Bill Text: NY S00767 | 2019-2020 | General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft
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 22-0)

Status: (Introduced - Dead) 2020-01-08 - REFERRED TO EDUCATION [S00767 Detail]

Download: New_York-2019-S00767-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                           767
                               2019-2020 Regular Sessions
                    IN SENATE
                                       (Prefiled)
                                     January 9, 2019
                                       ___________
        Introduced  by  Sen.  MONTGOMERY  -- read twice and ordered printed, and
          when printed to be committed to the Committee on Education
        AN ACT to amend the education law, in relation  to  school  climate  and
          codes  of conduct on school property and disciplinary action following
          violation of such codes of conduct; and to amend the education law, in
          relation to making conforming amendments
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section  1. Section 2801 of the education law, as added by chapter 181
     2  of the laws of 2000, subdivision 1 as amended by chapter 402 of the laws
     3  of 2005, the opening paragraph, paragraph a and paragraph c of  subdivi-
     4  sion 2 and paragraph a of subdivision 5 as amended by chapter 380 of the
     5  laws  of 2001, paragraphs l and m as amended and paragraph n of subdivi-
     6  sion 2 as added by chapter 482 of the laws of 2010, and subdivision 3 as
     7  amended by chapter 123 of the laws  of  2003,  is  amended  to  read  as
     8  follows:
     9    §  2801. [Codes] School climate and codes of conduct on school proper-
    10  ty. 1.  a. The board of education or board of trustees of  every  school
    11  district  or  the  chancellor of the city school district in the case of
    12  the city school district of the city of New York,  and  every  board  of
    13  cooperative  educational  services  and charter school shall promote and
    14  sustain a safe, inclusive, civil, and respectful school environment  for
    15  school  personnel,  students,  and  visitors  on  school property and at
    16  school functions through prevention, intervention, and  discipline  that
    17  supports  education  and  learning; promotes positive behaviors; reduces
    18  the disparate impact of discipline; holds students accountable for their
    19  behavior; and keeps students in school and class.
    20    b. (1) Every school shall establish prevention programs  and  services
    21  that  may  include school-based initiatives and individual interventions
    22  that promote a safe and secure environment for  all  persons  on  school
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02878-01-9

        S. 767                              2
     1  property  or  at school functions, and restorative practices designed to
     2  promote  social  and  emotional  learning,  resolve  student  behavioral
     3  issues, and keep students in school and in class.
     4    (2)  Every  school  shall  use  interventions and supports that assist
     5  students in developing social and emotional competencies such  as  self-
     6  management, self-awareness, responsible decision-making, conflict resol-
     7  ution, and refocusing on learning.
     8    (3)  Every  school  shall  have,  and support teachers in maintaining,
     9  classrooms and classroom practices that support each student's  opportu-
    10  nity to obtain an education, that develop each student's social-emotion-
    11  al skills, and that are healthy, safe, and inclusive.
    12    (4)  Every  school  shall  ensure  pre-service  and annual training in
    13  accordance with this section for all school personnel,  law  enforcement
    14  and   public   or  private  security  personnel  employed,  retained  or
    15  contracted with a school district or charter school regarding  the  code
    16  of  conduct, and the use of interventions, positive school climate prac-
    17  tices, graduated and  proportionate  discipline,  and  disparities  that
    18  exist in discipline.
    19    (5) Every school shall define the roles and areas of responsibility of
    20  school  personnel, security personnel and law enforcement in response to
    21  student misconduct that violates the code of conduct. A school  district
    22  or charter school that employs, contracts with, or otherwise retains law
    23  enforcement  or  public  or private security personnel, including school
    24  resource officers, shall establish a written contract or  memorandum  of
    25  understanding that is developed with stakeholder input including but not
    26  limited  to: parents, students, school administrators, teachers, collec-
    27  tive bargaining  units,  parent  and  student  organizations,  community
    28  members,  as  well  as probation officers, prosecutors, defense counsels
    29  and courts that  are  familiar  with  school  discipline.  Such  written
    30  contract  or  memorandum  of understanding shall define the relationship
    31  between a school district or charter school, school personnel, students,
    32  visitors, law enforcement, and public  or  private  security  personnel.
    33  Such  contract  or  memorandum of understanding shall be consistent with
    34  the code of conduct,  limit  law  enforcement  or  security  personnel's
    35  involvement  when  a  student's behavior does not threaten the safety of
    36  the school, define which behaviors should not result  in  an  arrest  or
    37  summons, require law enforcement or security personnel to receive train-
    38  ing  as  required  by subparagraph four of this subdivision, and clearly
    39  delegate the role of school discipline  to  the  school  administration.
    40  Such  written  contract or memorandum of understanding shall be incorpo-
    41  rated into and published as part of the code of conduct.
    42    c. Every school shall  use  graduated  and  proportionate  discipline,
    43  which  shall mean a disciplinary approach that requires school personnel
    44  to use the least severe action necessary  to  respond  to  inappropriate
    45  behavior  and  requires  the  use of appropriate prevention programs and
    46  interventions prior to and in conjunction with the use of any discipline
    47  that prevents students  from  receiving  their  in-classroom  education.
    48  Discipline  such  as  removals,  suspensions and expulsions that prevent
    49  students from receiving their in-classroom education shall be used as  a
    50  discipline  of  last  resort and may only be imposed as provided in this
    51  section and section thirty-two hundred fourteen of this chapter.
    52    d. (1) Restorative approaches to school climate and discipline include
    53  the use of restorative practices in classrooms and schools to proactive-
    54  ly build a school community based upon cooperation,  mutual  understand-
    55  ing,  acceptance of responsibility, trust and respect. Restorative prac-
    56  tices may address  misbehavior  and  harm  in  a  way  that  strengthens

        S. 767                              3
     1  relationships  between  school staff and students and among students and
     2  addresses the root causes of discipline problems.
     3    (2)  Restorative  discipline allows students who may have violated the
     4  code of conduct to  take  full  responsibility  for  their  behavior  by
     5  addressing any individuals affected by the behavior. The purpose of such
     6  discipline  is  to  help  students understand why a specific behavior is
     7  wrong and to help them choose a better behavior in the future.  Restora-
     8  tive  practices  and  discipline may include class meetings, facilitated
     9  circles, conferences, peer mediation and other restorative interventions
    10  that can effectively address student misconduct, hold students  account-
    11  able  for  their behavior, repair harm to persons and property caused by
    12  misconduct and foster healthy relationships within the school community.
    13  Consistent with this section and section thirty-two hundred fourteen  of
    14  this chapter, school personnel may use restorative discipline to respond
    15  to student behavior.
    16    (3) No student shall be required to participate in a restorative prac-
    17  tice  without  their  consent.  In  addition, in the case of an incident
    18  where a student  has  been  physically  injured,  no  student  shall  be
    19  required  to  participate  in  restorative  practices if their parent or
    20  person in parental relation affirmatively  objects  upon  notice.  If  a
    21  student chooses not to participate in a restorative practice, the school
    22  may use other approaches to respond to a code of conduct violation.
    23    2.  For purposes of this section, school property [means in or within]
    24  shall mean real, personal or other property owned, leased or occupied by
    25  a public school including a charter school. Such property shall  include
    26  but  not  be limited to any building, structure, athletic playing field,
    27  playground, parking lot or land contained within the real property boun-
    28  dary line of a public elementary or secondary school;  or  in  or  on  a
    29  school  bus,  as defined in section one hundred forty-two of the vehicle
    30  and traffic law; or electronic files and databases and a school function
    31  shall mean  a  school-sponsored  or  school-authorized  extra-curricular
    32  event  or  activity  regardless  of where or when such event or activity
    33  takes place, including any event or activity  that  may  take  place  in
    34  another state.
    35    [2.]  3. The board of education or [the trustees] board of trustees of
    36  every school district or the chancellor of the city school  district  in
    37  the  case  of  the  city  school  district  of the city of New York, [as
    38  defined in section two of this chapter, of every school district  within
    39  the  state, however created,] and every board of cooperative educational
    40  services and [county vocational extension board] charter  school,  shall
    41  adopt  and amend, as appropriate, a code of conduct [for the maintenance
    42  of order on school property, including a school  function,  which  shall
    43  govern  the  conduct of students, teachers and other school personnel as
    44  well as visitors] which shall govern the  conduct  of  students,  school
    45  employees  and  visitors  in  order  to  promote  a safe, respectful and
    46  supportive learning and teaching environment on school property  and  at
    47  school  functions  and  shall provide for the enforcement thereof. [Such
    48  policy may be adopted by the school board  or  trustees  only  after  at
    49  least  one  public hearing that provides for the participation of school
    50  personnel, parents, students and any  other  interested  parties.]  Such
    51  code  of  conduct  shall apply to all students, school employees, school
    52  board members, independent contractors and visitors and  shall  include,
    53  at a minimum provisions that:
    54    a.  [provisions regarding conduct, dress and language deemed appropri-
    55  ate and acceptable on school property, including a school function,  and
    56  conduct,  dress  and  language  deemed unacceptable and inappropriate on

        S. 767                              4

     1  school property, including a school function, and  provisions  regarding
     2  acceptable  civil  and respectful treatment of teachers, school adminis-
     3  trators, other school personnel, students and visitors on school proper-
     4  ty,  including  a  school  function,  including the appropriate range of
     5  disciplinary measures which may be imposed for violation of  such  code,
     6  and  the  roles of teachers, administrators, other school personnel, the
     7  board of education and parents;
     8    b. standards and procedures to assure security and safety of  students
     9  and school personnel;
    10    c. provisions for the removal from the classroom and from school prop-
    11  erty,  including  a  school  function, of students and other persons who
    12  violate the code;
    13    d. disciplinary measures  to  be  taken  in  incidents  involving  the
    14  possession  or use of illegal substances or weapons, the use of physical
    15  force, vandalism,  violation  of  another  student's  civil  rights  and
    16  threats of violence;
    17    e. provisions for detention, suspension and removal from the classroom
    18  of students, consistent with section thirty-two hundred fourteen of this
    19  chapter  and  other  applicable  federal, state and local laws including
    20  provisions for the school authorities to establish policies  and  proce-
    21  dures  to  ensure the provision of continued educational programming and
    22  activities for students removed from the classroom, placed in detention,
    23  or suspended from school;
    24    f. procedures by which violations are reported, determined, discipline
    25  measures imposed and discipline measures carried out;
    26    g. provisions ensuring] establish standards and procedures  to  assure
    27  security and safety of students and school personnel;
    28    b.  require age-appropriate, graduated and proportionate interventions
    29  and  discipline,  including  restorative  discipline,  that  respond  to
    30  student  misconduct,  hold  students  accountable for their behavior and
    31  maximize the ability of students to attend class and school;
    32    c. set out clear expectations for student conduct at school and school
    33  functions, using specific and objective criteria, and define  violations
    34  of the code of conduct;
    35    d.  establish  the  range of graduated and proportionate interventions
    36  and consequences including restorative discipline for student  behaviors
    37  that  violate  the  code  of conduct; provided that removal of a student
    38  from class or classes, school property or  school  functions,  including
    39  classroom removal or suspension, for a specific period of time shall not
    40  be used to respond to tardiness, unexcused absence from class or school,
    41  leaving  school  without permission, violation of school dress code, and
    42  lack of identification upon request of school personnel.  The  range  of
    43  graduated  and  proportionate interventions for initial or repeated acts
    44  of willful disobedience shall not include suspension.  "Willful  disobe-
    45  dience" shall mean disruptive, insubordinate, or rowdy behavior, includ-
    46  ing  behaviors  such  as  the  use  of  foul  or inappropriate language,
    47  gestures, comments, or refusal to follow directions;
    48    e. where available, require the consideration of the use  of  restora-
    49  tive  practices  and discipline in response to violations of the code of
    50  conduct;
    51    f. establish procedures by which violations of the code of conduct are
    52  reported to the appropriate school personnel, the facts are investigated
    53  and determined, and  intervention  and  discipline  measures,  including
    54  restorative  discipline,  are  decided and implemented.  Such provisions
    55  shall ensure  that  procedures  established  are  consistent  with  this

