Bill Text: NY S03036 | 2017-2018 | 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 7-0)
Status: (Introduced - Dead) 2018-01-03 - REFERRED TO EDUCATION [S03036 Detail]
Download: New_York-2017-S03036-Introduced.html
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 7-0)
Status: (Introduced - Dead) 2018-01-03 - REFERRED TO EDUCATION [S03036 Detail]
Download: New_York-2017-S03036-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 3036 2017-2018 Regular Sessions IN SENATE January 19, 2017 ___________ 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 the development of school codes of conduct and to the treatment of students subject to certain disciplinary actions 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, paragraphs a and c of subdivision 2 and 4 paragraph a of subdivision 5 as amended by chapter 380 of the laws of 5 2001, paragraphs 1 and m as amended and paragraph n of subdivision 2 as 6 added by chapter 482 of the laws of 2010, and subdivision 3 as amended 7 by chapter 123 of the laws of 2003, is amended to read as follows: 8 § 2801. Codes of conduct on school property. 1. For purposes of this 9 section, school property [means in or within] shall mean real, personal 10 or intellectual property owned, leased or occupied by a public school 11 including a charter school. Such property shall include but not be 12 limited to any building, structure, athletic playing field, playground, 13 parking lot or land contained within the real property boundary line of 14 a public elementary or secondary school; or in or on a school bus, as 15 defined in section one hundred forty-two of the vehicle and traffic law; 16 or electronic files and databases; and a school function shall mean a 17 school-sponsored or school-authorized extra-curricular event or activity 18 regardless of where or when such event or activity takes place, includ- 19 ing any event or activity that may take place in another state. 20 2. The board of education or the trustees, as defined in section two 21 of this chapter, of every school district within the state, however 22 created, and every board of cooperative educational services and county 23 vocational extension board, shall adopt and amend, as appropriate, a 24 code of conduct [for the maintenance of order on school property,EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07973-01-7S. 3036 2 1including a school function, which shall govern the conduct of students,2teachers and other school personnel as well as visitors] which shall 3 govern the conduct of students, school employees and visitors in order 4 to promote a safe, respectful and supportive learning and teaching envi- 5 ronment on school property and at school functions and shall provide for 6 the enforcement thereof. [Such policy may be adopted by the school board7or trustees only after at least one public hearing that provides for the8participation of school personnel, parents, students and any other9interested parties.] Such code of conduct shall apply to all students, 10 school employees, school board members, independent contractors and 11 visitors and include, at a minimum, provisions that: 12 a. [provisions regarding conduct, dress and language deemed appropri-13ate and acceptable on school property, including a school function, and14conduct, dress and language deemed unacceptable and inappropriate on15school property, including a school function, and provisions regarding16acceptable civil and respectful treatment of teachers, school adminis-17trators, other school personnel, students and visitors on school proper-18ty, including a school function, including the appropriate range of19disciplinary measures which may be imposed for violation of such code,20and the roles of teachers, administrators, other school personnel, the21board of education and parents;22b. standards and procedures to assure security and safety of students23and school personnel;24c. provisions for the removal from the classroom and from school prop-25erty, including a school function, of students and other persons who26violate the code;27d. disciplinary measures to be taken in incidents involving the28possession or use of illegal substances or weapons, the use of physical29force, vandalism, violation of another student's civil rights and30threats of violence;31e. provisions for detention, suspension and removal from the classroom32of students, consistent with section thirty-two hundred fourteen of this33chapter and other applicable federal, state and local laws including34provisions for the school authorities to establish policies and proce-35dures to ensure the provision of continued educational programming and36activities for students removed from the classroom, placed in detention,37or suspended from school;38f.] establish standards and procedures to assure security and safety 39 of students and school personnel; 40 b. establish a school climate that promotes and sustains a safe, 41 inclusive, civil and respectful school environment for school personnel, 42 students and visitors on school property and at school functions through 43 prevention, intervention and discipline that support education and 44 learning, promotes positive student behaviors, holds students account- 45 able for their behavior and keeps students in school and class; 46 c. set out clear expectations for student conduct at school and school 47 functions, using specific and objective criteria, and define violations 48 of the code of conduct; 49 d. require age-appropriate, graduated and proportionate interventions 50 and discipline that respond to student misconduct and hold students 51 accountable for their behavior through a process that requires school 52 personnel to use the intervention or response that interferes the least 53 with a student's ability to attend class and school; 54 e. require the standard use of school-wide and individual positive 55 interventions and supports that assist students in developing social and 56 emotional competencies such as self-management, resilience, self-aware-S. 3036 3 1 ness, responsible decision-making, avoiding conflict, and refocus on 2 learning, before a child may be suspended; 3 f. establish procedures for the removal from the classroom and from 4 school property, including a school function, of students and other 5 persons who violate the code; 6 g. establish the range of interventions for student behaviors that 7 violate the code of conduct including graduated interventions for 8 repeated violations of the code of conduct; provided, however, that 9 removal of a student from class or classes, school or school functions 10 for a specific period of time shall not be used to respond to tardiness, 11 unexcused absence from class or school, leaving school without permis- 12 sion or insubordinate behavior including but not limited to the use of 13 inappropriate language or gestures, lack of identification upon request 14 by school personnel or violation of a school dress code. Suspension of 15 students in kindergarten through grade three shall be prohibited, except 16 in situations of serious physical harm to students, staff, or others 17 while taking into account the totality of the circumstances. Permanent 18 suspension from school shall be prohibited as a response to student 19 misconduct; 20 h. establish prevention programs and services that include school- 21 based initiatives that promote a safe and secure environment for all 22 persons in school or at school functions including but not limited to: 23 comprehensive, school-based models approved by the commissioner that 24 improve safety of person and property, promote learning and collab- 25 oration; interdisciplinary academic and support services provided by or 26 at the school; and involvement of administrators, teachers, parents and 27 students in identifying specific performance goals and assessment meth- 28 ods; 29 i. require the consideration of the use of restorative practices such 30 as conflict resolution, mediation, peer counseling, facilitated 31 discussion and other restorative interventions that can effectively 32 address student misconduct, hold students accountable for their behav- 33 ior, repair harm to persons and property caused by misconduct and foster 34 healthy relationships within the school community. Restorative practices 35 may be used only with the consent of any person immediately affected by 36 a student's alleged misconduct, including staff, and, in the case of an 37 incident where another student has been injured, that student's parent 38 or person in parental relationship to the student and the consent of the 39 student who is alleged to have behaved inappropriately and that 40 student's parent; 41 j. comply with the federal Gun-Free Schools Act; 42 k. establish the circumstances under and procedures by which a school 43 may respond immediately to student behavior that: (i) physically injures 44 or poses an immediate threat of serious physical injury to the student 45 or other person or persons; or (ii) damages property and such damage 46 injures or poses an immediate threat of serious physical injury to the 47 student or other person or persons; 48 l. establish procedures by which violations of the code of conduct are 49 reported to the appropriate school personnel, the facts are investi- 50 gated, determined[, discipline] and intervention measures [imposed and51discipline measures carried out] decided and implemented. Such 52 provisions shall ensure that procedures established are consistent with 53 this section, section thirty-two hundred fourteen of this chapter and 54 other federal, state and local laws;S. 3036 4 1 [g. provisions ensuring] m. ensure such code and [the] its enforcement 2 [thereof are in compliance] comply with state and federal laws relating 3 to students with disabilities; 4 [h. provisions setting forth the procedures by