Bill Text: NY S00767 | 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 23-0)

Status: (Introduced) 2019-06-13 - PRINT NUMBER 767A [S00767 Detail]

Download: New_York-2019-S00767-Amended.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                         767--A

                               2019-2020 Regular Sessions

                    IN SENATE

                                       (Prefiled)

                                     January 9, 2019
                                       ___________

        Introduced  by  Sens.  MONTGOMERY,  BAILEY,  BENJAMIN, BIAGGI, CARLUCCI,
          COMRIE, GIANARIS, HARCKHAM, HOYLMAN, JACKSON,  KAVANAGH,  LIU,  MYRIE,
          PARKER,  PERSAUD, RAMOS, RIVERA, SALAZAR, SANDERS, SEPULVEDA, SERRANO,
          THOMAS -- read twice and ordered  printed,  and  when  printed  to  be
          committed  to the Committee on Education -- committee discharged, bill
          amended, ordered reprinted as amended and recommitted to said  commit-
          tee

        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,
    13  athletic playing field, playground, parking lot or land contained within
    14  the real property boundary line of  a  public  elementary  or  secondary
    15  school, including a charter school; or in or on a school bus, as defined
    16  in section one hundred forty-two of the vehicle and traffic law; [and a]
    17  or  a  school's  electronic files and databases. A school function shall

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02878-08-9

        S. 767--A                           2

     1  mean a school-sponsored or school-authorized extra-curricular  event  or
     2  activity regardless of where such event or activity takes place, includ-
     3  ing any event or activity that may take place in another state.
     4    2.  The board of education or the trustees[, as defined in section two
     5  of this chapter,] of every school district [within  the  state,  however
     6  created, and every] or the chancellor of the city school district in the
     7  case  of  the  city  school  district of the city of New York, and every
     8  board of cooperative educational services and [county vocational  exten-
     9  sion  board]  charter  school,  shall adopt and amend, as appropriate, a
    10  code of conduct for the maintenance of order on school property, includ-
    11  ing a school function, which shall promote and sustain a safe,  respect-
    12  ful,  and  supportive  school  environment  and  govern  the  conduct of
    13  students, teachers and other school personnel as well  as  visitors  and
    14  shall provide for the enforcement thereof. Such policy may be adopted by
    15  the  [school]  board  of education or trustees, or the chancellor of the
    16  city school district in the case of the city school district of the city
    17  of New York, or other governing body only  after  at  least  one  public
    18  hearing  that  provides  for  the  participation  of  school  personnel,
    19  parents, students and any other interested parties before its  adoption.
    20  The school district, board of cooperative educational services, or char-
    21  ter  school  shall  notify the school community and general public about
    22  the hearing at least fifteen days prior to the date of the hearing. Such
    23  notice shall include the date, time, and place of the hearing, the agen-
    24  da, a copy of the proposed code of  conduct,  and  information  about  a
    25  public  comment  period  as  determined by the school district, board of
    26  cooperative  educational  services,  or  charter  school.    The  school
    27  district,  board  of cooperative educational services, or charter school
    28  shall take necessary steps to notify families who do not  speak  English
    29  and  whose  children attend a school in the district, a board of cooper-
    30  ative educational services, or a charter school. Such  code  of  conduct
    31  shall  define  violations  of the code of conduct and set clear expecta-
    32  tions for student conduct on school property, including at school  func-
    33  tions, and shall include, at a minimum:
    34    a. provisions regarding conduct, dress and language deemed appropriate
    35  and  acceptable  on  school  property,  including a school function, and
    36  conduct, dress and language deemed  unacceptable  and  inappropriate  on
    37  school property, including a school function[, and];
    38    b.  provisions  regarding acceptable civil and respectful treatment of
    39  teachers, school administrators, other school  personnel,  students  and
    40  visitors  on  school  property[,  including  a] and at school [function]
    41  functions, including [the appropriate] a range of age-appropriate gradu-
    42  ated and proportionate disciplinary measures which [may be  imposed  for
    43  violation of such] must be considered in responding to a code violation,
    44  and  the  roles of teachers, administrators, other school personnel, the
    45  board of education or trustees, or the chancellor  of  the  city  school
    46  district  in  the  case  of  the city school district of the city of New
    47  York, or other governing body, and parents.
    48    b-1. provisions that require schools to use the  least  severe  action
    49  necessary  to  respond  to  any  violation of the code of conduct before
    50  imposing a removal or suspension.  Such options may include  restorative
    51  practices,  social  and  emotional  supports,  and  other interventions.
    52  Restorative practices may include class meetings,  facilitated  circles,
    53  conferences,  peer  mediation,  and  other interventions that can effec-
    54  tively address student misconduct, hold students accountable  for  their
    55  behavior,  and foster healthy relationships within the school community.
    56  No student, however, shall be required to participate in  a  restorative

        S. 767--A                           3

     1  practice  without  their consent. Reasonable attempts shall also be made
     2  to obtain the consent of their parents or persons in parental relations;
     3    [b.]  b-2. provisions that prohibit classroom removals and suspensions
     4  to respond to tardiness, unexcused absence from class or school, leaving
     5  school without permission, violation of school dress code, and  lack  of
     6  identification upon request of school personnel;
     7    b-3. provisions that prohibit suspensions for initial or repeated acts
     8  of  willful disobedience.  "Willful disobedience" shall mean disruptive,
     9  insubordinate, or rowdy behavior, including behaviors such as the use of
    10  foul or inappropriate language, gestures, comments, or refusal to follow
    11  directions;
    12    c. provisions that prohibit the suspension of students in  pre-kinder-
    13  garten  through grade three, except if suspension is necessary to comply
    14  with applicable federal laws;
    15    d. standards and procedures to assure security and safety of  students
    16  and school personnel;
    17    [c.]  e. provisions for the removal from the classroom and from school
    18  property, including a school function, of students and other persons who
    19  violate the code of conduct;
    20    [d.] f. disciplinary measures to be taken in incidents  involving  the
    21  possession  or use of illegal substances or weapons, the use of physical
    22  force, vandalism,  violation  of  another  student's  civil  rights  and
    23  threats of violence;
    24    [e.]  g.  provisions  for  detention,  suspension and removal from the
    25  classroom of students, consistent with section thirty-two hundred  four-
    26  teen  of this chapter and other applicable federal, state and local laws
    27  [including];
    28    h. provisions for the school authorities  to  establish  policies  and
    29  procedures  to ensure the provision of continued educational programming
    30  and activities for  students  removed  from  the  classroom,  placed  in
    31  detention,  or  suspended from school.  When a student is suspended from
    32  school or removed from the classroom, the principal, or the  principal's
    33  designee,  in  consultation  with  the student's teachers, shall, within
    34  twenty-four hours, create an education plan for  the  student  for  each
    35  class  in  which  the student is enrolled, provided that if such twenty-
    36  four hour period does not end on a school day, it shall be  extended  to
    37  the  corresponding time on the next school day. The education plan shall
    38  make provisions for a student's on-going academic instruction during the
    39  removal or suspension and shall include the steps the school  will  take
    40  to provide the student with a successful re-entry to school. The student
    41  shall  have  the opportunity to earn all academic credit he or she would
    42  have been eligible to earn had he or she been in  class,  including  the
    43  opportunity  to complete any missed assignments or take any missed exam-
    44  inations or assessments during the student's removal or suspension.   If
    45  an examination or assessment cannot be rescheduled, the student shall be
    46  allowed on school property to take such assessment or examination on the
    47  day and time that the assessment or examination is given;
    48    [f.]  i.  procedures  by  which  violations of the code of conduct are
    49  reported to the appropriate school personnel, the facts are investigated
    50  and determined, and discipline measures [imposed and discipline measures
    51  carried out] are determined and implemented;
    52    [g.] j. provisions ensuring such code and the enforcement thereof  are
    53  in  compliance  with  state  and  federal laws relating to students with
    54  disabilities;

