education, the board may in its discretion 31 hear and determine the proceeding or appoint a hearing officer who shall 32 have the same powers and duties with respect to the board that a hearing 33 officer has with respect to a superintendent where the suspension was 34 ordered by him or her. The findings and recommendations of the hearing 35 officer conducting the proceeding shall be advisory and subject to final 36 action by the board of education, each member of which shall before 37 voting review the testimony and acquaint himself or herself with the 38 evidence in the case. The board may reject, confirm or modify the 39 conclusions of the hearing officer. 40 d.] e. (1) Consistent with the federal gun-free schools act, any 41 public school [pupil] student who is determined under this subdivision 42 to have brought a firearm to or possessed a firearm at a public school 43 shall be suspended for a period of not less than one calendar year and 44 any nonpublic school pupil participating in a program operated by a 45 public school district using funds from the elementary and secondary 46 education act of nineteen hundred sixty-five who is determined under 47 this subdivision to have brought a firearm to or possessed a firearm at 48 a public school or other premises used by the school district to provide 49 such programs shall be suspended for a period of not less than one 50 calendar year from participation in such program. The procedures of this 51 subdivision shall apply to such a suspension of a nonpublic school 52 [pupil] student. A superintendent of schools, district superintendent of 53 schools or community superintendent shall have the authority to modify 54 this suspension requirement for each student on a case-by-case basis. 55 The determination of a superintendent shall be subject to review by the 56 board of education or trustees, other governing body, or the chancellorA. 1981--B 10 1 of the city school district in the case of the city school district of 2 the city of New York, pursuant to paragraph [c] d of this subdivision 3 and the commissioner pursuant to section three hundred ten of this chap- 4 ter. Nothing in this subdivision shall be deemed to authorize the 5 suspension of a student with a disability in violation of the individ- 6 uals with disabilities education act or article eighty-nine of this 7 chapter. A superintendent shall refer the [pupil] student under the age 8 of sixteen who has been determined to have brought a weapon or firearm 9 to school in violation of this subdivision to a presentment agency for a 10 juvenile delinquency proceeding consistent with article three of the 11 family court act except a student fourteen or fifteen years of age who 12 qualifies for juvenile offender status under subdivision forty-two of 13 section 1.20 of the criminal procedure law. A superintendent shall refer 14 any [pupil] student sixteen years of age or older or a student fourteen 15 or fifteen years of age who qualifies for juvenile offender status under 16 subdivision forty-two of section 1.20 of the criminal procedure law, who 17 has been determined to have brought a weapon or firearm to school in 18 violation of this subdivision to the appropriate law enforcement offi- 19 cials. 20 (2) Nothing in this paragraph shall be deemed to mandate such action 21 by a school district pursuant to subdivision one of this section where 22 such weapon or firearm is possessed or brought to school with the writ- 23 ten authorization of such educational institution in a manner authorized 24 by article two hundred sixty-five of the penal law for activities 25 approved and authorized by the trustees or board of education or other 26 governing body of the public school and such governing body adopts 27 appropriate safeguards to ensure student safety. 28 (3) As used in this paragraph: 29 (i) "firearm" shall mean a firearm as defined in subsection a of 30 section nine hundred twenty-one of title eighteen of the United States 31 Code; and 32 (ii) "weapon" shall be as defined in paragraph 2 of subsection g of 33 section nine hundred thirty of title eighteen of the United States Code. 34 [e.] f. Procedure after suspension. Where a [pupil] student has been 35 suspended pursuant to this subdivision and said [pupil is of compulsory36attendance age] student has the legal right to attend school, immediate 37 steps shall be taken for his or her attendance upon instruction else- 38 where [or for supervision or detention of said pupil pursuant to the39provisions of article seven of the family court act]. Where a [pupil] 40 student has been suspended for cause, the suspension may be revoked by 41 the board of education or trustees, other governing body, or the chan- 42 cellor of the city school district in the case of the city school 43 district of the city of New York, whenever it appears to be for the best 44 interest of the school and the [pupil] student to do so. The board of 45 education may or trustees, the chancellor of the city school district in 46 the case of the city school district for the city of New York, or other 47 governing body, also condition a student's early return to school and 48 suspension revocation on the [pupil's] student's voluntary participation 49 in counseling or specialized classes, including anger management or 50 dispute resolution, where applicable. 51 [f.] g. Whenever the term "board of education or superintendent of 52 schools" is used in this subdivision, it shall be deemed to include 53 board of trustees, other governing body, the chancellor of the city 54 school district in the case of the city school district for the city of 55 New York, community boards of education and community superintendentsA. 