which local law5enforcement agencies shall be notified of code violations which consti-6tute a crime] n. define the roles and areas of responsibility of school 7 personnel, security services and law enforcement for response to student 8 misconduct that violates the discipline code. A school district that 9 employs, contracts with or otherwise retains public law enforcement or 10 public or private security including school resource officers for daily 11 services at the school shall, by contract or memorandum of understanding 12 in writing and consistent with the code of conduct and with stakeholder 13 input, including parents, students, school administrators, teachers, 14 probation officers, prosecutors, defense counsel, courts, parent and 15 student organizations, and community members, establish protocols that 16 define the relationship between the school district, its personnel, 17 students and visitors, and law enforcement, and public or private secu- 18 rity. Such contract or memorandum of understanding shall limit law 19 enforcement or security personnel involvement when a student's behavior 20 does not threaten the safety of the school, define which behaviors 21 should not result in an arrest or summons, require law enforcement or 22 security personnel to receive training as required by paragraph t of 23 this section, and clearly delegate the role of school discipline to the 24 school administration. Such contract or memorandum of understanding 25 shall be incorporated into and published as part of the code of conduct; 26 [i. provisions setting] o. set forth the circumstances under and 27 procedures by which persons in parental relation to [the student] 28 students accused of and affected by student behavior that violates the 29 discipline code shall be notified of code violations; 30 [j. provisions setting] p. set forth the circumstances under and 31 procedures by which a complaint in criminal court, a juvenile delinquen- 32 cy petition or person in need of supervision petition as defined in 33 articles three and seven of the family court act will be filed; 34 [k.] q. set out the circumstances under and procedures by which 35 [referral] students who are suspended from school may also be referred 36 to academic services, school-based support services or to appropriate 37 human service agencies [shall be made]; 38 [l. a minimum suspension period, for students who repeatedly are39substantially disruptive of the educational process or substantially40interfere with the teacher's authority over the classroom, provided that41the suspending authority may reduce such period on a case by case basis42to be consistent with any other state and federal law. For purposes of43this section, the definition of "repeatedly are substantially disrup-44tive" shall be determined in accordance with the regulations of the45commissioner;46m. a minimum suspension period for acts that would qualify the pupil47to be defined as a violent pupil pursuant to paragraph a of subdivision48two-a of section thirty-two hundred fourteen of this chapter, provided49that the suspending authority may reduce such period on a case by case50basis to be consistent with any other state and federal law; and51n. provisions to comply with article two of this chapter.] 52 r. ensure the continued educational programming and activities for 53 students removed from the classroom or suspended from school. Students 54 who have been removed from the classroom or suspended from school shall 55 have the right to continue their education when they are excluded fromS. 3036 5 1 the classroom regardless of the reason for or type of exclusion as 2 follows: 3 (i) when a student is removed from a classroom, the teacher, principal 4 or the principal's designee shall provide the student with all missed 5 classroom work within twenty-four hours of the removal and the student 6 shall have the opportunity to earn all academic credit including the 7 opportunity to complete any missed assignments and take any missed exam- 8 inations or tests. 9 (ii) when a student is suspended from class or school, the principal 10 or the principal's designee, in consultation with the student's teach- 11 ers, shall create for the student an education plan for each subject of 12 class in which the student is enrolled. The education plan shall make 13 provisions for a student's on-going academic instruction during the 14 suspension. The student shall have the opportunity to earn all academic 15 credit including the opportunity to complete any assignments and take 16 any examinations or tests missed during the student's suspension and if 17 an assessment or examination cannot be rescheduled, the student shall be 18 allowed on school property to take such assessment or examination on the 19 day that the assessment or examination is given. 20 (iii) the education plan pursuant to subparagraph (ii) of this para- 21 graph may include placement of the suspended student at an alternative 22 learning site including the student's home if such alternative is avail- 23 able and appropriate for the student's education. The principal or the 24 principal's designee at the school in which the student is enrolled 25 shall consult with the administrator of an alternative site or, in the 26 case of the student's home, with the teacher overseeing home instruc- 27 tion, to make arrangements for the student's continued instruction. 28 (iv) school districts must provide to students with disabilities all 29 services and educational programming protections set forth in this 30 section and in applicable federal and state laws. 31 (v) schools must schedule a conference within five school days after a 32 student's return to school after any short term or long term suspension 33 and provide notice of the conference to the parent and the student. The 34 failure of the parent or student to attend shall not delay re-entry 35 following suspension, nor shall a principal be held responsible if he or 36 she makes a good faith effort to make the parent or student attend and 37 is unsuccessful. The conference must include a discussion of the follow- 38 ing: 39 (A) a record of the student's educational activities while on suspen- 40 sion that can be counted toward credit accumulation. This record shall 41 include the student's test scores, grades, completed assignments, and 42 total credits earned while suspended, and the student's existing academ- 43 ic record can be used for these purposes, given the record provides this 44 information for the period of the suspension; 45 (B) the steps the student and the school will take to follow all 46 school rules; 47 (C) the supports the school will provide for the student to success- 48 fully re-enter school; 49 (D) a discussion of when a student's permanent record will be 50 expunged, given there are no further incidents; and 51 (E) any other pertinent circumstances; 52 s. require the school to maintain in the student's permanent record 53 documentation of interventions determined for student misconduct, the 54 intervention or discipline imposed and reinstatement. Discipline that 55 was proposed but was not implemented, was dismissed or was overturned on 56 appeal shall not appear in the student's permanent record. When aS. 3036 6 1 student has been suspended and reinstated to school, the record of the 2 suspension shall be automatically expunged at the time agreed upon in 3 the conference upon return from suspension. The student may request that 4 the school expunge permanently the student's record of discipline soon- 5 er, and the school shall not refuse to expunge a record except upon a 6 showing of good cause. Records of suspensions and removals shall be 7 maintained as necessary for purposes of evaluating the requirement for a 8 manifestation determination review, but these records shall not be part 9 of the student's permanent record. Student disciplinary records shall 10 be subject to article two of this chapter and other applicable federal 11 and state laws; and 12 t. require pre-service and annual training regarding the code of 13 conduct and the intervention and positive school climate practices 14 adopted pursuant to this section for maintaining order, addressing 15 student conduct and misbehavior, minimizing the use of suspension, and 16 addressing disparities in discipline. Training shall also ensure that 17 relevant policies and procedures are equitably applied, and that alter- 18 native interventions, such as restorative practices and graduated and 19 proportionate discipline are utilized in accordance with this section 20 for all school personnel, students and law enforcement, public or 21 private security personnel employed, retained or used by the school 22 district. A school district may use training programs including in 23 person and on-line programs approved by the commissioner; provided, 24 however, that such training includes the school district's own code of 25 conduct. At the beginning of each school year, each school shall 26 distribute and explain its code of conduct to students in one or more 27 general assemblies. 28 3. The district code of conduct shall be developed in collaboration 29 with [student, teacher, administrator, and parent organizations, school30safety personnel and other school personnel] representatives from all 31 segments of the school community including students, teachers, adminis- 32 trators, parents, school safety personnel, support services personnel, 33 parent and student organizations, and others as identified by the school 34 district and shall be approved by the board of education, or other 35 governing body, or by the chancellor of the city school district in the 36 case of the city school district of the city of New York. In the city 37 school district of the city of New York, each community district educa- 38 tion council shall be authorized to adopt and implement additional poli- 39 cies, which are consistent with and no more restrictive than the city 40 district's district-wide code of conduct, to reflect the individual 41 needs of each community school district provided that such additional 42 policies shall require the approval of the chancellor. 