Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
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Jun 02, 2016 |
reported referred to codes |
Jan 06, 2016 |
referred to education |
Oct 02, 2015 |
referred to education |
Assembly Bill A8396
2015-2016 Legislative Session
Relates to the development of school codes of conduct and to the treatment of students subject to certain disciplinary actions
download bill text pdfSponsored By
NOLAN
Archive: Last Bill Status - In Assembly Committee
- Introduced
-
- In Committee Assembly
- In Committee Senate
-
- On Floor Calendar Assembly
- On Floor Calendar Senate
-
- Passed Assembly
- Passed Senate
- Delivered to Governor
- Signed By Governor
Actions
co-Sponsors
Latrice Walker
Matthew Titone
Patricia Fahy
Jo Anne Simon
Donna Lupardo
Ellen C. Jaffee
Joseph Morelle
Steven Otis
Anthony Brindisi
Walter T. Mosley
Helene Weinstein
Harry B. Bronson
Carmen E. Arroyo
Rebecca Seawright
Kevin Cahill
Sandy Galef
Daniel O'Donnell
Diana Richardson
Amy Paulin
Latoya Joyner
Rodneyse Bichotte Hermelyn
Michaelle C. Solages
N. Nick Perry
Guillermo Linares
J. Gary Pretlow
Keith L.T. Wright
Kimberly Jean-Pierre
Victor M. Pichardo
Vivian Cook
Marcos Crespo
Jose Rivera
Joseph Lentol
Annette Robinson
Luis R. Sepúlveda
Ron Kim
Linda Rosenthal
Barbara Lifton
Alicia Hyndman
Michael Benedetto
Shelley Mayer
multi-Sponsors
James F. Brennan
David Buchwald
Steven Cymbrowitz
2015-A8396 (ACTIVE) - Details
2015-A8396 (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K ________________________________________________________________________ 8396 2015-2016 Regular Sessions I N A S S E M B L Y October 2, 2015 ___________ Introduced by M. of A. NOLAN -- read once and referred 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: Section 1. Section 2801 of the education law, as added by chapter 181 of the laws of 2000, subdivision 1 as amended by chapter 402 of the laws of 2005, the opening paragraph, paragraph a and paragraph c of subdivi- sion 2 and paragraph a of subdivision 5 as amended by chapter 380 of the laws of 2001, paragraphs 1 and m as amended and paragraph n of subdivi- sion 2 as added by chapter 482 of the laws of 2010, and subdivision 3 as amended by chapter 123 of the laws of 2003, is amended to read as follows: S 2801. Codes of conduct on school property. 1. For purposes of this section, school property [means in or within] SHALL MEAN REAL, PERSONAL OR INTELLECTUAL PROPERTY OWNED, LEASED OR OCCUPIED BY A PUBLIC SCHOOL INCLUDING A CHARTER SCHOOL. SUCH PROPERTY SHALL INCLUDE BUT NOT BE LIMITED TO any building, structure, athletic playing field, playground, parking lot or land contained within the real property boundary line of a public elementary or secondary school; or in or on a school bus, as defined in section one hundred forty-two of the vehicle and traffic law; OR ELECTRONIC FILES AND DATABASES; and a school function shall mean a school-sponsored or school-authorized extra-curricular event or activity regardless of where OR WHEN such event or activity takes place, includ- ing any event or activity that may take place in another state. 2. The board of education or the trustees, as defined in section two of this chapter, of every school district within the state, however created, and every board of cooperative educational services and county vocational extension board, shall adopt and amend, as appropriate, a EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11847-02-5
A. 8396 2 code of conduct [for the maintenance of order on school property, including a school function, which shall govern the conduct of students, teachers and other school personnel as well as visitors] WHICH SHALL GOVERN THE CONDUCT OF STUDENTS, SCHOOL EMPLOYEES AND VISITORS IN ORDER TO PROMOTE A SAFE, RESPECTFUL AND SUPPORTIVE LEARNING AND TEACHING ENVI- RONMENT ON SCHOOL PROPERTY AND AT SCHOOL FUNCTIONS and shall provide for the enforcement thereof. [Such policy may be adopted by the school board or trustees only after at least one public hearing that provides for the participation of school personnel, parents, students and any other interested parties.] Such code of conduct shall APPLY TO ALL STUDENTS, SCHOOL EMPLOYEES, SCHOOL BOARD MEMBERS, INDEPENDENT CONTRACTORS AND VISITORS AND include, at a minimum, PROVISIONS THAT: a. [provisions regarding conduct, dress and language deemed appropri- ate and acceptable on school property, including a school function, and conduct, dress and language deemed unacceptable and inappropriate on school property, including a school function, and provisions regarding acceptable civil and respectful treatment of teachers, school adminis- trators, other school personnel, students and visitors on school proper- ty, including a school function, including the appropriate range of disciplinary measures which may be imposed for violation of such code, and the roles of teachers, administrators, other school personnel, the board of education and parents; b. standards and procedures to assure security and safety of students and school personnel; c. provisions for the removal from the classroom and from school prop- erty, including a school function, of students and other persons who violate the code; d. disciplinary measures to be taken in incidents involving the possession or use of illegal substances or weapons, the use of physical force, vandalism, violation of another student's civil rights and threats of violence; e. provisions for detention, suspension and removal from the classroom of students, consistent with section thirty-two hundred fourteen of this chapter and other applicable federal, state and local laws including provisions for the school authorities to establish policies and proce- dures to ensure the provision of continued educational programming and activities for students removed from the classroom, placed in detention, or suspended from school; f.] ESTABLISH STANDARDS AND PROCEDURES TO ASSURE SECURITY AND SAFETY OF STUDENTS AND SCHOOL PERSONNEL; B. ESTABLISH A SCHOOL CLIMATE THAT PROMOTES AND SUSTAINS A SAFE, INCLUSIVE, CIVIL AND RESPECTFUL SCHOOL ENVIRONMENT FOR SCHOOL PERSONNEL, STUDENTS AND VISITORS ON SCHOOL PROPERTY AND AT SCHOOL FUNCTIONS THROUGH PREVENTION, INTERVENTION AND DISCIPLINE THAT SUPPORT EDUCATION AND LEARNING, PROMOTES POSITIVE STUDENT BEHAVIORS, HOLDS STUDENTS ACCOUNT- ABLE FOR THEIR BEHAVIOR AND KEEPS STUDENTS IN SCHOOL AND CLASS; C. SET OUT CLEAR EXPECTATIONS FOR STUDENT CONDUCT AT SCHOOL AND SCHOOL FUNCTIONS, USING SPECIFIC AND OBJECTIVE CRITERIA, AND DEFINE VIOLATIONS OF THE CODE OF CONDUCT; D. REQUIRE AGE-APPROPRIATE, GRADUATED AND PROPORTIONATE INTERVENTIONS AND DISCIPLINE THAT RESPOND TO STUDENT MISCONDUCT AND HOLD STUDENTS ACCOUNTABLE FOR THEIR BEHAVIOR THROUGH A PROCESS THAT REQUIRES SCHOOL PERSONNEL TO USE THE INTERVENTION OR RESPONSE THAT INTERFERES THE LEAST WITH A STUDENT'S ABILITY TO ATTEND CLASS AND SCHOOL; E. REQUIRE THE STANDARD USE OF SCHOOL-WIDE AND INDIVIDUAL POSITIVE INTERVENTIONS AND SUPPORTS THAT ASSIST STUDENTS IN DEVELOPING SOCIAL AND A. 8396 3 EMOTIONAL COMPETENCIES SUCH AS SELF-MANAGEMENT, RESILIENCE, SELF-AWARE- NESS, RESPONSIBLE DECISION-MAKING, AVOIDING CONFLICT, AND REFOCUS ON LEARNING, BEFORE A CHILD MAY BE SUSPENDED; F. ESTABLISH PROCEDURES FOR THE REMOVAL FROM THE CLASSROOM AND FROM SCHOOL PROPERTY, INCLUDING A SCHOOL FUNCTION, OF STUDENTS AND OTHER PERSONS WHO VIOLATE THE CODE; G. ESTABLISH THE RANGE OF INTERVENTIONS FOR STUDENT BEHAVIORS THAT VIOLATE THE CODE OF CONDUCT INCLUDING GRADUATED INTERVENTIONS FOR REPEATED VIOLATIONS OF THE CODE OF CONDUCT; PROVIDED, HOWEVER, THAT REMOVAL OF A STUDENT FROM CLASS OR CLASSES, SCHOOL OR SCHOOL FUNCTIONS FOR A SPECIFIC PERIOD OF TIME SHALL NOT BE USED TO RESPOND TO TARDINESS, UNEXCUSED ABSENCE FROM CLASS OR SCHOOL, LEAVING SCHOOL WITHOUT PERMIS- SION OR INSUBORDINATE BEHAVIOR INCLUDING BUT NOT LIMITED TO THE USE OF INAPPROPRIATE LANGUAGE OR GESTURES, LACK OF IDENTIFICATION UPON REQUEST BY SCHOOL PERSONNEL OR VIOLATION OF A SCHOOL DRESS CODE. SUSPENSION OF STUDENTS IN KINDERGARTEN THROUGH GRADE THREE SHALL BE PROHIBITED, EXCEPT IN SITUATIONS OF SERIOUS PHYSICAL HARM TO STUDENTS, STAFF, OR OTHERS WHILE TAKING INTO ACCOUNT THE TOTALITY OF THE CIRCUMSTANCES. PERMANENT SUSPENSION FROM SCHOOL SHALL BE PROHIBITED AS A RESPONSE TO STUDENT MISCONDUCT; H. ESTABLISH PREVENTION PROGRAMS AND SERVICES THAT INCLUDE SCHOOL-BASED INITIATIVES THAT PROMOTE A SAFE AND SECURE ENVIRONMENT FOR ALL PERSONS IN SCHOOL OR AT SCHOOL FUNCTIONS INCLUDING BUT NOT LIMITED TO: COMPREHENSIVE, SCHOOL-BASED MODELS APPROVED BY THE COMMISSIONER THAT IMPROVE SAFETY OF PERSON AND PROPERTY, PROMOTE LEARNING AND COLLAB- ORATION; INTERDISCIPLINARY ACADEMIC AND SUPPORT SERVICES PROVIDED BY OR AT THE SCHOOL; AND INVOLVEMENT OF ADMINISTRATORS, TEACHERS, PARENTS AND STUDENTS IN IDENTIFYING SPECIFIC PERFORMANCE GOALS AND ASSESSMENT METH- ODS; I. REQUIRE THE CONSIDERATION OF THE USE OF RESTORATIVE PRACTICES SUCH AS CONFLICT RESOLUTION, MEDIATION, PEER COUNSELING, FACILITATED DISCUSSION AND OTHER RESTORATIVE INTERVENTIONS THAT CAN EFFECTIVELY ADDRESS STUDENT MISCONDUCT, HOLD STUDENTS ACCOUNTABLE FOR THEIR BEHAV- IOR, REPAIR HARM TO PERSONS AND PROPERTY CAUSED BY MISCONDUCT AND FOSTER HEALTHY RELATIONSHIPS WITHIN THE SCHOOL COMMUNITY. RESTORATIVE PRACTICES MAY BE USED ONLY WITH THE CONSENT OF ANY PERSON IMMEDIATELY AFFECTED BY A STUDENT'S ALLEGED MISCONDUCT, INCLUDING STAFF, AND, IN THE CASE OF AN INCIDENT WHERE ANOTHER STUDENT HAS BEEN INJURED, THAT STUDENT'S PARENT OR PERSON IN PARENTAL RELATIONSHIP TO THE STUDENT AND THE CONSENT OF THE STUDENT WHO IS ALLEGED TO HAVE BEHAVED INAPPROPRIATELY AND THAT STUDENT'S