1981--B 11 1 governing community districts in accordance with the provisions of arti- 2 cle fifty-two-A of this chapter. 3 [g.] h. Discipline of students with disabilities and students presumed 4 to have a disability for discipline purposes. (1) Notwithstanding any 5 other provision of this subdivision to the contrary, a student with a 6 disability as such term is defined in section forty-four hundred one of 7 this chapter and a student presumed to have a disability for discipline 8 purposes, may be suspended or removed from his or her current educa- 9 tional placement, provided that the suspension of such student is not 10 prohibited by section twenty-eight hundred one of this chapter, for 11 violation of [school rules] the code of conduct only in accordance with 12 the procedures established in this section, the regulations of the 13 commissioner implementing this paragraph, and subsection (k) of section 14 fourteen hundred fifteen of title twenty of the United States code and 15 the federal regulations implementing such statute, as such federal law 16 and regulations are from time to time amended. Nothing in this paragraph 17 shall be construed to confer greater rights on such students than are 18 conferred under applicable federal law and regulations, or to limit the 19 ability of a school district to change the educational placement of a 20 student with a disability in accordance with the procedures in article 21 eighty-nine of this chapter. 22 (2) As used in this paragraph: 23 [(1)] (i) a "student presumed to have a disability for discipline 24 purposes" shall mean a student who the school district is deemed to have 25 knowledge was a student with a disability before the behavior that 26 precipitated disciplinary action under the criteria in subsection (k) 27 (5) of section fourteen hundred fifteen of title twenty of the United 28 States code and the federal regulations implementing such statute; and 29 (ii) a "manifestation team" means a representative of the school 30 district, the parent or person in parental relation, and relevant 31 members of the committee on special education, as determined by the 32 parent or person in parental relation and the district. 33 (3) In applying the federal law consistent with this section: 34 (i) in the event of a conflict between the procedures established in 35 this section and those established in subsection (k) of section fourteen 36 hundred fifteen of title twenty of the United States code and the feder- 37 al regulations implementing such statute, such federal statute and regu- 38 lations shall govern. 39 (ii) the board of trustees or board of education of any school 40 district, other governing body, the chancellor of the city school 41 district of the city of New York, a district superintendent of schools 42 or a building principal shall have authority, provided that suspension 43 of such student is not prohibited by paragraph c of subdivision two of 44 section twenty-eight hundred one of this chapter, to order the placement 45 of a student with a disability into an appropriate interim alternative 46 educational setting, another setting or suspension, provided that the 47 suspension of such student is not prohibited by section twenty-eight 48 hundred one of this chapter, for a period not to exceed five consecutive 49 school days where such student is suspended pursuant to this subdivision 50 and, except as otherwise provided in clause (vi) of this subparagraph, 51 the suspension does not result in a change in placement under federal 52 law. 53 (iii) the superintendent of schools of a school district, either 54 directly or upon recommendation of a hearing officer designated pursuant 55 to paragraph c of this subdivision, may order the placement of a student 56 with a disability into an interim alternative educational setting,A. 1981--B 12 1 another setting or suspension, provided that the suspension of such 2 student is not prohibited by section twenty-eight hundred one of this 3 chapter, for up to ten consecutive school days, inclusive of any period 4 in which the student is placed in an appropriate interim alternative 5 educational setting, another setting or suspension pursuant to clause 6 (ii) of this subparagraph for the behavior, where the superintendent 7 determines in accordance with the procedures set forth in this subdivi- 8 sion that the student has engaged in behavior that warrants a suspen- 9 sion, and, except as otherwise provided in clause (vi) of this subpara- 10 graph, the suspension does not result in a change in placement under 11 federal law. 12 (iv) the superintendent of schools of a school district, either 13 directly or upon recommendation of a hearing officer designated pursuant 14 to paragraph c of this subdivision, may order the change in placement of 15 a student with a disability to an interim alternative educational 16 setting for up to forty-five school days under the circumstances speci- 17 fied in subsection (k)(1)(G) of section fourteen hundred fifteen of 18 title twenty of the United States code and the federal regulations 19 implementing such statute or a longer period where authorized by federal 20 law under the circumstances specified in subsection (k)(1)(C) of section 21 fourteen hundred fifteen of title twenty of the United States code and 22 the federal regulations implementing such statute, but in neither case 23 shall such period exceed the period of suspension ordered by a super- 24 intendent in accordance with this subdivision, provided that the suspen- 25 sion of such student is not prohibited by section twenty-eight hundred 26 one of this chapter. 27 (v) the terms "day," "business day," and "school day" shall be as 28 defined in section 300.11 of title thirty-four of the code of federal 29 regulations. 