        S. 767                              5
     1  section,  section thirty-two hundred fourteen of this chapter, and other
     2  federal and state law;
     3    g. establish procedures for removal from the classroom, school proper-
     4  ty  or  a  school function, of students who violate the code of conduct,
     5  including procedures by  which  a  school  may  respond  immediately  to
     6  student  behavior  that  (i)  physically  injures  or poses an immediate
     7  threat of physical injury to the student or other person or persons;  or
     8  (ii)  damages  property  and  such  damage injures or poses an immediate
     9  threat of serious physical injury to the  student  or  other  person  or
    10  persons,  consistent  with  section  thirty-two hundred fourteen of this
    11  chapter and other federal and state laws;
    12    h. prohibit the suspension of students in kindergarten  through  grade
    13  three,  except  in  situations  of serious physical injury as defined in
    14  subdivision ten of section 10.00 of the penal law to students, staff, or
    15  others while taking into account the totality of the circumstances;
    16    i. comply with the federal Gun-Free Schools Act;
    17    j. set forth the circumstances under and procedures by which a  parent
    18  or  persons in parental relation to a student accused of and affected by
    19  student behavior that violates the code of conduct shall be notified  of
    20  code  of  conduct violations, including notice that any statement by the
    21  student, written or oral, might be used against the student in a  crimi-
    22  nal,  immigration, or juvenile delinquency investigation and/or proceed-
    23  ing and/or in a court of law;
    24    k. set forth the circumstances under and procedures by which a student
    25  may be referred to law enforcement or a person in  need  of  supervision
    26  petition  as  defined  in  article seven of the family court act will be
    27  filed consistent with subparagraph five of paragraph  b  of  subdivision
    28  one of this section;
    29    l.  set  out  the circumstances under and procedures by which students
    30  who are suspended from school may also be referred to academic services,
    31  school-based support services, or to appropriate  human  services  agen-
    32  cies;
    33    m.  ensure  the  continued  educational programming and activities for
    34  students removed from the classroom or suspended from  school.  Students
    35  who  have been removed from the classroom or suspended from school shall
    36  have the right to continue their education and receive instruction while
    37  they are excluded from the classroom regardless of  the  reason  for  or
    38  type of exclusion as follows:
    39    (1) when a student is removed from a classroom, the teacher, principal
    40  or  the  principal's  designee shall provide the student with all missed
    41  classroom work within twenty-four hours of the removal and  the  student
    42  shall  have  the  opportunity  to earn all academic credit including the
    43  opportunity to complete any missed assignments and take any missed exam-
    44  inations or assessments;
    45    (2) when a student is suspended from class or school, the principal or
    46  the principal's designee, in consultation with the  student's  teachers,
    47  shall create an education plan for the student for each subject or class
    48  in  which  the  student  is  enrolled.  The  education  plan  shall make
    49  provisions for a student's  on-going  academic  instruction  during  the
    50  suspension.  The student shall have the opportunity to earn all academic
    51  credit including the opportunity to complete any  assignments  and  take
    52  any assessment or examination missed during the student's suspension and
    53  if an assessment or examination cannot be rescheduled, the student shall
    54  be  allowed on school property to take such assessment or examination on
    55  the day that the assessment or examination is given;

        S. 767                              6
     1    (3) the education plan pursuant to subparagraph two of this  paragraph
     2  may  include placement of the suspended student at an alternative learn-
     3  ing site including the student's home if  an  alternative  site  is  not
     4  available  and appropriate for the student's education. The principal or
     5  the  principal's designee at the school in which the student is enrolled
     6  shall consult with the administrator of an alternative site or,  in  the
     7  case  of  the  student's home, with the teacher overseeing home instruc-
     8  tion, to make arrangements for the student's continued instruction;
     9    (4) every school district and charter school shall provide to students
    10  with disabilities all services and educational  programming  protections
    11  set  forth  in this section, section thirty-two hundred fourteen of this
    12  chapter and all other applicable federal and state laws;
    13    (5) schools shall schedule a conference with the parent or  person  in
    14  parental  relation  and student within five school days from a student's
    15  return to school after any  short  term  or  long  term  suspension  and
    16  provide  notice  of  the  conference to the parent or person in parental
    17  relation and the student.  The  failure  of  the  parent  or  person  in
    18  parental  relation or student to attend shall not delay re-entry follow-
    19  ing suspension. The conference shall include a discussion of the follow-
    20  ing:
    21    (A) a file of the student's educational activities while on suspension
    22  that can be counted toward credit accumulation. This file shall  include
    23  the  student's  test  scores,  grades,  completed assignments, and total
    24  credits earned while suspended. The student's existing  academic  record
    25  may  be  used  for  these  purposes, if the academic record provides all
    26  required information set forth in this clause;
    27    (B) the steps the student will take to follow all school rules;
    28    (C) the supports the school will provide for the student  to  success-
    29  fully re-enter school;
    30    (D)  a  discussion  of when the record of suspension will be expunged;
    31  and
    32    (E) any other pertinent circumstances.
    33    n. ensure such code and [the] its enforcement [thereof] are in compli-
    34  ance with state and federal laws relating to students with disabilities;
    35    [h. provisions  setting  forth  the  procedures  by  which  local  law
    36  enforcement  agencies shall be notified of code violations which consti-
    37  tute a crime;
    38    i. provisions setting forth the circumstances under and procedures  by
    39  which  persons  in parental relation to the student shall be notified of
    40  code violations;
    41    j. provisions setting forth the circumstances under and procedures  by
    42  which  a complaint in criminal court, a juvenile delinquency petition or
    43  person in need of supervision petition as defined in articles three  and
    44  seven of the family court act will be filed;
    45    k. circumstances under and procedures by which referral to appropriate
    46  human service agencies shall be made;
    47    l.  a  minimum  suspension  period,  for  students  who repeatedly are
    48  substantially disruptive of the  educational  process  or  substantially
    49  interfere with the teacher's authority over the classroom, provided that
    50  the  suspending authority may reduce such period on a case by case basis
    51  to be consistent with any other state and federal law. For  purposes  of
    52  this  section,  the  definition of "repeatedly are substantially disrup-
    53  tive" shall be determined in accordance  with  the  regulations  of  the
    54  commissioner;
    55    m.  a  minimum suspension period for acts that would qualify the pupil
    56  to be defined as a violent pupil pursuant to paragraph a of  subdivision

        S. 767                              7

     1  two-a  of  section thirty-two hundred fourteen of this chapter, provided
     2  that the suspending authority may reduce such period on a case  by  case
     3  basis to be consistent with any other state and federal law;] and
     4    [n.] o. provisions to comply with article two of this chapter.
     5    [3.]  4.  The [district] code of conduct shall be developed in collab-
     6  oration with [student, teacher, administrator, and parent organizations,
     7  school safety personnel and other school personnel] representatives from
     8  all interested stakeholders including  students,  teachers,  administra-
     9  tors,  parents,  school  safety  personnel,  support services personnel,
    10  parent and  student  organizations,  collective  bargaining  units,  and
    11  others  as identified by the school district or charter school and shall
    12  be approved by the board of education, [or]  board  of  trustees,  other
    13  governing  body, or by the chancellor of the city school district in the
    14  case of the city school district of the city of New York.  In  the  city
    15  school  district of the city of New York, each community district educa-
    16  tion council shall be authorized to adopt and implement additional poli-
    17  cies, which are consistent with and no more restrictive  than  the  city
    18  district's  district-wide  code  of  conduct,  to reflect the individual
    19  needs of each community school district provided  that  such  additional
    20  policies shall require the approval of the chancellor.
    21    [4.  The  board of education, chancellor or other governing body shall
    22  provide copies of a summary of the code of conduct to all students at  a
    23  general assembly held at the beginning of the school year and shall make
    24  copies of the code available to persons in parental relation to students
    25  at  the  beginning  of each school year, and shall mail a plain language
    26  summary of such code to all persons in  parental  relation  to  students
    27  before  the  beginning of each school year, and make it available there-
    28  after upon request. The board of education, chancellor or other  govern-
    29  ing  body  shall  take reasonable steps to ensure community awareness of
    30  the code provisions.]
    31    5. [a.] The board of education, board  of  trustees,  other  governing
    32  body,  or  the chancellor of the city school district in the case of the
    33  city school district of the city of New York shall  hold  at  least  one
    34  public hearing about the proposed code of conduct before its adoption or
    35  amendment. The school district or charter school shall notify the school
    36  community  and  general  public  about  the hearing at least thirty days
    37  prior to the date of the hearing.  Such notice shall include  the  date,
    38  time  and  place of the hearing, the agenda, a copy of the proposed code
    39  of conduct and information about a public comment period  as  determined
    40  by  the school district or charter school.  The school district or char-
    41  ter school shall take necessary steps to  notify  families  who  do  not
    42  speak  English  and  whose children attend a school in the district or a
    43  charter school.
    44    6. Upon adoption or amendment of  the  code  of  conduct,  the  school
    45  district or charter school shall:
    46    a.  file a copy of its code of conduct and any amendments to such code
    47  with the commissioner no later than thirty days after their adoption;
    48    b. translate the code of conduct into those languages spoken by  three
    49  percent  or  more  of the families whose children attend a school in the
    50  school district or a charter school;
    51    c. at the beginning of each school year, post the code of  conduct  on
    52  the  school district or charter school's website and school web site, if
    53  any, and provide a copy of the code of conduct to parents or persons  in
    54  parental  relation  to  students  in  the  district's schools or charter
    55  school;

        S. 767                              8
     1    d. distribute the code of conduct to all students in school at one  or
     2  more  general  assemblies  or other classroom level lessons dedicated to
     3  the provisions of the code of conduct; and
     4    e. at the beginning of each school year, each school shall explain its
     5  code  of conduct to students in one or more general assemblies or class-
     6  room level lessons.
     7    7. The board of education, board  of  trustees,  chancellor  or  other
     8  governing  body  shall annually review and update the district's [codes]
     9  or charter school's code of conduct if necessary, taking into  consider-
    10  ation  the  effectiveness  of  the  code of conduct's provisions and the
    11  fairness and consistency of its administration. Each school district and
    12  charter school is authorized to establish a committee and to  facilitate
    13  the review of the code of conduct and the district's or charter school's
    14  response  to  code  of  conduct  violations. Any such committee shall be
    15  comprised of similar individuals described in subdivision  [three]  four
    16  of  this section. [The school board, chancellor, or other governing body
    17  shall reapprove any such updated code only after  at  least  one  public
    18  hearing  that  provides  for  the  participation  of  school  personnel,
    19  parents, students and any other interested parties.
    20    b. Each district shall file a copy of its codes of  conduct  with  the
    21  commissioner  and  all  amendments  to such code shall be filed with the
    22  commissioner no later than thirty days after their adoption.]
    23    8.  a. The commissioner shall  promulgate  regulations  in  accordance
    24  with  this  section, which shall address the development, implementation
    25  and evaluation of a  school  district's  or  charter  school's  code  of
    26  conduct and shall include but not be limited to:
    27    (1)  one  or more model codes of conduct designed to reduce the use of
    28  suspensions that meet the requirements of this section and section thir-
    29  ty-two hundred fourteen of this chapter;
    30    (2) best practices for age-appropriate,  graduated  and  proportionate
    31  discipline as set out in this section;
    32    (3) a matrix of student misconduct and the interventions and discipli-
    33  nary  measures that provide age appropriate, graduated and proportionate
    34  intervention designed to reduce reliance on suspensions and referrals to
    35  law enforcement;
    36    (4) guidelines for appropriate school-wide implementation of  restora-
    37  tive practices; and
    38    (5)  forms necessary to implement student notification and due process
    39  requirements of this section and section thirty-two hundred fourteen  of
    40  this chapter.
    41    b.  The department shall collect and every school district and charter
    42  school  shall  report to the department data about the implementation of
    43  student codes of conduct as required by federal law. On or before Novem-
    44  ber first of each year, the  department  shall  make  available  to  the
    45  public,  by  school  district  and  charter  school,  the data regarding
    46  student discipline from the preceding year. On or before December  first
    47  of  each year the department shall submit to the governor, the temporary
    48  president of the senate, the speaker of the assembly and the  chairs  of
    49  the  assembly  and  senate education committees a report that summarizes
    50  and analyzes the data collected about student discipline  including  but
    51  not limited to a review and evaluation of school application of codes of
    52  conduct for fair and consistent application, recommendations about poli-
    53  cies  and  practices  for  school  codes  of  conduct, and the technical
    54  assistance the department is providing regarding student discipline.
    55    § 2. Subdivision 3 of section 2801 of the education law, as  added  by
    56  chapter 181 of the laws of 2000, is amended to read as follows:

        S. 767                              9
     1    [3.]  4.  The [district] code of conduct shall be developed in collab-
     2  oration with [student, teacher, administrator, and parent organizations,
     3  school safety personnel and other school personnel] representatives from
     4  all interested stakeholders including  students,  teachers,  administra-
     5  tors,  parents,  school  safety  personnel,  support services personnel,
     6  parent and  student  organizations,  collective  bargaining  units,  and
     7  others  as identified by the school district or charter school and shall
     8  be approved by the board of education, [or]  board  of  trustees,  other
     9  governing  body, or by the chancellor of the city school district in the
    10  case of the city school district of the city of New York.  In  the  city
    11  school  district of the city of New York, each community school district
    12  board shall be authorized to adopt and  implement  additional  policies,
    13  which  are  consistent  with  and  no  more  restrictive  than  the city
    14  district's district-wide code of  conduct,  to  reflect  the  individual
    15  needs  of  each  community school district provided that such additional
    16  policies shall require the approval of the chancellor.
    17    § 3. Section 3214 of the education law, as amended by chapter  181  of
    18  the  laws  of  2000,  subparagraph  1 of paragraph c of subdivision 3 as
    19  amended by chapter 430 of the laws of 2006, paragraphs d and f of subdi-
    20  vision 3 as amended by chapter 425 of the laws of 2002, paragraph  e  of
    21  subdivision 3 as amended by chapter 170 of the laws of 2006, paragraph g
    22  of  subdivision  3 as amended by chapter 352 of the laws of 2005, clause
    23  (v) of subparagraph 3 of paragraph g of  subdivision  3  as  amended  by
    24  chapter  378  of  the laws of 2007, paragraphs a, b and c of subdivision
    25  3-a as amended by chapter 147 of the laws of 2001 and subdivision  7  as
    26  amended  by  section 9 of part YYY of chapter 59 of the laws of 2017, is
    27  amended to read as follows:
    28    § 3214. Student interventions, placement, suspensions  and  transfers.
    29  1. [School delinquent. A minor under seventeen years of age, required by
    30  any  of  the  provisions  of  part  one  of  this article to attend upon
    31  instruction, who is an habitual  truant  from  such  instruction  or  is
    32  irregular  in  such attendance or insubordinate or disorderly or disrup-
    33  tive or violent during such attendance, is a school delinquent.
    34    2. Special  day  schools.]  Alternative  learning  sites.  The  school
    35  authorities  of  any  city  [or],  school district or charter school may
    36  establish schools or set apart rooms in  [public]  school  buildings  or
    37  properties  for the instruction of [school delinquents] students removed
    38  or suspended for violations of the code of conduct  in  accordance  with
    39  this  section  and section twenty-eight hundred one of this chapter, and
    40  fix the number of days per week  and  the  hours  per  day  of  required
    41  attendance  and instruction, which shall not be less than is required of
    42  minors attending the full time day schools.
    43    [2-a. a. Violent pupil. For the purposes of this  section,  a  violent
    44  pupil  is  an  elementary or secondary student under twenty-one years of
    45  age who:
    46    (1) commits an act of violence upon a teacher, administrator or  other
    47  school employee;
    48    (2)  commits,  while  on  school district property, an act of violence
    49  upon another student or any other person lawfully upon said property;
    50    (3) possesses, while  on  school  district  property,  a  gun,  knife,
    51  explosive  or  incendiary bomb, or other dangerous instrument capable of
    52  causing physical injury or death;
    53    (4) displays, while on school district property, what appears to be  a
    54  gun,  knife,  explosive or incendiary bomb or other dangerous instrument
    55  capable of causing death or physical injury;

        S. 767                             10

     1    (5) threatens, while on school district property, to use  any  instru-
     2  ment that appears capable of causing physical injury or death;
     3    (6) knowingly and intentionally damages or destroys the personal prop-
     4  erty  of a teacher, administrator, other school district employee or any
     5  person lawfully upon school district property; or
     6    (7) knowingly and intentionally damages or  destroys  school  district
     7  property.
     8    b.  Disruptive  pupil.  For the purposes of this section, a disruptive
     9  pupil is an elementary or secondary student under  twenty-one  years  of
    10  age  who  is  substantially  disruptive  of  the  educational process or
    11  substantially interferes with the teacher's authority  over  the  class-
    12  room.
    13    3.  Suspension]  2. Discipline of a [pupil] student. a.  [The board of
    14  education, board of trustees or  sole  trustee,  the  superintendent  of
    15  schools, district superintendent of schools or principal of a school may
    16  suspend  the  following  pupils]  (1)  Students  may  be  suspended from
    17  required attendance [upon instruction: A pupil who is  insubordinate  or
    18  disorderly  or  violent or disruptive, or whose conduct otherwise endan-
    19  gers the safety, morals, health or welfare  of  others.]  in  accordance
    20  with  paragraphs  b  and  c of this subdivision; provided, however, that
    21  decisions about appropriate discipline and interventions in response  to
    22  student  behavior that has been determined to violate a school's code of
    23  conduct shall weigh the likelihood that a lesser intervention or  disci-
    24  pline  would  adequately  address  the student's misconduct, redress any
    25  harm or damage, and prevent future violations of the  code  of  conduct.
    26  Suspensions should only be used as a last resort.
    27    (2)  The  school  shall  conduct  an  investigation of any report of a
    28  violation of the code of conduct. Such investigation  shall  include  an
    29  interview  of  the  alleged  victim and the witnesses to the incident; a
    30  request for signed, written  statements  from  the  alleged  victim  and
    31  witnesses;  and  identification and review of documentary, photographic,
    32  video and other evidence. The  school  shall  inform  any  student  that
    33  submission of a written statement is voluntary.
    34    (3)  If  a  student  has been arrested or if the school is considering
    35  referring the student to law enforcement, the school shall not request a
    36  statement from such student, except when there is imminent risk of seri-
    37  ous physical injury to the student or other person or persons.
    38    (4) The school  shall  determine  whether  appropriate  interventions,
    39  including  restorative  discipline, can address the alleged violation of
    40  the code of conduct without suspension.  The school should evaluate  the
    41  effectiveness of the intervention and use multiple types of intervention
    42  where appropriate and available.
    43    (5)  Disciplinary  determinations  shall be based on the facts of each
    44  case including, but not limited to:
    45    (i) the nature and impact of the student's alleged misconduct, includ-
    46  ing but not limited to the harm to the student or other persons,  damage
    47  to  personal  or school property, or threat to the safety and welfare of
    48  the school community;
    49    (ii) the student's age, ability to speak or understand English,  phys-
    50  ical  health,  mental health, disabilities and provisions of an individ-
    51  ualized education program, as it relates to his or her behavior;
    52    (iii) the student's willingness to resolve the conflict and repair any
    53  harm or damage;
    54    (iv) the student's prior  conduct,  appropriateness  of  prior  inter-
    55  ventions and the student's response to prior interventions; and

        S. 767                             11
     1    (v) other factors as determined by school personnel and the student to
     2  be  relevant  including  the  circumstances  surrounding  the  student's
     3  actions and a review of the student's academic placement and program for
     4  its  relationship,  if  any,  to  the  student's  behavior  and  alleged
     5  violation of the code of conduct.
     6    b. [(1)] Short term suspension. The board of education, board of trus-
     7  tees, [or sole trustee] other governing body, the chancellor of the city
     8  school  district  in the case of the city school district of the city of
     9  New York, superintendent of schools, district superintendent of  schools
    10  and  the principal of the school where the [pupil] student attends shall
    11  have the power to suspend [a pupil] for a  period  not  to  exceed  five
    12  school  days[.  In the case of] any student who engages in behavior that
    13  results in serious physical injury to students, staff, or others or  any
    14  student who is in grades four to twelve, if a determination is made that
    15  the  student  engaged  in behavior that violated the code of conduct for
    16  which short term suspension may be warranted. Except as set forth below,
    17  prior to such a suspension, the [suspending authority]  student,  parent
    18  or  person  in  parental  relation shall [provide the pupil] be provided
    19  with written notice of the charged misconduct, including a brief  expla-
    20  nation  of  the  basis for the suspension and description of the alleged
    21  behavior that violated the code of conduct, that includes the date, time
    22  and place of the scheduled informal conference with the  principal.  [If
    23  the  pupil denies the misconduct, the suspending authority shall provide
    24  an explanation of the basis for the suspension.] The [pupil] student and
    25  the parent or person in parental relation to the [pupil] student shall[,
    26  on request,] be given an opportunity for an informal conference with the
    27  principal [at which]. At the conference, the [pupil and/or] student  and
    28  parent  or person in parental relation shall be authorized to review all
    29  evidence of the alleged  misconduct,  present  the  [pupil's]  student's
    30  version  of  the  event  [and  to],  ask  questions  of  the complaining
    31  witnesses, and be represented by an attorney or advocate. The  aforesaid
    32  notice and opportunity for an informal conference shall take place prior
    33  to suspension of the [pupil] student unless the [pupil's presence in the
    34  school  poses  a  continuing danger to persons or property or an ongoing
    35  threat of disruption to  the  academic  process,]  student's  misconduct
    36  physically  injures  or  poses  an  immediate threat of serious physical
    37  injury to the student or other person or  persons,  in  which  case  the
    38  [pupil's]  student's  notice  and opportunity for an informal conference
    39  shall take place as soon after the suspension as is reasonably practica-
    40  ble but in no case more  than  forty-eight  hours  after  such  removal;
    41  provided  that  if such forty-eight hour period does not end on a school
    42  day, it shall be extended to the corresponding time on the second school
    43  day next following the student's removal. If suspension is imposed,  the
    44  principal  or his or her designee shall create an education plan for the
    45  student consistent with section twenty-eight hundred one of  this  chap-
    46  ter, and a plan for the student's reinstatement to school. The principal
    47  shall  issue  a  written  decision  to  the parent or person in parental
    48  relation to the student about any disciplinary action within two days of
    49  the conference. If the principal determines that a  suspension  of  five
    50  school  days  or less is warranted, the written decision shall state the
    51  length of the suspension, findings of fact,  reasons  for  the  determi-
    52  nation,  the  procedures  for  an appeal and the date by which an appeal
    53  shall be filed. A student suspended for violating the  code  of  conduct
    54  may  appeal  a  suspension  of  five days or less to the school district
    55  superintendent, board of education, board of trustees,  other  governing
    56  body  or  chancellor of the city school district in the case of the city