PARENT; J. COMPLY WITH THE FEDERAL GUN-FREE SCHOOLS ACT; K. ESTABLISH THE CIRCUMSTANCES UNDER AND PROCEDURES BY WHICH A SCHOOL MAY RESPOND IMMEDIATELY TO STUDENT BEHAVIOR THAT: (I) PHYSICALLY INJURES OR POSES AN IMMEDIATE THREAT OF SERIOUS PHYSICAL INJURY TO THE STUDENT OR OTHER PERSON OR PERSONS; OR (II) DAMAGES PROPERTY AND SUCH DAMAGE INJURES OR POSES AN IMMEDIATE THREAT OF SERIOUS PHYSICAL INJURY TO THE STUDENT OR OTHER PERSON OR PERSONS; L. ESTABLISH procedures by which violations OF THE CODE OF CONDUCT are reported TO THE APPROPRIATE SCHOOL PERSONNEL, THE FACTS ARE INVESTI- GATED, determined[, discipline] AND INTERVENTION measures [imposed and discipline measures carried out] DECIDED AND IMPLEMENTED. SUCH PROVISIONS SHALL ENSURE THAT PROCEDURES ESTABLISHED ARE CONSISTENT WITH THIS SECTION, SECTION THIRTY-TWO HUNDRED FOURTEEN OF THIS CHAPTER AND OTHER FEDERAL, STATE AND LOCAL LAWS; A. 8396 4 [g. provisions ensuring] M. ENSURE such code and [the] ITS enforcement [thereof are in compliance] COMPLY with state and federal laws relating to students with disabilities; [h. provisions setting forth the procedures by which local law enforcement agencies shall be notified of code violations which consti- tute a crime] N. DEFINE THE ROLES AND AREAS OF RESPONSIBILITY OF SCHOOL PERSONNEL, SECURITY SERVICES AND LAW ENFORCEMENT FOR RESPONSE TO STUDENT MISCONDUCT THAT VIOLATES THE DISCIPLINE CODE. A SCHOOL DISTRICT THAT EMPLOYS, CONTRACTS WITH OR OTHERWISE RETAINS PUBLIC LAW ENFORCEMENT OR PUBLIC OR PRIVATE SECURITY INCLUDING SCHOOL RESOURCE OFFICERS FOR DAILY SERVICES AT THE SCHOOL SHALL, BY CONTRACT OR MEMORANDUM OF UNDERSTANDING IN WRITING AND CONSISTENT WITH THE CODE OF CONDUCT AND WITH STAKEHOLDER INPUT, INCLUDING PARENTS, STUDENTS, SCHOOL ADMINISTRATORS, TEACHERS, PROBATION OFFICERS, PROSECUTORS, DEFENSE COUNSEL, COURTS, PARENT AND STUDENT ORGANIZATIONS, AND COMMUNITY MEMBERS, ESTABLISH PROTOCOLS THAT DEFINE THE RELATIONSHIP BETWEEN THE SCHOOL DISTRICT, ITS PERSONNEL, STUDENTS AND VISITORS, AND LAW ENFORCEMENT, AND PUBLIC OR PRIVATE SECU- RITY. SUCH CONTRACT OR MEMORANDUM OF UNDERSTANDING SHALL LIMIT LAW ENFORCEMENT OR SECURITY PERSONNEL INVOLVEMENT WHEN A STUDENT'S BEHAVIOR DOES NOT THREATEN THE SAFETY OF THE SCHOOL, DEFINE WHICH BEHAVIORS SHOULD NOT RESULT IN AN ARREST OR SUMMONS, REQUIRE LAW ENFORCEMENT OR SECURITY PERSONNEL TO RECEIVE TRAINING AS REQUIRED BY PARAGRAPH T OF THIS SECTION, AND CLEARLY DELEGATE THE ROLE OF SCHOOL DISCIPLINE TO THE SCHOOL ADMINISTRATION. SUCH CONTRACT OR MEMORANDUM OF UNDERSTANDING SHALL BE INCORPORATED INTO AND PUBLISHED AS PART OF THE CODE OF CONDUCT; [i. provisions setting] O. SET forth the circumstances under and procedures by which persons in parental relation to [the student] STUDENTS ACCUSED OF AND AFFECTED BY STUDENT BEHAVIOR THAT VIOLATES THE DISCIPLINE CODE shall be notified of code violations; [j. provisions setting] P. SET forth the circumstances under and procedures by which a complaint in criminal court, a juvenile delinquen- cy petition or person in need of supervision petition as defined in articles three and seven of the family court act will be filed; [k.] Q. SET OUT THE circumstances under and procedures by which [referral] STUDENTS WHO ARE SUSPENDED FROM SCHOOL MAY ALSO BE REFERRED TO ACADEMIC SERVICES, SCHOOL-BASED SUPPORT SERVICES OR to appropriate human service agencies [shall be made]; [l. a minimum suspension period, for students who repeatedly are substantially disruptive of the educational process or substantially interfere with the teacher's authority over the classroom, provided that the suspending authority may reduce such period on a case by case basis to be consistent with any other state and federal law. For purposes of this section, the definition of "repeatedly are substantially disrup- tive" shall be determined in accordance with the regulations of the commissioner; m. a minimum suspension period for acts that would qualify the pupil to be defined as a violent pupil pursuant to paragraph a of subdivision two-a of section thirty-two hundred fourteen of this chapter, provided that the suspending authority may reduce such period on a case by case basis to be consistent with any other state and federal law; and n. provisions to comply with article two of this chapter.] R. ENSURE THE CONTINUED EDUCATIONAL PROGRAMMING AND ACTIVITIES FOR STUDENTS REMOVED FROM THE CLASSROOM OR SUSPENDED FROM SCHOOL. STUDENTS WHO HAVE BEEN REMOVED FROM THE CLASSROOM OR SUSPENDED FROM SCHOOL SHALL HAVE THE RIGHT TO CONTINUE THEIR EDUCATION WHEN THEY ARE EXCLUDED FROM A. 8396 5 THE CLASSROOM REGARDLESS OF THE REASON FOR OR TYPE OF EXCLUSION AS FOLLOWS: (I) WHEN A STUDENT IS REMOVED FROM A CLASSROOM, THE TEACHER, PRINCIPAL OR THE PRINCIPAL'S DESIGNEE SHALL PROVIDE THE STUDENT WITH ALL MISSED CLASSROOM WORK WITHIN TWENTY-FOUR HOURS OF THE REMOVAL AND THE STUDENT SHALL HAVE THE OPPORTUNITY TO EARN ALL ACADEMIC CREDIT INCLUDING THE OPPORTUNITY TO COMPLETE ANY MISSED ASSIGNMENTS AND TAKE ANY MISSED EXAM- INATIONS OR TESTS. (II) WHEN A STUDENT IS SUSPENDED FROM CLASS OR SCHOOL, THE PRINCIPAL OR THE PRINCIPAL'S DESIGNEE, IN CONSULTATION WITH THE STUDENT'S TEACH- ERS, SHALL CREATE FOR THE STUDENT AN EDUCATION PLAN FOR EACH SUBJECT OF CLASS IN WHICH THE STUDENT IS ENROLLED. THE EDUCATION PLAN SHALL MAKE PROVISIONS FOR A STUDENT'S ON-GOING ACADEMIC INSTRUCTION DURING THE SUSPENSION. THE STUDENT SHALL HAVE THE OPPORTUNITY TO EARN ALL ACADEMIC CREDIT INCLUDING THE OPPORTUNITY TO COMPLETE ANY ASSIGNMENTS AND TAKE ANY EXAMINATIONS OR TESTS MISSED DURING THE STUDENT'S SUSPENSION AND IF AN ASSESSMENT OR EXAMINATION CANNOT BE RESCHEDULED, THE STUDENT SHALL BE ALLOWED ON SCHOOL PROPERTY TO TAKE SUCH ASSESSMENT OR EXAMINATION ON THE DAY THAT THE ASSESSMENT OR EXAMINATION IS GIVEN. (III) THE EDUCATION PLAN PURSUANT TO SUBPARAGRAPH (II) OF THIS PARA- GRAPH MAY INCLUDE PLACEMENT OF THE SUSPENDED STUDENT AT AN ALTERNATIVE LEARNING SITE INCLUDING THE STUDENT'S HOME IF SUCH ALTERNATIVE IS AVAIL- ABLE AND APPROPRIATE FOR THE STUDENT'S EDUCATION. THE PRINCIPAL OR THE PRINCIPAL'S DESIGNEE AT THE SCHOOL IN WHICH THE STUDENT IS ENROLLED SHALL CONSULT WITH THE ADMINISTRATOR OF AN ALTERNATIVE SITE OR, IN THE CASE OF THE STUDENT'S HOME, WITH THE TEACHER OVERSEEING HOME INSTRUC- TION, TO MAKE ARRANGEMENTS FOR THE STUDENT'S CONTINUED INSTRUCTION. (IV) SCHOOL DISTRICTS MUST PROVIDE TO STUDENTS WITH DISABILITIES ALL SERVICES AND EDUCATIONAL PROGRAMMING PROTECTIONS SET FORTH IN THIS SECTION AND IN APPLICABLE FEDERAL AND STATE LAWS. (V) SCHOOLS MUST SCHEDULE A CONFERENCE WITHIN FIVE SCHOOL DAYS AFTER A STUDENT'S RETURN TO SCHOOL AFTER ANY SHORT TERM OR LONG TERM SUSPENSION AND PROVIDE NOTICE OF THE CONFERENCE TO THE PARENT AND THE STUDENT. THE FAILURE OF THE PARENT OR STUDENT TO ATTEND SHALL NOT DELAY RE-ENTRY FOLLOWING SUSPENSION, NOR SHALL A PRINCIPAL BE HELD RESPONSIBLE IF HE OR SHE MAKES A GOOD FAITH EFFORT TO MAKE THE PARENT OR STUDENT ATTEND AND IS UNSUCCESSFUL. THE CONFERENCE MUST INCLUDE A DISCUSSION OF THE FOLLOW- ING: (A) A RECORD OF THE STUDENT'S EDUCATIONAL ACTIVITIES WHILE ON SUSPEN- SION THAT CAN BE COUNTED TOWARD CREDIT ACCUMULATION. THIS RECORD SHALL INCLUDE THE STUDENT'S TEST SCORES, GRADES, COMPLETED ASSIGNMENTS, AND TOTAL CREDITS EARNED WHILE SUSPENDED, AND THE STUDENT'S EXISTING ACADEM- IC RECORD CAN BE USED FOR THESE PURPOSES, GIVEN THE RECORD PROVIDES THIS INFORMATION FOR THE PERIOD OF THE SUSPENSION; (B) THE STEPS THE STUDENT AND THE SCHOOL WILL TAKE TO FOLLOW ALL SCHOOL RULES; (C) THE SUPPORTS THE SCHOOL WILL PROVIDE FOR THE STUDENT TO SUCCESS- FULLY RE-ENTER SCHOOL; (D) A DISCUSSION OF WHEN A STUDENT'S PERMANENT RECORD WILL BE EXPUNGED, GIVEN THERE ARE NO FURTHER INCIDENTS; AND (E) ANY OTHER PERTINENT CIRCUMSTANCES; S. REQUIRE THE SCHOOL TO MAINTAIN IN THE STUDENT'S PERMANENT RECORD DOCUMENTATION OF INTERVENTIONS DETERMINED FOR STUDENT MISCONDUCT, THE INTERVENTION OR DISCIPLINE IMPOSED AND REINSTATEMENT. DISCIPLINE THAT WAS PROPOSED BUT WAS NOT IMPLEMENTED, WAS DISMISSED OR WAS OVERTURNED ON APPEAL SHALL NOT APPEAR IN THE STUDENT'S PERMANENT RECORD. WHEN A A. 8396 6 STUDENT HAS BEEN SUSPENDED AND REINSTATED TO SCHOOL, THE RECORD OF THE SUSPENSION SHALL BE AUTOMATICALLY EXPUNGED AT THE TIME AGREED UPON IN THE CONFERENCE UPON RETURN FROM SUSPENSION. THE STUDENT MAY REQUEST THAT THE SCHOOL EXPUNGE PERMANENTLY THE STUDENT'S RECORD OF DISCIPLINE SOON- ER, AND THE SCHOOL SHALL NOT REFUSE TO EXPUNGE A RECORD EXCEPT UPON A SHOWING OF GOOD CAUSE. RECORDS OF SUSPENSIONS AND REMOVALS SHALL BE MAINTAINED AS NECESSARY FOR PURPOSES OF EVALUATING THE REQUIREMENT FOR A MANIFESTATION DETERMINATION REVIEW, BUT THESE RECORDS SHALL NOT BE PART OF THE STUDENT'S PERMANENT RECORD. STUDENT DISCIPLINARY RECORDS SHALL BE SUBJECT TO ARTICLE TWO OF THIS CHAPTER AND OTHER APPLICABLE FEDERAL AND STATE LAWS; AND T. REQUIRE PRE-SERVICE AND ANNUAL TRAINING REGARDING THE CODE OF CONDUCT AND THE INTERVENTION AND POSITIVE SCHOOL CLIMATE PRACTICES ADOPTED PURSUANT TO THIS SECTION FOR MAINTAINING ORDER, ADDRESSING STUDENT CONDUCT AND MISBEHAVIOR, MINIMIZING THE USE OF SUSPENSION, AND ADDRESSING DISPARITIES IN DISCIPLINE. TRAINING SHALL ALSO ENSURE THAT RELEVANT POLICIES AND PROCEDURES ARE EQUITABLY APPLIED, AND THAT ALTER- NATIVE INTERVENTIONS, SUCH AS RESTORATIVE PRACTICES AND GRADUATED AND PROPORTIONATE DISCIPLINE ARE UTILIZED IN ACCORDANCE WITH THIS SECTION FOR ALL SCHOOL PERSONNEL, STUDENTS AND LAW ENFORCEMENT, PUBLIC OR PRIVATE SECURITY PERSONNEL EMPLOYED, RETAINED OR USED BY THE SCHOOL DISTRICT. A SCHOOL DISTRICT MAY USE TRAINING PROGRAMS INCLUDING IN PERSON AND ON-LINE PROGRAMS APPROVED BY THE COMMISSIONER; PROVIDED, HOWEVER, THAT SUCH TRAINING INCLUDES THE SCHOOL DISTRICT'S OWN CODE OF CONDUCT. AT THE BEGINNING OF EACH SCHOOL YEAR, EACH SCHOOL SHALL DISTRIBUTE AND EXPLAIN ITS CODE OF CONDUCT TO STUDENTS IN ONE OR MORE GENERAL ASSEMBLIES. 