30 (vi) notwithstanding any other provision of this subdivision to the 31 contrary, upon a determination by a manifestation team that the behavior 32 of a student with a disability was not a manifestation of the student's 33 disability, such student may be disciplined pursuant to this section in 34 the same manner and for the same duration as a nondisabled student, 35 except that such student shall continue to receive services to the 36 extent required under federal law and regulations, and such services may 37 be provided in an interim alternative educational setting, provided that 38 the suspension of such student is not prohibited by section twenty-eight 39 hundred one of this chapter. 40 (vii) an impartial hearing officer appointed pursuant to subdivision 41 one of section forty-four hundred four of this chapter may order a 42 change in placement of a student with a disability to an appropriate 43 interim alternative educational setting for not more than forty-five 44 school days under the circumstances specified in subsections (k)(3) and 45 (k)(4) of section fourteen hundred fifteen of title twenty of the United 46 States code and the federal regulations implementing such statutes, 47 provided that such procedure may be repeated, as necessary, provided 48 that the suspension of such student is not prohibited by section twen- 49 ty-eight hundred one of this chapter. 50 (viii) nothing in this section shall be construed to authorize the 51 suspension or removal of a student with a disability from his or her 52 current educational placement for violation of school rules following a 53 determination by a manifestation team that the behavior is a manifesta- 54 tion of the student's disability, except as authorized under federal law 55 and regulations.A. 1981--B 13 1 (ix) the commissioner shall implement this paragraph by adopting regu- 2 lations which coordinate the procedures required for discipline of 3 students with disabilities, and students presumed to have a disability 4 for discipline purposes, pursuant to subsection (k) of section fourteen 5 hundred fifteen of title twenty of the United States code and the feder- 6 al regulations implementing such statute, with the general procedures 7 for student discipline under this section. 8 [3-a.] i. When a student is suspended from school consistent with 9 this section and section twenty-eight hundred one of this chapter, the 10 principal, or the principal's designee, in consultation with the 11 student's teachers, shall within twenty-four hours create an education 12 plan for the student for each class in which the student is enrolled, 13 provided that if such twenty-four hour period does not end on a school 14 day, it shall be extended to the corresponding time on the next school 15 day. The education plan shall make provisions for a student's on-going 16 academic instruction during the suspension and shall include the steps 17 the school will take to provide the student with a successful re-entry 18 to school. The student shall have the opportunity to earn all academic 19 credit he or she would have been eligible to earn had he or she been in 20 class, including the opportunity to complete any missed assignments or 21 take any missed examination or assessments during the student's suspen- 22 sion. If an examination or assessment cannot be rescheduled, the student 23 shall be allowed on school property to take such assessment or examina- 24 tion on the day and time that the assessment or examination is given. 25 3. Teacher removal of a [disruptive pupil] student. In addition, any 26 teacher shall have the power and authority to remove a [disruptive pupil27as defined in subdivision two-a of this section,] student from such 28 teacher's classroom consistent with discipline measures contained in the 29 code of conduct adopted by the board pursuant to section twenty-eight 30 hundred one of this chapter. Such classroom removal shall not exceed 31 one-half school day on the same school day. The school authorities of 32 any school district, board of cooperative educational services, or char- 33 ter school shall establish policies and procedures to ensure the 34 provision of continued educational programming and activities for 35 students removed from the classroom pursuant to this subdivision [and36provided further that nothing]. When a student is removed from the 37 classroom, the student shall have the opportunity to earn all academic 38 credit including the opportunity to complete any missed assignments or 39 take any missed examinations or assessments during the student's 40 removal. If an examination or assessment cannot be rescheduled, the 41 student shall be allowed on school property to take such assessment or 42 examination on the day and time that the assessment or examination is 43 given. Nothing in this subdivision shall authorize the removal of a 44 [pupil] student in violation of any state or federal law or regulation. 