Relates to school climate and codes of conduct on school property and disciplinary action following violation of such codes of conduct; makes conforming amendments.
STATE OF NEW YORK
________________________________________________________________________
5691
2023-2024 Regular Sessions
IN ASSEMBLY
March 22, 2023
___________
Introduced by M. of A. SOLAGES, DICKENS, O'DONNELL, HYNDMAN,
JEAN-PIERRE, PRETLOW, SAYEGH, WALKER, BICHOTTE HERMELYN, AUBRY,
EPSTEIN, REYES, TAYLOR, PHEFFER AMATO, JOYNER, GLICK, CRUZ, SIMON,
BRONSON, WALLACE, COOK, WILLIAMS, STIRPE, L. ROSENTHAL, SANTABARBARA,
RAMOS, DARLING, OTIS, WEPRIN, GONZALEZ-ROJAS, DAVILA, MEEKS, FORREST,
HEVESI, KELLES, GALLAGHER, MAMDANI, MITAYNES, LUNSFORD, LAVINE, SEPTI-
MO, ANDERSON, DE LOS SANTOS, CARROLL, STECK, SEAWRIGHT, DINOWITZ,
JACKSON, PAULIN, KIM, BURGOS, COLTON, CLARK, GIBBS, TAPIA, ZINERMAN,
HUNTER, FAHY, RAJKUMAR -- read once and referred to the Committee on
Education
AN ACT to amend the education law, in relation to school climate and
codes of conduct on school property and disciplinary action following
violation of such codes of conduct; and to amend the education law, in
relation to making conforming amendments
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as the "Judith
2 Kaye School Solutions not Suspensions Act".
3 § 2. Section 2801 of the education law, as added by chapter 181 of the
4 laws of 2000, subdivision 1 as amended by chapter 402 of the laws of
5 2005, the opening paragraph, paragraph a and paragraph c of subdivision
6 2 and paragraph a of subdivision 5 as amended by chapter 380 of the laws
7 of 2001, paragraphs l and m as amended and paragraph n of subdivision 2
8 as added by chapter 482 of the laws of 2010, and subdivision 3 as
9 amended by chapter 123 of the laws of 2003, is amended to read as
10 follows:
11 § 2801. Codes of conduct on school property. 1. For purposes of this
12 section, school property means in or within any building, structure,
13 athletic playing field, playground, parking lot or land contained within
14 the real property boundary line of a public elementary or secondary
15 school, including a charter school; or in or on a school bus, as defined
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02392-02-3
A. 5691 2
1 in section one hundred forty-two of the vehicle and traffic law; [and a]
2 or a school's electronic files and databases. A school function shall
3 mean a school-sponsored or school-authorized extra-curricular event or
4 activity regardless of where such event or activity takes place, includ-
5 ing any event or activity that may take place in another state.
6 2. The board of education or the trustees[, as defined in section two
7 of this chapter,] of every school district [within the state, however
8 created, and every] or the chancellor of the city school district in the
9 case of the city school district of the city of New York, and every
10 board of cooperative educational services and [county vocational exten-
11 sion board] charter school, shall adopt and amend, as appropriate, a
12 code of conduct for the maintenance of order on school property, includ-
13 ing a school function, which shall promote and sustain a safe, respect-
14 ful, and supportive school environment and govern the conduct of
15 students, teachers and other school personnel as well as visitors and
16 shall provide for the enforcement thereof. Such policy may be adopted by
17 the [school] board of education or trustees, or the chancellor of the
18 city school district in the case of the city school district of the city
19 of New York, or other governing body only after at least one public
20 hearing that provides for the participation of school personnel,
21 parents, students and any other interested parties before its adoption.