        S. 767--A                           4

     1    [h. provisions  setting  forth  the  procedures  by  which  local  law
     2  enforcement  agencies shall be notified of code violations which consti-
     3  tute a crime;
     4    i.] k. provisions setting forth the circumstances under and procedures
     5  by  which parents or persons in parental relation to the student accused
     6  of violating the code of conduct shall  be  notified  of  such  code  of
     7  conduct  violations  including notice that any statement by the student,
     8  written or oral, may be used against the student in  a  criminal,  immi-
     9  gration,  or juvenile delinquency investigation and/or proceeding and/or
    10  in a court of law;
    11    [j.] l. provisions setting forth the circumstances  under  and  proce-
    12  dures  by  which  a [complaint in criminal court, a juvenile delinquency
    13  petition] student may be referred to law  enforcement,  consistent  with
    14  the provisions of section twenty-eight hundred one-a of this article, or
    15  referred  for  a  person  in  need of supervision petition as defined in
    16  articles three and seven of the family court act will be filed;
    17    [k.] m. circumstances under and procedures by which  [referral  to]  a
    18  student  may  be  referred  to  academic  services, school-based support
    19  services, or appropriate human service agencies [shall be made]; and
    20    [l. a minimum suspension  period,  for  students  who  repeatedly  are
    21  substantially  disruptive  of  the  educational process or substantially
    22  interfere with the teacher's authority over the classroom, provided that
    23  the suspending authority may reduce such period on a case by case  basis
    24  to  be  consistent with any other state and federal law. For purposes of
    25  this section, the definition of "repeatedly  are  substantially  disrup-
    26  tive"  shall  be  determined  in  accordance with the regulations of the
    27  commissioner;
    28    m. a minimum suspension period for acts that would qualify  the  pupil
    29  to  be defined as a violent pupil pursuant to paragraph a of subdivision
    30  two-a of section thirty-two hundred fourteen of this  chapter,  provided
    31  that  the  suspending authority may reduce such period on a case by case
    32  basis to be consistent with any other state and federal law; and]
    33    n. provisions to comply with article two of this chapter.
    34    3. The [district] code of conduct shall be developed in  collaboration
    35  with  [student, teacher, administrator, and parent organizations] repre-
    36  sentatives from interested stakeholders including, but not  limited  to,
    37  students,  teachers,  administrators,  parents, school safety personnel,
    38  collective bargaining units, and other school  personnel  and  shall  be
    39  approved  by  the  board  of education or trustees, [or] other governing
    40  body, or by the chancellor of the city school district in  the  case  of
    41  the  city  school  district  of the city of New York. In the city school
    42  district of the city of New  York,  each  community  district  education
    43  council  shall be authorized to adopt and implement additional policies,
    44  which are consistent with the  city  district's  district-wide  code  of
    45  conduct,  to  reflect  the  individual  needs  of  each community school
    46  district provided  that  such  additional  policies  shall  require  the
    47  approval of the chancellor.
    48    3-a. The board of education or trustees, chancellor of the city school
    49  district  in  the  case  of  the city school district of the city of New
    50  York, or other governing body shall provide professional development  in
    51  accordance  with  this section for school personnel, law enforcement and
    52  public or private security personnel employed,  retained  or  contracted
    53  with  a school district or charter school regarding the code of conduct,
    54  the use of interventions, and graduated and proportionate discipline.
    55    4. [The] At the beginning of each school year, the board of  education
    56  or  trustees,  chancellor of the city school district in the case of the

        S. 767--A                           5

     1  city school district of the city of New York, or  other  governing  body
     2  shall:    translate  the  code  of  conduct into at least the three most
     3  commonly spoken languages of the children attending the school district,
     4  board  of  cooperative educational services, or charter school, post the
     5  code of conduct on the school district's, charter school's or  board  of
     6  cooperative educational services website, provide copies of a summary of
     7  the  code  of conduct to all students at a general assembly [held at the
     8  beginning of the school year and shall make copies of the code available
     9  to persons in parental relation to students at  the  beginning  of  each
    10  school  year,  and  shall]  or  classroom  lesson, mail a plain language
    11  summary of such code to all parents or persons in parental  relation  to
    12  students before the beginning of each school year, and make it available
    13  thereafter  upon  request. The board of education or trustees, the chan-
    14  cellor of the city school district  in  the  case  of  the  city  school
    15  district  of  the  city  of New York, or other governing body shall take
    16  reasonable steps to ensure community awareness of the code of  conduct's
    17  provisions.
    18    5.  a.  The board of education or trustees, the chancellor of the city
    19  school district in the case of the city of New York or  other  governing
    20  body shall annually review and update the district's codes of conduct if
    21  necessary,  taking  into  consideration  the  effectiveness  of  code of
    22  conduct provisions and the fairness  and  consistency  of  its  adminis-
    23  tration. Each school district is authorized to establish a committee and
    24  to  facilitate  the  review  of  the  code of conduct and the district's
    25  response to code of conduct violations.  Any  such  committee  shall  be
    26  comprised  of similar individuals described in subdivision three of this
    27  section. The [school] board of education or trustees, the chancellor  of
    28  the  city  school district in the case of the city of New York, or other
    29  governing body shall reapprove any such updated code only after at least
    30  one public hearing that provides for the participation of school person-
    31  nel, parents, students and any other interested parties.
    32    b. Each district, board of cooperative educational services, and char-
    33  ter school shall file a copy of its codes of conduct  with  the  commis-
    34  sioner  and  [all]  any  amendments to such code shall be filed with the
    35  commissioner no later than thirty days after their adoption.
    36    § 3. Subdivision 3 of section 2801 of the education law, as  added  by
    37  chapter 181 of the laws of 2000, is amended to read as follows:
    38    3.  The [district] code of conduct shall be developed in collaboration
    39  with [student, teacher, administrator, and parent organizations]  repre-
    40  sentatives  from  interested stakeholders including, but not limited to,
    41  students, teachers, administrators, parents,  school  safety  personnel,
    42  collective  bargaining  units,  and  other school personnel and shall be
    43  approved by the board of education or  trustees,  [or]  other  governing
    44  body,  or  by  the chancellor of the city school district in the case of
    45  the city school district of the city of New York.  In  the  city  school
    46  district  of  the city of New York, each community school district board
    47  shall be authorized to adopt and implement  additional  policies,  which
    48  are  consistent  with the city district's district-wide code of conduct,
    49  to reflect the  individual  needs  of  each  community  school  district
    50  provided that such additional policies shall require the approval of the
    51  chancellor.
    52    §  4.  Section 3214 of the education law, as amended by chapter 181 of
    53  the laws of 2000, subparagraph 1 of paragraph  c  of  subdivision  3  as
    54  amended by chapter 430 of the laws of 2006, paragraphs d and f of subdi-
    55  vision  3  as amended by chapter 425 of the laws of 2002, paragraph e of
    56  subdivision 3 as amended by chapter 170 of the laws of 2006, paragraph g

        S. 767--A                           6

     1  of subdivision 3 as amended by chapter 352 of the laws of  2005,  clause
     2  (v)  of  subparagraph  3  of  paragraph g of subdivision 3 as amended by
     3  chapter 378 of the laws of 2007, paragraphs a, b and  c  of  subdivision
     4  3-a  as  amended by chapter 147 of the laws of 2001 and subdivision 7 as
     5  amended by section 9 of part YYY of chapter 59 of the laws of  2017,  is
     6  amended to read as follows:
     7    §  3214.  Student  placement,  suspensions  and  transfers. 1. [School
     8  delinquent. A minor under seventeen years of age, required by any of the
     9  provisions of part one of this article to attend upon  instruction,  who
    10  is  an  habitual  truant  from  such instruction or is irregular in such
    11  attendance or insubordinate  or  disorderly  or  disruptive  or  violent
    12  during such attendance, is a school delinquent.
    13    2.  Special  day  schools]  Alternative  learning  schools. The school
    14  authorities of any city [or],  school  district,  board  of  cooperative
    15  educational  services,  or  charter  school may establish schools or set
    16  apart rooms in [public] school buildings or properties for the  instruc-
    17  tion   of   [school  delinquents]  students  removed  or  suspended  for
    18  violations of the code of conduct, and fix the number of days  per  week
    19  and  the  hours  per  day  of required attendance and instruction, which
    20  shall not be less than is required of minors attending the full time day
    21  schools.
    22    [2-a. a. Violent pupil.  For the purposes of this section,  a  violent
    23  pupil  is  an  elementary or secondary student under twenty-one years of
    24  age who:
    25    (1) commits an act of violence upon a teacher, administrator or  other
    26  school employee;
    27    (2)  commits,  while  on  school district property, an act of violence
    28  upon another student or any other person lawfully upon said property;
    29    (3) possesses, while  on  school  district  property,  a  gun,  knife,
    30  explosive  or  incendiary bomb, or other dangerous instrument capable of
    31  causing physical injury or death;
    32    (4) displays, while on school district property, what appears to be  a
    33  gun,  knife,  explosive or incendiary bomb or other dangerous instrument
    34  capable of causing death or physical injury;
    35    (5) threatens, while on school district property, to use  any  instru-
    36  ment that appears capable of causing physical injury or death;
    37    (6) knowingly and intentionally damages or destroys the personal prop-
    38  erty  of a teacher, administrator, other school district employee or any
    39  person lawfully upon school district property; or
    40    (7) knowingly and intentionally damages or  destroys  school  district
    41  property.
    42    b.  Disruptive pupil.   For the purposes of this section, a disruptive
    43  pupil is an elementary or secondary student under  twenty-one  years  of
    44  age  who  is  substantially  disruptive  of  the  educational process or
    45  substantially interferes with the teacher's authority  over  the  class-
    46  room.
    47    3.]  2.  Suspension  of a [pupil] student. a.  (1) The board of educa-
    48  tion[, board of] or trustees [or sole trustee], the  chancellor  of  the
    49  city school district in the case of the city school district of the city
    50  of  New  York,  other  governing  body,  the  superintendent of schools,
    51  district superintendent of schools or principal of a school may  suspend
    52  [the  following  pupils] students from required attendance upon instruc-
    53  tion[:
    54    A pupil who is insubordinate or disorderly or violent  or  disruptive,
    55  or  whose  conduct  otherwise  endangers  the  safety, morals, health or
    56  welfare of others] as provided in paragraphs b, c, and d of this  subdi-