3. The district code of conduct shall be developed in collaboration with [student, teacher, administrator, and parent organizations, school safety personnel and other school personnel] REPRESENTATIVES FROM ALL SEGMENTS OF THE SCHOOL COMMUNITY INCLUDING STUDENTS, TEACHERS, ADMINIS- TRATORS, PARENTS, SCHOOL SAFETY PERSONNEL, SUPPORT SERVICES PERSONNEL, PARENT AND STUDENT ORGANIZATIONS, AND OTHERS AS IDENTIFIED BY THE SCHOOL DISTRICT and shall be approved by the board of education, or other governing body, or by the chancellor of the city school district in the case of the city school district of the city of New York. In the city school district of the city of New York, each community district educa- tion council shall be authorized to adopt and implement additional poli- cies, which are consistent with AND NO MORE RESTRICTIVE THAN the city district's district-wide code of conduct, to reflect the individual needs of each community school district provided that such additional policies shall require the approval of the chancellor. 4. [The board of education, chancellor or other governing body shall provide copies of a summary of the code of conduct to all students at a general assembly held at the beginning of the school year and shall make copies of the code available to persons in parental relation to students at the beginning of each school year, and shall mail a plain language summary of such code to all persons in parental relation to students before the beginning of each school year, and make it available there- after upon request. The board of education, chancellor or other govern- ing body shall take reasonable steps to ensure community awareness of the code provisions. 5. a.] THE BOARD OF EDUCATION, BOARD OF DIRECTORS OR OTHER GOVERNING BODY, OR THE CHANCELLOR OF THE CITY SCHOOL DISTRICT IN THE CASE OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK SHALL HOLD AT LEAST ONE PUBLIC HEARING ABOUT THE PROPOSED CODE OF CONDUCT BEFORE ITS ADOPTION OR A. 8396 7 AMENDMENT. THE SCHOOL DISTRICT SHALL NOTIFY THE SCHOOL COMMUNITY AND GENERAL PUBLIC ABOUT THE HEARING AT LEAST THIRTY DAYS PRIOR TO THE DATE OF THE HEARING. SUCH NOTICE SHALL INCLUDE THE DATE, TIME AND PLACE OF THE HEARING, THE AGENDA, A COPY OF THE PROPOSED CODE OF CONDUCT AND INFORMATION ABOUT AN OPPORTUNITY, AS DETERMINED BY THE SCHOOL DISTRICT, FOR COMMENT FROM THE SCHOOL COMMUNITY AND THE GENERAL PUBLIC ABOUT THE PROPOSED CODE OF CONDUCT. THE SCHOOL DISTRICT SHALL TAKE NECESSARY STEPS TO NOTIFY FAMILIES WHO DO NOT SPEAK ENGLISH AND WHOSE CHILDREN ATTEND SCHOOLS IN THE DISTRICT. 5. UPON ADOPTION OR AMENDMENT OF THE CODE OF CONDUCT, THE SCHOOL DISTRICT SHALL: (I) FILE A COPY OF ITS CODE OF CONDUCT AND ANY AMEND- MENTS TO SUCH CODE WITH THE COMMISSIONER NO LATER THAN THIRTY DAYS AFTER THEIR ADOPTION; (II) TRANSLATE THE CODE OF CONDUCT INTO THOSE LANGUAGES SPOKEN BY THREE PERCENT OR MORE OF THE FAMILIES WHOSE CHILDREN ATTEND SCHOOLS IN THE SCHOOL DISTRICT; (III) AT THE BEGINNING OF EACH SCHOOL YEAR, POST THE CODE OF CONDUCT ON THE SCHOOL DISTRICT AND SCHOOL WEB SITES, IF ANY AND MAIL A COPY OF THE CODE TO PERSONS IN PARENTAL RELATIONSHIP TO STUDENTS IN THE DISTRICT'S SCHOOLS; AND (IV) DISTRIBUTE THE CODE TO ALL STUDENTS IN SCHOOL AT ONE OR MORE GENERAL ASSEMBLIES DEDICATED TO THE PROVISIONS OF THE CODE OF CONDUCT. THE SCHOOL DISTRICT SHALL ALSO MAKE THE CODE OF CONDUCT AVAILABLE UPON REQUEST. 6. The board of education, chancellor or other governing body shall annually review and update the district's codes of conduct if necessary, taking into consideration the effectiveness of code provisions and the fairness and consistency of its administration. Each school district is authorized to establish a committee and to facilitate the review of the code of conduct and the district's response to code of conduct violations. Any such committee shall be comprised of similar individuals described in subdivision three of this section. [The school board, chan- cellor, or other governing body shall reapprove any such updated code only after at least one public hearing that provides for the partic- ipation of school personnel, parents, students and any other interested parties. b. Each district shall file a copy of its codes of conduct with the commissioner and all amendments to such code shall be filed with the commissioner no later than thirty days after their adoption.] 7. THE DEPARTMENT SHALL COLLECT AND SCHOOL DISTRICTS SHALL REPORT TO THE DEPARTMENT DATA ABOUT THE IMPLEMENTATION OF STUDENT CODES OF CONDUCT AS REQUIRED BY FEDERAL LAW. ON OR BEFORE NOVEMBER FIRST OF EACH YEAR, THE DEPARTMENT SHALL MAKE AVAILABLE TO THE PUBLIC BY SCHOOL DISTRICT THE DATA REGARDING STUDENT DISCIPLINE FROM THE PRECEDING YEAR. ON OR BEFORE DECEMBER FIRST OF EACH YEAR THE DEPARTMENT SHALL SUBMIT TO THE GOVERNOR, THE TEMPORARY PRESIDENT OF THE SENATE, THE SPEAKER OF THE ASSEMBLY AND THE CHAIRS OF THE ASSEMBLY AND SENATE EDUCATION COMMITTEES A REPORT THAT SUMMARIZES AND ANALYZES THE DATA COLLECTED ABOUT STUDENT DISCIPLINE INCLUDING A REVIEW AND EVALUATION OF SCHOOL APPLICATION OF CODES OF CONDUCT FOR FAIR AND CONSISTENT APPLICATION AND OTHER ACCOUNTABILITY CRITERIA AS DETERMINED BY THE DEPARTMENT AND MAKE RECOMMENDATIONS ABOUT POLICY AND PRACTICES FOR SCHOOL CODES OF CONDUCT AND THE DEPARTMENT'S TECHNICAL ASSISTANCE ABOUT STUDENT DISCIPLINE. S 2. Subdivision 3 of section 2801 of the education law, as added by chapter 181 of the laws of 2000, is amended to read as follows: 3. The district code of conduct shall be developed in collaboration with [student, teacher, administrator, and parent organizations, school safety personnel and other school personnel] REPRESENTATIVES FROM ALL SEGMENTS OF THE SCHOOL COMMUNITY INCLUDING STUDENTS, TEACHERS, ADMINIS- A. 8396 8 TRATORS, PARENTS, SCHOOL SAFETY PERSONNEL, SUPPORT SERVICES PERSONNEL, PARENT AND STUDENT ORGANIZATIONS, AND OTHERS AS IDENTIFIED BY THE SCHOOL DISTRICT and shall be approved by the board of education, or other governing body, or by the chancellor of the city school district in the case of the city school district of the city of New York. In the city school district of the city of New York, each community school district board shall be authorized to adopt and implement additional policies, which are consistent with the city district's district-wide code of conduct, to reflect the individual needs of each community school district provided that such additional policies shall require the approval of the chancellor. S 3. Section 3214 of the education law, as amended by chapter 181 of the laws of 2000, subparagraph 1 of paragraph c of subdivision 3 as amended by chapter 430 of the laws of 2006, paragraphs d and f of subdi- vision 3 as amended by chapter 425 of the laws of 2002, paragraph e of subdivision 3 as amended by chapter 170 of the laws of 2006, paragraph g of subdivision 3 as amended by chapter 352 of the laws of 2005, clause (v) of subparagraph 3 of paragraph g of subdivision 3 as amended by chapter 378 of the laws of 2007, paragraphs a, b and c of subdivision 3-a as amended by chapter 147 of the laws of 2001, and subdivision 7 as added by chapter 101 of the laws of 2003, is amended to read as follows: S 3214. Student INTERVENTIONS, placement, suspensions and transfers. 1. [School delinquent. A minor under seventeen years of age, required by any of the provisions of part one of this article to attend upon instruction, who is an habitual truant from such instruction or is irregular in such attendance or insubordinate or disorderly or disrup- tive or violent during such attendance, is a school delinquent. 2.] Special day schools. The school authorities of any city or school district may establish schools or set apart rooms in public school buildings for the instruction of [school delinquents] STUDENTS DISCI- PLINED IN VIOLATION OF THE CODE OF CONDUCT, and fix the number of days per week and the hours per day of required attendance, which shall not be less than is required of minors attending the full time day schools. [2-a. a. Violent pupil. For the purposes of this section, a violent pupil is an elementary or secondary student under twenty-one years of age who: (1) commits an act of violence upon a teacher, administrator or other school employee; (2) commits, while on school district property, an act of violence upon another student or any other person lawfully upon said property; (3) possesses, while on school district property, a gun, knife, explosive or incendiary bomb, or other dangerous instrument capable of causing physical injury or death; (4) displays, while on school district property, what appears to be a gun, knife, explosive or incendiary bomb or other dangerous instrument capable of causing death or physical injury; (5) threatens, while on school district property, to use any instru- ment that appears capable of causing physical injury or death; (6) knowingly and intentionally damages or destroys the personal prop- erty of a teacher, administrator, other school district employee or any person lawfully upon school district property; or (7) knowingly and intentionally damages or destroys school district property. b. Disruptive pupil. For the purposes of this section, a disruptive pupil is an elementary or secondary student under twenty-one years of age who is substantially disruptive of the educational process or A. 8396 9 substantially interferes with the teacher's authority over the class- room. 3.] 