45 No [pupil] student shall return to the classroom until the principal 46 makes a final determination pursuant to paragraph c of this subdivision, 47 or the period of removal expires, whichever is less. 48 a. Such teacher shall inform the [pupil] student and the school prin- 49 cipal of the reasons for the removal. If the teacher finds that the 50 [pupil's] student's continued presence in the classroom does not pose a 51 continuing danger to persons or property and does not present an ongoing 52 threat of disruption to the academic process, the teacher shall, prior 53 to removing the student from the classroom, provide the student with an 54 explanation of the basis for the removal and allow the [pupil] student 55 to informally present the [pupil's] student's version of relevant 56 events. In all other cases, the teacher shall provide the [pupil]A. 1981--B 14 1 student with an explanation of the basis for the removal and an informal 2 opportunity to be heard within twenty-four hours of the [pupil's] 3 student's removal, provided that if such twenty-four hour period does 4 not end on a school day, it shall be extended to the corresponding time 5 on the next school day. 6 b. The principal shall inform the parent or person in parental 7 relation to such [pupil] student of the removal and the reasons therefor 8 within twenty-four hours of the [pupil's] student's removal, provided 9 that if such twenty-four hour period does not end on a school day, it 10 shall be extended to the corresponding time on the next school day. The 11 [pupil] student and the parent or person in parental relation shall, 12 upon request, be given an opportunity for an informal conference with 13 the principal to discuss the reasons for the removal. If the [pupil] 14 student denies the charges, the principal shall provide an explanation 15 of the basis for the removal and allow the [pupil] student and/or person 16 in parental relation to the [pupil] student an opportunity to present 17 the [pupil's] student's version of relevant events. Such informal [hear-18ing] conference shall be held within forty-eight hours of the [pupil's] 19 student's removal, provided that if such forty-eight hour period does 20 not end on a school day, it shall be extended to the corresponding time 21 on the second school day next following the [pupil's] student's removal. 22 For purposes of this subdivision, "school day" shall mean a school day 23 as defined pursuant to clause (v) of subparagraph three of paragraph g 24 of subdivision three of this section. 25 c. The principal shall not set aside the discipline imposed by the 26 teacher unless the principal finds that the charges against the [pupil] 27 student are not supported by substantial evidence or that the [pupil's] 28 student's removal is otherwise in violation of law or that the conduct 29 warrants suspension from school pursuant to this section and a suspen- 30 sion will be imposed. The principal's determination made pursuant to 31 this paragraph shall be made by the close of business on the day 32 succeeding the forty-eight hour period for an informal hearing contained 33 in paragraph b of this subdivision. 34 d. The principal may, in his or her discretion, designate a school 35 district administrator, to carry out the functions required of the prin- 36 cipal under this subdivision. 37 4. Expense. [a.] The expense attending the commitment and costs of 38 maintenance of any [school delinquent] student placed as a result of a 39 finding related to school or educational issues shall be a charge 40 against the city or district where he or she resides, if such city or 41 district employs a superintendent of schools; otherwise it shall be a 42 county charge. 43 [b. The school authorities may institute proceedings before a court44having jurisdiction to determine the liability of a person in parental45relation to contribute towards the maintenance of a school delinquent46under sixteen years of age ordered to attend upon instruction under47confinement. If the court shall find the person in parental relation48able to contribute towards the maintenance of such a minor, it may issue49an order fixing the amount to be paid weekly.] 50 5. Involuntary transfers of [pupils] students who have not been deter- 51 mined to be a student with a disability or a student presumed to have a 52 disability for discipline purposes. 53 a. The board of education[, board of] or trustees [or sole trustee,], 54 the chancellor of the city school district in the case of the city 55 school district of New York, other governing body, the superintendent of 56 schools, or district superintendent of schools may transfer a [pupil]A. 1981--B 15 1 student who has not been determined to be a student with a disability as 2 defined in section forty-four hundred one of this chapter, or a student 3 presumed to have a disability for discipline purposes as defined in 4 paragraph [g] h of subdivision [three] two of this section from regular 5 classroom instruction to an appropriate educational setting in another 6 school upon the written recommendation of the school principal and 7 following independent review thereof. For purposes of this section of 8 the law, "involuntary transfer" does not include a transfer made by a 9 school district as part of a plan to reduce racial imbalance within the 10 schools or as a change in school attendance zones or geographical bound- 11 aries. 12 b. A school principal may initiate a non-requested transfer where it 13 is believed that such a [pupil] student would benefit from the transfer, 14 or when the [pupil] student would receive an adequate and appropriate 15 education in another school program or facility. 16 No recommendation for [pupil] student transfer shall be initiated by 17 the principal until such [pupil] student and a parent or person in 18 parental relation has been sent written notification of the consider- 19 ation of transfer recommendation. Such notice shall set a time and place 20 of an informal conference with the principal and shall inform such 21 parent or person in parental relation and such [pupil] student of their 22 right to be accompanied by counsel or an individual of their choice. 23 c. After the conference and if the principal concludes that the 24 [pupil] student would benefit from a transfer or that the [pupil] 25 student would receive an adequate and appropriate education in another 26 school program or facility, the principal may issue a recommendation of 27 transfer to the superintendent. Such recommendation shall include a 28 description of behavior and/or academic problems indicative of the need 29 for transfer; a description of alternatives explored and prior action 30 taken to resolve the problem. A copy of that letter shall be sent to the 31 parent or person in parental relation and to the [pupil] student. 