        S. 767--A                           7

     1  vision,  in  accordance  with  the  code  of  conduct, provided that the
     2  suspension of such student is not  prohibited  by  section  twenty-eight
     3  hundred one of this chapter.
     4    (2)  School  officials shall weigh the likelihood that a lesser inter-
     5  vention or discipline would adequately address the student's misconduct,
     6  redress any harm or damage, and prevent future violations of the code of
     7  conduct. Suspensions shall only be used as a last resort.
     8    (3) The school shall conduct an  investigation  of  any  report  of  a
     9  violation of the code of conduct.
    10    (4)  The  school shall inform any student that submission of a written
    11  statement is voluntary and that any statement by the student, written or
    12  oral, may be used against the student in  a  criminal,  immigration,  or
    13  juvenile  delinquency  investigation and/or proceeding and/or in a court
    14  of law. If a student has been arrested or if the school  is  considering
    15  referring the student to law enforcement, the school shall not request a
    16  statement  from  such  student,  except  where there is imminent risk of
    17  serious physical injury to the student or other person or persons.
    18    b.  [(1)]  In  considering  appropriate  discipline  measures,  school
    19  authorities  shall  consider  the facts of each case, including, but not
    20  limited to:
    21    (1) the nature and impact of the student's alleged misconduct, includ-
    22  ing but not limited to the harm to the student or other persons,  damage
    23  to  personal  or  school property or threat to the safety and welfare of
    24  the school community;
    25    (2) the student's age, ability to speak or understand  English,  phys-
    26  ical  health, mental health, disabilities, and provisions of an individ-
    27  ualized education program as it relates to his or her behavior;
    28    (3) the student's willingness to resolve the conflict and  repair  any
    29  harm or damage;
    30    (4)  the  student's prior conduct, the appropriateness of prior inter-
    31  ventions, and the effectiveness of any prior interventions;
    32    (5) the relationship, if any, between the student's academic placement
    33  and program and the alleged violation of the code of conduct; and
    34    (6) other factors determined to be relevant.
    35    c. The board of education[, board of] or trustees, [or sole  trustee,]
    36  the  chancellor  of  the  city  school  district in the case of the city
    37  school district of the city of New York, other  governing  body,  super-
    38  intendent of schools, district superintendent of schools and the princi-
    39  pal of the school where the [pupil] student attends shall have the power
    40  to suspend a [pupil] student for a period not to exceed five school days
    41  provided  that  the  suspension  of  such  student  is not prohibited by
    42  section twenty-eight hundred one of this chapter. In the case of such  a
    43  suspension,  the  suspending authority shall provide the [pupil] student
    44  with written notice of the charged misconduct including a brief explana-
    45  tion of the basis for the suspension and a description  of  the  alleged
    46  behavior that violated the code of conduct that includes the date, time,
    47  and  place  of the scheduled informal conference with the principal, the
    48  right to appeal a suspension, and the procedures  for  appeal.  [If  the
    49  pupil  denies  the misconduct, the suspending authority shall provide an
    50  explanation of the basis for the suspension.] The  [pupil]  student  and
    51  the parent or person in parental relation to the [pupil] student shall[,
    52  on request,] be given an opportunity for an informal conference with the
    53  principal  [at which]. At the conference, the [pupil and/or] student and
    54  parent or person in parental relation shall be authorized to review  all
    55  evidence  of  the  alleged  misconduct,  present the [pupil's] student's
    56  version of  the  event  [and],  to  ask  questions  of  the  complaining

        S. 767--A                           8

     1  witnesses,  and to be represented by an attorney or advocate. The afore-
     2  said notice and opportunity for an informal conference shall take  place
     3  prior  to  suspension  of  the  [pupil]  student  unless  the  [pupil's]
     4  student's presence in the school poses a continuing danger to persons or
     5  property  or an ongoing threat of disruption to the academic process, in
     6  which case  the  [pupil's]  student's  notice  and  opportunity  for  an
     7  informal conference shall take place as soon after the suspension begins
     8  as is reasonably practicable.
     9    [(2)  A  teacher  shall  immediately  report and refer a violent pupil
    10  principal or superintendent for a violation of the code of conduct and a
    11  minimum suspension period pursuant to section twenty-eight  hundred  one
    12  of this chapter
    13    c.  (1)]  d. The board of education or trustees, the chancellor of the
    14  city school district in the case of the city school district of the city
    15  of New  York,  other  governing  body,  superintendent  of  schools,  or
    16  district  superintendent  of  schools, shall have the power to suspend a
    17  student for a period not to exceed twenty school days, provided that the
    18  suspension of such student is not prohibited by paragraph c of  subdivi-
    19  sion two of section twenty-eight hundred one of this chapter. No [pupil]
    20  student  may  be  suspended  for  a period in excess of five school days
    21  unless such [pupil]  student  and  the  parent  or  person  in  parental
    22  relation  to  such  [pupil]  student shall have had an opportunity for a
    23  fair hearing, upon reasonable written notice, [at] which shall include a
    24  brief description of the facts upon which the alleged violations of  the
    25  code  of  conduct are based, the section of the code of conduct that the
    26  student is alleged to have violated, and the date, time and place of the
    27  hearing. Prior to the hearing, copies  of  all  evidence  regarding  the
    28  alleged  incident  shall be provided to the student and parent or person
    29  in parental relation to the student. The hearing shall be convened with-
    30  in five days of the written notice,  unless  the  parent  or  person  in
    31  parental  relation  to  the student or student requests a later date. At
    32  the hearing, such [pupil] student shall have the right of representation
    33  by [counsel] an attorney or advocate, 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 the [pupil] student is a student with a disability
    37  or a student presumed to have a disability, the provisions of  paragraph
    38  [g]  h of this subdivision shall also apply. Where a [pupil] student has
    39  been suspended in accordance with this [subparagraph  by  a]  paragraph,
    40  the  board  of  education or trustees, the chancellor of the city school
    41  district in the case of the city school district  of  the  city  of  New
    42  York,  other  governing body, superintendent of schools, district super-
    43  intendent of schools, or community superintendent[, the  superintendent]
    44  shall personally hear and determine the proceeding or may, in his or her
    45  discretion,  designate  a  hearing  officer  to conduct the hearing. The
    46  entity or individual  that  conducts  the  hearing  [officer]  shall  be
    47  authorized  to  administer  oaths  and to issue subpoenas in conjunction
    48  with the proceeding [before him or her].  A record of the hearing  shall
    49  be  maintained,  but no stenographic transcript shall be required and [a
    50  tape] an audio recording shall be deemed a  satisfactory  record.    The
    51  entity  or  individual  that  conducts  the hearing [officer] shall make
    52  written findings of fact based on a preponderance of  the  evidence  and
    53  shall  make  recommendations as to the appropriate measure of discipline
    54  [to the superintendent] if any. The report of the hearing officer  shall
    55  be advisory only, and the board of education or trustees, the chancellor
    56  of  the  city school district in the case of the city school district of