2. DETERMINATION OF STUDENT MISCONDUCT. DECISIONS ABOUT APPROPRI- ATE DISCIPLINE AND INTERVENTIONS IN RESPONSE TO STUDENT BEHAVIOR THAT VIOLATES A SCHOOL'S CODE OF CONDUCT SHALL BE BASED ON THE LIKELIHOOD THAT A LESSER INTERVENTION WOULD ADEQUATELY ADDRESS THE STUDENT'S MISCONDUCT, REDRESS ANY HARM OR DAMAGE, AND PREVENT FUTURE BEHAVIOR THAT VIOLATES THE CODE OF CONDUCT. FURTHERMORE, DISCIPLINARY RESPONSES SHALL BE BASED ON THE FACTS OF EACH CASE AS DETERMINED INCLUDING, BUT NOT LIMITED TO: A. THE NATURE OF THE STUDENT'S ALLEGED MISCONDUCT; B. THE IMPACT OF THE STUDENT'S ALLEGED MISCONDUCT INCLUDING, BUT NOT LIMITED TO THE HARM TO THE STUDENT OR OTHER PERSONS; DAMAGE TO PERSONAL OR SCHOOL PROPERTY; AND THREAT TO THE SAFETY AND WELFARE OF THE SCHOOL COMMUNITY; C. THE ABILITY OF THE STUDENT TO UNDERSTAND AND PARTICIPATE IN THE STUDENT'S DISCIPLINARY PROCESS INCLUDING, BUT NOT LIMITED TO, CONSIDER- ATION OF THE STUDENT'S AGE, ABILITY TO SPEAK ENGLISH, PHYSICAL HEALTH, MENTAL HEALTH, DISABILITIES AND PROVISIONS OF AN INDIVIDUAL EDUCATION PROGRAM; D. THE STUDENT'S WILLINGNESS TO RESOLVE THE CONFLICT AND REPAIR THE HARM OR DAMAGE; E. THE STUDENT'S RECORD OF BEHAVIOR AND DISCIPLINE; AND F. SUCH OTHER FACTORS AS DETERMINED BY SCHOOL PERSONNEL AND THE STUDENT TO BE RELEVANT INCLUDING A REVIEW OF THE STUDENT'S ACADEMIC PLACEMENT AND PROGRAM FOR ITS RELATIONSHIP, IF ANY, TO THE STUDENT'S BEHAVIOR AND ALLEGED VIOLATION OF THE CODE OF CONDUCT. 3. UNLESS PROHIBITED BY LAW, RESTORATIVE PRACTICES SUCH AS CONFLICT RESOLUTION, MEDIATION, PEER COUNSELING, FACILITATED DISCUSSION AND OTHER RESTORATIVE INTERVENTIONS THAT CAN EFFECTIVELY ADDRESS STUDENT MISCON- DUCT, HOLD STUDENTS ACCOUNTABLE FOR THEIR BEHAVIOR, REPAIR HARM TO PERSONS AND PROPERTY CAUSED BY MISCONDUCT AND FOSTER HEALTHY RELATION- SHIPS WITHIN THE SCHOOL COMMUNITY, MAY BE USED AT THE DISCRETION OF THE SCHOOL TO RESPOND TO STUDENT MISCONDUCT PURSUANT TO THE CODE OF CONDUCT. A. RESTORATIVE PRACTICES THAT REQUIRE THE PARTICIPATION OF A PERSON OR PERSONS AFFECTED BY A STUDENT'S ALLEGED MISCONDUCT MAY BE USED ONLY WITH THE CONSENT OF SUCH PERSON OR PERSONS. IN THE CASE OF AN INCIDENT WHERE ANOTHER STUDENT HAS BEEN INJURED, RESTORATIVE PRACTICES THAT REQUIRE THE PARTICIPATION OF A PERSON OR PERSONS INJURED BY A STUDENT'S ALLEGED MISCONDUCT MAY BE USED ONLY WITH THE CONSENT OF SUCH STUDENT'S PARENT OR PERSON IN PARENTAL RELATIONSHIP TO THE STUDENT AND THE CONSENT OF THE STUDENT WHO IS ALLEGED TO HAVE BEHAVED INAPPROPRIATELY AND SUCH STUDENT'S PARENT. B. THE COMMISSIONER SHALL ISSUE RULES AND REGULATIONS AND IDENTIFY BEST PRACTICES ABOUT THE PROCESS AND PROCEDURES FOR THE USE OF RESTORA- TIVE PRACTICES IN RESPONSE TO STUDENT BEHAVIOR THAT ALLEGEDLY VIOLATES THE CODE OF CONDUCT. 4. Suspension of a pupil FOR A PERIOD NOT TO EXCEED FIVE SCHOOL DAYS. [a. The board of education, board of trustees or sole trustee, the superintendent of schools, district superintendent of schools or princi- pal of a school may suspend the following pupils from required attend- ance upon instruction: A pupil who is insubordinate or disorderly or violent or disruptive, or whose conduct otherwise endangers the safety, morals, health or welfare of others. A. 8396 10 b. (1)] The board of education, board of trustees, or sole trustee, superintendent of schools, district superintendent of schools and the principal of the school where the pupil attends shall have the [power] AUTHORITY to suspend a pupil for a period not to exceed five school days IF A PUPIL ENGAGES IN BEHAVIOR THAT VIOLATES THE CODE OF CONDUCT FOR WHICH SUCH SUSPENSION MAY BE WARRANTED AND NO ALTERNATIVE INTERVENTION IS APPROPRIATE TO ADDRESS THE ALLEGED MISCONDUCT. In the case of such a suspension, the suspending authority shall [provide the pupil with notice of the charged misconduct. If the pupil denies the misconduct, the suspending authority shall provide an explanation of the basis for the suspension. The pupil and the person in parental relation to the pupil shall, on request, be given an opportunity for an informal confer- ence with the principal at which the pupil and/or person in parental relation shall be authorized to present the pupil's version of the event and to ask questions of the complaining witnesses. The aforesaid notice and opportunity for an informal conference shall take place prior to suspension of the pupil unless the pupil's presence in the school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process, in which case the pupil's notice and opportunity for an informal conference shall take place as soon after the suspension as is reasonably practicable.]INTERVIEW ANY ALLEGED VICTIM AND THE WITNESSES TO THE INCIDENT AND OBTAIN THEIR SIGNED, WRIT- TEN STATEMENTS; IDENTIFY AND REVIEW DOCUMENTARY, PHOTOGRAPHIC, VIDEO AND OTHER EVIDENCE, AND MAKE A DETERMINATION WHETHER THE STUDENT VIOLATED THE CODE OF CONDUCT AND, IF SO, POSSIBLE DISCIPLINE INCLUDING SUSPENSION OF FIVE OR FEWER SCHOOL DAYS IS WARRANTED. THE PRINCIPAL OR THE PRINCI- PAL'S DESIGNEE SHALL TAKE INTO ACCOUNT ALL OF THE FACTORS LISTED IN SUBDIVISION TWO OF THIS SECTION. THE SUSPENDING AUTHORITY SHALL ALSO: A. INFORM THE PUPIL ACCUSED OF MISCONDUCT AND A PERSON IN PARENTAL RELATIONSHIP TO THE PUPIL IN WRITING ABOUT THE DETERMINATION TO SEEK A SUSPENSION ON THE SAME DAY AS SUCH DETERMINATION, DESCRIBE THE MISCON- DUCT OF WHICH THE STUDENT IS ACCUSED, AND PROVIDE AN EXPLANATION OF THE EVIDENCE; B. PROVIDE THE PUPIL AND THE PERSON IN PARENTAL RELATION TO THE PUPIL AN OPPORTUNITY FOR AN INFORMAL CONFERENCE WITH THE PRINCIPAL AT WHICH THE PUPIL OR PERSON IN PARENTAL RELATIONSHIP SHALL BE AUTHORIZED TO PRESENT THE PUPIL'S VERSION OF THE EVENT. THE AFORESAID NOTICE AND OPPORTUNITY FOR AN INFORMAL CONFERENCE SHALL TAKE PLACE PRIOR TO THE SUSPENSION OF THE PUPIL. THE STUDENT SHALL BE ALLOWED TO ATTEND CLASSES AND OTHERWISE REMAIN IN SCHOOL, PENDING THE OUTCOME OF THE INFORMAL CONFERENCE WITH THE PRINCIPAL, UNLESS PARAGRAPH G OF THIS SUBDIVISION APPLIES. THE SUSPENDING AUTHORITY SHALL TAKE REASONABLE STEPS TO PROVIDE THE WRITTEN NOTICE DESCRIBED IN PARAGRAPH A OF THIS SUBDIVISION IN THE FIRST LANGUAGE OF A PARENT OR PERSON IN PARENTAL RELATION WHO DOES NOT READ OR SPEAK ENGLISH. THE WRITTEN NOTICE SHALL INCLUDE: (1) A DESCRIPTION OF THE CIRCUMSTANCES UPON WHICH ALLEGATIONS OF MISCONDUCT ARE BASED, INCLUDING THE DATE, TIME AND LOCATION OF THE ALLEGED INCIDENT, THE SECTION OF THE CODE OF CONDUCT THAT THE PUPIL ALLEGEDLY VIOLATED AND DISCIPLINARY ACTION THAT MAY BE WARRANTED, INCLUDING THE LENGTH OF A POSSIBLE SUSPENSION; (2) THE DATE, TIME AND PLACE FOR THE INFORMAL CONFERENCE; (3) A STATEMENT INCLUDING THE POSITIVE INTERVENTIONS AND PRACTICE USED, OR IF NONE WERE USED, WHY THEY WERE NOT, AND EXPLAINING WHY THE USE OF EXCLUSIONARY DISCIPLINE MAY BE JUSTIFIED; (4) A COPY OF ALL DOCUMENTARY EVIDENCE RELATED TO THE INCIDENT OF BEHAVIOR THAT ALLEGEDLY VIOLATES THE CODE OF CONDUCT INCLUDING, BUT NOT A. 8396 11 LIMITED TO, INCIDENT REPORTS AND AUDIO OR VIDEO RECORDINGS THAT THE SCHOOL POSSESSES REGARDING THE INCIDENT AND A LIST OF WITNESSES AND THEIR STATEMENTS. IF ANY OF THE DOCUMENTARY EVIDENCE REQUIRED BY THIS SUBPARAGRAPH IS NOT AVAILABLE AT THE TIME THE NOTICE IS PROVIDED, THE NOTICE MUST INCLUDE A LIST OF THE MISSING DOCUMENTARY EVIDENCE. ANY MISSING DOCUMENTARY EVIDENCE MUST BE PROVIDED NO LATER THAN TWENTY-FOUR HOURS BEFORE THE CONFERENCE; (5) A STATEMENT OF PUPIL AND PARENT RIGHTS PURSUANT TO THE CODE OF CONDUCT INCLUDING THE RIGHT TO CALL AND QUESTION WITNESSES, THE RIGHT TO LEGAL REPRESENTATION OR AN ADVOCATE, THE RIGHT TO INTERPRETATION AT THE CONFERENCE BY A QUALIFIED INTERPRETER AND THE RIGHT TO APPEAL ANY SUSPENSION IMPOSED TO THE SUPERINTENDENT, THE SCHOOL BOARD OR THE COMMISSIONER AND THE PROCEDURES FOR SUCH AN APPEAL; (6) A STATEMENT THAT ONCE THE LENGTH OF TIME OF THE STUDENT'S SUSPEN- SION CONCLUDES, THE STUDENT IS AUTOMATICALLY REINSTATED TO SCHOOL; (7) THE NOTICE SHALL ALSO STATE TO THE PERSON IN PARENTAL RELATIONSHIP TO THE PUPIL THAT IF THE CHILD HAS BEEN ARRESTED OR IF A CRIMINAL INVES- TIGATION IS PENDING, A PUPIL MAY CHOOSE NOT TO MAKE A WRITTEN OR ORAL STATEMENT CONCERNING THE INCIDENT, AND ANY STATEMENT MADE BY THE PUPIL, WRITTEN OR ORAL, MIGHT BE USED AGAINST THE PUPIL IN A CRIMINAL, IMMI- GRATION, OR JUVENILE DELINQUENCY INVESTIGATION AND/OR PROCEEDING, AND/OR IN A COURT OF LAW. C. AT THE INFORMAL CONFERENCE, THE PUPIL AND PERSON IN PARENTAL RELATION TO THE PUPIL SHALL HAVE THE RIGHT TO REQUEST THE PRESENCE OF WITNESSES, INCLUDING WITNESSES WHO ARE STUDENTS, SCHOOL EMPLOYEES, OR SAFETY OR LAW ENFORCEMENT PERSONNEL ON CAMPUS. THE SCHOOL SHALL TAKE ALL REASONABLE STEPS TO ENSURE THE PRESENCE OF SUCH WITNESSES, WITH THE UNDERSTANDING THAT THE PRINCIPAL CANNOT CONTROL THE ACTIONS OF THOSE OUTSIDE HIS OR HER SCHOOL COMMUNITY. D. AT THE INFORMAL CONFERENCE PARTICIPANTS SHALL ASSESS THE FACTS OF THE INCIDENT OF ALLEGED MISCONDUCT, DETERMINE WHETHER THE STUDENT VIOLATED THE CODE OF CONDUCT AND, IF SO, WHETHER SUSPENSION IS WARRANTED, ESTABLISH AN EDUCATION PLAN FOR THE PUPIL, INCLUDING ACADEMIC AND SUPPORT SERVICES, AND A PLAN FOR THE PUPIL'S REINSTATEMENT TO SCHOOL. E. THE SUSPENDING AUTHORITY SHALL ISSUE A WRITTEN DECISION ABOUT ANY DISCIPLINARY ACTION WITHIN TWO DAYS OF THE CONFERENCE. IF THE PRINCIPAL DETERMINES THAT A SUSPENSION OF FIVE SCHOOL DAYS OR LESS IS WARRANTED, THE WRITTEN DECISION SHALL STATE THE LENGTH OF THE SUSPENSION, FINDINGS OF FACT, REASONS FOR THE DETERMINATION, THE PROCEDURES FOR AN APPEAL AND THE DATE BY WHICH AN APPEAL MUST BE FILED. THE WRITTEN DECISION SHALL BE PROVIDED TO THE