32 d. Upon receipt of the principal's recommendation for transfer and a 33 determination to consider that recommendation, the superintendent shall 34 notify the parent or person in parental relation and the [pupil] student 35 of the proposed transfer and of their right to a fair hearing as 36 provided in paragraph c of subdivision three of this section and shall 37 list community agencies and free legal assistance which may be of 38 assistance. The written notice shall include a statement that the 39 [pupil] student or parent or person in parental relation has ten days to 40 request a hearing and that the proposed transfer shall not take effect, 41 except upon written parental consent, until the ten day period has 42 elapsed, or, if a fair hearing is requested, until after a formal deci- 43 sion following the hearing is rendered, whichever is later. 44 Parental consent to a transfer shall not constitute a waiver of the 45 right to a fair hearing. 46 6. Transfer of a [pupil] student. Where a suspended [pupil] student 47 is to be transferred pursuant to subdivision five of this section, he or 48 she shall remain on the register of the original school for two school 49 days following transmittal of his or her records to the school to which 50 he or she is to be transferred. The receiving school shall immediately 51 upon receiving those records transmitted by the original school, review 52 them to insure proper placement of the [pupil] student. Staff members 53 who are involved in the [pupil's] student's education must be provided 54 with pertinent records and information relating to the background and 55 problems of the [pupil] student before the [pupil] student is placed in 56 a classroom.A. 1981--B 16 1 7. Transfer of disciplinary records. Notwithstanding any other 2 provision of law to the contrary, each local educational agency, as such 3 term is defined in subsection thirty of section eighty-one hundred one 4 of the Elementary and Secondary Education Act of 1965, as amended, shall 5 establish procedures in accordance with section eighty-five hundred 6 thirty-seven of the Elementary and Secondary Education Act of 1965, as 7 amended, and the Family Educational Rights and Privacy Act of 1974, to 8 facilitate the transfer of disciplinary records relating to the suspen- 9 sion or expulsion of a student to any public or nonpublic elementary or 10 secondary school in which such student enrolls or seeks, intends or is 11 instructed to enroll, on a full-time or part-time basis. 12 § 5. Subparagraph 1 of paragraph c of subdivision 3 of section 3214 of 13 the education law, as amended by chapter 380 of the laws of 2001, is 14 amended to read as follows: 15 [(1)] d. The board of education or trustees, the chancellor of the 16 city school district in the case of the city school district of the city 17 of New York, other governing body, superintendent of schools, or 18 district superintendent of schools, shall have the power to suspend a 19 student for a period not to exceed twenty school days, provided that the 20 suspension of such student is not prohibited by paragraph c of subdivi- 21 sion two of section twenty-eight hundred one of this chapter. No [pupil] 22 student may be suspended for a period in excess of five school days 23 unless such [pupil] student and the parent or person in parental 24 relation to such [pupil] student shall have had an opportunity for a 25 fair hearing, upon reasonable written notice[, at which] shall include a 26 brief description of the facts upon which the alleged violations of the 27 code of conduct are based, the section of the code of conduct that the 28 student is alleged to have violated, and the date, time and place of the 29 hearing. Prior to the hearing, copies of all evidence regarding the 30 alleged incident shall be provided to the student and parent or person 31 in parental relation to the student. The hearing shall be convened with- 32 in five days of the written notice, unless the parent or person in 33 parental relation to the student or student requests a later date. At 34 the hearing, such [pupil] student shall have the right of representation 35 by [counsel] an attorney or advocate, with the right to request the 36 presence of and to question witnesses against such [pupil] student and 37 to request the presence of and present witnesses and other evidence on 38 his or her behalf. Where a [pupil] student has been suspended in accord- 39 ance with this subdivision [by a], the board of education or trustees, 40 the chancellor of the city school district in the case of the city 41 school district of the city of New York, other governing body, super- 42 intendent of schools, district superintendent of schools, or community 43 superintendent[, the superintendent] shall personally hear and determine 44 the proceeding or may, in his or her discretion, designate a hearing 45 officer to conduct the hearing. The entity or individual that conducts 46 the hearing [officer] shall be authorized to administer oaths and to 47 issue subpoenas in conjunction with the proceeding [before him]. A 48 record of the hearing shall be maintained, but no stenographic tran- 49 script shall be required and [a tape] an audio recording shall be deemed 50 a satisfactory record. The entity or individual that conducts the hear- 51 ing [officer] shall make written findings of fact based on a preponder- 52 ance of the evidence and shall make recommendations as