        S. 767--A                           9

     1  the city of New York, other governing body, superintendent of schools or
     2  district superintendent of schools may accept all or any  part  thereof.
     3  [An appeal will lie from the decision of the superintendent to the board
     4  of  education  who shall make its decision solely upon the record before
     5  it. The board may adopt in whole or in part the decision of  the  super-
     6  intendent of schools] The board of education or trustees, the chancellor
     7  of  the  city school district in the case of the city school district of
     8  the city of New York, other governing body, superintendent  of  schools,
     9  or  district superintendent of schools shall issue a written decision to
    10  the school and parent or person in  parental  relation  to  the  student
    11  within  three  days of the hearing. The written decision shall state the
    12  length of suspension, if any, findings of  fact,  reasons  for  determi-
    13  nation,  length  of  suspension,  if any, procedures for appeal, and the
    14  date by which the appeal shall be  filed.    Where  the  basis  for  the
    15  suspension  is, in whole or in part, the possession on school grounds or
    16  school property by the student of any firearm, rifle,  shotgun,  dagger,
    17  dangerous  knife,  dirk,  razor, stiletto or any of the weapons, instru-
    18  ments or appliances specified in subdivision one of  section  265.01  of
    19  the penal law, the hearing officer or superintendent shall not be barred
    20  from  considering the admissibility of such weapon, instrument or appli-
    21  ance as evidence, notwithstanding a determination by a court in a crimi-
    22  nal or juvenile delinquency proceeding that the recovery of such weapon,
    23  instrument or appliance was the result of an unlawful search or seizure.
    24    [(2) Where a [pupil] student has been  suspended  in  accordance  with
    25  this  section  by  a board of education, the board may in its discretion
    26  hear and determine the proceeding or appoint a hearing officer who shall
    27  have the same powers and duties with respect to the board that a hearing
    28  officer has with respect to a superintendent where  the  suspension  was
    29  ordered  by  him or her. The findings and recommendations of the hearing
    30  officer conducting the proceeding shall be advisory and subject to final
    31  action by the board of education, each  member  of  which  shall  before
    32  voting  review  the  testimony  and acquaint himself or herself with the
    33  evidence in the case. The  board  may  reject,  confirm  or  modify  the
    34  conclusions of the hearing officer.
    35    d.]  e.  (1)  Consistent  with  the  federal gun-free schools act, any
    36  public school [pupil] student who is determined under  this  subdivision
    37  to  have  brought a firearm to or possessed a firearm at a public school
    38  shall be suspended for a period of not less than one calendar  year  and
    39  any  nonpublic  school  pupil  participating  in a program operated by a
    40  public school district using funds from  the  elementary  and  secondary
    41  education  act  of  nineteen  hundred sixty-five who is determined under
    42  this subdivision to have brought a firearm to or possessed a firearm  at
    43  a public school or other premises used by the school district to provide
    44  such  programs  shall  be  suspended  for  a period of not less than one
    45  calendar year from participation in such program. The procedures of this
    46  subdivision shall apply to such  a  suspension  of  a  nonpublic  school
    47  [pupil] student. A superintendent of schools, district superintendent of
    48  schools  or  community superintendent shall have the authority to modify
    49  this suspension requirement for each student on  a  case-by-case  basis.
    50  The  determination of a superintendent shall be subject to review by the
    51  board of education or trustees, other governing body, or the  chancellor
    52  of  the  city school district in the case of the city school district of
    53  the city of New York, pursuant to paragraph [c] d  of  this  subdivision
    54  and the commissioner pursuant to section three hundred ten of this chap-
    55  ter.  Nothing  in  this  subdivision  shall  be  deemed to authorize the
    56  suspension of a student with a disability in violation of  the  individ-

        S. 767--A                          10

     1  uals  with  disabilities  education  act  or article eighty-nine of this
     2  chapter. A superintendent shall refer the [pupil] student under the  age
     3  of  sixteen  who has been determined to have brought a weapon or firearm
     4  to school in violation of this subdivision to a presentment agency for a
     5  juvenile  delinquency  proceeding  consistent  with article three of the
     6  family court act except a student fourteen or fifteen years of  age  who
     7  qualifies  for  juvenile  offender status under subdivision forty-two of
     8  section 1.20 of the criminal procedure law. A superintendent shall refer
     9  any [pupil] student sixteen years of age or older or a student  fourteen
    10  or fifteen years of age who qualifies for juvenile offender status under
    11  subdivision forty-two of section 1.20 of the criminal procedure law, who
    12  has  been  determined  to  have brought a weapon or firearm to school in
    13  violation of this subdivision to the appropriate law  enforcement  offi-
    14  cials.
    15    (2)  Nothing  in this paragraph shall be deemed to mandate such action
    16  by a school district pursuant to subdivision one of this  section  where
    17  such  weapon or firearm is possessed or brought to school with the writ-
    18  ten authorization of such educational institution in a manner authorized
    19  by article two hundred  sixty-five  of  the  penal  law  for  activities
    20  approved  and  authorized by the trustees or board of education or other
    21  governing body of the public  school  and  such  governing  body  adopts
    22  appropriate safeguards to ensure student safety.
    23    (3) As used in this paragraph:
    24    (i)  "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    (ii)  "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    [e.] f. Procedure after suspension. Where a [pupil] student  has  been
    30  suspended  pursuant to this subdivision and said [pupil is of compulsory
    31  attendance age] student has the legal right to attend school,  immediate
    32  steps  shall  be  taken for his or her attendance upon instruction else-
    33  where [or for supervision or detention of said  pupil  pursuant  to  the
    34  provisions  of  article seven of the family court act].  Where a [pupil]
    35  student has been suspended for cause, the suspension may be  revoked  by
    36  the  board  of education or trustees, other governing body, or the chan-
    37  cellor of the city school district  in  the  case  of  the  city  school
    38  district of the city of New York, whenever it appears to be for the best
    39  interest  of  the  school and the [pupil] student to do so. The board of
    40  education may or trustees, the chancellor of the city school district in
    41  the case of the city school district for the city of New York, or  other
    42  governing  body,  also  condition a student's early return to school and
    43  suspension revocation on the [pupil's] student's voluntary participation
    44  in counseling or specialized  classes,  including  anger  management  or
    45  dispute resolution, where applicable.
    46    [f.]  g.  Whenever  the  term "board of education or superintendent of
    47  schools" is used in this subdivision, it  shall  be  deemed  to  include
    48  board  of  trustees,  other  governing  body, the chancellor of the city
    49  school district in the case of the city school district for the city  of
    50  New  York,  community  boards of education and community superintendents
    51  governing community districts in accordance with the provisions of arti-
    52  cle fifty-two-A of this chapter.
    53    [g.] h. Discipline of students with disabilities and students presumed
    54  to have a disability for discipline purposes.  (1)  Notwithstanding  any
    55  other  provision  of  this subdivision to the contrary, a student with a
    56  disability as such term is defined in section forty-four hundred one  of

        S. 767--A                          11

     1  this  chapter and a student presumed to have a disability for discipline
     2  purposes, may be suspended or removed from his  or  her  current  educa-
     3  tional  placement,  provided  that the suspension of such student is not
     4  prohibited  by  section  twenty-eight  hundred  one of this chapter, for
     5  violation of [school rules] the code of conduct only in accordance  with
     6  the  procedures  established  in  this  section,  the regulations of the
     7  commissioner implementing this paragraph, and subsection (k) of  section
     8  fourteen  hundred  fifteen of title twenty of the United States code and
     9  the federal regulations implementing such statute, as such  federal  law
    10  and regulations are from time to time amended. Nothing in this paragraph
    11  shall  be  construed  to confer greater rights on such students than are
    12  conferred under applicable federal law and regulations, or to limit  the
    13  ability  of  a  school district to change the educational placement of a
    14  student with a disability in accordance with the procedures  in  article
    15  eighty-nine of this chapter.
    16    (2) As used in this paragraph:
    17    [(1)]  (i)  a  "student  presumed  to have a disability for discipline
    18  purposes" shall mean a student who the school district is deemed to have
    19  knowledge was a student with  a  disability  before  the  behavior  that
    20  precipitated  disciplinary  action  under the criteria in subsection (k)
    21  (5) of section fourteen hundred fifteen of title twenty  of  the  United
    22  States code and the federal regulations implementing such statute; and
    23    (ii)  a  "manifestation  team"  means  a  representative of the school
    24  district, the parent  or  person  in  parental  relation,  and  relevant
    25  members  of  the  committee  on  special education, as determined by the
    26  parent or person in parental relation and the district.
    27    (3) In applying the federal law consistent with this section:
    28    (i) in the event of a conflict between the procedures  established  in
    29  this section and those established in subsection (k) of section fourteen
    30  hundred fifteen of title twenty of the United States code and the feder-
    31  al regulations implementing such statute, such federal statute and regu-
    32  lations shall govern.
    33    (ii)  the  board  of  trustees  or  board  of  education of any school
    34  district, other governing  body,  the  chancellor  of  the  city  school
    35  district  of  the city of New York, a district superintendent of schools
    36  or a building principal shall have authority, provided  that  suspension
    37  of  such  student is not prohibited by paragraph c of subdivision two of
    38  section twenty-eight hundred one of this chapter, to order the placement
    39  of a student with a disability into an appropriate  interim  alternative
    40  educational  setting,  another  setting or suspension, provided that the
    41  suspension of such student is not  prohibited  by  section  twenty-eight
    42  hundred one of this chapter, for a period not to exceed five consecutive
    43  school days where such student is suspended pursuant to this subdivision
    44  and,  except  as otherwise provided in clause (vi) of this subparagraph,
    45  the suspension does not result in a change in  placement  under  federal
    46  law.
    47    (iii)  the  superintendent  of  schools  of  a school district, either
    48  directly or upon recommendation of a hearing officer designated pursuant
    49  to paragraph c of this subdivision, may order the placement of a student
    50  with a disability  into  an  interim  alternative  educational  setting,
    51  another  setting  or  suspension,  provided  that the suspension of such
    52  student is not prohibited by section twenty-eight hundred  one  of  this
    53  chapter,  for up to ten consecutive school days, inclusive of any period
    54  in which the student is placed in  an  appropriate  interim  alternative
    55  educational  setting,  another  setting or suspension pursuant to clause
    56  (ii) of this subparagraph for the  behavior,  where  the  superintendent