        S. 767                             12
     1  school district of the city of New York as designated in the school code
     2  of conduct within thirty days. A written decision on the appeal shall be
     3  sent to the parent or person in parental relation and the student within
     4  thirty days.
     5    [(2)  A  teacher shall immediately report and refer a violent pupil to
     6  the principal or superintendent for a violation of the code  of  conduct
     7  and a minimum suspension period pursuant to section twenty-eight hundred
     8  one of this chapter.]
     9    c.  (1)  [No  pupil  may  be  suspended for a period in excess of five
    10  school days] Long term suspension.   The board of  education,  board  of
    11  trustees,  other  governing  body,  the  chancellor  of  the city school
    12  district in the case of the city school district  of  the  city  of  New
    13  York,  superintendent  of  schools or district superintendent of schools
    14  where the student attends shall have the power to suspend for  a  period
    15  not  to  exceed  twenty  school days any student who engages in behavior
    16  that results in serious physical injury to students, staff, or others or
    17  any student who is in grades four to twelve, if a determination is  made
    18  that  the  student engaged in behavior that violated the code of conduct
    19  for which long term suspension may be warranted. Such  suspension  shall
    20  not  be  imposed unless such [pupil] student and the parent or person in
    21  parental relation to such [pupil] student shall have had an  opportunity
    22  for  a fair hearing[, upon reasonable]. Once a decision has been made to
    23  seek a long term suspension, written notice shall  be  provided  to  the
    24  student  and  the  parent or person in parental relation to the student.
    25  Such written notice, [at which such pupil] shall include  a  description
    26  of  the facts and circumstances 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 charged to have violated and the disciplinary action that may
    29  be  warranted,  the  length  of  a  possible  suspension,  copies of all
    30  evidence regarding the alleged incident, and the date,  time  and  place
    31  scheduled  for  the  hearing. Such hearing shall be convened within five
    32  days of the written notice, unless the  parent  or  person  in  parental
    33  relation  or  student requests a later date. At the hearing, the student
    34  shall have the right of representation by counsel,  with  the  right  to
    35  request  the  presence  of  and  question witnesses against such [pupil]
    36  student and to request the presence of and present witnesses  and  other
    37  evidence  on  his  or her behalf. Where the [pupil] student is a student
    38  with a disability or a  student  presumed  to  have  a  disability,  the
    39  provisions  of  [paragraph  g  of  this] subdivision six of this section
    40  shall also apply. [Where a pupil has been suspended in  accordance  with
    41  this  subparagraph  by a superintendent of schools, district superinten-
    42  dent of schools, or community superintendent, the  superintendent  shall
    43  personally  hear  and  determine  the  proceeding  or may, in his or her
    44  discretion, designate a hearing officer  to  conduct  the  hearing.  The
    45  hearing  officer]  The  board  of  education,  board  of trustees, other
    46  governing body, the chancellor of the city school district in  the  case
    47  of  the  city school district of the city of New York, superintendent of
    48  schools or district superintendent shall conduct the hearing and issue a
    49  decision, or may designate a hearing officer to do  so.  The  entity  or
    50  individual  that  conducts the hearing shall be authorized to administer
    51  oaths and to issue subpoenas in conjunction with the proceeding  [before
    52  him  or her]. A record of the hearing shall be maintained, but no steno-
    53  graphic transcript shall be required and [a  tape]  an  audio  recording
    54  shall be deemed a satisfactory record. The entity or individual conduct-
    55  ing such hearing shall consider only the evidence presented at the hear-
    56  ing,  determine  whether the charge has been established by a preponder-

        S. 767                             13
     1  ance of the evidence and may uphold,  reduce  or  dismiss  the  proposed
     2  charge. The [hearing officer] entity or individual conducting such hear-
     3  ing  shall  make  written  findings  of fact and [recommendations as to]
     4  shall  decide  the appropriate measure of discipline [to the superinten-
     5  dent. The report of the hearing officer shall be advisory only, and  the
     6  superintendent  may  accept  all or any part thereof. An appeal will lie
     7  from the decision of the superintendent to the board  of  education  who
     8  shall  make its decision solely upon the record before it. The board may
     9  adopt in whole  or  in  part  the  decision  of  the  superintendent  of
    10  schools.],  if  any.  The  entity  or individual conducting such hearing
    11  shall issue a written decision to the school and the parent or person in
    12  parental relation to the student within three days of  the  hearing.  If
    13  the  entity  or  individual  conducting  the  hearing  determines that a
    14  suspension of six to twenty days  is  warranted,  the  written  decision
    15  shall  state the length of the suspension, findings of fact, reasons for
    16  the determination, procedures for appeal, and  the  date  by  which  the
    17  appeal  shall  be filed. Where the basis for the suspension is, in whole
    18  or in part, the possession on school grounds or school property  by  the
    19  student  of  any firearm, rifle, shotgun, dagger, dangerous knife, dirk,
    20  razor, stiletto or any of the weapons, instruments or appliances  speci-
    21  fied  in subdivision one of section 265.01 of the penal law, the hearing
    22  officer or superintendent shall  not  be  barred  from  considering  the
    23  admissibility  of  such  weapon,  instrument  or  appliance as evidence,
    24  notwithstanding a determination by a court in  a  criminal  or  juvenile
    25  delinquency  proceeding  that the recovery of such weapon, instrument or
    26  appliance was the result of an unlawful search or seizure. If suspension
    27  is imposed, the school district or charter  school  shall  establish  an
    28  education  plan  for  the  student  consistent  with the requirements in
    29  section twenty-eight hundred one of this chapter, including academic and
    30  support services, and a plan for the student's reinstatement to school.
    31    (2) [Where a pupil has been suspended in accordance with this  section
    32  by a board of education, the board may in its discretion hear and deter-
    33  mine the proceeding or appoint a hearing officer who shall have the same
    34  powers  and  duties with respect to the board that a hearing officer has
    35  with respect to a superintendent where the  suspension  was  ordered  by
    36  him.  The findings and recommendations of the hearing officer conducting
    37  the proceeding shall be advisory and subject  to  final  action  by  the
    38  board  of education, each member of which shall before voting review the
    39  testimony and acquaint himself with the evidence in the case. The  board
    40  may  reject,  confirm or modify the conclusions of the hearing officer.]
    41  Appeal.  The student or parent or person in  parental  relation  to  the
    42  student  shall  have a right to appeal the decision of the hearing offi-
    43  cer, superintendent of school or district superintendent to the board of
    44  education, board of trustees, other governing body, or the chancellor of
    45  the city school district in the case of the city school district of  the
    46  city  of  New York. The appeal shall be heard only by an entity or indi-
    47  vidual who was not involved in  the  initial  determination  or  hearing
    48  regarding  the suspension of the student. The entity or individual hear-
    49  ing the appeal shall issue a written decision within twenty days of  the
    50  filing  of  the  appeal.  The  suspension  may  be  upheld,  reduced  or
    51  dismissed. The student or parent or person in parental relation  to  the
    52  student  may appeal any adverse determination by the board of education,
    53  board of trustees, other governing body, or the chancellor of  the  city
    54  school  district  in the case of the city school district of the city of
    55  New York to the commissioner pursuant to the regulations of the  commis-
    56  sioner.  The  student  or  parent  or person in parental relation to the

        S. 767                             14
     1  student may appeal an adverse decision of the commissioner to the  state
     2  supreme  court  within  four  months  of  receipt of the decision by the
     3  commissioner.
     4    [d.  (1)] 3. Firearms. a. Consistent with the federal gun-free schools
     5  act, any public school [pupil] student who is  determined  under  [this]
     6  subdivision  two  of  this  section  to  have  brought  a  firearm to or
     7  possessed a firearm at a public school shall be suspended for  a  period
     8  of  not  less  than  one  calendar year and any nonpublic school [pupil]
     9  student participating in a program operated by a public school  district
    10  using  funds from the elementary and secondary education act of nineteen
    11  hundred sixty-five who is determined under  [this]  subdivision  two  of
    12  this  section  to  have brought a firearm to or possessed a firearm at a
    13  public school or other premises used by the school district  to  provide
    14  such  programs  shall  be  suspended  for  a period of not less than one
    15  calendar year from participation in such program. The procedures of this
    16  subdivision shall apply to such  a  suspension  of  a  nonpublic  school
    17  [pupil] student. A superintendent of schools, district superintendent of
    18  schools  or  community superintendent shall have the authority to modify
    19  this suspension requirement for each student on  a  case-by-case  basis.
    20  The  determination of a superintendent shall be subject to review by the
    21  board of education, board of trustees, other governing body or the chan-
    22  cellor of the city school district  in  the  case  of  the  city  school
    23  district  of  the  city  of  New York, pursuant to paragraph c of [this]
    24  subdivision two of this section and the commissioner pursuant to section
    25  three hundred ten of this chapter. Nothing in this subdivision shall  be
    26  deemed  to  authorize  the  suspension of a student with a disability in
    27  violation of the individuals with disabilities education act or  article
    28  eighty-nine  of  this  chapter. A superintendent shall refer the [pupil]
    29  student under the age of sixteen who has been determined to have brought
    30  a weapon or firearm to school in violation of [this] subdivision two  of
    31  this section to a presentment agency for a juvenile delinquency proceed-
    32  ing  consistent  with  article  three  of  the family court act except a
    33  student fourteen or fifteen years of  age  who  qualifies  for  juvenile
    34  offender status under subdivision forty-two of section 1.20 of the crim-
    35  inal  procedure  law.  A  superintendent shall refer any [pupil] student
    36  sixteen years of age or older or a student fourteen or fifteen years  of
    37  age  who qualifies for juvenile offender status under subdivision forty-
    38  two of section 1.20 of the criminal procedure law, who has  been  deter-
    39  mined  to  have  brought  a  weapon or firearm to school in violation of
    40  [this] subdivision two of this section to the appropriate  law  enforce-
    41  ment officials.
    42    [(2)]  b.  Nothing  in  this paragraph shall be deemed to mandate such
    43  action by a school district pursuant to subdivision [one]  two  of  this
    44  section  where  such weapon or firearm is possessed or brought to school
    45  with the written authorization of  such  educational  institution  in  a
    46  manner authorized by article two hundred sixty-five of the penal law for
    47  activities  approved and authorized by the board of trustees [or], board
    48  of education [or], other governing body [of the public school],  or  the
    49  chancellor  of  the  city school district in the case of the city school
    50  district of the city of New York and such governing body  adopts  appro-
    51  priate safeguards to ensure student safety.
    52    [(3)] c. As used in this paragraph:
    53    (i)  "firearm"  shall  mean  a  firearm  as defined in subsection a of
    54  section nine hundred twenty-one of title eighteen of the  United  States
    55  Code; and