to the appropri- 53 ate measure of discipline [to the superintendent] if any. The report of 54 the hearing officer shall be advisory only, and the board of education 55 or trustees, the chancellor of the city school district in the case of 56 the city school district of the city of New York, other governing body,A. 1981--B 17 1 superintendent of schools or district superintendent of schools may 2 accept all or any part thereof. [An appeal will lie from the decision of3the superintendent to the board of education who shall make its decision4solely upon the record before it. The board may adopt in whole or in5part the decision of the superintendent of schools] The board of educa- 6 tion or trustees, the chancellor of the city school district in the case 7 of the city school district of the city of New York, other governing 8 body, superintendent of schools, or district superintendent of schools 9 shall issue a written decision to the school and parent or person in 10 parental relation to the student within three days of the hearing. The 11 written decision shall state the length of suspension, if any, findings 12 of fact, reasons for determination, length of suspension, if any, proce- 13 dures for appeal, and the date by which the appeal shall be filed. 14 Where the basis for the suspension is, in whole or in part, the 15 possession on school grounds or school property by the student of any 16 firearm, rifle, shotgun, dagger, dangerous knife, dirk, razor, stiletto 17 or any of the weapons, instruments or appliances specified in subdivi- 18 sion one of section 265.01 of the penal law, the hearing officer or 19 superintendent shall not be barred from considering the admissibility of 20 such weapon, instrument or appliance as evidence, notwithstanding a 21 determination by a court in a criminal or juvenile delinquency proceed- 22 ing that the recovery of such weapon, instrument or appliance was the 23 result of an unlawful search or seizure. 24 § 6. Paragraphs d and f of subdivision 3 of section 3214 of the educa- 25 tion law, as amended by chapter 181 of the laws of 2000, are amended to 26 read as follows: 27 [d.] e. Consistent with the federal gun-free schools act of nineteen 28 hundred ninety-four, any public school [pupil] student who is determined 29 under this subdivision to have brought a weapon to school shall be 30 suspended for a period of not less than one calendar year and any 31 nonpublic school [pupil] student participating in a program operated by 32 a public school district using funds from the elementary and secondary 33 education act of nineteen hundred sixty-five who is determined under 34 this subdivision to have brought a weapon to a public school or other 35 premises used by the school district to provide such programs shall be 36 suspended for a period of not less than one calendar year from partic- 37 ipation in such program. The procedures of this subdivision shall apply 38 to such a suspension of a nonpublic school [pupil] student. A super- 39 intendent of schools, district superintendent of schools or community 40 superintendent shall have the authority to modify this suspension 41 requirement for each student on a case-by-case basis. The determination 42 of a superintendent shall be subject to review by the board of education 43 or trustees, other governing body, or the chancellor of the city school 44 district in the case of the city school district of the city of New 45 York, pursuant to paragraph c of this subdivision and the commissioner 46 pursuant to section three hundred ten of this chapter. Nothing in this 47 subdivision shall be deemed to authorize the suspension of a student 48 with a disability in violation of the individuals with disabilities 49 education act or article eighty-nine of this chapter. A superintendent 50 shall refer the [pupil] student under the age of sixteen who has been 51 determined to have brought a weapon to school in violation of this 52 subdivision to a presentment agency for a juvenile delinquency proceed- 53 ing consistent with article three of the family court act except a 54 student fourteen or fifteen years of age who qualifies for juvenile 55 offender status under subdivision forty-two of section 1.20 of the crim- 56 inal procedure law. A superintendent shall refer any [pupil] studentA. 1981--B 18 1 sixteen years of age or older or a student fourteen or fifteen years of 2 age who qualifies for juvenile offender status under subdivision forty- 3 two of section 1.20 of the criminal procedure law, who has been deter- 4 mined to have brought a weapon to school in violation of this subdivi- 5 sion to the appropriate law enforcement officials. 6 [f.] g. Whenever the term "board of education or superintendent of 7 schools" is used in this subdivision, it shall be deemed to include 8 board of trustees, other governing body, the chancellor of the city 9 school district in the case of the city school district for the city of 10 New York, community boards of education and community superintendents 11 governing community districts in accordance with the provisions of arti- 12 cle fifty-two-A of this chapter. For the purpose of this subdivision, 13 the term "weapon" means a firearm as such term is defined in section 14 nine hundred twenty-one of title eighteen of the United States code. 15 § 7. Paragraph g of subdivision 3 of section 3214 of the education 16 law, as amended by chapter 181 of the laws of 2000, clause (ii) of 17 subparagraph 3 as amended by chapter 380 of the laws of 2001, is amended 18 to read as follows: 19 [g.] h. Discipline of students with disabilities and students presumed 20 to have a disability for discipline purposes. (1) Notwithstanding any 21 other provision of this subdivision to the