43 4. [The board of education, chancellor or other governing body shall44provide copies of a summary of the code of conduct to all students at a45general assembly held at the beginning of the school year and shall make46copies of the code available to persons in parental relation to students47at the beginning of each school year, and shall mail a plain language48summary of such code to all persons in parental relation to students49before the beginning of each school year, and make it available there-50after upon request. The board of education, chancellor or other govern-51ing body shall take reasonable steps to ensure community awareness of52the code provisions.535. a.] The board of education, board of directors or other governing 54 body, or the chancellor of the city school district in the case of the 55 city school district of the city of New York shall hold at least one 56 public hearing about the proposed code of conduct before its adoption orS. 3036 7 1 amendment. The school district shall notify the school community and 2 general public about the hearing at least thirty days prior to the date 3 of the hearing. Such notice shall include the date, time and place of 4 the hearing, the agenda, a copy of the proposed code of conduct and 5 information about an opportunity, as determined by the school district, 6 for comment from the school community and the general public about the 7 proposed code of conduct. The school district shall take necessary steps 8 to notify families who do not speak English and whose children attend 9 schools in the district. 10 5. Upon adoption or amendment of the code of conduct, the school 11 district shall: (i) file a copy of its code of conduct and any amend- 12 ments to such code with the commissioner no later than thirty days after 13 their adoption; (ii) translate the code of conduct into those languages 14 spoken by three percent or more of the families whose children attend 15 schools in the school district; (iii) at the beginning of each school 16 year, post the code of conduct on the school district and school web 17 sites, if any and mail a copy of the code to persons in parental 18 relationship to students in the district's schools; and (iv) distribute 19 the code to all students in school at one or more general assemblies 20 dedicated to the provisions of the code of conduct. The school district 21 shall also make the code of conduct available upon request. 22 6. The board of education, chancellor or other governing body shall 23 annually review and update the district's codes of conduct if necessary, 24 taking into consideration the effectiveness of code provisions and the 25 fairness and consistency of its administration. Each school district is 26 authorized to establish a committee and to facilitate the review of the 27 code of conduct and the district's response to code of conduct 28 violations. Any such committee shall be comprised of similar individuals 29 described in subdivision three of this section. [The school board, chan-30cellor, or other governing body shall reapprove any such updated code31only after at least one public hearing that provides for the partic-32ipation of school personnel, parents, students and any other interested33parties.34b. Each district shall file a copy of its codes of conduct with the35commissioner and all amendments to such code shall be filed with the36commissioner no later than thirty days after their adoption.] 37 7. The department shall collect and school districts shall report to 38 the department data about the implementation of student codes of conduct 39 as required by federal law. On or before November first of each year, 40 the department shall make available to the public by school district the 41 data regarding student discipline from the preceding year. On or before 42 December first of each year the department shall submit to the governor, 43 the temporary president of the senate, the speaker of the assembly and 44 the chairs of the assembly and senate education committees a report that 45 summarizes and analyzes the data collected about student discipline 46 including a review and evaluation of school application of codes of 47 conduct for fair and consistent application and other accountability 48 criteria as determined by the department and make recommendations about 49 policy and practices for school codes of conduct and the department's 50 technical assistance about student discipline. 51 § 2. Subdivision 3 of section 2801 of the education law, as added by 52 chapter 181 of the laws of 2000, is amended to read as follows: 53 3. The district code of conduct shall be developed in collaboration 54 with [student, teacher, administrator, and parent organizations, school55safety personnel and other school personnel] representatives from all 56 segments of the school community including students, teachers, adminis-S. 3036 8 1 trators, parents, school safety personnel, support services personnel, 2 parent and student organizations, and others as identified by the school 3 district and shall be approved by the board of education, or other 4 governing body, or by the chancellor of the city school district in the 5 case of the city school district of the city of New York. In the city 6 school district of the city of New York, each community school district 7 board shall be authorized to adopt and implement additional policies, 8 which are consistent with the city district's district-wide code of 9 conduct, to reflect the individual needs of each community school 10 district provided that such additional policies shall require the 11 approval of the chancellor. 12 § 3. Section 3214 of the education law, as amended by chapter 181 of 13 the laws of 2000, subparagraph 1 of paragraph c of subdivision 3 as 14 amended by chapter 430 of the laws of 2006, paragraphs d and f of subdi- 15 vision 3 as amended by chapter 425 of the laws of 2002, paragraph e of 16 subdivision 3 as amended by chapter 170 of the laws of 2006, paragraph g 17 of subdivision 3 as amended by chapter 352 of the laws of 2005, clause 18 (v) of subparagraph 3 of paragraph g of subdivision 3 as amended by 19 chapter 378 of the laws of 2007, paragraphs a, b and c of subdivision 20 3-a as amended by chapter 147 of the laws of 2001, and subdivision 7 as 21 added by chapter 101 of the laws of 2003, is amended to read as follows: 22 § 3214. Student interventions, placement, suspensions and transfers. 23 1. [School delinquent. A minor under seventeen years of age, required by24any of the provisions of part one of this article to attend upon25instruction, who is an habitual truant from such instruction or is26irregular in such attendance or insubordinate or disorderly or disrup-27tive or violent during such attendance, is a school delinquent.282.] Special day schools. The school authorities of any city or school 29 district may establish schools or set apart rooms in public school 30 buildings for the instruction of [school delinquents] students disci- 31 plined in violation of the code of conduct, and fix the number of days 32 per week and the hours per day of required attendance, which shall not 33 be less than is required of minors attending the full time day schools. 34 [2-a. a. Violent pupil. For the purposes of this section, a violent35pupil is an elementary or secondary student under twenty-one years of36age who:37(1) commits an act of violence upon a teacher, administrator or other38school employee;39(2) commits, while on school district property, an act of violence40upon another student or any other person lawfully upon said property;41(3) possesses, while on school district property, a gun, knife,42explosive or incendiary bomb, or other dangerous instrument capable of43causing physical injury or death;44(4) displays, while on school district property, what appears to be a45gun, knife, explosive or incendiary bomb or other dangerous instrument46capable of causing death or physical injury;47(5) threatens, while on school district property, to use any instru-48ment that appears capable of causing physical injury or death;49(6) knowingly and intentionally damages or destroys the personal prop-50erty of a teacher, administrator, other school district employee or any51person lawfully upon school district property; or52(7) knowingly and intentionally damages or destroys school district53property.54b. Disruptive pupil. For the purposes of this section, a disruptive55pupil is an elementary or secondary student under twenty-one years of56age who is substantially disruptive of the educational process orS. 3036 9 1substantially interferes with the teacher's authority over the class-2room.33.] 2. Determination of student misconduct. Decisions about appropri- 4 ate discipline and interventions in response to student behavior that 5 violates a school's code of conduct shall be based on the likelihood 6 that a lesser intervention would adequately address the student's 7 misconduct, redress any harm or damage, and prevent future behavior that 8 violates the code of conduct. Furthermore, disciplinary responses shall 9 be based on the facts of each case as determined including, but not 10 limited to: 11 a. the nature of the student's alleged misconduct; 12 b. the impact of the student's alleged misconduct including, but not 13 limited to the harm to the student or other persons; damage to personal 14 or school property; and threat to the safety and welfare of the school 15 community; 16 c. the ability of the student to understand and participate in the 17 student's disciplinary process including, but not limited to, consider- 18 ation of the student's age, ability to speak English, physical health, 19 mental health, disabilities and provisions of an individual education 20 program; 21 d. the student's willingness to resolve the conflict and repair the 22 harm or damage; 23 e. the student's record of behavior and discipline; and 24 f. such other factors as determined by school personnel and the 25 student to be relevant including a review of the student's academic 26 placement and program for its relationship, if any, to the student's 27 behavior and alleged violation of the code of conduct. 