PERSON IN PARENTAL RELATION TO THE PUPIL. F. A PUPIL SUSPENDED FOR INAPPROPRIATE BEHAVIOR AND PERSON IN PARENTAL RELATIONSHIP MAY APPEAL A SUSPENSION OF FIVE DAYS OR LESS TO THE SCHOOL DISTRICT SUPERINTENDENT. IF THE SUPERINTENDENT PARTICIPATED IN THE DECI- SION TO SUSPEND THE PUPIL, THE PUPIL OR PERSON IN PARENTAL RELATIONSHIP TO THE PUPIL MAY APPEAL TO THE SCHOOL BOARD, BOARD OF TRUSTEES, OR IN THE CITY OF NEW YORK, TO THE CHANCELLOR. AN APPEAL OF A SUSPENSION OF FIVE OR FEWER DAYS MUST BE DECIDED WITHIN TEN DAYS OF RECEIVING THE APPEAL. THE PERSON DECIDING THE APPEAL MAY UPHOLD OR REVERSE THE SUSPEN- SION BUT CANNOT IMPOSE A LONGER SUSPENSION OR ADDITIONAL DISCIPLINARY TERMS OR CONDITIONS. THE PERSON DECIDING THE APPEAL MUST REVERSE AND EXPUNGE THE SUSPENSION IF: (1) THE SUSPENSION WAS IMPOSED FOR BEHAVIOR FOR WHICH SUSPENSION IS PROHIBITED BY LAW OR NOT AUTHORIZED BY THE SCHOOL'S CODE OF CONDUCT; (2) THE SCHOOL DID NOT PRESENT SUFFICIENT EVIDENCE TO ESTABLISH THAT THE STUDENT VIOLATED THE CODE OF CONDUCT AND A. 8396 12 THAT A SUSPENSION WAS WARRANTED FOR THAT VIOLATION; (3) THE SCHOOL FAILED TO SHOW THAT A LESSER EXCLUSIONARY INTERVENTION COULD NOT ADDRESS THE STUDENT MISCONDUCT; (4) THE SCHOOL DID NOT FOLLOW DUE PROCESS PROCE- DURES; OR (5) THE FACTS AND CONSIDERATIONS REQUIRED BY THE SCHOOL'S CODE OF CONDUCT DO NOT SUPPORT THE DECISION TO SUSPEND THE PUPIL. THE SUPER- INTENDENT OR SCHOOL BOARD MAY REVERSE AND EXPUNGE THE SUSPENSION IF THE SCHOOL DID NOT IMPOSE GRADUATED AND PROPORTIONATE DISCIPLINE OR THE SUSPENSION WAS NOT APPROPRIATE GIVEN THE FACTS AS PRESENTED AT THE CONFERENCE. G. A PUPIL WHOSE MISCONDUCT PHYSICALLY INJURES OR POSES AN IMMEDIATE THREAT OF SERIOUS PHYSICAL INJURY TO THE PUPIL OR OTHER PERSON OR PERSONS OR WHO DAMAGES PROPERTY AND SUCH DAMAGE INJURES OR POSES AN IMMEDIATE THREAT OF SERIOUS PHYSICAL INJURY TO THE PUPIL OR OTHER PERSON OR PERSONS, THE PUPIL MAY BE REMOVED IMMEDIATELY AND THE INFORMAL CONFERENCE SHALL FOLLOW AS SOON AFTER THE PUPIL'S REMOVAL AS PRACTICA- BLE, BUT IN NO CASE MORE THAN FORTY-EIGHT HOURS AFTER SUCH REMOVAL. IF IMMEDIATE REMOVAL FROM SCHOOL IS NECESSARY, THE SCHOOL SHALL IMMEDIATELY NOTIFY A PERSON IN PARENTAL RELATIONSHIP TO THE PUPIL TO DETERMINE HOW TO TRANSFER THE PUPIL TO THE PERSON IN PARENTAL RELATIONSHIP TO THE PUPIL. [(2) A teacher shall immediately report and refer a violent pupil to the principal or superintendent for a violation of the code of conduct and a minimum suspension period pursuant to section twenty-eight hundred one of this chapter. c. (1) No pupil may be suspended for a period in excess of five school days unless such pupil and the person in parental relation to such pupil shall have had an opportunity for a fair hearing, upon reasonable notice, at which such pupil shall have the right of representation by counsel, with the right to question witnesses against such pupil and to present witnesses and other evidence on his or her behalf. Where the pupil is a student with a disability or a student presumed to have a disability, the provisions of paragraph g of this subdivision shall also apply. Where a pupil has been suspended in accordance with this subpara- graph by a superintendent of schools, district superintendent of schools, or community superintendent, the superintendent shall personally hear and determine the proceeding or may, in his or her discretion, designate a hearing officer to conduct the hearing. The hearing officer shall be authorized to administer oaths and to issue subpoenas in conjunction with the proceeding before him or her. A record of the hearing shall be maintained, but no stenographic transcript shall be required and a tape recording shall be deemed a satisfactory record. The hearing officer shall make findings of fact and recommendations as to the appropriate measure of discipline to the superintendent. The report of the hearing officer shall be advisory only, and the super- intendent may accept all or any part thereof. An appeal will lie from the decision of the superintendent to the board of education who shall make its decision solely upon the record before it. The board may adopt in whole or in part the decision of the superintendent of schools. Where the basis for the suspension is, in whole or in part, the possession on school grounds or school property by the student of any firearm, rifle, shotgun, dagger, dangerous knife, dirk, razor, stiletto or any of the weapons, instruments or appliances specified in subdivi- sion one of section 265.01 of the penal law, the hearing officer or superintendent shall not be barred from considering the admissibility of such weapon, instrument or appliance as evidence, notwithstanding a determination by a court in a criminal or juvenile delinquency proceed- A. 8396 13 ing that the recovery of such weapon, instrument or appliance was the result of an unlawful search or seizure. (2) Where a pupil has been suspended in accordance with this section by a board of education, the board may in its discretion hear and deter- mine the proceeding or appoint a hearing officer who shall have the same powers and duties with respect to the board that a hearing officer has with respect to a superintendent where the suspension was ordered by him. The findings and recommendations of the hearing officer conducting the proceeding shall be advisory and subject to final action by the board of education, each member of which shall before voting review the testimony and acquaint himself with the evidence in the case. The board may reject, confirm or modify the conclusions of the hearing officer.] 5. SUSPENSION OF A PUPIL FOR SIX TO TWENTY DAYS. THE BOARD OF EDUCA- TION, BOARD OF TRUSTEES, OR SOLE TRUSTEE, SUPERINTENDENT OF SCHOOLS, DISTRICT SUPERINTENDENT OF SCHOOLS AND THE PRINCIPAL OF THE SCHOOL WHERE THE PUPIL ATTENDS SHALL HAVE THE AUTHORITY TO SUSPEND A PUPIL FOR A PERIOD OF BETWEEN SIX TO TWENTY DAYS IF A PUPIL VIOLATES THE CODE OF CONDUCT FOR WHICH SUCH SUSPENSION MAY BE WARRANTED, NO RESTORATIVE PRAC- TICE IS ADEQUATE TO ADDRESS THE MISCONDUCT, AND A SUSPENSION OF FEWER THAN SIX DAYS CANNOT ADDRESS THE MISCONDUCT. THE SUSPENDING AUTHORITY SHALL TAKE THE FOLLOWING STEPS BEFORE DETERMINING THAT A SUSPENSION FOR A PERIOD OF BETWEEN SIX TO TWENTY DAYS IS PROPOSED: A. INTERVIEW ANY ALLEGED VICTIM AND WITNESSES TO THE INCIDENT AND OBTAIN THEIR SIGNED, WRITTEN STATEMENTS; IDENTIFY AND REVIEW DOCUMENTARY PHOTOGRAPHIC, VIDEO, AND OTHER EVIDENCE; DETERMINE WHETHER APPROPRIATE INTERVENTIONS, INCLUDING RESTORATIVE PRACTICES CAN ADDRESS THE ALLEGED VIOLATION OF THE CODE OF CONDUCT; AND IF NOT, MAKE A DETERMINATION ABOUT POSSIBLE DISCIPLINE INCLUDING SUSPENSION FOR A PERIOD OF BETWEEN SIX TO TWENTY SCHOOL DAYS IF WARRANTED. THE PRINCIPAL OR THE PRINCIPAL'S DESIG- NEE SHALL TAKE INTO ACCOUNT ALL OF THE FACTORS LISTED IN SUBDIVISION TWO OF THIS SECTION; B. SHALL SEND IMMEDIATE WRITTEN NOTICE TO THE PUPIL AND THE PERSON IN PARENTAL RELATIONSHIP TO THE PUPIL ABOUT THE DETERMINATION TO SUSPEND THE PUPIL AND THE HEARING. THE SUSPENDING AUTHORITY SHALL TAKE REASON- ABLE STEPS TO PROVIDE SUCH WRITTEN NOTICE IN THE FIRST LANGUAGE OF A PARENT OR PERSON IN PARENTAL RELATION WHO DOES NOT READ OR SPEAK ENGLISH. THE WRITTEN NOTICE SHALL INCLUDE: (1) A DESCRIPTION OF THE FACTS AND CIRCUMSTANCES UPON WHICH THE ALLEGED VIOLATIONS OF THE CODE OF CONDUCT ARE BASED, THE SECTION OF THE CODE OF CONDUCT THAT THE PUPIL ALLEGEDLY VIOLATED AND DISCIPLINARY ACTION THAT MAY BE WARRANTED INCLUDING THE LENGTH OF A POSSIBLE SUSPEN- SION; (2) THE DATE, TIME AND PLACE FOR THE HEARING TO DETERMINE WHETHER THE PROPOSED SUSPENSION IS WARRANTED; (3) A STATEMENT INCLUDING THE POSITIVE INTERVENTIONS AND PRACTICES USED, OR IF NONE WERE USED, WHY THEY WERE NOT, AND EXPLAINING WHY THE USE OF EXCLUSIONARY DISCIPLINE MAY BE JUSTIFIED. (4) A COPY OF ALL DOCUMENTARY EVIDENCE RELATED TO THE INCIDENT OF THE BEHAVIOR THAT IS ALLEGED TO VIOLATE THE CODE OF CONDUCT INCLUDING BUT NOT LIMITED TO INCIDENT REPORTS, WITNESS STATEMENTS, AND AUDIO OR VIDEO RECORDINGS THAT THE SCHOOL POSSESSES REGARDING THE INCIDENT AND A LIST OF WITNESSES WHO MAY APPEAR AT THE HEARING. IF ANY OF THE DOCUMENTARY EVIDENCE REQUIRED BY THIS PARAGRAPH IS NOT AVAILABLE AT THE TIME THE NOTICE IS PROVIDED, THE NOTICE MUST INCLUDE A LIST OF THE MISSING DOCU- MENTARY EVIDENCE. ANY MISSING DOCUMENTARY EVIDENCE MUST BE PROVIDED NO LATER THAN TWENTY-FOUR HOURS BEFORE THE HEARING; A. 8396 14 (5) A STATEMENT OF PUPIL AND PARENT RIGHTS PURSUANT TO THE CODE OF CONDUCT INCLUDING THE RIGHT TO CALL AND QUESTION WITNESSES AT THE HEAR- ING, THE RIGHT TO LEGAL REPRESENTATION OR AN ADVOCATE DURING THE SUSPEN- SION PROCESS, THE RIGHT TO INTERPRETATION AT THE HEARING BY A QUALIFIED INTERPRETER AND THE RIGHT TO APPEAL TO THE SUPERINTENDENT, THE BOARD OF TRUSTEES, THE SCHOOL BOARD OR THE COMMISSIONER AND THE PROCEDURES FOR SUCH AN APPEAL; (6) THE NOTICE SHALL ALSO STATE TO THE PERSON IN PARENTAL RELATIONSHIP TO THE PUPIL THAT ANY STATEMENT BY THE PUPIL, WRITTEN OR ORAL, MIGHT BE USED AGAINST THE PUPIL IN A CRIMINAL, IMMIGRATION, OR JUVENILE DELIN- QUENCY INVESTIGATION AND/OR PROCEEDING, AND/OR IN A COURT OF LAW. C. HEARING. THE SUSPENDING AUTHORITY SHALL CONVENE A HEARING WITHIN FIVE DAYS OF THE WRITTEN NOTICE TO THE PUPIL AND PERSON IN PARENTAL RELATIONSHIP TO THE PUPIL ABOUT THE SUSPENSION UNLESS THE PERSON IN PARENTAL RELATIONSHIP TO THE PUPIL REQUESTS A LATER DATE. THE SUSPEND- ING AUTHORITY SHALL CONFIRM THE DATE, TIME AND PLACE OF THE HEARING WITH ALL HEARING PARTICIPANTS AND DOCUMENT SUCH CONFIRMATION. IF IT IS REQUESTED, THE SCHOOL BOARD SHALL APPOINT A HEARING OFFICER WHO IS