contrary, a student with a 22 disability as such term is defined in section forty-four hundred one of 23 this chapter and a student presumed to have a disability for discipline 24 purposes, may be suspended or removed from his or her current educa- 25 tional placement, provided that the suspension of such student is not 26 prohibited by section twenty-eight hundred one of this chapter, for 27 violation of school rules only in accordance with the procedures estab- 28 lished in this section, the regulations of the commissioner implementing 29 this paragraph, and subsection (k) of section fourteen hundred fifteen 30 of title twenty of the United States code and the federal regulations 31 implementing such statute, as such federal law and regulations are from 32 time to time amended. Nothing in this paragraph shall be construed to 33 confer greater rights on such students than are conferred under applica- 34 ble federal law and regulations, or to limit the ability of a school 35 district to change the educational placement of a student with a disa- 36 bility in accordance with the procedures in article eighty-nine of this 37 chapter. 38 (2) As used in this paragraph, a "student presumed to have a disabili- 39 ty for discipline purposes" shall mean a student who the school district 40 is deemed to have knowledge was a student with a disability before the 41 behavior that precipitated disciplinary action under the criteria in 42 subsection (k)(8) of section fourteen hundred fifteen of title twenty of 43 the United States code and the federal regulations implementing such 44 statute. 45 (3) In applying the federal law consistent with this section: 46 (i) in the event of a conflict between the procedures established in 47 this section and those established in subsection (k) of section fourteen 48 hundred fifteen of title twenty of the United States code and the feder- 49 al regulations implementing such statute, such federal statute and regu- 50 lations shall govern. 51 (ii) the board of trustees or board of education of any school 52 district, other governing body, the chancellor of the city school 53 district in the case of the city school district of the city of New 54 York, a district superintendent of schools or a building principal shall 55 have authority, provided that the suspension of such student is not 56 prohibited by section twenty-eight hundred one of this chapter, to orderA. 1981--B 19 1 the placement of a student with a disability into an appropriate interim 2 alternative educational setting, another setting or suspension for a 3 period not to exceed five consecutive school days where such student is 4 suspended pursuant to this subdivision and, except as otherwise provided 5 in clause (vi) of this subparagraph, the suspension does not result in a 6 change in placement under federal law. 7 (iii) the superintendent of schools of a school district, either 8 directly or upon recommendation of a hearing officer designated pursuant 9 to paragraph c of this subdivision, may order the placement of a student 10 with a disability into an interim alternative educational setting, 11 another setting or suspension for up to ten consecutive school days, 12 inclusive of any period in which the student is placed in an appropriate 13 interim alternative educational placement, another setting or suspension 14 pursuant to clause (ii) of this subparagraph for the behavior, where the 15 superintendent determines in accordance with the procedures set forth in 16 this subdivision that the student has engaged in behavior that warrants 17 a suspension, and, except as otherwise provided in clause (vi) of this 18 subparagraph, the suspension does not result in a change in placement 19 under federal law, provided that the suspension of such student is not 20 prohibited by section twenty-eight hundred one of this chapter. 21 (iv) the superintendent of schools of a school district, either 22 directly or upon recommendation of a hearing officer designated pursuant 23 to paragraph c of this subdivision, may order the change in placement of 24 a student with a disability to an interim alternative educational 25 setting for up to forty-five days, but not to exceed the period of 26 suspension ordered by a superintendent in accordance with this subdivi- 27 sion, under the circumstances specified in subsection (k)(1) of section 28 fourteen hundred fifteen of title twenty of the United States code and 29 the federal regulations implementing such statute, provided that the 30 suspension of such student is not prohibited by section twenty-eight 31 hundred one of this chapter. 32 (v) the terms "day," "business day," and "school day" shall be as 33 defined in section 300.9 of title thirty-four of the code of federal 34 regulations. 35 (vi) notwithstanding any other provision of this subdivision to the 36 contrary, upon a determination by the committee on special education 37 that the behavior of a student with a disability was not a manifestation 38 of the student's disability, such student may be disciplined pursuant to 39 this section in the same manner as a nondisabled student, except that 40 such student shall continue to receive services to the extent required 41 under federal law and regulations, provided that the suspension of such 42 student is not prohibited by section twenty-eight hundred one of this 43 chapter. 44 (vii) an impartial hearing officer appointed pursuant to subdivision 45 one of section forty-four hundred four of this chapter may order a 46 change in placement of a student with a disability to an appropriate 47 interim alternative educational setting for not more than forty-five 48 days under the circumstances specified in subsections (k)(2) and (k)(7) 49 of section fourteen hundred fifteen of title twenty of the United States 50 code and the federal regulations implementing such statutes, provided 51 that such procedure may be repeated, as necessary, provided that the 52 suspension of such student is not prohibited by section twenty-eight 53 hundred one of this chapter. 