28 3. Unless prohibited by law, restorative practices such as conflict 29 resolution, mediation, peer counseling, facilitated discussion and other 30 restorative interventions that can effectively address student miscon- 31 duct, hold students accountable for their behavior, repair harm to 32 persons and property caused by misconduct and foster healthy relation- 33 ships within the school community, may be used at the discretion of the 34 school to respond to student misconduct pursuant to the code of conduct. 35 a. Restorative practices that require the participation of a person or 36 persons affected by a student's alleged misconduct may be used only with 37 the consent of such person or persons. In the case of an incident where 38 another student has been injured, restorative practices that require the 39 participation of a person or persons injured by a student's alleged 40 misconduct may be used only with the consent of such student's parent or 41 person in parental relationship to the student and the consent of the 42 student who is alleged to have behaved inappropriately and such 43 student's parent. 44 b. The commissioner shall issue rules and regulations and identify 45 best practices about the process and procedures for the use of restora- 46 tive practices in response to student behavior that allegedly violates 47 the code of conduct. 48 4. Suspension of a pupil for a period not to exceed five school days. 49 [a. The board of education, board of trustees or sole trustee, the50superintendent of schools, district superintendent of schools or princi-51pal of a school may suspend the following pupils from required attend-52ance upon instruction:53A pupil who is insubordinate or disorderly or violent or disruptive,54or whose conduct otherwise endangers the safety, morals, health or55welfare of others.S. 3036 10 1b. (1)] The board of education, board of trustees, or sole trustee, 2 superintendent of schools, district superintendent of schools and the 3 principal of the school where the pupil attends shall have the [power] 4 authority to suspend a pupil for a period not to exceed five school days 5 if a pupil engages in behavior that violates the code of conduct for 6 which such suspension may be warranted and no alternative intervention 7 is appropriate to address the alleged misconduct. In the case of such a 8 suspension, the suspending authority shall [provide the pupil with9notice of the charged misconduct. If the pupil denies the misconduct,10the suspending authority shall provide an explanation of the basis for11the suspension. The pupil and the person in parental relation to the12pupil shall, on request, be given an opportunity for an informal confer-13ence with the principal at which the pupil and/or person in parental14relation shall be authorized to present the pupil's version of the event15and to ask questions of the complaining witnesses. The aforesaid notice16and opportunity for an informal conference shall take place prior to17suspension of the pupil unless the pupil's presence in the school poses18a continuing danger to persons or property or an ongoing threat of19disruption to the academic process, in which case the pupil's notice and20opportunity for an informal conference shall take place as soon after21the suspension as is reasonably practicable.]interview any alleged 22 victim and the witnesses to the incident and obtain their signed, writ- 23 ten statements; identify and review documentary, photographic, video and 24 other evidence, and make a determination whether the student violated 25 the code of conduct and, if so, possible discipline including suspension 26 of five or fewer school days is warranted. The principal or the princi- 27 pal's designee shall take into account all of the factors listed in 28 subdivision two of this section. The suspending authority shall also: 29 a. inform the pupil accused of misconduct and a person in parental 30 relationship to the pupil in writing about the determination to seek a 31 suspension on the same day as such determination, describe the miscon- 32 duct of which the student is accused, and provide an explanation of the 33 evidence; 34 b. provide the pupil and the person in parental relation to the pupil 35 an opportunity for an informal conference with the principal at which 36 the pupil or person in parental relationship shall be authorized to 37 present the pupil's version of the event. The aforesaid notice and 38 opportunity for an informal conference shall take place prior to the 39 suspension of the pupil. The student shall be allowed to attend classes 40 and otherwise remain in school, pending the outcome of the informal 41 conference with the principal, unless paragraph g of this subdivision 42 applies. The suspending authority shall take reasonable steps to 43 provide the written notice described in paragraph a of this subdivision 44 in the first language of a parent or person in parental relation who 45 does not read or speak English. The written notice shall include: 46 (1) a description of the circumstances upon which allegations of 47 misconduct are based, including the date, time and location of the 48 alleged incident, the section of the code of conduct that the pupil 49 allegedly violated and disciplinary action that may be warranted, 50 including the length of a possible suspension; 51 (2) the date, time and place for the informal conference; 52 (3) a statement including the positive interventions and practice 53 used, or if none were used, why they were not, and explaining why the 54 use of exclusionary discipline may be justified; 55 (4) a copy of all documentary evidence related to the incident of 56 behavior that allegedly violates the code of conduct including, but notS. 3036 11 1 limited to, incident reports and audio or video recordings that the 2 school possesses regarding the incident and a list of witnesses and 3 their statements. If any of the documentary evidence required by this 4 subparagraph is not available at the time the notice is provided, the 5 notice must include a list of the missing documentary evidence. Any 6 missing documentary evidence must be provided no later than twenty-four 7 hours before the conference; 8 (5) a statement of pupil and parent rights pursuant to the code of 9 conduct including the right to call and question witnesses, the right to 10 legal representation or an advocate, the right to interpretation at the 11 conference by a qualified interpreter and the right to appeal any 12 suspension imposed to the superintendent, the school board or the 13 commissioner and the procedures for such an appeal; 14 (6) a statement that once the length of time of the student's suspen- 15 sion concludes, the student is automatically reinstated to school; 16 (7) The notice shall also state to the person in parental relationship 17 to the pupil that if the child has been arrested or if a criminal inves- 18 tigation is pending, a pupil may choose not to make a written or oral 19 statement concerning the incident, and any statement made by the pupil, 20 written or oral, might be used against the pupil in a criminal, immi- 21 gration, or juvenile delinquency investigation and/or proceeding, and/or 22 in a court of law. 23 c. At the informal conference, the pupil and person in parental 24 relation to the pupil shall have the right to request the presence of 25 witnesses, including witnesses who are students, school employees, or 26 safety or law enforcement personnel on campus. The school shall take all 27 reasonable steps to ensure the presence of such witnesses, with the 28 understanding that the principal cannot control the actions of those 29 outside his or her school community. 30 d. At the informal conference participants shall assess the facts of 31 the incident of alleged misconduct, determine whether the student 32 violated the code of conduct and, if so, whether suspension is 33 warranted, establish an education plan for the pupil, including academic 34 and support services, and a plan for the pupil's reinstatement to 35 school. 36 e. The suspending authority shall issue a written decision about any 37 disciplinary action within two days of the conference. If the principal 38 determines that a suspension of five school days or less is warranted, 39 the written decision shall state the length of the suspension, findings 40 of fact, reasons for the determination, the procedures for an appeal and 41 the date by which an appeal must be filed. The written decision shall 42 be provided to the person in parental relation to the pupil. 