        S. 767--A                          12

     1  determines  in accordance with the procedures set forth in this subdivi-
     2  sion that the student has engaged in behavior that  warrants  a  suspen-
     3  sion,  and, except as otherwise provided in clause (vi) of this subpara-
     4  graph,  the  suspension  does  not result in a change in placement under
     5  federal law.
     6    (iv) the superintendent  of  schools  of  a  school  district,  either
     7  directly or upon recommendation of a hearing officer designated pursuant
     8  to paragraph c of this subdivision, may order the change in placement of
     9  a  student  with  a  disability  to  an  interim alternative educational
    10  setting for up to forty-five school days under the circumstances  speci-
    11  fied  in  subsection  (k)(1)(G)  of  section fourteen hundred fifteen of
    12  title twenty of the United  States  code  and  the  federal  regulations
    13  implementing such statute or a longer period where authorized by federal
    14  law under the circumstances specified in subsection (k)(1)(C) of section
    15  fourteen  hundred  fifteen of title twenty of the United States code and
    16  the federal regulations implementing such statute, but in  neither  case
    17  shall  such  period  exceed the period of suspension ordered by a super-
    18  intendent in accordance with this subdivision, provided that the suspen-
    19  sion of such student is not prohibited by section  twenty-eight  hundred
    20  one of this chapter.
    21    (v)  the  terms  "day,"  "business  day," and "school day" shall be as
    22  defined in section 300.11 of title thirty-four of the  code  of  federal
    23  regulations.
    24    (vi)  notwithstanding  any  other provision of this subdivision to the
    25  contrary, upon a determination by a manifestation team that the behavior
    26  of a student with a disability was not a manifestation of the  student's
    27  disability,  such student may be disciplined pursuant to this section in
    28  the same manner and for the same  duration  as  a  nondisabled  student,
    29  except  that  such  student  shall  continue  to receive services to the
    30  extent required under federal law and regulations, and such services may
    31  be provided in an interim alternative educational setting, provided that
    32  the suspension of such student is not prohibited by section twenty-eight
    33  hundred one of this chapter.
    34    (vii) an impartial hearing officer appointed pursuant  to  subdivision
    35  one  of  section  forty-four  hundred  four  of this chapter may order a
    36  change in placement of a student with a  disability  to  an  appropriate
    37  interim  alternative  educational  setting  for not more than forty-five
    38  school days under the circumstances specified in subsections (k)(3)  and
    39  (k)(4) of section fourteen hundred fifteen of title twenty of the United
    40  States  code  and  the  federal  regulations implementing such statutes,
    41  provided that such procedure may be  repeated,  as  necessary,  provided
    42  that  the  suspension of such student is not prohibited by section twen-
    43  ty-eight hundred one of this chapter.
    44    (viii) nothing in this section shall be  construed  to  authorize  the
    45  suspension  or  removal  of  a student with a disability from his or her
    46  current educational placement for violation of school rules following  a
    47  determination  by a manifestation team that the behavior is a manifesta-
    48  tion of the student's disability, except as authorized under federal law
    49  and regulations.
    50    (ix) the commissioner shall implement this paragraph by adopting regu-
    51  lations which coordinate  the  procedures  required  for  discipline  of
    52  students  with  disabilities, and students presumed to have a disability
    53  for discipline purposes, pursuant to subsection (k) of section  fourteen
    54  hundred fifteen of title twenty of the United States code and the feder-
    55  al  regulations  implementing  such statute, with the general procedures
    56  for student discipline under this section.

        S. 767--A                          13

     1    [3-a.] i.  When a student is suspended  from  school  consistent  with
     2  this  section  and section twenty-eight hundred one of this chapter, the
     3  principal,  or  the  principal's  designee,  in  consultation  with  the
     4  student's  teachers,  shall within twenty-four hours create an education
     5  plan  for  the  student for each class in which the student is enrolled,
     6  provided that if such twenty-four hour period does not end on  a  school
     7  day,  it  shall be extended to the corresponding time on the next school
     8  day. The education plan shall make provisions for a  student's  on-going
     9  academic  instruction  during the suspension and shall include the steps
    10  the school will take to provide the student with a  successful  re-entry
    11  to  school.  The student shall have the opportunity to earn all academic
    12  credit he or she would have been eligible to earn had he or she been  in
    13  class,  including  the opportunity to complete any missed assignments or
    14  take any missed examination or assessments during the student's  suspen-
    15  sion. If an examination or assessment cannot be rescheduled, the student
    16  shall  be allowed on school property to take such assessment or examina-
    17  tion on the day and time that the assessment or examination is given.
    18    3. Teacher removal of a [disruptive pupil] student.  In addition,  any
    19  teacher shall have the power and authority to remove a [disruptive pupil
    20  as  defined  in  subdivision  two-a  of this section,] student from such
    21  teacher's classroom consistent with discipline measures contained in the
    22  code of conduct adopted by the board pursuant  to  section  twenty-eight
    23  hundred  one  of  this  chapter. Such classroom removal shall not exceed
    24  one-half school day on the same school day. The  school  authorities  of
    25  any school district, board of cooperative educational services, or char-
    26  ter  school  shall  establish  policies  and  procedures  to  ensure the
    27  provision  of  continued  educational  programming  and  activities  for
    28  students  removed  from  the classroom pursuant to this subdivision [and
    29  provided further that nothing]. When  a  student  is  removed  from  the
    30  classroom,  the  student shall have the opportunity to earn all academic
    31  credit including the opportunity to complete any missed  assignments  or
    32  take  any  missed  examinations  or  assessments  during  the  student's
    33  removal. If an examination or  assessment  cannot  be  rescheduled,  the
    34  student  shall  be allowed on school property to take such assessment or
    35  examination on the day and time that the assessment  or  examination  is
    36  given.  Nothing  in  this  subdivision  shall authorize the removal of a
    37  [pupil] student in violation of any state or federal law or  regulation.
    38  No  [pupil]  student  shall  return to the classroom until the principal
    39  makes a final determination pursuant to paragraph c of this subdivision,
    40  or the period of removal expires, whichever is less.
    41    a. Such teacher shall inform the [pupil] student and the school  prin-
    42  cipal  of  the  reasons  for  the removal. If the teacher finds that the
    43  [pupil's] student's continued presence in the classroom does not pose  a
    44  continuing danger to persons or property and does not present an ongoing
    45  threat  of  disruption to the academic process, the teacher shall, prior
    46  to removing the student from the classroom, provide the student with  an
    47  explanation  of  the basis for the removal and allow the [pupil] student
    48  to informally  present  the  [pupil's]  student's  version  of  relevant
    49  events.  In  all  other  cases,  the  teacher  shall provide the [pupil]
    50  student with an explanation of the basis for the removal and an informal
    51  opportunity to be  heard  within  twenty-four  hours  of  the  [pupil's]
    52  student's  removal,  provided  that if such twenty-four hour period does
    53  not end on a school day, it shall be extended to the corresponding  time
    54  on the next school day.
    55    b.  The  principal  shall  inform  the  parent  or  person in parental
    56  relation to such [pupil] student of the removal and the reasons therefor