        S. 767                             15
     1    (ii)  "weapon"  shall  be as defined in paragraph 2 of subsection g of
     2  section nine hundred thirty of title eighteen of the United States Code.
     3    [e.]  4.  Procedure after suspension. Where a [pupil] student has been
     4  suspended pursuant to [this] subdivision two of this  section  and  said
     5  [pupil  is  of compulsory attendance age] student has the legal right to
     6  attend school, immediate steps shall be taken [for] to ensure his or her
     7  attendance upon instruction elsewhere [or for supervision  or  detention
     8  of  said pupil pursuant to the provisions of article seven of the family
     9  court act] consistent with the requirements of paragraph m  of  subdivi-
    10  sion  three of section twenty-eight hundred one of this chapter. Where a
    11  [pupil] student has been suspended for  cause,  the  suspension  may  be
    12  revoked  by  the  board of education, board of trustees, other governing
    13  body or the chancellor of the city school district in the  case  of  the
    14  city  school district of the city of New York, whenever it appears to be
    15  [for] in the best interest of the school and the [pupil] student  to  do
    16  so. The [board of education may also condition a] student's early return
    17  to  school and suspension revocation may be conditioned on the [pupil's]
    18  student's voluntary participation in counseling or specialized  classes,
    19  including anger management or dispute resolution, where applicable.
    20    [f.]  5.  Definition.  Whenever the term "board of education, board of
    21  trustees, other governing  body,  the  chancellor  of  the  city  school
    22  district  in  the  case  of  the city school district of the city of New
    23  York, or superintendent  of  schools"  is  used  in  this  [subdivision]
    24  section, it shall be deemed to include charter schools, community boards
    25  of education and community superintendents governing community districts
    26  in  accordance  with the provisions of article fifty-two-A of this chap-
    27  ter.
    28    [g.] 6. Discipline of students with disabilities and students presumed
    29  to have a disability for discipline purposes.  [(1)] a.  Notwithstanding
    30  any  other  provision  of  this [subdivision] section to the contrary, a
    31  student with a disability as such term is defined in section  forty-four
    32  hundred  one of this chapter and a student presumed to have a disability
    33  for discipline purposes, may be suspended or removed  from  his  or  her
    34  current  educational  placement for violation of [school rules only] the
    35  code of conduct in accordance with the procedures  established  in  this
    36  section,  the  regulations  of the commissioner implementing this [para-
    37  graph] section, and subsection (k) of section fourteen  hundred  fifteen
    38  of  title  twenty  of the United States code and the federal regulations
    39  implementing such statute, as such federal law and regulations are  from
    40  time  to  time  amended.  Nothing  in  this [paragraph] section shall be
    41  construed to confer greater rights on such students than  are  conferred
    42  under applicable federal law and regulations, or to limit the ability of
    43  a  school district to change the educational placement of a student with
    44  a disability in accordance with the procedures in article eighty-nine of
    45  this chapter.
    46    [(2)] b. As used in this [paragraph] subdivision:
    47    (1) a "student presumed to have a disability for discipline  purposes"
    48  shall mean a student who the school district is deemed to have knowledge
    49  was  a  student  with a disability before the behavior that precipitated
    50  disciplinary action under the criteria in subsection (k) (5) of  section
    51  fourteen  hundred  fifteen of title twenty of the United States code and
    52  the federal regulations implementing such statute; and
    53    [(ii)] (2) a "manifestation team" means a representative of the school
    54  district, the parent  or  person  in  parental  relation,  and  relevant
    55  members  of  the  committee  on  special education, as determined by the
    56  parent or person in parental relation and the district.

        S. 767                             16
     1    [(3)] c. In applying the federal law consistent with this section:
     2    [(i)]  (1)  in  the  event of a conflict between the procedures estab-
     3  lished in this section  and  those  established  in  subsection  (k)  of
     4  section  fourteen  hundred  fifteen of title twenty of the United States
     5  code and the federal regulations implementing such statute, such federal
     6  statute and regulations shall govern.
     7    [(ii)] (2) the board of trustees or board of education of  any  school
     8  district  or  other  governing body or the chancellor of the city school
     9  district in the case of the city school district  of  the  city  of  New
    10  York, a district superintendent of schools or a building principal shall
    11  have  authority  to  order  the placement of a student with a disability
    12  into an appropriate interim  alternative  educational  setting,  another
    13  setting or suspension for a period not to exceed five consecutive school
    14  days  where  such student is suspended pursuant to this subdivision and,
    15  except as otherwise provided  in  [clause  (vi)]  paragraph  f  of  this
    16  [subparagraph]  subdivision,  the suspension does not result in a change
    17  in placement under federal law.
    18    [(iii)] (3) the superintendent of schools of a school district, either
    19  directly or upon recommendation of a hearing officer designated pursuant
    20  to paragraph c of [this] subdivision two of this section, may order  the
    21  placement  of  a  student  with a disability into an interim alternative
    22  educational setting, another setting or suspension for up to ten consec-
    23  utive school days, inclusive of any  period  in  which  the  student  is
    24  placed in an appropriate interim alternative educational setting, anoth-
    25  er  setting or suspension pursuant to clause [(ii)] two of this subpara-
    26  graph for the behavior, where the superintendent determines  in  accord-
    27  ance  with the procedures set forth in this subdivision that the student
    28  has engaged in behavior that violates the code of conduct and warrants a
    29  suspension, and, except as otherwise provided in [clause (vi)] paragraph
    30  f of this [subparagraph] subdivision, the suspension does not result  in
    31  a change in placement under federal law.
    32    [(iv)]  d.  the superintendent of schools of a school district, either
    33  directly or upon recommendation of a hearing officer designated pursuant
    34  to paragraph c of [this] subdivision two of this section, may order  the
    35  change  in placement of a student with a disability to an interim alter-
    36  native educational setting for up to forty-five school  days  under  the
    37  circumstances  specified  in  subsection  (k)(1)(G)  of section fourteen
    38  hundred fifteen of title twenty of the United States code and the feder-
    39  al regulations implementing  such  statute  or  a  longer  period  where
    40  authorized   by   federal  law  under  the  circumstances  specified  in
    41  subsection (k)(1)(C) of section fourteen hundred fifteen of title twenty
    42  of the United States code and the federal regulations implementing  such
    43  statute,  but  in  neither  case  shall such period exceed the period of
    44  suspension ordered by a superintendent in accordance with this  subdivi-
    45  sion.
    46    [(v)] e. the terms "day," "business day," and "school day" shall be as
    47  defined  in  section  300.11 of title thirty-four of the code of federal
    48  regulations.
    49    [(vi)] f. notwithstanding any other provision of this  subdivision  to
    50  the  contrary,  upon  a  determination  by a manifestation team that the
    51  behavior of a student with a disability was not a manifestation  of  the
    52  student's  disability,  such student may be disciplined pursuant to this
    53  section in the same manner and for the same duration  as  a  nondisabled
    54  student,  except that such student shall continue to receive services to
    55  the extent required under federal law and regulations, and such services
    56  may be provided in an interim alternative educational setting.

        S. 767                             17
     1    [(vii)] g. an impartial hearing officer appointed pursuant to subdivi-
     2  sion one of section forty-four hundred four of this chapter may order  a
     3  change  in  placement  of  a student with a disability to an appropriate
     4  interim alternative educational setting for  not  more  than  forty-five
     5  school  days under the circumstances specified in subsections (k)(3) and
     6  (k)(4) of section fourteen hundred fifteen of title twenty of the United
     7  States code and the  federal  regulations  implementing  such  statutes,
     8  provided that such procedure may be repeated, as necessary.
     9    [(viii)]  h.  nothing  in this section shall be construed to authorize
    10  the suspension or removal of a student with a disability from his or her
    11  current educational placement [for violation of school rules]  following
    12  a  determination by a manifestation team that the behavior is a manifes-
    13  tation of the student's disability, except as authorized  under  federal
    14  law and regulations.
    15    [(ix)]  i. the commissioner shall implement this paragraph by adopting
    16  regulations which coordinate the procedures required for  discipline  of
    17  students  with  disabilities, and students presumed to have a disability
    18  for discipline purposes, pursuant to subsection (k) of section  fourteen
    19  hundred fifteen of title twenty of the United States code and the feder-
    20  al  regulations  implementing  such statute, with the general procedures
    21  for student discipline under this section.
    22    [3-a.] [Teacher removal of a disruptive pupil. In  addition,  any]  7.
    23  Classroom  management.  A  teacher shall have the power and authority to
    24  [remove a disruptive pupil, as defined  in  subdivision  two-a  of  this
    25  section,]  manage  their classrooms consistent with the code of conduct,
    26  this section and section  twenty-eight  hundred  one  of  this  chapter.
    27  Teachers  may  remove a student from such teacher's classroom consistent
    28  with discipline and intervention  measures  contained  in  the  code  of
    29  conduct  adopted [by the board] pursuant to section twenty-eight hundred
    30  one of this chapter when a student's behavior violates  a  provision  of
    31  the  code  of conduct for which removal may be warranted and no alterna-
    32  tive intervention alone is appropriate to address the alleged  behavior.
    33  Such  classroom  removal  may not exceed one half school day on the same
    34  school day.  The [school authorities of any] school district or  charter
    35  school  shall  establish policies and procedures to ensure the provision
    36  of continued educational programming and activities for students removed
    37  from the classroom pursuant to this subdivision and to  section  twenty-
    38  eight  hundred one of this chapter, and provided further that nothing in
    39  this subdivision shall authorize the removal of  a  [pupil]  student  in
    40  violation  of any state or federal law or regulation. No [pupil] student
    41  shall return to the classroom until the principal makes a final determi-
    42  nation pursuant to paragraph [c] d of this subdivision, or the period of
    43  removal expires, whichever is less.
    44    a. When a student is removed from  the  classroom,  the  school  shall
    45  provide  the  appropriate services, interventions, or restorative disci-
    46  pline to enable the student to return to the classroom as  expeditiously
    47  as  possible,  and  in  no  case no longer than one half day on the same
    48  school day as the removal. After a student's third removal in  a  school
    49  year,  the  school  shall  create  a  plan to provide appropriate inter-
    50  ventions, supports, and services that address the behavior  and  circum-
    51  stances that led to the removals.
    52    b.  Such teacher shall inform the [pupil] student and the school prin-
    53  cipal of the reasons for the removal. [If the  teacher  finds  that  the
    54  pupil's  continued  presence in the classroom does not pose a continuing
    55  danger to persons or property and does not present an ongoing threat  of
    56  disruption to the academic process, the teacher shall, prior to removing