43 f. A pupil suspended for inappropriate behavior and person in parental 44 relationship may appeal a suspension of five days or less to the school 45 district superintendent. If the superintendent participated in the deci- 46 sion to suspend the pupil, the pupil or person in parental relationship 47 to the pupil may appeal to the school board, board of trustees, or in 48 the city of New York, to the chancellor. An appeal of a suspension of 49 five or fewer days must be decided within ten days of receiving the 50 appeal. The person deciding the appeal may uphold or reverse the suspen- 51 sion but cannot impose a longer suspension or additional disciplinary 52 terms or conditions. The person deciding the appeal must reverse and 53 expunge the suspension if: (1) the suspension was imposed for behavior 54 for which suspension is prohibited by law or not authorized by the 55 school's code of conduct; (2) the school did not present sufficient 56 evidence to establish that the student violated the code of conduct andS. 3036 12 1 that a suspension was warranted for that violation; (3) the school 2 failed to show that a lesser exclusionary intervention could not address 3 the student misconduct; (4) the school did not follow due process proce- 4 dures; or (5) the facts and considerations required by the school's code 5 of conduct do not support the decision to suspend the pupil. The super- 6 intendent or school board may reverse and expunge the suspension if the 7 school did not impose graduated and proportionate discipline or the 8 suspension was not appropriate given the facts as presented at the 9 conference. 10 g. A pupil whose misconduct physically injures or poses an immediate 11 threat of serious physical injury to the pupil or other person or 12 persons or who damages property and such damage injures or poses an 13 immediate threat of serious physical injury to the pupil or other person 14 or persons, the pupil may be removed immediately and the informal 15 conference shall follow as soon after the pupil's removal as practica- 16 ble, but in no case more than forty-eight hours after such removal. If 17 immediate removal from school is necessary, the school shall immediately 18 notify a person in parental relationship to the pupil to determine how 19 to transfer the pupil to the person in parental relationship to the 20 pupil. 21 [(2) A teacher shall immediately report and refer a violent pupil to22the principal or superintendent for a violation of the code of conduct23and a minimum suspension period pursuant to section twenty-eight hundred24one of this chapter.25c. (1) No pupil may be suspended for a period in excess of five school26days unless such pupil and the person in parental relation to such pupil27shall have had an opportunity for a fair hearing, upon reasonable28notice, at which such pupil shall have the right of representation by29counsel, with the right to question witnesses against such pupil and to30present witnesses and other evidence on his or her behalf. Where the31pupil is a student with a disability or a student presumed to have a32disability, the provisions of paragraph g of this subdivision shall also33apply. Where a pupil has been suspended in accordance with this subpara-34graph by a superintendent of schools, district superintendent of35schools, or community superintendent, the superintendent shall36personally hear and determine the proceeding or may, in his or her37discretion, designate a hearing officer to conduct the hearing. The38hearing officer shall be authorized to administer oaths and to issue39subpoenas in conjunction with the proceeding before him or her. A record40of the hearing shall be maintained, but no stenographic transcript shall41be required and a tape recording shall be deemed a satisfactory record.42The hearing officer shall make findings of fact and recommendations as43to the appropriate measure of discipline to the superintendent. The44report of the hearing officer shall be advisory only, and the super-45intendent may accept all or any part thereof. An appeal will lie from46the decision of the superintendent to the board of education who shall47make its decision solely upon the record before it. The board may adopt48in whole or in part the decision of the superintendent of schools.49Where the basis for the suspension is, in whole or in part, the50possession on school grounds or school property by the student of any51firearm, rifle, shotgun, dagger, dangerous knife, dirk, razor, stiletto52or any of the weapons, instruments or appliances specified in subdivi-53sion one of section 265.01 of the penal law, the hearing officer or54superintendent shall not be barred from considering the admissibility of55such weapon, instrument or appliance as evidence, notwithstanding a56determination by a court in a criminal or juvenile delinquency proceed-S. 3036 13 1ing that the recovery of such weapon, instrument or appliance was the2result of an unlawful search or seizure.3(2) Where a pupil has been suspended in accordance with this section4by a board of education, the board may in its discretion hear and deter-5mine the proceeding or appoint a hearing officer who shall have the same6powers and duties with respect to the board that a hearing officer has7with respect to a superintendent where the suspension was ordered by8him. The findings and recommendations of the hearing officer conducting9the proceeding shall be advisory and subject to final action by the10board of education, each member of which shall before voting review the11testimony and acquaint himself with the evidence in the case. The board12may reject, confirm or modify the conclusions of the hearing officer.] 13 5. Suspension of a pupil for six to twenty days. The board of educa- 14 tion, board of trustees, or sole trustee, superintendent of schools, 15 district superintendent of schools and the principal of the school where 16 the pupil attends shall have the authority to suspend a pupil for a 17 period of between six to twenty days if a pupil violates the code of 18 conduct for which such suspension may be warranted, no restorative prac- 19 tice is adequate to address the misconduct, and a suspension of fewer 20 than six days cannot address the misconduct. The suspending authority 21 shall take the following steps before determining that a suspension for 22 a period of between six to twenty days is proposed: 23 a. interview any alleged victim and witnesses to the incident and 24 obtain their signed, written statements; identify and review documentary 25 photographic, video, and other evidence; determine whether appropriate 26 interventions, including restorative practices can address the alleged 27 violation of the code of conduct; and if not, make a determination about 28 possible discipline including suspension for a period of between six to 29 twenty school days if warranted. The principal or the principal's desig- 30 nee shall take into account all of the factors listed in subdivision two 31 of this section; 32 b. shall send immediate written notice to the pupil and the person in 33 parental relationship to the pupil about the determination to suspend 34 the pupil and the hearing. The suspending authority shall take reason- 35 able steps to provide such written notice in the first language of a 36 parent or person in parental relation who does not read or speak 37 English. The written notice shall include: 38 (1) a description of the facts and circumstances upon which the 39 alleged violations of the code of conduct are based, the section of the 40 code of conduct that the pupil allegedly violated and disciplinary 41 action that may be warranted including the length of a possible suspen- 42 sion; 43 (2) the date, time and place for the hearing to determine whether the 44 proposed suspension is warranted; 45 (3) a statement including the positive interventions and practices 46 used, or if none were used, why they were not, and explaining why the 47 use of exclusionary discipline may be justified. 48 (4) a copy of all documentary evidence related to the incident of the 49 behavior that is alleged to violate the code of conduct including but 50 not limited to incident reports, witness statements, and audio or video 51 recordings that the school possesses regarding the incident and a list 52 of witnesses who may appear at the hearing. If any of the documentary 53 evidence required by this paragraph is not available at the time the 54 notice is provided, the notice must include a list of the missing docu- 55 mentary evidence. Any missing documentary evidence must be provided no 56 later than twenty-four hours before the hearing;S. 3036 14 1 (5) a statement of pupil and parent rights pursuant to the code of 2 conduct including the right to call and question witnesses at the hear- 3 ing, the right to legal representation or an advocate during the suspen- 4 sion process, the right to interpretation at the hearing by a qualified 5 interpreter and the right to appeal to the superintendent, the board of 6 trustees, the school board or the commissioner and the procedures for 7 such an appeal; 8 (6) The notice shall also state to the person in parental relationship 9 to the pupil that any statement by the pupil, written or oral, might be 10 used against the pupil in a criminal, immigration, or juvenile delin- 11 quency investigation and/or proceeding, and/or in a court of law. 12 c. Hearing. The suspending authority shall convene a hearing within 13 five days of the written notice to the pupil and person in parental 14 relationship to the pupil about the suspension unless the person in 15 parental relationship to the pupil requests a later date. The suspend- 16 ing authority shall confirm the date, time and place of the hearing with 17 all hearing participants and document such confirmation. If it is 18 requested, the school board shall appoint a hearing officer who is inde- 19 pendent of the suspending authority, to hear the case. The hearing 20 shall be conducted as follows: 21 (1) The hearing officer is authorized to administer oaths and issue 22 subpoenas in conjunction with the proceedings; 23 (2) The school must prove that the pupil violated the code of conduct 24 by a preponderance of the evidence; 25 (3) The school cannot rely exclusively on hearsay evidence to meet its 26 burden of proof. 