INDE- PENDENT OF THE SUSPENDING AUTHORITY, TO HEAR THE CASE. THE HEARING SHALL BE CONDUCTED AS FOLLOWS: (1) THE HEARING OFFICER IS AUTHORIZED TO ADMINISTER OATHS AND ISSUE SUBPOENAS IN CONJUNCTION WITH THE PROCEEDINGS; (2) THE SCHOOL MUST PROVE THAT THE PUPIL VIOLATED THE CODE OF CONDUCT BY A PREPONDERANCE OF THE EVIDENCE; (3) THE SCHOOL CANNOT RELY EXCLUSIVELY ON HEARSAY EVIDENCE TO MEET ITS BURDEN OF PROOF. (4) THE PUPIL AND PERSON IN PARENTAL RELATIONSHIP TO THE PUPIL SHALL HAVE THE RIGHT TO REQUEST THE PRESENCE AND TESTIMONY OF THE FOLLOWING PERSONS AND SUBJECT SUCH TESTIMONY TO QUESTION AND THE SCHOOL SHALL TAKE REASONABLE STEPS TO SECURE THE ATTENDANCE OF SUCH PERSONS: (I) WITNESSES INCLUDING PUPILS AND VISITORS; (II) SCHOOL EMPLOYEES AND THE SCHOOL SHALL MAKE THE REQUESTED SCHOOL EMPLOYEES AVAILABLE AT THE HEARING; AND (III) LAW ENFORCEMENT AND PRIVATE OR PUBLIC SECURITY RETAINED BY THE SCHOOL DISTRICT PURSUANT TO CONTRACT OR MEMORANDUM OF UNDERSTANDING REQUIRED BY SECTION TWENTY-EIGHT HUNDRED ONE OF THIS CHAPTER. (5) THE PUPIL AND PERSON IN PARENTAL RELATIONSHIP TO THE PUPIL SHALL HAVE THE RIGHT TO PRESENT DOCUMENTARY EVIDENCE INCLUDING, BUT NOT LIMIT- ED TO, WITNESS STATEMENTS, INCIDENT REPORTS, AND AUDIO AND VIDEO RECORDINGS; (6) THE PUPIL AND PERSON IN PARENTAL RELATIONSHIP TO THE PUPIL SHALL HAVE THE RIGHT TO REPRESENTATION BY AN ATTORNEY OR AN ADVOCATE; (7) THE HEARING OFFICER SHALL CONSIDER ONLY THE EVIDENCE PRESENTED AT THE HEARING AND MAY UPHOLD, REDUCE OR DISMISS THE PROPOSED SUSPENSION. THE HEARING OFFICER MUST DISMISS THE PROPOSED SUSPENSION IF THE HEARING OFFICER DETERMINES THAT: (I) THE SUSPENSION WAS IMPOSED FOR A BEHAVIOR FOR WHICH SUSPENSION IS NOT AUTHORIZED OR PROHIBITED BY LAW OR THE SCHOOL'S CODE OF CONDUCT; (II) THE SCHOOL DID NOT MEET ITS BURDEN OF PROOF THAT A SUSPENSION FOR A PERIOD OF BETWEEN SIX TO TWENTY DAYS IS WARRANTED; (III) THE SCHOOL DID NOT FOLLOW THE DUE PROCESS PROCEDURES IN THIS SUBSECTION; OR (IV) FACTS AND CONSIDERATIONS REQUIRED BY THE SCHOOL'S CODE OF CONDUCT DO NOT SUPPORT THE DECISION TO SUSPEND THE PUPIL. (8) THE HEARING OFFICER MAY DISMISS OR REDUCE THE PROPOSED SUSPENSION IF THE HEARING OFFICER DETERMINES: A. 8396 15 (I) THE SCHOOL DID NOT IMPOSE GRADUATED AND PROPORTIONATE DISCIPLINE; OR (II) THE SUSPENSION WAS NOT APPROPRIATE GIVEN THE FACTS AS PRESENTED AT THE HEARING. (9) UPON REQUEST OF THE PUPIL OR PERSON IN PARENTAL RELATIONSHIP TO THE PUPIL, THE SCHOOL SHALL PROVIDE INTERPRETATION SERVICES IN THE FIRST LANGUAGE OF THE PUPIL OR PERSON IN PARENTAL RELATIONSHIP TO THE PUPIL; (10) AN ACCURATE AND COMPLETE RECORD OF THE HEARING SHALL BE MAIN- TAINED BY THE SCHOOL, BUT NO STENOGRAPHIC RECORD SHALL BE REQUIRED AND AN AUDIO OR VIDEO RECORDING SHALL BE DEEMED A SATISFACTORY RECORD. WHEN REQUESTED, THE SUSPENDING AUTHORITY SHALL PROVIDE TO THE PUPIL OR PERSON IN PARENTAL RELATIONSHIP THIS RECORD AS WELL AS ANY TRANSCRIPT OF THE RECORD AT NO COST; (11) THE HEARING OFFICER SHALL ISSUE A WRITTEN DECISION TO THE SCHOOL AND THE PUPIL AND PERSON IN PARENTAL RELATIONSHIP TO THE PUPIL ABOUT ANY DISCIPLINARY ACTION WITHIN THREE DAYS OF THE HEARING. IF THE HEARING OFFICER DETERMINES THAT A SUSPENSION OF BETWEEN SIX TO TWENTY SCHOOL DAYS IS WARRANTED, THE WRITTEN DECISION SHALL STATE THE LENGTH OF THE SUSPENSION, FINDINGS OF FACT, REASONS FOR THE DETERMINATION, THE PROCE- DURES FOR AN APPEAL AND THE DATE BY WHICH AN APPEAL MUST BE FILED. E. APPEAL. THE PUPIL OR PERSON IN PARENTAL RELATIONSHIP TO THE PUPIL SHALL HAVE A RIGHT TO APPEAL THE DECISION OF THE HEARING OFFICER AS FOLLOWS: (1) THE APPEAL SHALL BE FILED WITHIN THIRTY DAYS OF THE DATE WHEN THE PUPIL AND PERSON IN PARENTAL RELATIONSHIP TO THE PUPIL RECEIVE THE DECI- SION ABOUT A SUSPENSION OF SIX OR MORE SCHOOL DAYS; (2) THE SCHOOL'S CODE OF CONDUCT MUST IDENTIFY THE PROCEDURES FOR APPEAL OF SUSPENSIONS FOR PERIODS OF MORE THAN TWENTY DAYS. THE APPEAL SHALL BE HEARD ONLY BY A PERSON WHO WAS NOT INVOLVED IN THE INITIAL DETERMINATION OR HEARING ABOUT THE SUSPENSION OF THE PUPIL; (3) THE DECISION ON APPEAL MUST BE BASED SOLELY ON THE HEARING RECORD EXCEPT TO THE EXTENT THAT THE PUPIL'S RIGHTS WERE VIOLATED DURING THE INVESTIGATION, HEARING, OR APPEAL PROCESS; (4) THE PERSON HEARING THE APPEAL SHALL ISSUE A WRITTEN DECISION WITH- IN TEN DAYS OF THE FILING OF THE APPEAL. THE SUSPENSION MAY BE UPHELD, REDUCED OR OVERTURNED. THE PERSON DECIDING THE APPEAL MUST REVERSE THE SUSPENSION IF: (I) THE SUSPENSION WAS IMPOSED FOR BEHAVIOR FOR WHICH SUSPENSION IS PROHIBITED BY LAW OR NOT AUTHORIZED BY THE CODE OF CONDUCT; (II) THE SCHOOL DID NOT PRESENT SUFFICIENT EVIDENCE TO MEET ITS BURDEN OF PROOF; (III) THE SCHOOL DID NOT FOLLOW DUE PROCESS PROCEDURES; OR (IV) THE FACTS AND CONSIDERATIONS REQUIRED BY THE SCHOOL'S CODE OF CONDUCT DO NOT SUPPORT THE DECISION TO SUSPEND THE PUPIL FOR A PERIOD BETWEEN SIX TO TWENTY DAYS. THE PERSON DECIDING THE APPEAL MAY OVERTURN OR REDUCE THE SUSPENSION IF THE SCHOOL DID NOT IMPOSE GRADUATED AND PROPORTIONATE DISCIPLINE OR THE SUSPENSION WAS NOT APPROPRIATE GIVEN THE FACTS AS PRESENTED AT THE HEARING; (5) THE PUPIL OR PERSON IN PARENTAL RELATIONSHIP TO THE STUDENT MAY APPEAL ANY ADVERSE DETERMINATION ON THE APPEAL TO THE COMMISSIONER PURSUANT TO THE REGULATIONS OF THE COMMISSIONER; AND (6) THE PUPIL OR PERSON IN PARENTAL RELATIONSHIP TO THE PUPIL MAY APPEAL AN ADVERSE DECISION OF THE COMMISSIONER TO THE STATE SUPREME COURT WITHIN NINETY DAYS OF RECEIPT OF THE DECISION BY THE COMMISSIONER. [d. (1)] 6. A. Consistent with the federal gun-free schools act, any public school pupil who is determined under this subdivision to have brought a firearm to or possessed a firearm at a public school shall be suspended for a period of not less than one calendar year and any A. 8396 16 nonpublic school pupil participating in a program operated by a public school district using funds from the elementary and secondary education act of nineteen hundred sixty-five who is determined under this subdivi- sion to have brought a firearm to or possessed a firearm at a public school or other premises used by the school district to provide such programs shall be suspended for a period of not less than one calendar year from participation in such program. The procedures of this subdivi- sion shall apply to such a suspension of a nonpublic school pupil. A superintendent of schools, district superintendent of schools or commu- nity superintendent shall have the authority to modify this suspension requirement for each student on a case-by-case basis. The determination of a superintendent shall be subject to review by the board of education pursuant to [paragraph c of this] subdivision FIVE OF THIS SECTION and the commissioner pursuant to section three hundred ten of this chapter. Nothing in this subdivision shall be deemed to authorize the suspension of a student with a disability in violation of the individuals with disabilities education act or article eighty-nine of this chapter. A superintendent shall refer the pupil under the age of sixteen who has been determined to have brought a weapon or firearm to school in violation of this subdivision to a presentment agency for a juvenile delinquency proceeding consistent with article three of the family court act except a student fourteen or fifteen years of age who qualifies for juvenile offender status under subdivision forty-two of section 1.20 of the criminal procedure law. A superintendent shall refer any pupil sixteen years of age or older or a student fourteen or fifteen years of age who qualifies for juvenile offender status under subdivision forty- two of section 1.20 of the criminal procedure law, who has been deter- mined to have brought a weapon or firearm to school in violation of this subdivision to the appropriate law enforcement officials. [(2)] B. Nothing in this paragraph shall be deemed to mandate such action by a school district pursuant to PARAGRAPH A OF THIS subdivision [one of this section] where such weapon or firearm is possessed or brought to school with the written authorization of such educational institution in a manner authorized by article two hundred sixty-five of the penal law for activities approved and authorized by the trustees or board of education or other governing body of the public school and such governing body adopts appropriate safeguards to ensure student safety. [(3)] C. As used in this paragraph: (i) "firearm" shall mean a firearm as defined in subsection a of section nine hundred twenty-one of title eighteen of the United States Code; and (ii) "weapon" shall be as defined in paragraph 2 of subsection g of section nine hundred thirty of title eighteen of the United States Code. [e.] 7. Procedure after suspension. Where a pupil has been suspended pursuant to this subdivision and said pupil [is of compulsory attendance age] HAS THE RIGHT TO ATTEND SCHOOL, immediate steps shall be taken for his or her attendance upon instruction elsewhere [or for supervision or detention of said pupil pursuant to the provisions of article seven of the family court act]. Where a pupil has been suspended for cause, the suspension may be revoked by the board of education whenever it appears to be for the best interest of the school and the pupil to do so. The board of education may also condition a student's early return to school and suspension revocation on the pupil's voluntary participation in counseling or specialized classes, including anger management or dispute resolution, where applicable. A. 8396 17 [f.] 8. Whenever the term "board of education or superintendent of schools" is used in this subdivision, it shall be deemed to include community