        S. 767                             18

     1  the  student from the classroom, provide the student with an explanation
     2  of the basis for the removal and allow the pupil to  informally  present
     3  the  pupil's version of relevant events. In all other cases, the teacher
     4  shall provide the pupil with an explanation of the basis for the removal
     5  and  an informal opportunity to be heard within twenty-four hours of the
     6  pupil's removal, provided that if such twenty-four hour period does  not
     7  end  on  a school day, it shall be extended to the corresponding time on
     8  the next school day.
     9    b.] c. The principal shall inform the parent  or  person  in  parental
    10  relation to such [pupil] student of the removal and the reasons therefor
    11  within  twenty-four  hours  of the [pupil's] student's removal, provided
    12  that if such twenty-four hour period does not end on a  school  day,  it
    13  shall  be extended to the corresponding time on the next school day. The
    14  [pupil] student and the parent or person  in  parental  relation  shall,
    15  upon  request,  be  given an opportunity for an informal conference with
    16  the principal to discuss the reasons for  the  removal.  [If  the  pupil
    17  denies  the  charges, the] The principal shall provide an explanation of
    18  the basis for the removal and allow the [pupil] student and/or parent or
    19  person in parental relation to the [pupil]  student  an  opportunity  to
    20  present  the  [pupil's]  student's  version  of  relevant  events.  Such
    21  informal [hearing] conference shall be held within forty-eight hours  of
    22  the  [pupil's] student's removal, provided that if such forty-eight hour
    23  period does not end on a school day, it shall be extended to the  corre-
    24  sponding  time  on  the  second  school day next following the [pupil's]
    25  student's removal. A parent  or  person  in  parental  relation  to  the
    26  student  may  request that the informal conference take place later than
    27  forty-eight hours after the student's  removal.  For  purposes  of  this
    28  subdivision, "school day" shall mean a school day as defined pursuant to
    29  [clause  (v)  of  subparagraph  three of] paragraph [g] e of subdivision
    30  [three] six of this section.
    31    [c.] d. The principal shall not set aside the  discipline  imposed  by
    32  the  teacher  unless  the  principal  finds that the charges against the
    33  [pupil] student are not supported by substantial evidence  or  that  the
    34  [pupil's] student's removal is otherwise in violation of law or that the
    35  conduct  warrants  suspension from school pursuant to this section and a
    36  suspension will be imposed.  The principal's determination made pursuant
    37  to this paragraph shall be made by the close of business on  the  school
    38  day  next  succeeding  the  end  of  the  forty-eight hour period for an
    39  informal [hearing] conference contained  in  paragraph  [b]  c  of  this
    40  subdivision.
    41    [d.]  e.  The  principal  may,  in  his or her discretion, designate a
    42  school district administrator, to carry out the  functions  required  of
    43  the principal under this subdivision.
    44    [4.]  8. Expense. a. The expense attending the commitment and costs of
    45  maintenance of [any school delinquent] a student placed as a result of a
    46  finding related to school  or  educational  issues  shall  be  a  charge
    47  against  the  city  or district where he or she resides, if such city or
    48  district employs a superintendent of schools; otherwise it  shall  be  a
    49  county charge.
    50    b.  The  school  authorities  may institute proceedings before a court
    51  having jurisdiction to determine the liability of a parent or person  in
    52  parental  relation  to  contribute  towards the maintenance of a [school
    53  delinquent] student under sixteen years of age ordered  to  attend  upon
    54  instruction  under  confinement.  If  the court shall find the parent or
    55  person in parental relation able to contribute towards  the  maintenance

        S. 767                             19
     1  of  such  a  minor,  it  may issue an order fixing the amount to be paid
     2  weekly.
     3    [5.]  9.  Involuntary transfers of [pupils] students who have not been
     4  determined to be a student with a disability or a  student  presumed  to
     5  have a disability for discipline purposes.
     6    a.  The board of education, board of trustees [or sole trustee], other
     7  governing body, the chancellor in the case of the city  school  district
     8  of  the  city  of  New  York, the superintendent of schools, or district
     9  superintendent of schools may transfer a [pupil]  student  who  has  not
    10  been  determined to be a student with a disability as defined in section
    11  forty-four hundred one of this chapter, or a student presumed to have  a
    12  disability for discipline purposes as defined in [paragraph g of] subdi-
    13  vision [three] six of this section from regular classroom instruction to
    14  an  appropriate  educational  setting in another school upon the written
    15  recommendation of the school principal and following independent  review
    16  thereof. For purposes of this section of the law, "involuntary transfer"
    17  does  not include a transfer made by a school district as part of a plan
    18  to reduce racial imbalance within the schools or as a change  in  school
    19  attendance zones or geographical boundaries.
    20    b.  A  school principal may initiate a non-requested transfer where it
    21  is believed that such a [pupil] student would benefit from the  transfer
    22  [, or] and when the [pupil] student would receive an adequate and appro-
    23  priate education in another school program or facility.
    24    No  recommendation  for [pupil] student transfer shall be initiated by
    25  the principal until such [pupil] student  and  a  parent  or  person  in
    26  parental  relation  has  been sent written notification of the consider-
    27  ation of transfer recommendation which shall include  a  description  of
    28  the  facts and circumstances upon which the transfer is based and copies
    29  of all relevant documentary evidence. Such notice shall set a  time  and
    30  place of an informal conference with the principal and shall inform such
    31  parent  or person in parental relation and such [pupil] student of their
    32  right to be accompanied by counsel or an individual of their choice.
    33    c. After the conference  and  if  the  principal  concludes  that  the
    34  [pupil]  student would benefit from a transfer [or] and that the [pupil]
    35  student would receive an adequate and appropriate education  in  another
    36  school  program or facility, the principal may issue a recommendation of
    37  transfer to the superintendent.  Such  recommendation  shall  include  a
    38  description  of behavior and/or academic problems indicative of the need
    39  for transfer; a description of alternatives explored  and  prior  action
    40  taken to resolve the problem. A copy of that letter shall be sent to the
    41  parent or person in parental relation and to the [pupil] student.
    42    d.  Upon  receipt of the principal's recommendation for transfer and a
    43  determination to consider that recommendation, the superintendent  shall
    44  notify the parent or person in parental relation and the [pupil] student
    45  of  the  proposed  transfer  and  of  their  right  to a fair hearing as
    46  provided in paragraph c of subdivision [three] two of this  section  and
    47  shall  list community agencies and free legal assistance which may be of
    48  assistance. The written  notice  shall  include  a  statement  that  the
    49  [pupil] student or parent or person in parental relation has ten days to
    50  request  a hearing and that the proposed transfer shall not take effect,
    51  except upon written parental consent,  until  the  ten  day  period  has
    52  elapsed,  or, if a fair hearing is requested, until after a formal deci-
    53  sion following the hearing is rendered, whichever is later.
    54    Parental consent to a transfer shall not constitute a  waiver  of  the
    55  right to a fair hearing.

        S. 767                             20
     1    [6.]  10.  Transfer  of a [pupil] student.   Where a suspended [pupil]
     2  student is to be transferred pursuant to subdivision [five] nine of this
     3  section, he or she shall remain on the register of the  original  school
     4  for  two  school days following transmittal of his or her records to the
     5  school  to  which  he  or she is to be transferred. The receiving school
     6  shall immediately  upon  receiving  those  records  transmitted  by  the
     7  original  school,  review them to insure proper placement of the [pupil]
     8  student.   Staff members who are involved  in  the  [pupil's]  student's
     9  education must be provided with pertinent records and information relat-
    10  ing  to  the  background  and problems of the [pupil] student before the
    11  [pupil] student is placed in a classroom.
    12    [7.] 11. Transfer of disciplinary records. Notwithstanding  any  other
    13  provision of law to the contrary, each local educational agency, as such
    14  term  is  defined in subsection thirty of section eighty-one hundred one
    15  of the Elementary and Secondary Education Act of 1965, as amended, shall
    16  establish procedures in  accordance  with  section  eighty-five  hundred
    17  thirty-seven  of  the Elementary and Secondary Education Act of 1965, as
    18  amended, and the Family Educational Rights and Privacy Act of  1974,  to
    19  facilitate  the transfer of disciplinary records relating to the suspen-
    20  sion [or expulsion] of a student to any public or  nonpublic  elementary
    21  or  secondary  school in which such student enrolls or seeks, intends or
    22  is instructed to enroll, on a full-time or part-time basis  unless  such
    23  record has been expunged pursuant to section twenty-eight hundred one of
    24  this chapter.
    25    § 3-a. Section 305 of the education law is amended by adding three new
    26  subdivisions 57, 59 and 60 to read as follows:
    27    57.  The  commissioner  shall  provide  technical assistance to school
    28  districts, boards  of  cooperative  educational  services,  and  charter
    29  schools about the development, implementation and evaluation of a school
    30  district's or charter school's code of conduct including:
    31    (a)  one or more model codes of conduct, designed to reduce the use of
    32  suspensions, that meet the requirements of sections twenty-eight hundred
    33  one and thirty-two hundred fourteen of this chapter;
    34    (b) best practices for age-appropriate,  graduated  and  proportionate
    35  discipline  as set out in section twenty-eight hundred one of this chap-
    36  ter;
    37    (c) a matrix of student misconduct and the interventions and discipli-
    38  nary measures that provide age-appropriate, graduated and  proportionate
    39  intervention designed to reduce reliance on suspensions and referrals to
    40  law enforcement;
    41    (d)  guidelines  for  appropriate  and  school-wide  implementation of
    42  restorative practices; and
    43    (e) forms necessary to implement student notification and due  process
    44  requirements  of section twenty-eight hundred one and thirty-two hundred
    45  fourteen of this chapter.
    46    59. The commissioner shall, pursuant to an appropriation in the  state
    47  budget,  provide  funds  to  school  districts  for  implementation of a
    48  school's code of conduct including mandatory pre-service and  in-service
    49  training of school personnel about prevention, restorative practices and
    50  other  interventions  and  disciplinary  measures  to respond to student
    51  misconduct as required by section twenty-eight hundred one of this chap-
    52  ter.
    53    60. The commissioner shall be authorized to provide funds for training
    54  school personnel included in section twenty-eight hundred  one  of  this
    55  chapter  only  to the extent that the state budget includes an appropri-
    56  ation for such training.

        S. 767                             21
     1    § 4. Subparagraph 1 of paragraph c of subdivision 3 of section 3214 of
     2  the education law, as amended by chapter 380 of the  laws  of  2001,  is
     3  amended to read as follows:
     4    (1)  [No  pupil may be suspended for a period in excess of five school
     5  days] Long term suspension. The board of education, board  of  trustees,
     6  other  governing body, the chancellor of the city school district in the
     7  case of the city school district of the city of New York, superintendent
     8  of schools or district  superintendent  of  schools  where  the  student
     9  attends shall have the power to suspend for a period not to exceed twen-
    10  ty school days any student who engages in behavior that results in seri-
    11  ous  physical injury to students, staff, or others or any student who is
    12  in grades four through twelve, if  a  determination  is  made  that  the
    13  student  engaged in behavior that violated the code of conduct for which
    14  long term suspension may be warranted.  Such  suspension  shall  not  be
    15  imposed 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]. Once a decision has been made to seek a
    18  long term suspension, written notice shall be provided  to  the  student
    19  and the parent or person in parental relation to the student. Such writ-
    20  ten  notice,  [at  which  such pupil] shall include a description of the
    21  facts and circumstances upon which the alleged violations of the code of
    22  conduct are based, the section of the code of conduct that  the  student
    23  is  charged  to  have  violated,    the  disciplinary action that may be
    24  warranted, the length of a possible suspension, copies of  all  evidence
    25  regarding  the  alleged incident, and the date, time and place scheduled
    26  for the hearing. Such hearing shall be convened within five days of  the
    27  written  notice,  unless  the  parent  or person in parental relation or
    28  student requests a later date. At the hearing, the  student  shall  have
    29  the  right  of  representation by counsel, with the right to request the
    30  presence of and question witnesses against such [pupil] student  and  to
    31  request  the presence of and present witnesses and other evidence on his
    32  or her behalf. Where [a pupil has been suspended in accordance with this
    33  subdivision by a superintendent of schools, district  superintendent  of
    34  schools,   or   community   superintendent,   the  superintendent  shall
    35  personally hear and determine the proceeding or may, in his  discretion,
    36  designate  a  hearing  officer  to conduct the hearing] the student is a
    37  student with a disability or a student presumed to  have  a  disability,
    38  the  provisions  of  subdivision  six  of this section shall also apply.
    39  [The hearing officer] The board of education, board of  trustees,  other
    40  governing  body,  the chancellor of the city school district in the case
    41  of the city school district of the city of New York,  superintendent  of
    42  schools or district superintendent shall conduct the hearing and issue a
    43  decision,  or  may  designate  a hearing officer to do so. The entity or
    44  individual that conducts the hearing shall be authorized  to  administer
    45  oaths  and to issue subpoenas in conjunction with the proceeding [before
    46  him]. A record of the hearing shall be maintained, but  no  stenographic
    47  transcript  shall  be  required and [a tape] an audio recording shall be
    48  deemed a satisfactory record. The entity or  individual  conducting  the
    49  hearing  shall  consider  only  the  evidence  presented at the hearing,
    50  determine whether the charge has been established by a preponderance  of
    51  the  evidence and may uphold, reduce or dismiss the proposed charge. The
    52  [hearing officer] entity or individual conducting the hearing shall make
    53  written findings of fact and [recommendations as to]  shall  decide  the
    54  appropriate measure of discipline [to the superintendent.  The report of
    55  the  hearing  officer shall be advisory only, and the superintendent may
    56  accept all or any part thereof. An appeal will lie from the decision  of