        S. 767--A                          14

     1  within twenty-four hours of the [pupil's]  student's  removal,  provided
     2  that  if  such  twenty-four hour period does not end on a school day, it
     3  shall be extended to the corresponding time on the next school day.  The
     4  [pupil]  student  and  the  parent or person in parental relation shall,
     5  upon request, be given an opportunity for an  informal  conference  with
     6  the  principal  to  discuss  the reasons for the removal. If the [pupil]
     7  student denies the charges, the principal shall provide  an  explanation
     8  of the basis for the removal and allow the [pupil] student and/or person
     9  in  parental  relation  to the [pupil] student an opportunity to present
    10  the [pupil's] student's version of relevant events. Such informal [hear-
    11  ing] conference shall be held within forty-eight hours of the  [pupil's]
    12  student's  removal,  provided  that if such forty-eight hour period does
    13  not end on a school day, it shall be extended to the corresponding  time
    14  on the second school day next following the [pupil's] student's removal.
    15  For  purposes  of this subdivision, "school day" shall mean a school day
    16  as defined pursuant to clause (v) of subparagraph three of  paragraph  g
    17  of subdivision three of this section.
    18    c.  The  principal  shall  not set aside the discipline imposed by the
    19  teacher unless the principal finds that the charges against the  [pupil]
    20  student  are not supported by substantial evidence or that the [pupil's]
    21  student's removal is otherwise in violation of law or that  the  conduct
    22  warrants  suspension  from school pursuant to this section and a suspen-
    23  sion will be imposed.  The principal's determination  made  pursuant  to
    24  this  paragraph  shall  be  made  by  the  close  of business on the day
    25  succeeding the forty-eight hour period for an informal hearing contained
    26  in paragraph b of this subdivision.
    27    d. The principal may, in his or her  discretion,  designate  a  school
    28  district administrator, to carry out the functions required of the prin-
    29  cipal under this subdivision.
    30    4.  Expense.  [a.]  The  expense attending the commitment and costs of
    31  maintenance of any [school delinquent] student placed as a result  of  a
    32  finding  related  to  school  or  educational  issues  shall be a charge
    33  against the city or district where he or she resides, if  such  city  or
    34  district  employs  a  superintendent of schools; otherwise it shall be a
    35  county charge.
    36    [b. The school authorities may institute proceedings  before  a  court
    37  having  jurisdiction  to determine the liability of a person in parental
    38  relation to contribute towards the maintenance of  a  school  delinquent
    39  under  sixteen  years  of  age  ordered to attend upon instruction under
    40  confinement. If the court shall find the  person  in  parental  relation
    41  able to contribute towards the maintenance of such a minor, it may issue
    42  an order fixing the amount to be paid weekly.]
    43    5. Involuntary transfers of [pupils] students who have not been deter-
    44  mined  to be a student with a disability or a student presumed to have a
    45  disability for discipline purposes.
    46    a. The board of education[, board of] or trustees [or sole  trustee,],
    47  the  chancellor  of  the  city  school  district in the case of the city
    48  school district of New York, other governing body, the superintendent of
    49  schools, or district superintendent of schools may  transfer  a  [pupil]
    50  student who has not been determined to be a student with a disability as
    51  defined  in section forty-four hundred one of this chapter, or a student
    52  presumed to have a disability for  discipline  purposes  as  defined  in
    53  paragraph  g of subdivision three of this section from regular classroom
    54  instruction to an appropriate educational setting in another school upon
    55  the written recommendation of the school principal and  following  inde-
    56  pendent review thereof. For purposes of this section of the law, "invol-

        S. 767--A                          15

     1  untary  transfer"  does not include a transfer made by a school district
     2  as part of a plan to reduce racial imbalance within the schools or as  a
     3  change in school attendance zones or geographical boundaries.
     4    b.  A  school principal may initiate a non-requested transfer where it
     5  is believed that such a [pupil] student would benefit from the transfer,
     6  or when the [pupil] student would receive an  adequate  and  appropriate
     7  education in another school program or facility.
     8    No  recommendation  for [pupil] student transfer shall be initiated by
     9  the principal until such [pupil] student  and  a  parent  or  person  in
    10  parental  relation  has  been sent written notification of the consider-
    11  ation of transfer recommendation. Such notice shall set a time and place
    12  of an informal conference with  the  principal  and  shall  inform  such
    13  parent  or person in parental relation and such [pupil] student of their
    14  right to be accompanied by counsel or an individual of their choice.
    15    c. After the conference  and  if  the  principal  concludes  that  the
    16  [pupil]  student  would  benefit  from  a  transfer  or that the [pupil]
    17  student would receive an adequate and appropriate education  in  another
    18  school  program or facility, the principal may issue a recommendation of
    19  transfer to the superintendent.  Such  recommendation  shall  include  a
    20  description  of behavior and/or academic problems indicative of the need
    21  for transfer; a description of alternatives explored  and  prior  action
    22  taken to resolve the problem. A copy of that letter shall be sent to the
    23  parent or person in parental relation and to the [pupil] student.
    24    d.  Upon  receipt of the principal's recommendation for transfer and a
    25  determination to consider that recommendation, the superintendent  shall
    26  notify the parent or person in parental relation and the [pupil] student
    27  of  the  proposed  transfer  and  of  their  right  to a fair hearing as
    28  provided in paragraph c of subdivision three of this section  and  shall
    29  list  community  agencies  and  free  legal  assistance  which may be of
    30  assistance. The written  notice  shall  include  a  statement  that  the
    31  [pupil] student or parent or person in parental relation has ten days to
    32  request  a hearing and that the proposed transfer shall not take effect,
    33  except upon written parental consent,  until  the  ten  day  period  has
    34  elapsed,  or, if a fair hearing is requested, until after a formal deci-
    35  sion following the hearing is rendered, whichever is later.
    36    Parental consent to a transfer shall not constitute a  waiver  of  the
    37  right to a fair hearing.
    38    6.  Transfer  of a [pupil] student.  Where a suspended [pupil] student
    39  is to be transferred pursuant to subdivision five of this section, he or
    40  she shall remain on the register of the original school for  two  school
    41  days  following transmittal of his or her records to the school to which
    42  he or she is to be transferred. The receiving school  shall  immediately
    43  upon  receiving those records transmitted by the original school, review
    44  them to insure proper placement of the [pupil] student.   Staff  members
    45  who  are  involved in the [pupil's] student's education must be provided
    46  with pertinent records and information relating to  the  background  and
    47  problems  of the [pupil] student before the [pupil] student is placed in
    48  a classroom.
    49    7.  Transfer  of  disciplinary  records.  Notwithstanding  any   other
    50  provision of law to the contrary, each local educational agency, as such
    51  term  is  defined in subsection thirty of section eighty-one hundred one
    52  of the Elementary and Secondary Education Act of 1965, as amended, shall
    53  establish procedures in  accordance  with  section  eighty-five  hundred
    54  thirty-seven  of  the Elementary and Secondary Education Act of 1965, as
    55  amended, and the Family Educational Rights and Privacy Act of  1974,  to
    56  facilitate  the transfer of disciplinary records relating to the suspen-