22 The school district, board of cooperative educational services, or char-
23 ter school shall notify the school community and general public about
24 the hearing at least fifteen days prior to the date of the hearing. Such
25 notice shall include the date, time, and place of the hearing, the agen-
26 da, a copy of the proposed code of conduct, and information about a
27 public comment period as determined by the school district, board of
28 cooperative educational services, or charter school. The school
29 district, board of cooperative educational services, or charter school
30 shall take necessary steps to notify families who do not speak English
31 and whose children attend a school in the district, a board of cooper-
32 ative educational services, or a charter school. Such code of conduct
33 shall define violations of the code of conduct and set clear expecta-
34 tions for student conduct on school property, including at school func-
35 tions, and shall include, at a minimum:
36 a. provisions regarding conduct, dress and language deemed appropriate
37 and acceptable on school property, including a school function, and
38 conduct, dress and language deemed unacceptable and inappropriate on
39 school property, including a school function[, and];
40 b. provisions regarding acceptable civil and respectful treatment of
41 teachers, school administrators, other school personnel, students and
42 visitors on school property[, including a] and at school [function]
43 functions, including [the appropriate] a range of age-appropriate gradu-
44 ated and proportionate disciplinary measures which [may be imposed for
45 violation of such] must be considered in responding to a code violation,
46 and the roles of teachers, administrators, other school personnel, the
47 board of education or trustees, or the chancellor of the city school
48 district in the case of the city school district of the city of New
49 York, or other governing body, and parents.
50 b-1. provisions that require schools to use the least severe action
51 necessary to respond to any violation of the code of conduct before
52 imposing a removal or suspension. Such options may include restorative
53 practices, social and emotional supports, and other interventions.
54 Restorative practices may include class meetings, facilitated circles,
55 conferences, peer mediation, and other interventions that can effec-
56 tively address student misconduct, hold students accountable for their
A. 5691 3
1 behavior, and foster healthy relationships within the school community.
2 No student, however, shall be required to participate in a restorative
3 practice without their consent. Reasonable attempts shall also be made
4 to obtain the consent of their parents or persons in parental relations;
5 [b.] b-2. provisions that prohibit classroom removals and suspensions
6 to respond to tardiness, unexcused absence from class or school, leaving
7 school without permission, violation of school dress code, and lack of
8 identification upon request of school personnel;
9 b-3. provisions that prohibit suspensions for initial or repeated acts
10 of willful disobedience. "Willful disobedience" shall mean disruptive,
11 insubordinate, or rowdy behavior, including behaviors such as the use of
12 foul or inappropriate language, gestures, comments, or refusal to follow
13 directions;
14 c. provisions that prohibit the suspension of students in pre-kinder-
15 garten through grade three, except if suspension is necessary to comply
16 with applicable federal laws;
17 d. standards and procedures to assure security and safety of students
18 and school personnel;
19 [c.] e. provisions for the removal from the classroom and from school
20 property, including a school function, of students and other persons who
21 violate the code of conduct;
22 [d.] f. disciplinary measures to be taken in incidents involving the
23 possession or use of illegal substances or weapons, the use of physical
24 force, vandalism, violation of another student's civil rights and
25 threats of violence;
26 [e.] g. provisions for detention, suspension and removal from the
27 classroom of students, consistent with section thirty-two hundred four-
28 teen of this chapter and other applicable federal, state and local laws
29 [including];
30 h. provisions for the school authorities to establish policies and
31 procedures to ensure the provision of continued educational programming
32 and activities for students removed from the classroom, placed in
33 detention, or suspended from school. When a student is suspended from
34 school or removed from the classroom, the principal, or the principal's
35 designee, in consultation with the student's teachers, shall, within
36 twenty-four hours, create an education plan for the student for each
37 class in which the student is enrolled, provided that if such twenty-
38 four hour period does not end on a school day, it shall be extended to
39 the corresponding time on the next school day. The education plan shall
40 make provisions for a student's on-going academic instruction during the
41 removal or suspension and shall include the steps the school will take
42 to provide the student with a successful re-entry to school. The student
43 shall have the opportunity to earn all academic credit they would have
44 been eligible to earn had the student been in class, including the
45 opportunity to complete any missed assignments or take any missed exam-
46 inations or assessments during the student's removal or suspension. If
47 an examination or assessment cannot be rescheduled, the student shall be