        S. 767                             22

     1  the superintendent to the board of education who shall make its decision
     2  solely  upon  the  record  before it. The board may adopt in whole or in
     3  part the decision of the superintendent of schools.], if any.  The enti-
     4  ty  or  individual conducting the hearing shall issue a written decision
     5  to the school and the parent or  person  in  parental  relation  to  the
     6  student  within  three  days of the hearing. If the entity or individual
     7  conducting the hearing determines that a suspension  of  six  to  twenty
     8  days  is  warranted,  the written decision shall state the length of the
     9  suspension, findings of fact, reasons for the determination,  procedures
    10  for  appeal,  and the date by which the appeal shall be filed. Where the
    11  basis for the suspension is, in whole or  in  part,  the  possession  on
    12  school  grounds or school property by the student of any firearm, rifle,
    13  shotgun, dagger, dangerous knife, dirk, razor, stiletto or  any  of  the
    14  weapons,  instruments  or  appliances  specified  in  subdivision one of
    15  section 265.01 of the penal law, the hearing officer  or  superintendent
    16  shall  not  be barred from considering the admissibility of such weapon,
    17  instrument or appliance as evidence, notwithstanding a determination  by
    18  a court in a criminal or juvenile delinquency proceeding that the recov-
    19  ery  of such weapon, instrument or appliance was the result of an unlaw-
    20  ful search or seizure.  If suspension is imposed, the school district or
    21  charter school  shall  establish  an  education  plan  for  the  student
    22  consistent  with the requirements in section twenty-eight hundred one of
    23  this chapter, including academic and support services, and  a  plan  for
    24  the student's reinstatement to school.
    25    § 5. Paragraphs d and f of subdivision 3 of section 3214 of the educa-
    26  tion  law, as amended by chapter 181 of the laws of 2000, are amended to
    27  read as follows:
    28    [d.] 3. a. Consistent with the federal gun-free schools act  of  nine-
    29  teen  hundred  ninety-four,  any  public  school  [pupil] student who is
    30  determined under [this] subdivision two of this section to have  brought
    31  a  weapon to school shall be suspended for a period of not less than one
    32  calendar year and any nonpublic school [pupil] student participating  in
    33  a  program  operated  by  a  public school district using funds from the
    34  elementary and secondary education act of  nineteen  hundred  sixty-five
    35  who  is  determined under [this] subdivision two of this section to have
    36  brought a weapon to a public school or other premises used by the school
    37  district to provide such programs shall be suspended for a period of not
    38  less than one calendar year from  participation  in  such  program.  The
    39  procedures  of  this  subdivision  shall apply to such a suspension of a
    40  nonpublic school [pupil] student.  A superintendent of schools, district
    41  superintendent of schools or community  superintendent  shall  have  the
    42  authority  to  modify  this suspension requirement for each student on a
    43  case-by-case basis. The  determination  of  a  superintendent  shall  be
    44  subject  to  review  by the board of education, board of trustees, other
    45  governing body or the chancellor of the city school district in the case
    46  of the city school district of the city of New York, pursuant  to  para-
    47  graph  c  of [this] subdivision two of this section and the commissioner
    48  pursuant to section three hundred ten of this chapter. Nothing  in  this
    49  subdivision  shall  be  deemed  to authorize the suspension of a student
    50  with a disability in violation  of  the  individuals  with  disabilities
    51  education  act  or article eighty-nine of this chapter. A superintendent
    52  shall refer the [pupil] student under the age of sixteen  who  has  been
    53  determined  to  have  brought  a weapon to school in violation of [this]
    54  subdivision two of this section to a presentment agency for  a  juvenile
    55  delinquency proceeding consistent with article three of the family court
    56  act  except a student fourteen or fifteen years of age who qualifies for

        S. 767                             23
     1  juvenile offender status under subdivision forty-two of section 1.20  of
     2  the  criminal  procedure  law.  A superintendent shall refer any [pupil]
     3  student sixteen years of age or older or a student fourteen  or  fifteen
     4  years  of  age who qualifies for juvenile offender status under subdivi-
     5  sion forty-two of section 1.20 of the criminal procedure  law,  who  has
     6  been  determined  to  have  brought  a  weapon to school in violation of
     7  [this] subdivision two of this section to the appropriate  law  enforce-
     8  ment officials.
     9    b. Nothing in this paragraph shall be deemed to mandate such action by
    10  a  school district or charter school pursuant to subdivision two of this
    11  section where such weapon or firearm is possessed or brought  to  school
    12  with  the  written  authorization  of  such educational institution in a
    13  manner authorized by article two hundred sixty-five of the penal law for
    14  activities approved and authorized by the board of  trustees,  board  of
    15  education,  other  governing  body  or the chancellor of the city school
    16  district in the case of the city school district of the city of New York
    17  and such governing body adopts appropriate safeguards to ensure  student
    18  safety.
    19    c. As used in this paragraph:
    20    (1)  "firearm"  shall  mean  a  firearm  as defined in subsection a of
    21  section nine hundred twenty-one of title eighteen of the  United  States
    22  Code; and
    23    (2)  "weapon"  shall  be  as defined in paragraph 2 of subsection g of
    24  section nine hundred thirty of title eighteen of the United States Code.
    25    [f.] 5. Definition. Whenever the term "board of  education,  board  of
    26  trustees,  other  governing  body,  the  chancellor  of  the city school
    27  district in the case of the city school district  of  the  city  of  New
    28  York,  or  superintendent  of  schools"  is  used  in this [subdivision]
    29  section, it shall be deemed to include charter schools, community boards
    30  of education and community superintendents governing community districts
    31  in accordance with the provisions of article fifty-two-A of  this  chap-
    32  ter.  [For  the  purpose  of this subdivision, the term "weapon" means a
    33  firearm as such term is defined in section nine  hundred  twenty-one  of
    34  title eighteen of the United States code.]
    35    §  6.  Paragraph  g  of subdivision 3 of section 3214 of the education
    36  law, as amended by chapter 181 of the  laws  of  2000,  clause  (ii)  of
    37  subparagraph 3 as amended by chapter 380 of the laws of 2001, is amended
    38  to read as follows:
    39    [g.] 6. Discipline of students with disabilities and students presumed
    40  to  have  a disability for discipline purposes. [(1)] a. Notwithstanding
    41  any other provision of this [subdivision] section  to  the  contrary,  a
    42  student  with a disability as such term is defined in section forty-four
    43  hundred one of this chapter and a student presumed to have a  disability
    44  for  discipline  purposes,  may  be suspended or removed from his or her
    45  current educational placement for violation of [school rules  only]  the
    46  code  of  conduct  in accordance with the procedures established in this
    47  section, the regulations of the commissioner  implementing  this  [para-
    48  graph]  section,  and subsection (k) of section fourteen hundred fifteen
    49  of title twenty of the United States code and  the  federal  regulations
    50  implementing  such statute, as such federal law and regulations are from
    51  time to time amended. Nothing  in  this  [paragraph]  section  shall  be
    52  construed  to  confer greater rights on such students than are conferred
    53  under applicable federal law and regulations, or to limit the ability of
    54  a school district to change the educational placement of a student  with
    55  a disability in accordance with the procedures in article eighty-nine of
    56  this chapter.

        S. 767                             24
     1    [(2)] b. As used in this [paragraph;] subdivision:
     2    (1)  a "student presumed to have a disability for discipline purposes"
     3  shall mean a student who the school district is deemed to have knowledge
     4  was a student with a disability before the  behavior  that  precipitated
     5  disciplinary  action  under the criteria in subsection (k)(8) of section
     6  fourteen hundred fifteen of title twenty of the United States  code  and
     7  the federal regulations implementing such statute[.]; and
     8    (2)  a  "manifestation  team"  means  a  representative  of the school
     9  district, the parent  or  person  in  parental  relation,  and  relevant
    10  members  of  the  committee  on  special education, as determined by the
    11  parent or person in parental relation and the district.
    12    [(3)] c. In applying the federal law consistent with this section:
    13    [(i)] (1) in the event of a conflict  between  the  procedures  estab-
    14  lished  in  this  section  and  those  established  in subsection (k) of
    15  section fourteen hundred fifteen of title twenty of  the  United  States
    16  code and the federal regulations implementing such statute, such federal
    17  statute and regulations shall govern.
    18    [(ii)]  (2)  the board of trustees or board of education of any school
    19  district, a district superintendent of schools or a  building  principal
    20  shall have authority to order the placement of a student with a disabil-
    21  ity into an appropriate interim alternative educational setting, another
    22  setting or suspension for a period not to exceed five consecutive school
    23  days  where  such student is suspended pursuant to this subdivision and,
    24  except as otherwise provided  in  [clause  (vi)]  paragraph  f  of  this
    25  [subparagraph]  subdivision,  the suspension does not result in a change
    26  in placement under federal law.
    27    [(iii)] (3) the superintendent of schools of a school district, either
    28  directly or upon recommendation of a hearing officer designated pursuant
    29  to paragraph c of [this] subdivision two of this section, may order  the
    30  placement  of  a  student  with a disability into an interim alternative
    31  educational setting, another setting or suspension for up to ten consec-
    32  utive school days, inclusive of any  period  in  which  the  student  is
    33  placed  in  an  appropriate  interim  alternative educational placement,
    34  another setting or suspension pursuant to  clause  [(ii)]  two  of  this
    35  subparagraph  for  the  behavior, where the superintendent determines in
    36  accordance with the procedures set forth in this  subdivision  that  the
    37  student  has  engaged  in behavior that violates the code of conduct and
    38  warrants a suspension, and, except  as  otherwise  provided  in  [clause
    39  (vi)]  paragraph  f  of  this [subparagraph] subdivision, the suspension
    40  does not result in a change in placement under federal law.
    41    [(iv)] d. the superintendent of schools of a school  district,  either
    42  directly or upon recommendation of a hearing officer designated pursuant
    43  to  paragraph c of [this] subdivision two of this section, may order the
    44  change in placement of a student with a disability to an interim  alter-
    45  native  educational setting for up to forty-five days, but not to exceed
    46  the period of suspension ordered by a superintendent in accordance  with
    47  this subdivision, under the circumstances specified in subsection (k)(1)
    48  of section fourteen hundred fifteen of title twenty of the United States
    49  code and the federal regulations implementing such statute.
    50    [(v)] e. the terms "day," "business day," and "school day" shall be as
    51  defined  in  section  300.9  of title thirty-four of the code of federal
    52  regulations.
    53    [(vi)] f. notwithstanding any other provision of this  subdivision  to
    54  the contrary, upon a determination by the committee on special education
    55  that the behavior of a student with a disability was not a manifestation
    56  of the student's disability, such student may be disciplined pursuant to