27 (4) The pupil and person in parental relationship to the pupil shall 28 have the right to request the presence and testimony of the following 29 persons and subject such testimony to question and the school shall take 30 reasonable steps to secure the attendance of such persons: 31 (i) witnesses including pupils and visitors; 32 (ii) school employees and the school shall make the requested school 33 employees available at the hearing; and 34 (iii) law enforcement and private or public security retained by the 35 school district pursuant to contract or memorandum of understanding 36 required by section twenty-eight hundred one of this chapter. 37 (5) The pupil and person in parental relationship to the pupil shall 38 have the right to present documentary evidence including, but not limit- 39 ed to, witness statements, incident reports, and audio and video 40 recordings; 41 (6) The pupil and person in parental relationship to the pupil shall 42 have the right to representation by an attorney or an advocate; 43 (7) The hearing officer shall consider only the evidence presented at 44 the hearing and may uphold, reduce or dismiss the proposed suspension. 45 The hearing officer must dismiss the proposed suspension if the hearing 46 officer determines that: 47 (i) the suspension was imposed for a behavior for which suspension is 48 not authorized or prohibited by law or the school's code of conduct; 49 (ii) the school did not meet its burden of proof that a suspension for 50 a period of between six to twenty days is warranted; 51 (iii) the school did not follow the due process procedures in this 52 subsection; or 53 (iv) facts and considerations required by the school's code of conduct 54 do not support the decision to suspend the pupil. 55 (8) The hearing officer may dismiss or reduce the proposed suspension 56 if the hearing officer determines:S. 3036 15 1 (i) the school did not impose graduated and proportionate discipline; 2 or 3 (ii) the suspension was not appropriate given the facts as presented 4 at the hearing. 5 (9) Upon request of the pupil or person in parental relationship to 6 the pupil, the school shall provide interpretation services in the first 7 language of the pupil or person in parental relationship to the pupil; 8 (10) An accurate and complete record of the hearing shall be main- 9 tained by the school, but no stenographic record shall be required and 10 an audio or video recording shall be deemed a satisfactory record. When 11 requested, the suspending authority shall provide to the pupil or person 12 in parental relationship this record as well as any transcript of the 13 record at no cost; 14 (11) The hearing officer shall issue a written decision to the school 15 and the pupil and person in parental relationship to the pupil about any 16 disciplinary action within three days of the hearing. If the hearing 17 officer determines that a suspension of between six to twenty school 18 days is warranted, the written decision shall state the length of the 19 suspension, findings of fact, reasons for the determination, the proce- 20 dures for an appeal and the date by which an appeal must be filed. 21 d. Appeal. The pupil or person in parental relationship to the pupil 22 shall have a right to appeal the decision of the hearing officer as 23 follows: 24 (1) the appeal shall be filed within thirty days of the date when the 25 pupil and person in parental relationship to the pupil receive the deci- 26 sion about a suspension of six or more school days; 27 (2) the school's code of conduct must identify the procedures for 28 appeal of suspensions for periods of more than twenty days. The appeal 29 shall be heard only by a person who was not involved in the initial 30 determination or hearing about the suspension of the pupil; 31 (3) the decision on appeal must be based solely on the hearing record 32 except to the extent that the pupil's rights were violated during the 33 investigation, hearing, or appeal process; 34 (4) the person hearing the appeal shall issue a written decision with- 35 in ten days of the filing of the appeal. The suspension may be upheld, 36 reduced or overturned. The person deciding the appeal must reverse the 37 suspension if: (i) the suspension was imposed for behavior for which 38 suspension is prohibited by law or not authorized by the code of 39 conduct; (ii) the school did not present sufficient evidence to meet its 40 burden of proof; (iii) the school did not follow due process procedures; 41 or (iv) the facts and considerations required by the school's code of 42 conduct do not support the decision to suspend the pupil for a period 43 between six to twenty days. The person deciding the appeal may overturn 44 or reduce the suspension if the school did not impose graduated and 45 proportionate discipline or the suspension was not appropriate given the 46 facts as presented at the hearing; 47 (5) The pupil or person in parental relationship to the student may 48 appeal any adverse determination on the appeal to the commissioner 49 pursuant to the regulations of the commissioner; and 50 (6) The pupil or person in parental relationship to the pupil may 51 appeal an adverse decision of the commissioner to the state supreme 52 court within ninety days of receipt of the decision by the commissioner. 53 [d. (1)] 6. a. Consistent with the federal gun-free schools act, any 54 public school pupil who is determined under this subdivision to have 55 brought a firearm to or possessed a firearm at a public school shall be 56 suspended for a period of not less than one calendar year and anyS. 3036 16 1 nonpublic school pupil participating in a program operated by a public 2 school district using funds from the elementary and secondary education 3 act of nineteen hundred sixty-five who is determined under this subdivi- 4 sion to have brought a firearm to or possessed a firearm at a public 5 school or other premises used by the school district to provide such 6 programs shall be suspended for a period of not less than one calendar 7 year from participation in such program. The procedures of this subdivi- 8 sion shall apply to such a suspension of a nonpublic school pupil. A 9 superintendent of schools, district superintendent of schools or commu- 10 nity superintendent shall have the authority to modify this suspension 11 requirement for each student on a case-by-case basis. The determination 12 of a superintendent shall be subject to review by the board of education 13 pursuant to [paragraph c of this] subdivision five of this section and 14 the commissioner pursuant to section three hundred ten of this chapter. 15 Nothing in this subdivision shall be deemed to authorize the suspension 16 of a student with a disability in violation of the individuals with 17 disabilities education act or article eighty-nine of this chapter. A 18 superintendent shall refer the pupil under the age of sixteen who has 19 been determined to have brought a weapon or firearm to school in 20 violation of this subdivision to a presentment agency for a juvenile 21 delinquency proceeding consistent with article three of the family court 22 act except a student fourteen or fifteen years of age who qualifies for 23 juvenile offender status under subdivision forty-two of section 1.20 of 24 the criminal procedure law. A superintendent shall refer any pupil 25 sixteen years of age or older or a student fourteen or fifteen years of 26 age who qualifies for juvenile offender status under subdivision forty- 27 two of section 1.20 of the criminal procedure law, who has been deter- 28 mined to have brought a weapon or firearm to school in violation of this 29 subdivision to the appropriate law enforcement officials. 30 [(2)] b. Nothing in this paragraph shall be deemed to mandate such 31 action by a school district pursuant to paragraph a of this subdivision 32 [one of this section] where such weapon or firearm is possessed or 33 brought to school with the written authorization of such educational 34 institution in a manner authorized by article two hundred sixty-five of 35 the penal law for activities approved and authorized by the trustees or 36 board of education or other governing body of the public school and such 37 governing body adopts appropriate safeguards to ensure student safety. 38 [(3)] c. As used in this paragraph: 39 (i) "firearm" shall mean a firearm as defined in subsection a of 40 section nine hundred twenty-one of title eighteen of the United States 41 Code; and 42 (ii) "weapon" shall be as defined in paragraph 2 of subsection g of 43 section nine hundred thirty of title eighteen of the United States Code. 44 [e.] 7. Procedure after suspension. Where a pupil has been suspended 45 pursuant to this subdivision and said pupil [is of compulsory attendance46age] has the right to attend school, immediate steps shall be taken for 47 his or her attendance upon instruction elsewhere [or for supervision or48detention of said pupil pursuant to the provisions of article seven of49the family court act]. Where a pupil has been suspended for cause, the 50 suspension may be revoked by the board of education whenever it appears 51 to be for the best interest of the school and the pupil to do so. The 52 board of education may also condition a student's early return to school 53 and suspension revocation on the pupil's voluntary participation in 54 counseling or specialized classes, including anger management or dispute 55 resolution, where applicable.S. 3036 17 1 [f.] 8. Whenever the term "board of education or superintendent of 2 schools" is used in this subdivision, it shall be deemed to include 3 community boards of education and community superintendents governing 4 community districts in accordance with the provisions of article fifty- 5 two-A of this chapter. 