48 allowed on school property to take such assessment or examination on the
49 day and time that the assessment or examination is given;
50 [f.] i. procedures by which violations of the code of conduct are
51 reported to the appropriate school personnel, the facts are investigated
52 and determined, and discipline measures [imposed and discipline measures
53 carried out] are determined and implemented;
54 [g.] j. provisions ensuring such code and the enforcement thereof are
55 in compliance with state and federal laws relating to students with
56 disabilities;
A. 5691 4
1 [h. provisions setting forth the procedures by which local law
2 enforcement agencies shall be notified of code violations which consti-
3 tute a crime;
4 i.] k. provisions setting forth the circumstances under and procedures
5 by which parents or persons in parental relation to the student accused
6 of violating the code of conduct shall be notified of such code of
7 conduct violations including notice that any statement by the student,
8 written or oral, may be used against the student in a criminal, immi-
9 gration, or juvenile delinquency investigation and/or proceeding and/or
10 in a court of law;
11 [j.] l. provisions setting forth the circumstances under and proce-
12 dures by which a [complaint in criminal court, a juvenile delinquency
13 petition] student may be referred to law enforcement, consistent with
14 the provisions of section twenty-eight hundred one-a of this article, or
15 referred for a person in need of supervision petition as defined in
16 articles three and seven of the family court act will be filed;
17 [k.] m. circumstances under and procedures by which [referral to] a
18 student may be referred to academic services, school-based support
19 services, or appropriate human service agencies [shall be made]; and
20 [l. a minimum suspension period, for students who repeatedly are
21 substantially disruptive of the educational process or substantially
22 interfere with the teacher's authority over the classroom, provided that
23 the suspending authority may reduce such period on a case by case basis
24 to be consistent with any other state and federal law. For purposes of
25 this section, the definition of "repeatedly are substantially disrup-
26 tive" shall be determined in accordance with the regulations of the
27 commissioner;
28 m. a minimum suspension period for acts that would qualify the pupil
29 to be defined as a violent pupil pursuant to paragraph a of subdivision
30 two-a of section thirty-two hundred fourteen of this chapter, provided
31 that the suspending authority may reduce such period on a case by case
32 basis to be consistent with any other state and federal law; and]
33 n. provisions to comply with article two of this chapter.
34 3. The [district] code of conduct shall be developed in collaboration
35 with [student, teacher, administrator, and parent organizations] repre-
36 sentatives from interested stakeholders including, but not limited to,
37 students, teachers, administrators, parents, school safety personnel,
38 collective bargaining units, and other school personnel and shall be
39 approved by the board of education or trustees, [or] other governing
40 body, or by the chancellor of the city school district in the case of
41 the city school district of the city of New York. In the city school
42 district of the city of New York, each community district education
43 council shall be authorized to adopt and implement additional policies,
44 which are consistent with the city district's district-wide code of
45 conduct, to reflect the individual needs of each community school
46 district provided that such additional policies shall require the
47 approval of the chancellor.
48 3-a. The board of education or trustees, chancellor of the city school
49 district in the case of the city school district of the city of New
50 York, or other governing body shall provide professional development in
51 accordance with this section for school personnel, law enforcement and
52 public or private security personnel employed, retained or contracted
53 with a school district or charter school regarding the code of conduct,
54 the use of interventions, and graduated and proportionate discipline.
55 4. [The] At the beginning of each school year, the board of education
56 or trustees, chancellor of the city school district in the case of the
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1 city school district of the city of New York, or other governing body
2 shall: translate the code of conduct into at least the three most
3 commonly spoken languages of the children attending the school district,
4 board of cooperative educational services, or charter school, post the
5 code of conduct on the school district's, charter school's or board of
6 cooperative educational services website, provide copies of a summary of
7 the code of conduct to all students at a general assembly [held at the
8 beginning of the school year and shall make copies of the code available
9 to persons in parental relation to students at the beginning of each
10 school year, and shall] or classroom lesson, mail a plain language
11 summary of such code to all parents or persons in parental relation to
12 students before the beginning of each school year, and make it available
13 thereafter upon request. The board of education or trustees, the chan-
14 cellor of the city school district in the case of the city school
15 district of the city of New York, or other governing body shall take
16 reasonable steps to ensure community awareness of the code of conduct's
17 provisions.