        S. 767                             25
     1  this  section  in  the same manner as a nondisabled student, except that
     2  such student shall continue to receive services to the  extent  required
     3  under federal law and regulations.
     4    [(vii)] g. an impartial hearing officer appointed pursuant to subdivi-
     5  sion  one of section forty-four hundred four of this chapter may order a
     6  change in placement of a student with a  disability  to  an  appropriate
     7  interim  alternative  educational  setting  for not more than forty-five
     8  days under the circumstances specified in subsections (k)(2) and  (k)(7)
     9  of section fourteen hundred fifteen of title twenty of the United States
    10  code  and  the  federal regulations implementing such statutes, provided
    11  that such procedure may be repeated, as necessary.
    12    [(viii)] h. nothing in this section shall be  construed  to  authorize
    13  the suspension or removal of a student with a disability from his or her
    14  current  educational placement [for violation of school rules] following
    15  a determination by the committee on special education that the  behavior
    16  is  a  manifestation  of  the student's disability, except as authorized
    17  under federal law and regulations.
    18    [(ix)] i. the commissioner shall implement this paragraph by  adopting
    19  regulations  which  coordinate the procedures required for discipline of
    20  students with disabilities, and students presumed to have  a  disability
    21  for  discipline purposes, pursuant to subsection (k) of section fourteen
    22  hundred fifteen of title twenty of the United States code and the feder-
    23  al regulations implementing such statute, with  the  general  procedures
    24  for student discipline under this section.
    25    §  7.  Paragraphs a, b and c of subdivision 3-a of section 3214 of the
    26  education law, as added by chapter 181 of the laws of 2000, are  amended
    27  to read as follows:
    28    [a.]  b.  Such teacher shall inform the [pupil] student, the parent or
    29  person in parental relation to the student and the school  principal  of
    30  the  reasons  for  the removal.   [If the teacher finds that the pupil's
    31  continued presence in the classroom does not pose a continuing danger to
    32  persons or property and does not present an ongoing threat of disruption
    33  to the academic process,  the  teacher  shall,  prior  to  removing  the
    34  student  from  the classroom, provide the student with an explanation of
    35  the basis for the removal and allow the pupil to informally present  the
    36  pupil's  version  of  relevant  events.  In all other cases, the teacher
    37  shall provide the pupil with an explanation of the basis for the removal
    38  and an informal opportunity to be heard within twenty-four hours of  the
    39  pupil's removal.
    40    b.]  c.  The  principal  shall inform the parent or person in parental
    41  relation to such [pupil] student of the removal and the reasons therefor
    42  within twenty-four hours  of  the  [pupil's]  student's  removal.    The
    43  [pupil]  student  and  the  parent or person in parental relation shall,
    44  upon request, be given an opportunity for an  informal  conference  with
    45  the  principal  to  discuss  the  reasons for the removal. [If the pupil
    46  denies the charges, the] The principal shall provide an  explanation  of
    47  the basis for the removal and allow the [pupil] student and/or parent or
    48  person  in  parental  relation  to the [pupil] student an opportunity to
    49  present  the  [pupil's]  student's  version  of  relevant  events.  Such
    50  informal  [hearing] conference shall be held within forty-eight hours of
    51  the [pupil's] student's removal, provided that if such forty-eight  hour
    52  period  does not end on a school day, it shall be extended to the corre-
    53  sponding time on the  second  school  day  next  following  the  pupil's
    54  student's  removal.  A  parent  or  person  in  parental relation to the
    55  student may request that the informal conference take place  later  than
    56  forty-eight  hours  after  the  student's  removal. For purposes of this

        S. 767                             26
     1  subdivision, "school day" shall mean a school day as defined pursuant to
     2  paragraph e of subdivision six of this section.
     3    [c.]  d.  The  principal shall not set aside the discipline imposed by
     4  the teacher unless the principal finds  that  the  charges  against  the
     5  [pupil]  student  are  not supported by substantial evidence or that the
     6  [pupil's] student's removal is otherwise in violation of law or that the
     7  conduct warrants suspension from school pursuant to this section  and  a
     8  suspension will be imposed.  The principal's determination made pursuant
     9  to  this  paragraph  shall  be  made by the close of business on the day
    10  succeeding the forty-eight hour period for an informal [hearing] confer-
    11  ence contained in paragraph [b] c of this subdivision.
    12    § 8. Clause (j) of subparagraph 3 of paragraph b of subdivision  1  of
    13  section  4402  of the education law, as added by chapter 311 of the laws
    14  of 1999, is amended to read as follows:
    15    (j) In  accordance  with  the  regulations  of  the  commissioner  and
    16  subsection  (k)  of  section fourteen hundred fifteen of title twenty of
    17  the United States code and  the  implementing  federal  regulations,  to
    18  conduct a review to determine whether behavior of a student with a disa-
    19  bility which violates the applicable school rules or code of conduct and
    20  results  in  a  change in placement under federal law, including but not
    21  limited to placement  in  an  interim  alternative  educational  setting
    22  pursuant  to [clause (iv) or (vii) of subparagraph three of paragraph g]
    23  paragraphs d or g of  subdivision  [three]  six  of  section  thirty-two
    24  hundred  fourteen  of this chapter, was a manifestation of the student's
    25  disability, provided that other qualified school district personnel  may
    26  participate in such review.
    27    §  9.  Paragraph  b  of subdivision 4 of section 4404 of the education
    28  law, as amended by chapter 378 of the laws of 2007, is amended  to  read
    29  as follows:
    30    b.  For  students  with  disabilities placed in an interim alternative
    31  educational setting pursuant to [clause (iv) or  (vii)  of  subparagraph
    32  three  of  paragraph  g] paragraphs d or g of subdivision [three] six of
    33  section thirty-two hundred fourteen of this chapter, during the pendency
    34  of proceedings conducted pursuant to this section in which  the  parents
    35  or persons in parental relation challenge the interim alternative educa-
    36  tional  setting  or  a  manifestation  determination,  the student shall
    37  remain in the interim alternative educational setting pending the  deci-
    38  sion  of  the  impartial hearing officer or until expiration of the time
    39  period of the student's placement in an interim alternative  educational
    40  setting, whichever comes first, unless the local school district and the
    41  parents or persons in parental relation otherwise agree. After the expi-
    42  ration  of such placement in an interim alternative educational setting,
    43  if the school district  proposes  to  change  the  student's  placement,
    44  during  the pendency of any proceedings to challenge the proposed change
    45  in placement, the student shall return to  and  remain  in  the  current
    46  educational  placement,  which shall be the student's placement prior to
    47  the interim alternative educational setting,  unless  the  local  school
    48  district and the parents or persons in parental relation otherwise agree
    49  or  unless  as a result of a decision by an impartial hearing officer in
    50  an expedited hearing, the interim  alternative  educational  setting  is
    51  extended  for  a  period not to exceed forty-five school days based on a
    52  determination that maintaining the current educational placement of  the
    53  student is substantially likely to result in injury to the student or to
    54  others.  Such  procedure  for extension of an interim alternative educa-
    55  tional setting may be repeated as necessary.

        S. 767                             27
     1    § 10. Paragraph b of subdivision 4 of section 4404  of  the  education
     2  law,  as  amended by chapter 311 of the laws of 1999, is amended to read
     3  as follows:
     4    b.  For  students  with  disabilities placed in an interim alternative
     5  educational setting pursuant to [clause (iv) or  (vii)  of  subparagraph
     6  three  of  paragraph  g] paragraphs d or g of subdivision [three] six of
     7  section thirty-two hundred fourteen of this chapter, during the pendency
     8  of proceedings conducted pursuant to this section in which  the  parents
     9  or  persons  in  parental relationship challenge the interim alternative
    10  educational setting or a manifestation determination, the student  shall
    11  remain  in the interim alternative educational setting pending the deci-
    12  sion of the hearing officer or until expiration of the  time  period  of
    13  the  student's  interim  alternative  placement,  whichever comes first,
    14  unless the local school district and the parents or persons in  parental
    15  relationship  otherwise  agree.  After  the  expiration  of such interim
    16  alternative educational placement, if the school  district  proposes  to
    17  change  the  student's placement, during the pendency of any proceedings
    18  to challenge the proposed change in placement, the student shall  return
    19  to  and  remain in the current educational placement, which shall be the
    20  student's  placement  prior  to  the  interim  alternative   educational
    21  setting,  unless the local school district and the parents or persons in
    22  parental relationship otherwise agree or unless as a result of  a  deci-
    23  sion by an impartial hearing officer in an expedited hearing, the inter-
    24  im  alternative  educational  setting is extended or another appropriate
    25  placement is ordered for a period not to exceed forty-five days based on
    26  a determination that maintaining the current  educational  placement  of
    27  the  student  is substantially likely to result in injury to the student
    28  or to others. Such procedure for extension  of  an  interim  alternative
    29  educational setting may be repeated as necessary.
    30    § 11. This act shall take effect immediately; provided, however that:
    31    a.  the  amendments  to subdivision 3 of section 2801 of the education
    32  law made by section one of this act shall be subject to  the  expiration
    33  and  reversion  of such subdivision pursuant to section 34 of chapter 91
    34  of the laws of 2002, as amended, when upon such date the  provisions  of
    35  section two of this act shall take effect;
    36    b. the amendments to subparagraph 1 of paragraph c of subdivision 3 of
    37  section  3214  of  the  education  law made by section three of this act
    38  shall be subject to the expiration and reversion  of  such  subparagraph
    39  pursuant  to  subdivision (a) of section 8 of chapter 430 of the laws of
    40  2006, as amended, when upon such date the provisions of section four  of
    41  this act shall take effect;
    42    c.  the  amendments  to paragraphs d and f of subdivision 3 of section
    43  3214 of the education law made by section three of  this  act  shall  be
    44  subject  to  the expiration and reversion of such paragraphs pursuant to
    45  section 4 of chapter 425 of the laws of 2002, as amended, when upon such
    46  date the provisions of section five of this act shall take effect;
    47    d. the amendments to paragraph g of subdivision 3 of section  3214  of
    48  the  education law made by section three of this act shall be subject to
    49  the expiration and reversion of such paragraph pursuant to section 22 of
    50  chapter 352 of the laws of 2005, as amended, and shall be subject to the
    51  expiration and reversion of clause (v) of subparagraph 3 of  such  para-
    52  graph pursuant to subdivision d of section 27 of chapter 378 of the laws
    53  of  2007,  as amended, when upon such date the provisions of section six
    54  of this act shall take effect;
    55    e. the amendments to paragraphs a, b  and  c  of  subdivision  3-a  of
    56  section  3214  of  the  education  law made by section three of this act

        S. 767                             28
     1  shall be subject to the expiration  and  reversion  of  such  paragraphs
     2  pursuant  to  section 12 of chapter 147 of the laws of 2001, as amended,
     3  when upon such date the provisions of section seven of  this  act  shall
     4  take effect;
     5    f.  the  amendments  to subdivision 7 of section 3214 of the education
     6  law, made by section three of this act, shall not affect the  repeal  of
     7  such subdivision and shall be deemed repealed therewith;
     8    g.  the  amendments  to clause (j) of subparagraph 3 of paragraph b of
     9  subdivision 1 of section 4402 of the education law made by section eight
    10  of this act shall take effect on the  same  date  as  the  reversion  of
    11  clause  (j) of subparagraph 3 of paragraph b of subdivision 1 of section
    12  4402 of the education law as provided in section 22 of  chapter  352  of
    13  the  laws  of 2005, as amended and section 27 of chapter 378 of the laws
    14  of 2007, as amended; and
    15    h. the amendments to paragraph b of subdivision 4 of section  4404  of
    16  the  education  law made by section nine of this act shall be subject to
    17  the expiration and reversion of such paragraph pursuant to section 22 of
    18  chapter 352 of the laws of  2005,  as  amended,  and  subdivision  d  of
    19  section  27  of  chapter  378 of the laws of 2007, as amended, when upon
    20  such date the provisions of section ten of this act shall take effect.
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