boards of education and community superintendents governing community districts in accordance with the provisions of article fifty- two-A of this chapter. [g.] 9. Discipline of students with disabilities and students presumed to have a disability for discipline purposes. [(1)] A. Notwithstanding any other provision of this subdivision to the contrary, a student with a disability as such term is defined in section forty-four hundred one of this chapter and a student presumed to have a disability for disci- pline purposes, may be suspended or removed from his or her current educational placement for violation of [school rules] THE CODE OF CONDUCT only in accordance with the procedures established in this section, the regulations of the commissioner implementing this para- graph, and subsection (k) of section fourteen hundred fifteen of title twenty of the United States code and the federal regulations implement- ing such statute, as such federal law and regulations are from time to time amended. Nothing in this paragraph shall be construed to confer greater rights on such students than are conferred under applicable federal law and regulations, or to limit the ability of a school district to change the educational placement of a student with a disa- bility in accordance with the procedures in article eighty-nine of this chapter. [(2)] B. As used in this paragraph: [(1)] (I) a "student presumed to have a disability for discipline purposes" shall mean a student who the school district is deemed to have knowledge was a student with a disability before the behavior that precipitated disciplinary action under the criteria in subsection (k) (5) of section fourteen hundred fifteen of title twenty of the United States code and the federal regulations implementing such statute; and (ii) a "manifestation team" means a representative of the school district, the parent or person in parental relation, and relevant members of the committee on special education, as determined by the parent or person in parental relation and the district. [(3)] C. In applying the federal law consistent with this section: (i) in the event of a conflict between the procedures established in this section and those established in subsection (k) of section fourteen hundred fifteen of title twenty of the United States code and the feder- al regulations implementing such statute, such federal statute and regu- lations shall govern. (ii) the trustees or board of education of any school district, a district superintendent of schools or a building principal shall have authority to order the placement of a student with a disability into an appropriate interim alternative educational setting, another setting or suspension for a period not to exceed five consecutive school days where such student is suspended pursuant to this subdivision and, except as otherwise provided in [clause (vi)] PARAGRAPH F of this [subparagraph] SUBDIVISION, the suspension does not result in a change in placement under federal law. (iii) the superintendent of schools of a school district, either directly or upon recommendation of a hearing officer designated pursuant to paragraph [c] D of [this] subdivision FIVE OF THIS SECTION, may order the placement of a student with a disability into an interim alternative educational setting, another setting or suspension for up to ten consec- utive school days, inclusive of any period in which the student is placed in an appropriate interim alternative educational setting, anoth- A. 8396 18 er setting or suspension pursuant to clause (ii) of this subparagraph for the behavior, where the superintendent determines in accordance with the procedures set forth in this subdivision that the student has engaged in behavior that VIOLATES THE CODE OF CONDUCT AND warrants a suspension, and, except as otherwise provided in [clause (vi) of this subparagraph] PARAGRAPH D OF THIS SUBPARAGRAPH, the suspension does not result in a change in placement under federal law. [(iv)] D. the superintendent of schools of a school district, either directly or upon recommendation of a hearing officer designated pursuant to paragraph c of [this] subdivision FIVE OF THIS SECTION, may order the change in placement of a student with a disability to an interim alter- native educational setting for up to forty-five school days under the circumstances specified in subsection (k)(1)(G) of section fourteen hundred fifteen of title twenty of the United States code and the feder- al regulations implementing such statute or a longer period where authorized by federal law under the circumstances specified in subsection (k)(1)(C) of section fourteen hundred fifteen of title twenty of the United States code and the federal regulations implementing such statute, but in neither case shall such period exceed the period of suspension ordered by a superintendent in accordance with this subdivi- sion. [(v)] E. the terms "day," "business day," and "school day" shall be as defined in section 300.11 of title thirty-four of the code of federal regulations. [(vi)] F. notwithstanding any other provision of this subdivision to the contrary, upon a determination by a manifestation team that the behavior of a student with a disability was not a manifestation of the student's disability, such student may be disciplined pursuant to this section in the same manner and for the same duration as a nondisabled student, except that such student shall continue to receive services to the extent required under federal law and regulations, and such services may be provided in an interim alternative educational setting. [(vii)] G. an impartial hearing officer appointed pursuant to subdivi- sion one of section forty-four hundred four of this chapter may order a change in placement of a student with a disability to an appropriate interim alternative educational setting for not more than forty-five school days under the circumstances specified in subsections (k)(3) and (k)(4) of section fourteen hundred fifteen of title twenty of the United States code and the federal regulations implementing such statutes, provided that such procedure may be repeated, as necessary. [(viii)] H. nothing in this section shall be construed to authorize the suspension or removal of a student with a disability from his or her current educational placement [for violation of school rules] following a determination by a manifestation team that the behavior is a manifes- tation of the student's disability, except as authorized under federal law and regulations. [(ix)] I. the commissioner shall implement this paragraph by adopting regulations which coordinate the procedures required for discipline of students with disabilities, and students presumed to have a disability for discipline purposes, pursuant to subsection (k) of section fourteen hundred fifteen of title twenty of the United States code and the feder- al regulations implementing such statute, with the general procedures for student discipline under this section. [3-a.] 10. Teacher removal of a [disruptive pupil. In addition, any] STUDENT FOR MISCONDUCT IN VIOLATION OF THE CODE OF CONDUCT. A teacher shall have the power and authority to remove a [disruptive] pupil[, as A. 8396 19 defined in subdivision two-a of this section,] from such teacher's classroom consistent with discipline AND INTERVENTION measures contained in the code of conduct adopted by the board pursuant to section twenty- eight hundred one of this chapter. SUCH CLASSROOM REMOVAL MAY NOT EXCEED HALF OF ONE SCHOOL DAY. The school authorities of any school district shall establish policies and procedures to ensure the provision of continued educational programming and activities for students removed from the classroom pursuant to this subdivision and provided further that nothing in this subdivision shall authorize the removal of a pupil in violation of any state or federal law or regulation. No pupil shall return to the classroom until the principal makes a final determination pursuant to paragraph c of this subdivision, or the period of removal expires, whichever is less. a. Such teacher shall inform the pupil and THE PERSON IN PARENTAL RELATION AND the school principal of the reasons for the removal. If the teacher finds that the pupil's continued presence in the classroom does not pose a continuing danger to persons or property and does not present an ongoing threat of disruption to the academic process, the teacher shall, prior to removing the student from the classroom, provide the student with an explanation of the basis for the removal and allow the pupil to informally present the pupil's version of relevant events. In all other cases, the teacher shall provide the pupil with an explanation of the basis for the removal and an informal opportunity to be heard within twenty-four hours of the pupil's removal, provided that if such twenty-four hour period does not end on a school day, it shall be extended to the corresponding time on the next school day. b. The principal shall inform the person in parental relation to such pupil of the removal and the reasons therefor within twenty-four hours of the pupil's removal, provided that if such twenty-four hour period does not end on a school day, it shall be extended to the corresponding time on the next school day. The pupil and the person in parental relation shall, upon request, be given an opportunity for an informal conference with the principal to discuss the reasons for the removal. [If the pupil denies the charges, the] THE principal shall provide an explanation of the basis for the removal and allow the pupil and/or person in parental relation to