18 5. a. The board of education or trustees, the chancellor of the city
19 school district in the case of the city of New York or other governing
20 body shall annually review and update the district's codes of conduct if
21 necessary, taking into consideration the effectiveness of code of
22 conduct provisions and the fairness and consistency of its adminis-
23 tration. Each school district is authorized to establish a committee and
24 to facilitate the review of the code of conduct and the district's
25 response to code of conduct violations. Any such committee shall be
26 comprised of similar individuals described in subdivision three of this
27 section. The [school] board of education or trustees, the chancellor of
28 the city school district in the case of the city of New York, or other
29 governing body shall reapprove any such updated code only after at least
30 one public hearing that provides for the participation of school person-
31 nel, parents, students and any other interested parties.
32 b. Each district, board of cooperative educational services, and char-
33 ter school shall file a copy of its codes of conduct with the commis-
34 sioner and [all] any amendments to such code shall be filed with the
35 commissioner no later than thirty days after their adoption.
36 § 3. Subdivision 3 of section 2801 of the education law, as added by
37 chapter 181 of the laws of 2000, is amended to read as follows:
38 3. The [district] code of conduct shall be developed in collaboration
39 with [student, teacher, administrator, and parent organizations] repre-
40 sentatives from interested stakeholders including, but not limited to,
41 students, teachers, administrators, parents, school safety personnel,
42 collective bargaining units, and other school personnel and shall be
43 approved by the board of education or trustees, [or] other governing
44 body, or by the chancellor of the city school district in the case of
45 the city school district of the city of New York. In the city school
46 district of the city of New York, each community school district board
47 shall be authorized to adopt and implement additional policies, which
48 are consistent with the city district's district-wide code of conduct,
49 to reflect the individual needs of each community school district
50 provided that such additional policies shall require the approval of the
51 chancellor.
52 § 4. Section 3214 of the education law, as amended by chapter 181 of
53 the laws of 2000, subparagraph 1 of paragraph c of subdivision 3 as
54 amended by chapter 430 of the laws of 2006, paragraphs d and f of subdi-
55 vision 3 as amended by chapter 425 of the laws of 2002, paragraph e of
56 subdivision 3 as amended by chapter 170 of the laws of 2006, paragraph g
A. 5691 6
1 of subdivision 3 as amended by chapter 352 of the laws of 2005, clause
2 (v) of subparagraph 3 of paragraph g of subdivision 3 as amended by
3 chapter 378 of the laws of 2007, paragraphs a, b and c of subdivision
4 3-a as amended by chapter 147 of the laws of 2001 and subdivision 7 as
5 amended by section 9 of part YYY of chapter 59 of the laws of 2017, is
6 amended to read as follows:
7 § 3214. Student placement, suspensions and transfers. 1. [School
8 delinquent. A minor under seventeen years of age, required by any of the
9 provisions of part one of this article to attend upon instruction, who
10 is an habitual truant from such instruction or is irregular in such
11 attendance or insubordinate or disorderly or disruptive or violent
12 during such attendance, is a school delinquent.
13 2. Special day schools] Alternative learning schools. The school
14 authorities of any city [or], school district, board of cooperative
15 educational services, or charter school may establish schools or set
16 apart rooms in [public] school buildings or properties for the instruc-
17 tion of [school delinquents] students removed or suspended for
18 violations of the code of conduct, and fix the number of days per week
19 and the hours per day of required attendance and instruction, which
20 shall not be less than is required of minors attending the full time day
21 schools.
22 [2-a. a. Violent pupil. For the purposes of this section, a violent
23 pupil is an elementary or secondary student under twenty-one years of
24 age who:
25 (1) commits an act of violence upon a teacher, administrator or other
26 school employee;
27 (2) commits, while on school district property, an act of violence
28 upon another student or any other person lawfully upon said property;
29 (3) possesses, while on school district property, a gun, knife,
30 explosive or incendiary bomb, or other dangerous instrument capable of
31 causing physical injury or death;
32 (4) displays, while on school district property, what appears to be a
33 gun, knife, explosive or incendiary bomb or other dangerous instrument
34 capable of causing death or physical injury;
35 (5) threatens, while on school district property, to use any instru-
36 ment that appears capable of causing physical injury or death;
37 (6) knowingly and intentionally damages or destroys the personal prop-
38 erty of a teacher, administrator, other school district employee or any
39 person lawfully upon school district property; or
40 (7) knowingly and intentionally damages or destroys school district
41 property.