54 (viii) nothing in this section shall be construed to authorize the 55 suspension or removal of a student with a disability from his or her 56 current educational placement for violation of school rules following aA. 1981--B 20 1 determination by the committee on special education that the behavior is 2 a manifestation of the student's disability, except as authorized under 3 federal law and regulations. 4 (ix) the commissioner shall implement this paragraph by adopting regu- 5 lations which coordinate the procedures required for discipline of 6 students with disabilities, and students presumed to have a disability 7 for discipline purposes, pursuant to subsection (k) of section fourteen 8 hundred fifteen of title twenty of the United States code and the feder- 9 al regulations implementing such statute, with the general procedures 10 for student discipline under this section. 11 § 8. Paragraphs a, b and c of subdivision 3-a of section 3214 of the 12 education law, as added by chapter 181 of the laws of 2000, are amended 13 to read as follows: 14 a. Such teacher shall inform the [pupil] student and the school prin- 15 cipal of the reasons for the removal. If the teacher finds that the 16 [pupil's] student's continued presence in the classroom does not pose a 17 continuing danger to persons or property and does not present an ongoing 18 threat of disruption to the academic process, the teacher shall, prior 19 to removing the student from the classroom, provide the student with an 20 explanation of the basis for the removal and allow the [pupil] student 21 to informally present the [pupil's] student's version of relevant 22 events. In all other cases, the teacher shall provide the [pupil] 23 student with an explanation of the basis for the removal and an informal 24 opportunity to be heard within twenty-four hours of the [pupil's] 25 student's removal. 26 b. The principal shall inform the parent or person in parental 27 relation to such [pupil] student of the removal and the reasons therefor 28 within twenty-four hours of the [pupil's] student's removal. The [pupil] 29 student and the parent or person in parental relation shall, upon 30 request, be given an opportunity for an informal conference with the 31 principal to discuss the reasons for the removal. If the [pupil] student 32 denies the charges, the principal shall provide an explanation of the 33 basis for the removal and allow the [pupil] student and/or parent or 34 person in parental relation to the [pupil] student an opportunity to 35 present the [pupil's] student's version of relevant events. Such 36 informal [hearing] conference shall be held within forty-eight hours of 37 the [pupil's] student's removal. 38 c. The principal shall not set aside the discipline imposed by the 39 teacher unless the principal finds that the charges against the [pupil] 40 student are not supported by substantial evidence or that the [pupil's] 41 student's removal is otherwise in violation of law or that the conduct 42 warrants suspension from school pursuant to this section and a suspen- 43 sion will be imposed. The principal's determination made pursuant to 44 this paragraph shall be made by the close of business on the day 45 succeeding the forty-eight hour period for an informal hearing contained 46 in paragraph b of this subdivision. 47 § 9. This act shall take effect September 1, 2020; provided, however 48 that: 49 a. the amendments to subdivision 3 of section 2801 of the education 50 law made by section two of this act shall be subject to the expiration 51 and reversion of such subdivision pursuant to section 34 of chapter 91 52 of the laws of 2002, as amended, when upon such date the provisions of 53 section three of this act shall take effect; 54 b. the amendments to subparagraph 1 of paragraph c of subdivision 3 of 55 section 3214 of the education law made by section four of this act shall 56 be subject to the expiration and reversion of such subparagraph pursuantA. 1981--B 21 1 to subdivision (a) of section 8 of chapter 430 of the laws of 2006, as 2 amended, when upon such date the provisions of section five of this act 3 shall take effect; 4 c. the amendments to paragraphs d and f of subdivision 3 of section 5 3214 of the education law made by section four of this act shall be 6 subject to the expiration and reversion of such paragraphs pursuant to 7 section 4 of chapter 425 of the laws of 2002, as amended, when upon such 8 date the provisions of section six of this act shall take effect; 9 d. the amendments to paragraph g of subdivision 3 of section 3214 of 10 the education law made by section four of this act shall be subject to 11 the expiration and reversion of such paragraph pursuant to section 22 of 12 chapter 352 of the laws of 2005, as amended, when upon such date the 13 provisions of section seven of this act shall take effect; 14 e. the amendments to paragraphs a, b and c of subdivision 3-a of 15 section 3214 of the education law made by section four of this act shall 16 be subject to the expiration and reversion of such paragraphs pursuant 17 to section 12 of chapter 147 of the laws of 2001, as amended, when upon 18 such date the provisions of section eight of this act shall take effect; 19 and 20 f. the amendments to subdivision 7 of section 3214 of the education 21 law, made by section four of this act, shall not affect the repeal of 22 such subdivision and shall be deemed repealed therewith.