        S. 767--A                          16

     1  sion or expulsion of a student to any public or nonpublic elementary  or
     2  secondary  school  in which such student enrolls or seeks, intends or is
     3  instructed to enroll, on a full-time or part-time basis.
     4    § 5. Subparagraph 1 of paragraph c of subdivision 3 of section 3214 of
     5  the  education  law,  as  amended by chapter 380 of the laws of 2001, is
     6  amended to read as follows:
     7    [(1)] d. The board of education or trustees,  the  chancellor  of  the
     8  city school district in the case of the city school district of the city
     9  of  New  York,  other  governing  body,  superintendent  of  schools, or
    10  district superintendent of schools, shall have the power  to  suspend  a
    11  student for a period not to exceed twenty school days, provided that the
    12  suspension  of such student is not prohibited by paragraph c of subdivi-
    13  sion two of section twenty-eight hundred one of this chapter. No [pupil]
    14  student may be suspended for a period in  excess  of  five  school  days
    15  unless  such  [pupil]  student  and  the  parent  or  person in parental
    16  relation to such [pupil] student shall have had  an  opportunity  for  a
    17  fair hearing, upon reasonable written notice[, at which] shall include a
    18  brief  description of the facts upon which the alleged violations of the
    19  code of conduct are based, the section of the code of conduct  that  the
    20  student is alleged to have violated, and the date, time and place of the
    21  hearing.  Prior  to  the  hearing,  copies of all evidence regarding the
    22  alleged incident shall be provided to the student and parent  or  person
    23  in parental relation to the student. The hearing shall be convened with-
    24  in  five  days  of  the  written  notice, unless the parent or person in
    25  parental relation to the student or student requests a  later  date.  At
    26  the hearing, such [pupil] student shall have the right of representation
    27  by  [counsel]  an  attorney  or  advocate, with the right to request the
    28  presence of and to question witnesses against such [pupil]  student  and
    29  to  request  the presence of and present witnesses and other evidence on
    30  his or her behalf. Where a [pupil] student has been suspended in accord-
    31  ance with this subdivision [by a], the board of education  or  trustees,
    32  the  chancellor  of  the  city  school  district in the case of the city
    33  school district of the city of New York, other  governing  body,  super-
    34  intendent  of  schools, district superintendent of schools, or community
    35  superintendent[, the superintendent] shall personally hear and determine
    36  the proceeding or may, in his or her  discretion,  designate  a  hearing
    37  officer  to  conduct the hearing. The entity or individual that conducts
    38  the hearing [officer] shall be authorized to  administer  oaths  and  to
    39  issue  subpoenas  in  conjunction  with the proceeding [before him].   A
    40  record of the hearing shall be maintained,  but  no  stenographic  tran-
    41  script shall be required and [a tape] an audio recording shall be deemed
    42  a  satisfactory record. The entity or individual that conducts the hear-
    43  ing [officer] shall make written findings of fact based on a  preponder-
    44  ance  of the evidence and shall make recommendations as to the appropri-
    45  ate measure of discipline [to the superintendent] if any.  The report of
    46  the hearing officer shall be advisory only, and the board  of  education
    47  or  trustees,  the chancellor of the city school district in the case of
    48  the city school district of the city of New York, other governing  body,
    49  superintendent  of  schools  or  district  superintendent of schools may
    50  accept all or any part thereof. [An appeal will lie from the decision of
    51  the superintendent to the board of education who shall make its decision
    52  solely upon the record before it. The board may adopt  in  whole  or  in
    53  part  the decision of the superintendent of schools] The board of educa-
    54  tion or trustees, the chancellor of the city school district in the case
    55  of the city school district of the city of  New  York,  other  governing
    56  body,  superintendent  of schools, or district superintendent of schools

        S. 767--A                          17

     1  shall issue a written decision to the school and  parent  or  person  in
     2  parental  relation  to the student within three days of the hearing. The
     3  written decision shall state the length of suspension, if any,  findings
     4  of fact, reasons for determination, length of suspension, if any, proce-
     5  dures  for  appeal,  and  the  date  by which the appeal shall be filed.
     6  Where the basis for  the  suspension  is,  in  whole  or  in  part,  the
     7  possession  on  school  grounds or school property by the student of any
     8  firearm, rifle, shotgun, dagger, dangerous knife, dirk, razor,  stiletto
     9  or  any  of the weapons, instruments or appliances specified in subdivi-
    10  sion one of section 265.01 of the penal  law,  the  hearing  officer  or
    11  superintendent shall not be barred from considering the admissibility of
    12  such  weapon,  instrument  or  appliance  as evidence, notwithstanding a
    13  determination by a court in a criminal or juvenile delinquency  proceed-
    14  ing  that  the  recovery of such weapon, instrument or appliance was the
    15  result of an unlawful search or seizure.
    16    § 6. Paragraphs d and f of subdivision 3 of section 3214 of the educa-
    17  tion law, as amended by chapter 181 of the laws of 2000, are amended  to
    18  read as follows:
    19    [d.]  e.  Consistent with the federal gun-free schools act of nineteen
    20  hundred ninety-four, any public school [pupil] student who is determined
    21  under this subdivision to have brought  a  weapon  to  school  shall  be
    22  suspended  for  a  period  of  not  less  than one calendar year and any
    23  nonpublic school [pupil] student participating in a program operated  by
    24  a  public  school district using funds from the elementary and secondary
    25  education act of nineteen hundred sixty-five  who  is  determined  under
    26  this  subdivision  to  have brought a weapon to a public school or other
    27  premises used by the school district to provide such programs  shall  be
    28  suspended  for  a period of not less than one calendar year from partic-
    29  ipation in such program. The procedures of this subdivision shall  apply
    30  to  such  a  suspension  of a nonpublic school [pupil] student. A super-
    31  intendent of schools, district superintendent of  schools  or  community
    32  superintendent  shall  have  the  authority  to  modify  this suspension
    33  requirement for each student on a case-by-case basis. The  determination
    34  of a superintendent shall be subject to review by the board of education
    35  or  trustees, other governing body, or the chancellor of the city school
    36  district in the case of the city school district  of  the  city  of  New
    37  York,  pursuant  to paragraph c of this subdivision and the commissioner
    38  pursuant to section three hundred ten of this chapter. Nothing  in  this
    39  subdivision  shall  be  deemed  to authorize the suspension of a student
    40  with a disability in violation  of  the  individuals  with  disabilities
    41  education  act  or article eighty-nine of this chapter. A superintendent
    42  shall refer the [pupil] student under the age of sixteen  who  has  been
    43  determined  to  have  brought  a  weapon  to school in violation of this
    44  subdivision to a presentment agency for a juvenile delinquency  proceed-
    45  ing  consistent  with  article  three  of  the family court act except a
    46  student fourteen or fifteen years of  age  who  qualifies  for  juvenile
    47  offender status under subdivision forty-two of section 1.20 of the crim-
    48  inal  procedure  law.  A  superintendent shall refer any [pupil] student
    49  sixteen years of age or older or a student fourteen or fifteen years  of
    50  age  who qualifies for juvenile offender status under subdivision forty-
    51  two of section 1.20 of the criminal procedure law, who has  been  deter-
    52  mined  to  have brought a weapon to school in violation of this subdivi-
    53  sion to the appropriate law enforcement officials.
    54    [f.] g. Whenever the term "board of  education  or  superintendent  of
    55  schools"  is  used  in  this  subdivision, it shall be deemed to include
    56  board of trustees, other governing body,  the  chancellor  of  the  city

        S. 767--A                          18

     1  school  district in the case of the city school district for the city of
     2  New York, community boards of education  and  community  superintendents
     3  governing community districts in accordance with the provisions of arti-
     4  cle  fifty-two-A  of  this chapter. For the purpose of this subdivision,
     5  the term "weapon" means a firearm as such term  is  defined  in  section
     6  nine hundred twenty-one of title eighteen of the United States code.
     7    §  7.  Paragraph  g  of subdivision 3 of section 3214 of the education
     8  law, as amended by chapter 181 of the  laws  of  2000,  clause  (ii)  of
     9  subparagraph 3 as amended by chapter 380 of the laws of 2001, is amended
    10  to read as follows:
    11    [g.] h. Discipline of students with disabilities and students presumed
    12  to  have  a  disability for discipline purposes. (1) Notwithstanding any
    13  other provision of this subdivision to the contrary, a  student  with  a
    14  disability  as such term is defined in section forty-four hundred one of
    15  this chapter and a student presumed to have a disability for  discipline
    16  purposes,  may  be  suspended  or removed from his or her current educa-
    17  tional placement, provided that the suspension of such  student  is  not
    18  prohibited  by  section  twenty-eight  hundred  one of this chapter, for
    19  violation of school rules only in accordance with the procedures  estab-
    20  lished in this section, the regulations of the commissioner implementing
    21  this  paragraph,  and subsection (k) of section fourteen hundred fifteen
    22  of title twenty of the United States code and  the  federal  regulations
    23  implementing  such statute, as such federal law and regulations are from
    24  time to time amended. Nothing in this paragraph shall  be  construed  to
    25  confer greater rights on such students than are conferred under applica-
    26  ble  federal  law  and  regulations, or to limit the ability of a school
    27  district to change the educational placement of a student with  a  disa-
    28  bility  in accordance with the procedures in article eighty-nine of this
    29  chapter.
    30    (2) As used in this paragraph, a "student presumed to have a disabili-
    31  ty for discipline purposes" shall mean a student who the school district
    32  is deemed to have knowledge was a student with a disability  before  the
    33  behavior  that  precipitated  disciplinary  action under the criteria in
    34  subsection (k)(8) of section fourteen hundred fifteen of title twenty of
    35  the United States code and the  federal  regulations  implementing  such
    36  statute.
    37    (3) In applying the federal law consistent with this section:
    38    (i)  in  the event of a conflict between the procedures established in
    39  this section and those established in subsection (k) of section fourteen
    40  hundred fifteen of title twenty of the United States code and the feder-
    41  al regulations implementing such statute, such federal statute and regu-
    42  lations shall govern.
    43    (ii) the board of  trustees  or  board  of  education  of  any  school
    44  district,  other  governing  body,  the  chancellor  of  the city school
    45  district in the case of the city school district  of  the  city  of  New
    46  York, a district superintendent of schools or a building principal shall
    47  have  authority,  provided  that  the  suspension of such student is not
    48  prohibited by section twenty-eight hundred one of this chapter, to order
    49  the placement of a student with a disability into an appropriate interim
    50  alternative educational setting, another setting  or  suspension  for  a
    51  period  not to exceed five consecutive school days where such student is
    52  suspended pursuant to this subdivision and, except as otherwise provided
    53  in clause (vi) of this subparagraph, the suspension does not result in a
    54  change in placement under federal law.
    55    (iii) the superintendent of  schools  of  a  school  district,  either
    56  directly or upon recommendation of a hearing officer designated pursuant