the pupil an opportunity to present the pupil's version of relevant events. Such informal [hearing] CONFERENCE shall be held within forty-eight hours of the pupil's removal, provided that if such forty-eight hour period does not end on a school day, it shall be extended to the corresponding time on the second school day next following the pupil's removal. A PERSON IN PARENTAL RELATIONSHIP TO THE STUDENT MAY REQUEST THAT THE INFORMAL CONFERENCE TAKE PLACE LATER THAN FORTY-EIGHT HOURS AFTER THE STUDENT'S REMOVAL. For purposes of this subdivision, "school day" shall mean a school day as defined pursuant to [clause (v) of subparagraph three of paragraph g of subdivision three] PARAGRAPH E OF SUBDIVISION NINE of this section. c. The principal shall not set aside the discipline imposed by the teacher unless the principal finds that the charges against the pupil are not supported by substantial evidence or that the pupil's removal is otherwise in violation of law or that the conduct warrants suspension from school pursuant to this section and a suspension will be imposed. The principal's determination made pursuant to this paragraph shall be made by the close of business on the school day next succeeding the end of the forty-eight hour period for an informal [hearing] CONFERENCE contained in paragraph b of this subdivision. A. 8396 20 d. The principal may, in his or her discretion, designate a school district administrator, to carry out the functions required of the prin- cipal under this subdivision. [4.] 11. Expense. a. The expense attending the commitment and costs of maintenance of [any school delinquent] A STUDENT DISCIPLINED FOR VIOLATION OF THE CODE OF CONDUCT shall be a charge against the city or district where he resides, if such city or district employs a super- intendent of schools; otherwise it shall be a county charge. b. The school authorities may institute proceedings before a court having jurisdiction to determine the liability of a person in parental relation to contribute towards the maintenance of a [school delinquent] STUDENT under sixteen years of age ordered to attend upon instruction under confinement. If the court shall find the person in parental relation able to contribute towards the maintenance of such a minor, it may issue an order fixing the amount to be paid weekly. [5.] 12. Involuntary transfers of pupils who have not been determined to be a student with a disability or a student presumed to have a disa- bility for discipline purposes. a. The board of education, board of trustees or sole trustee, the superintendent of schools, or district superintendent of schools may transfer a pupil who has not been determined to be a student with a disability as defined in section forty-four hundred one of this chapter, or a student presumed to have a disability for discipline purposes as defined in [paragraph g of] subdivision [three] NINE of this section from regular classroom instruction to an appropriate educational setting in another school upon the written recommendation of the school princi- pal and following independent review thereof. For purposes of this section of the law, "involuntary transfer" does not include a transfer made by a school district as part of a plan to reduce racial imbalance within the schools or as a change in school attendance zones or geographical boundaries. b. A school principal may initiate a non-requested transfer where it is believed that such a pupil would benefit from the transfer, or when the pupil would receive an adequate and appropriate education in another school program or facility. No recommendation for pupil transfer shall be initiated by the princi- pal until such pupil and a person in parental relation has been sent written notification of the consideration of transfer recommendation. Such notice shall set a time and place of an informal conference with the principal and shall inform such person in parental relation and such pupil of their right to be accompanied by counsel or an individual of their choice. c. After the conference and if the principal concludes that the pupil would benefit from a transfer or that the pupil would receive an adequate and appropriate education in another school program or facili- ty, the principal may issue a recommendation of transfer to the super- intendent. Such recommendation shall include a description of behavior and/or academic problems indicative of the need for transfer; a description of alternatives explored and prior action taken to resolve the problem. A copy of that letter shall be sent to the person in parental relation and to the pupil. d. Upon receipt of the principal's recommendation for transfer and a determination to consider that recommendation, the superintendent shall notify the person in parental relation and the pupil of the proposed transfer and of their right to a fair hearing as provided in paragraph c of subdivision [three] FIVE of this section and shall list community A. 8396 21 agencies and free legal assistance which may be of assistance. The writ- ten notice shall include a statement that the pupil or person in parental relation has ten days to request a hearing and that the proposed transfer shall not take effect, except upon written parental consent, until the ten day period has elapsed, or, if a fair hearing is requested, until after a formal decision following the hearing is rendered, whichever is later. Parental consent to a transfer shall not constitute a waiver of the right to a fair hearing. [6.] 13. Transfer of a pupil. Where a suspended pupil is to be trans- ferred pursuant to subdivision [five] TWELVE of this section, he or she shall remain on the register of the original school for two school days following transmittal of his or her records to the school to which he or she is to be transferred. The receiving school shall immediately upon receiving those records transmitted by the original school, review them to insure proper placement of the pupil. Staff members who are involved in the pupil's education must be provided with pertinent records and information relating to the background and problems of the pupil before the pupil is placed in a classroom. [7.] 14. Transfer of disciplinary records. Notwithstanding any other provision of law to the contrary, each local educational agency, as such term is defined in subsection twenty-six of section ninety-one hundred one of the Elementary and Secondary Education Act of 1965, as amended, shall establish procedures in accordance with section forty-one hundred fifty-five of the Elementary and Secondary Education Act of 1965, as amended, and the Family Educational Rights and Privacy Act of 1974, to facilitate the transfer of disciplinary records relating to the suspen- sion [or expulsion] of a student to any public or nonpublic elementary or secondary school in which such student enrolls or seeks, intends or is instructed to enroll, on a full-time or part-time basis. S 4. Section 305 of the education law is amended by adding three new subdivisions 55, 56 and 57 to read as follows: 55. THE COMMISSIONER SHALL PROVIDE TECHNICAL ASSISTANCE TO SCHOOL DISTRICTS ABOUT THE DEVELOPMENT, IMPLEMENTATION AND EVALUATION OF SCHOOL DISTRICT CODES OF CONDUCT INCLUDING: (A) ONE OR MORE MODEL CODES OF CONDUCT, DESIGNED TO REDUCE THE USE OF SUSPENSIONS, THAT MEET THE REQUIREMENTS OF SECTIONS TWENTY-EIGHT HUNDRED ONE AND THIRTY-TWO HUNDRED FOURTEEN OF THIS CHAPTER; (B) BEST PRACTICES FOR AGE-APPROPRIATE, GRADUATED AND PROPORTIONATE DISCIPLINE AS SET OUT IN SECTION TWENTY-EIGHT HUNDRED ONE OF THIS CHAP- TER; (C) A MATRIX OF STUDENT MISCONDUCT AND THE INTERVENTIONS AND DISCIPLI- NARY MEASURES THAT PROVIDE AGE APPROPRIATE, GRADUATED AND PROPORTIONATE INTERVENTION DESIGNED TO REDUCE RELIANCE ON SUSPENSIONS AND REFERRALS TO LAW ENFORCEMENT; (D) GUIDELINES FOR APPROPRIATE AND SCHOOL-WIDE IMPLEMENTATION OF RESTORATIVE PRACTICES; (E) FORMS NECESSARY TO IMPLEMENT STUDENT NOTIFICATION AND DUE PROCESS REQUIREMENTS OF SECTION TWENTY-EIGHT HUNDRED ONE AND THIRTY-TWO HUNDRED FOURTEEN OF THIS CHAPTER. 56. THE COMMISSIONER SHALL, PURSUANT TO AN APPROPRIATION IN THE STATE BUDGET, PROVIDE FUNDS TO LOCAL SCHOOL DISTRICTS FOR IMPLEMENTATION OF A SCHOOL'S CODE OF CONDUCT INCLUDING MANDATORY PRE-SERVICE AND IN-SERVICE TRAINING OF SCHOOL PERSONNEL ABOUT PREVENTION, RESTORATIVE PRACTICES AND OTHER INTERVENTION AND DISCIPLINARY MEASURES TO RESPOND TO STUDENT A. 8396 22 MISCONDUCT AS REQUIRED BY SECTION TWENTY-EIGHT HUNDRED ONE OF THIS CHAP- TER. 57. THE COMMISSIONER SHALL BE AUTHORIZED TO PROVIDE FUNDS FOR TRAINING SCHOOL PERSONNEL INCLUDED IN SECTION TWENTY-EIGHT HUNDRED ONE OF THIS CHAPTER ONLY TO THE EXTENT THAT THE STATE BUDGET INCLUDES AN APPROPRI- ATION FOR SUCH TRAINING. S 5. This act shall take effect immediately; provided, however, that the amendments to subdivision 3 of section 2801 of the education law made by section one of this act shall be subject to the expiration and reversion of such subdivision pursuant to section 34 of chapter 91 of the laws of 2002, as amended, when upon such date the provisions of section two of this act shall take effect; provided further, however, that the amendments to subdivisions 3 and 3-a of section 3214 of the education law made by section three of this act shall be subject to the expiration of such subdivisions and shall be deemed expired therewith; and provided further, however, that the amendments to subdivision 7 of section 3214 of the education law made by section three of this act shall not affect the repeal of such subdivision and shall be deemed repealed therewith.
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