6 [g.] 9. Discipline of students with disabilities and students presumed 7 to have a disability for discipline purposes. [(1)] a. Notwithstanding 8 any other provision of this subdivision to the contrary, a student with 9 a disability as such term is defined in section forty-four hundred one 10 of this chapter and a student presumed to have a disability for disci- 11 pline purposes, may be suspended or removed from his or her current 12 educational placement for violation of [school rules] the code of 13 conduct only in accordance with the procedures established in this 14 section, the regulations of the commissioner implementing this para- 15 graph, and subsection (k) of section fourteen hundred fifteen of title 16 twenty of the United States code and the federal regulations implement- 17 ing such statute, as such federal law and regulations are from time to 18 time amended. Nothing in this paragraph shall be construed to confer 19 greater rights on such students than are conferred under applicable 20 federal law and regulations, or to limit the ability of a school 21 district to change the educational placement of a student with a disa- 22 bility in accordance with the procedures in article eighty-nine of this 23 chapter. 24 [(2)] b. As used in this paragraph: 25 [(1)] (i) a "student presumed to have a disability for discipline 26 purposes" shall mean a student who the school district is deemed to have 27 knowledge was a student with a disability before the behavior that 28 precipitated disciplinary action under the criteria in subsection (k) 29 (5) of section fourteen hundred fifteen of title twenty of the United 30 States code and the federal regulations implementing such statute; and 31 (ii) a "manifestation team" means a representative of the school 32 district, the parent or person in parental relation, and relevant 33 members of the committee on special education, as determined by the 34 parent or person in parental relation and the district. 35 [(3)] c. In applying the federal law consistent with this section: 36 (i) in the event of a conflict between the procedures established in 37 this section and those established in subsection (k) of section fourteen 38 hundred fifteen of title twenty of the United States code and the feder- 39 al regulations implementing such statute, such federal statute and regu- 40 lations shall govern. 41 (ii) the trustees or board of education of any school district, a 42 district superintendent of schools or a building principal shall have 43 authority to order the placement of a student with a disability into an 44 appropriate interim alternative educational setting, another setting or 45 suspension for a period not to exceed five consecutive school days where 46 such student is suspended pursuant to this subdivision and, except as 47 otherwise provided in [clause (vi)] paragraph f of this [subparagraph] 48 subdivision, the suspension does not result in a change in placement 49 under federal law. 50 (iii) the superintendent of schools of a school district, either 51 directly or upon recommendation of a hearing officer designated pursuant 52 to paragraph [c] d of [this] subdivision five of this section, may order 53 the placement of a student with a disability into an interim alternative 54 educational setting, another setting or suspension for up to ten consec- 55 utive school days, inclusive of any period in which the student is 56 placed in an appropriate interim alternative educational setting, anoth-S. 3036 18 1 er setting or suspension pursuant to clause (ii) of this subparagraph 2 for the behavior, where the superintendent determines in accordance with 3 the procedures set forth in this subdivision that the student has 4 engaged in behavior that violates the code of conduct and warrants a 5 suspension, and, except as otherwise provided in [clause (vi) of this6subparagraph] paragraph d of this subparagraph, the suspension does not 7 result in a change in placement under federal law. 8 [(iv)] d. the superintendent of schools of a school district, either 9 directly or upon recommendation of a hearing officer designated pursuant 10 to paragraph c of [this] subdivision five of this section, may order the 11 change in placement of a student with a disability to an interim alter- 12 native educational setting for up to forty-five school days under the 13 circumstances specified in subsection (k)(1)(G) of section fourteen 14 hundred fifteen of title twenty of the United States code and the feder- 15 al regulations implementing such statute or a longer period where 16 authorized by federal law under the circumstances specified in 17 subsection (k)(1)(C) of section fourteen hundred fifteen of title twenty 18 of the United States code and the federal regulations implementing such 19 statute, but in neither case shall such period exceed the period of 20 suspension ordered by a superintendent in accordance with this subdivi- 21 sion. 22 [(v)] e. the terms "day," "business day," and "school day" shall be as 23 defined in section 300.11 of title thirty-four of the code of federal 24 regulations. 25 [(vi)] f. notwithstanding any other provision of this subdivision to 26 the contrary, upon a determination by a manifestation team that the 27 behavior of a student with a disability was not a manifestation of the 28 student's disability, such student may be disciplined pursuant to this 29 section in the same manner and for the same duration as a nondisabled 30 student, except that such student shall continue to receive services to 31 the extent required under federal law and regulations, and such services 32 may be provided in an interim alternative educational setting. 33 [(vii)] g. an impartial hearing officer appointed pursuant to subdivi- 34 sion one of section forty-four hundred four of this chapter may order a 35 change in placement of a student with a disability to an appropriate 36 interim alternative educational setting for not more than forty-five 37 school days under the circumstances specified in subsections (k)(3) and 38 (k)(4) of section fourteen hundred fifteen of title twenty of the United 39 States code and the federal regulations implementing such statutes, 40 provided that such procedure may be repeated, as necessary. 41 [(viii)] h. nothing in this section shall be construed to authorize 42 the suspension or removal of a student with a disability from his or her 43 current educational placement [for violation of school rules] following 44 a determination by a manifestation team that the behavior is a manifes- 45 tation of the student's disability, except as authorized under federal 46 law and regulations. 47 [(ix)] i. the commissioner shall implement this paragraph by adopting 48 regulations which coordinate the procedures required for discipline of 49 students with disabilities, and students presumed to have a disability 50 for discipline purposes, pursuant to subsection (k) of section fourteen 51 hundred fifteen of title twenty of the United States code and the feder- 52 al regulations implementing such statute, with the general procedures 53 for student discipline under this section. 54 [3-a.] 10. Teacher removal of a [disruptive pupil. In addition, any] 55 student for misconduct in violation of the code of conduct. A teacher 56 shall have the power and authority to remove a [disruptive] pupil[, asS. 3036 19 1defined in subdivision two-a of this section,] from such teacher's 2 classroom consistent with discipline and intervention measures contained 3 in the code of conduct adopted by the board pursuant to section twenty- 4 eight hundred one of this chapter. Such classroom removal may not 5 exceed half of one school day. The school authorities of any school 6 district shall establish policies and procedures to ensure the provision 7 of continued educational programming and activities for students removed 8 from the classroom pursuant to this subdivision and provided further 9 that nothing in this subdivision shall authorize the removal of a pupil 10 in violation of any state or federal law or regulation. No pupil shall 11 return to the classroom until the principal makes a final determination 12 pursuant to paragraph c of this subdivision, or the period of removal 13 expires, whichever is less. 14 a. Such teacher shall inform the pupil and the person in parental 15 relation and the school principal of the reasons for the removal. If the 16 teacher finds that the pupil's continued presence in the classroom does 17 not pose a continuing danger to persons or property and does not present 18 an ongoing threat of disruption to the academic process, the teacher 19 shall, prior to removing the student from the classroom, provide the 20 student with an explanation of the basis for the removal and allow the 21 pupil to informally present the pupil's version of relevant events. In 22 all other cases, the teacher shall provide the pupil with an explanation 23 of the basis for the removal and an informal opportunity to be heard 24 within twenty-four hours of the pupil's removal, provided that if such 25 twenty-four hour period does not end on a school day, it shall be 26 extended to the corresponding time on the next school day. 27 b. The principal shall inform the person in parental relation to such 28 pupil of the removal and the reasons therefor within twenty-four hours 29 of the pupil's removal, provided that if such twenty-four hour period 30 does not end on a school day, it shall be extended to the corresponding 31 time on the next school day. The pupil and the person in parental 32 relation shall, upon request, be given an opportunity for an informal 33 conference with the principal to discuss the reasons for the removal. 