        S. 767--A                          19

     1  to paragraph c of this subdivision, may order the placement of a student
     2  with  a  disability  into  an  interim  alternative educational setting,
     3  another setting or suspension for up to  ten  consecutive  school  days,
     4  inclusive of any period in which the student is placed in an appropriate
     5  interim alternative educational placement, another setting or suspension
     6  pursuant to clause (ii) of this subparagraph for the behavior, where the
     7  superintendent determines in accordance with the procedures set forth in
     8  this  subdivision that the student has engaged in behavior that warrants
     9  a suspension, and, except as otherwise provided in clause (vi)  of  this
    10  subparagraph,  the  suspension  does not result in a change in placement
    11  under federal law, provided that the suspension of such student  is  not
    12  prohibited by section twenty-eight hundred one of this chapter.
    13    (iv)  the  superintendent  of  schools  of  a  school district, either
    14  directly or upon recommendation of a hearing officer designated pursuant
    15  to paragraph c of this subdivision, may order the change in placement of
    16  a student with  a  disability  to  an  interim  alternative  educational
    17  setting  for  up  to  forty-five  days,  but not to exceed the period of
    18  suspension ordered by a superintendent in accordance with this  subdivi-
    19  sion,  under the circumstances specified in subsection (k)(1) of section
    20  fourteen hundred fifteen of title twenty of the United States  code  and
    21  the  federal  regulations  implementing  such statute, provided that the
    22  suspension of such student is not  prohibited  by  section  twenty-eight
    23  hundred one of this chapter.
    24    (v)  the  terms  "day,"  "business  day," and "school day" shall be as
    25  defined in section 300.9 of title thirty-four of  the  code  of  federal
    26  regulations.
    27    (vi)  notwithstanding  any  other provision of this subdivision to the
    28  contrary, upon a determination by the  committee  on  special  education
    29  that the behavior of a student with a disability was not a manifestation
    30  of the student's disability, such student may be disciplined pursuant to
    31  this  section  in  the same manner as a nondisabled student, except that
    32  such student shall continue to receive services to the  extent  required
    33  under  federal law and regulations, provided that the suspension of such
    34  student is not prohibited by section twenty-eight hundred  one  of  this
    35  chapter.
    36    (vii)  an  impartial hearing officer appointed pursuant to subdivision
    37  one of section forty-four hundred four  of  this  chapter  may  order  a
    38  change  in  placement  of  a student with a disability to an appropriate
    39  interim alternative educational setting for  not  more  than  forty-five
    40  days  under the circumstances specified in subsections (k)(2) and (k)(7)
    41  of section fourteen hundred fifteen of title twenty of the United States
    42  code and the federal regulations implementing  such  statutes,  provided
    43  that  such  procedure  may  be repeated, as necessary, provided that the
    44  suspension of such student is not  prohibited  by  section  twenty-eight
    45  hundred one of this chapter.
    46    (viii)  nothing  in  this  section shall be construed to authorize the
    47  suspension or removal of a student with a disability  from  his  or  her
    48  current  educational placement for violation of school rules following a
    49  determination by the committee on special education that the behavior is
    50  a manifestation of the student's disability, except as authorized  under
    51  federal law and regulations.
    52    (ix) the commissioner shall implement this paragraph by adopting regu-
    53  lations  which  coordinate  the  procedures  required  for discipline of
    54  students with disabilities, and students presumed to have  a  disability
    55  for  discipline purposes, pursuant to subsection (k) of section fourteen
    56  hundred fifteen of title twenty of the United States code and the feder-

        S. 767--A                          20

     1  al regulations implementing such statute, with  the  general  procedures
     2  for student discipline under this section.
     3    §  8.  Paragraphs a, b and c of subdivision 3-a of section 3214 of the
     4  education law, as added by chapter 181 of the laws of 2000, are  amended
     5  to read as follows:
     6    a.  Such teacher shall inform the [pupil] student and the school prin-
     7  cipal of the reasons for the removal. If  the  teacher  finds  that  the
     8  [pupil's]  student's continued presence in the classroom does not pose a
     9  continuing danger to persons or property and does not present an ongoing
    10  threat of disruption to the academic process, the teacher  shall,  prior
    11  to  removing the student from the classroom, provide the student with an
    12  explanation of the basis for the removal and allow the  [pupil]  student
    13  to  informally  present  the  [pupil's]  student's  version  of relevant
    14  events. In all other  cases,  the  teacher  shall  provide  the  [pupil]
    15  student with an explanation of the basis for the removal and an informal
    16  opportunity  to  be  heard  within  twenty-four  hours  of the [pupil's]
    17  student's removal.
    18    b. The principal  shall  inform  the  parent  or  person  in  parental
    19  relation to such [pupil] student of the removal and the reasons therefor
    20  within twenty-four hours of the [pupil's] student's removal. The [pupil]
    21  student  and  the  parent  or  person  in  parental relation shall, upon
    22  request, be given an opportunity for an  informal  conference  with  the
    23  principal to discuss the reasons for the removal. If the [pupil] student
    24  denies  the  charges,  the principal shall provide an explanation of the
    25  basis for the removal and allow the [pupil]  student  and/or  parent  or
    26  person  in  parental  relation  to the [pupil] student an opportunity to
    27  present  the  [pupil's]  student's  version  of  relevant  events.  Such
    28  informal  [hearing] conference shall be held within forty-eight hours of
    29  the [pupil's] student's removal.
    30    c. The principal shall not set aside the  discipline  imposed  by  the
    31  teacher  unless the principal finds that the charges against the [pupil]
    32  student are not supported by substantial evidence or that the  [pupil's]
    33  student's  removal  is otherwise in violation of law or that the conduct
    34  warrants suspension from school pursuant to this section and  a  suspen-
    35  sion  will  be imposed.   The principal's determination made pursuant to
    36  this paragraph shall be made  by  the  close  of  business  on  the  day
    37  succeeding the forty-eight hour period for an informal hearing contained
    38  in paragraph b of this subdivision.
    39    §  9.  This act shall take effect September 1, 2020; provided, however
    40  that:
    41    a. the amendments to subdivision 3 of section 2801  of  the  education
    42  law  made  by section two of this act shall be subject to the expiration
    43  and reversion of such subdivision pursuant to section 34 of  chapter  91
    44  of  the  laws of 2002, as amended, when upon such date the provisions of
    45  section three of this act shall take effect;
    46    b. the amendments to subparagraph 1 of paragraph c of subdivision 3 of
    47  section 3214 of the education law made by section four of this act shall
    48  be subject to the expiration and reversion of such subparagraph pursuant
    49  to subdivision (a) of section 8 of chapter 430 of the laws of  2006,  as
    50  amended,  when upon such date the provisions of section five of this act
    51  shall take effect;
    52    c. the amendments to paragraphs d and f of subdivision  3  of  section
    53  3214  of  the  education  law  made by section four of this act shall be
    54  subject to the expiration and reversion of such paragraphs  pursuant  to
    55  section 4 of chapter 425 of the laws of 2002, as amended, when upon such
    56  date the provisions of section six of this act shall take effect;

        S. 767--A                          21

     1    d.  the  amendments to paragraph g of subdivision 3 of section 3214 of
     2  the education law made by section four of this act shall be  subject  to
     3  the expiration and reversion of such paragraph pursuant to section 22 of
     4  chapter  352  of  the  laws of 2005, as amended, when upon such date the
     5  provisions of section seven of this act shall take effect;
     6    e.  the  amendments  to  paragraphs  a,  b and c of subdivision 3-a of
     7  section 3214 of the education law made by section four of this act shall
     8  be subject to the expiration and reversion of such  paragraphs  pursuant
     9  to  section 12 of chapter 147 of the laws of 2001, as amended, when upon
    10  such date the provisions of section eight of this act shall take effect;
    11  and
    12    f. the amendments to subdivision 7 of section 3214  of  the  education
    13  law,  made  by  section four of this act, shall not affect the repeal of
    14  such subdivision and shall be deemed repealed therewith.
feedback