34 [If the pupil denies the charges, the] The principal shall provide an 35 explanation of the basis for the removal and allow the pupil and/or 36 person in parental relation to the pupil an opportunity to present the 37 pupil's version of relevant events. Such informal [hearing] conference 38 shall be held within forty-eight hours of the pupil's removal, provided 39 that if such forty-eight hour period does not end on a school day, it 40 shall be extended to the corresponding time on the second school day 41 next following the pupil's removal. A person in parental relationship to 42 the student may request that the informal conference take place later 43 than forty-eight hours after the student's removal. For purposes of this 44 subdivision, "school day" shall mean a school day as defined pursuant to 45 [clause (v) of subparagraph three of paragraph g of subdivision three] 46 paragraph e of subdivision nine of this section. 47 c. The principal shall not set aside the discipline imposed by the 48 teacher unless the principal finds that the charges against the pupil 49 are not supported by substantial evidence or that the pupil's removal is 50 otherwise in violation of law or that the conduct warrants suspension 51 from school pursuant to this section and a suspension will be imposed. 52 The principal's determination made pursuant to this paragraph shall be 53 made by the close of business on the school day next succeeding the end 54 of the forty-eight hour period for an informal [hearing] conference 55 contained in paragraph b of this subdivision.S. 3036 20 1 d. The principal may, in his or her discretion, designate a school 2 district administrator, to carry out the functions required of the prin- 3 cipal under this subdivision. 4 [4.] 11. Expense. a. The expense attending the commitment and costs of 5 maintenance of [any school delinquent] a student disciplined for 6 violation of the code of conduct shall be a charge against the city or 7 district where he resides, if such city or district employs a super- 8 intendent of schools; otherwise it shall be a county charge. 9 b. The school authorities may institute proceedings before a court 10 having jurisdiction to determine the liability of a person in parental 11 relation to contribute towards the maintenance of a [school delinquent] 12 student under sixteen years of age ordered to attend upon instruction 13 under confinement. If the court shall find the person in parental 14 relation able to contribute towards the maintenance of such a minor, it 15 may issue an order fixing the amount to be paid weekly. 16 [5.] 12. Involuntary transfers of pupils who have not been determined 17 to be a student with a disability or a student presumed to have a disa- 18 bility for discipline purposes. 19 a. The board of education, board of trustees or sole trustee, the 20 superintendent of schools, or district superintendent of schools may 21 transfer a pupil who has not been determined to be a student with a 22 disability as defined in section forty-four hundred one of this chapter, 23 or a student presumed to have a disability for discipline purposes as 24 defined in [paragraph g of] subdivision [three] nine of this section 25 from regular classroom instruction to an appropriate educational setting 26 in another school upon the written recommendation of the school princi- 27 pal and following independent review thereof. For purposes of this 28 section of the law, "involuntary transfer" does not include a transfer 29 made by a school district as part of a plan to reduce racial imbalance 30 within the schools or as a change in school attendance zones or 31 geographical boundaries. 32 b. A school principal may initiate a non-requested transfer where it 33 is believed that such a pupil would benefit from the transfer, or when 34 the pupil would receive an adequate and appropriate education in another 35 school program or facility. 36 No recommendation for pupil transfer shall be initiated by the princi- 37 pal until such pupil and a person in parental relation has been sent 38 written notification of the consideration of transfer recommendation. 39 Such notice shall set a time and place of an informal conference with 40 the principal and shall inform such person in parental relation and such 41 pupil of their right to be accompanied by counsel or an individual of 42 their choice. 43 c. After the conference and if the principal concludes that the pupil 44 would benefit from a transfer or that the pupil would receive an 45 adequate and appropriate education in another school program or facili- 46 ty, the principal may issue a recommendation of transfer to the super- 47 intendent. Such recommendation shall include a description of behavior 48 and/or academic problems indicative of the need for transfer; a 49 description of alternatives explored and prior action taken to resolve 50 the problem. A copy of that letter shall be sent to the person in 51 parental relation and to the pupil. 52 d. Upon receipt of the principal's recommendation for transfer and a 53 determination to consider that recommendation, the superintendent shall 54 notify the person in parental relation and the pupil of the proposed 55 transfer and of their right to a fair hearing as provided in paragraph c 56 of subdivision [three] five of this section and shall list communityS. 3036 21 1 agencies and free legal assistance which may be of assistance. The writ- 2 ten notice shall include a statement that the pupil or person in 3 parental relation has ten days to request a hearing and that the 4 proposed transfer shall not take effect, except upon written parental 5 consent, until the ten day period has elapsed, or, if a fair hearing is 6 requested, until after a formal decision following the hearing is 7 rendered, whichever is later. 8 Parental consent to a transfer shall not constitute a waiver of the 9 right to a fair hearing. 10 [6.] 13. Transfer of a pupil. Where a suspended pupil is to be trans- 11 ferred pursuant to subdivision [five] twelve of this section, he or she 12 shall remain on the register of the original school for two school days 13 following transmittal of his or her records to the school to which he or 14 she is to be transferred. The receiving school shall immediately upon 15 receiving those records transmitted by the original school, review them 16 to insure proper placement of the pupil. Staff members who are involved 17 in the pupil's education must be provided with pertinent records and 18 information relating to the background and problems of the pupil before 19 the pupil is placed in a classroom. 20 [7.] 14. Transfer of disciplinary records. Notwithstanding any other 21 provision of law to the contrary, each local educational agency, as such 22 term is defined in subsection twenty-six of section ninety-one hundred 23 one of the Elementary and Secondary Education Act of 1965, as amended, 24 shall establish procedures in accordance with section forty-one hundred 25 fifty-five of the Elementary and Secondary Education Act of 1965, as 26 amended, and the Family Educational Rights and Privacy Act of 1974, to 27 facilitate the transfer of disciplinary records relating to the suspen- 28 sion [or expulsion] of a student to any public or nonpublic elementary 29 or secondary school in which such student enrolls or seeks, intends or 30 is instructed to enroll, on a full-time or part-time basis. 31 § 4. Section 305 of the education law is amended by adding three new 32 subdivisions 56, 57 and 58 to read as follows: 33 56. The commissioner shall provide technical assistance to school 34 districts about the development, implementation and evaluation of school 35 district codes of conduct including: 36 (a) one or more model codes of conduct, designed to reduce the use of 37 suspensions, that meet the requirements of sections twenty-eight hundred 38 one and thirty-two hundred fourteen of this chapter; 39 (b) best practices for age-appropriate, graduated and proportionate 40 discipline as set out in section twenty-eight hundred one of this chap- 41 ter; 42 (c) a matrix of student misconduct and the interventions and discipli- 43 nary measures that provide age appropriate, graduated and proportionate 44 intervention designed to reduce reliance on suspensions and referrals to 45 law enforcement; 46 (d) guidelines for appropriate and school-wide implementation of 47 restorative practices; 48 (e) forms necessary to implement student notification and due process 49 requirements of section twenty-eight hundred one and thirty-two hundred 50 fourteen of this chapter. 51 57. The commissioner shall, pursuant to an appropriation in the state 52 budget, provide funds to local school districts for implementation of a 53 school's code of conduct including mandatory pre-service and in-service 54 training of school personnel about prevention, restorative practices and 55 other intervention and disciplinary measures to respond to studentS. 3036 22 1 misconduct as required by section twenty-eight hundred one of this chap- 2 ter. 3 58. The commissioner shall be authorized to provide funds for training 4 school personnel included in section twenty-eight hundred one of this 5 chapter only to the extent that the state budget includes an appropri- 6 ation for such training. 7 § 5. This act shall take effect immediately; provided, however, that 8 the amendments to subdivision 3 of section 2801 of the education law 9 made by section one of this act shall be subject to the expiration and 10 reversion of such subdivision pursuant to section 34 of chapter 91 of 11 the laws of 2002, as amended, when upon such date the provisions of 12 section two of this act shall take effect; provided further, however, 13 that the amendments to subparagraph (1) of paragraph c, paragraphs d, e, 14 f and g of subdivision 3 and paragraphs a, b and c of subdivision 3-a of 15 section 3214 of the education law made by section three of this act 16 shall be subject to the expiration of such subparagraph and paragraphs 17 and shall be deemed expired therewith; and provided further, however, 18 that the amendments to subdivision 7 of section 3214 of the education 19 law made by section three of this act shall not affect the repeal of 20 such subdivision and shall be deemed repealed therewith.