42 b. Disruptive pupil. For the purposes of this section, a disruptive
43 pupil is an elementary or secondary student under twenty-one years of
44 age who is substantially disruptive of the educational process or
45 substantially interferes with the teacher's authority over the class-
46 room.
47 3.] 2. Suspension of a [pupil] student. a. (1) The board of educa-
48 tion[, board of] or trustees [or sole trustee], the chancellor of the
49 city school district in the case of the city school district of the city
50 of New York, other governing body, the superintendent of schools,
51 district superintendent of schools or principal of a school may suspend
52 [the following pupils] students from required attendance upon instruc-
53 tion[:
54 A pupil who is insubordinate or disorderly or violent or disruptive,
55 or whose conduct otherwise endangers the safety, morals, health or
56 welfare of others] as provided in paragraphs b, c, and d of this subdi-
A. 5691 7
1 vision, in accordance with the code of conduct, provided that the
2 suspension of such student is not prohibited by section twenty-eight
3 hundred one of this chapter.
4 (2) School officials shall weigh the likelihood that a lesser inter-
5 vention or discipline would adequately address the student's misconduct,
6 redress any harm or damage, and prevent future violations of the code of
7 conduct. Suspensions shall only be used as a last resort.
8 (3) The school shall conduct an investigation of any report of a
9 violation of the code of conduct.
10 (4) The school shall inform any student that submission of a written
11 statement is voluntary and that any statement by the student, written or
12 oral, may be used against the student in a criminal, immigration, or
13 juvenile delinquency investigation and/or proceeding and/or in a court
14 of law. If a student has been arrested or if the school is considering
15 referring the student to law enforcement, the school shall not request a
16 statement from such student, except where there is imminent risk of
17 serious physical injury to the student or other person or persons.
18 b. [(1)] In considering appropriate discipline measures, school
19 authorities shall consider the facts of each case, including, but not
20 limited to:
21 (1) the nature and impact of the student's alleged misconduct, includ-
22 ing but not limited to the harm to the student or other persons, damage
23 to personal or school property or threat to the safety and welfare of
24 the school community;
25 (2) the student's age, ability to speak or understand English, phys-
26 ical health, mental health, disabilities, and provisions of an individ-
27 ualized education program as it relates to the student's behavior;
28 (3) the student's willingness to resolve the conflict and repair any
29 harm or damage;
30 (4) the student's prior conduct, the appropriateness of prior inter-
31 ventions, and the effectiveness of any prior interventions;
32 (5) the relationship, if any, between the student's academic placement
33 and program and the alleged violation of the code of conduct; and
34 (6) other factors determined to be relevant.
35 c. The board of education[, board of] or trustees, [or sole trustee,]
36 the chancellor of the city school district in the case of the city
37 school district of the city of New York, other governing body, super-
38 intendent of schools, district superintendent of schools and the princi-
39 pal of the school where the [pupil] student attends shall have the power
40 to suspend a [pupil] student for a period not to exceed five school days
41 provided that the suspension of such student is not prohibited by
42 section twenty-eight hundred one of this chapter. In the case of such a
43 suspension, the suspending authority shall provide the [pupil] student
44 with written notice of the charged misconduct including a brief explana-
45 tion of the basis for the suspension and a description of the alleged
46 behavior that violated the code of conduct that includes the date, time,
47 and place of the scheduled informal conference with the principal, the
48 right to appeal a suspension, and the procedures for appeal. [If the
49 pupil denies the misconduct, the suspending authority shall provide an
50 explanation of the basis for the suspension.] The [pupil] student and
51 the parent or person in parental relation to the [pupil] student shall[,
52 on request,] be given an opportunity for an informal conference with the
53 principal [at which]. At the conference, the [pupil and/or] student and
54 parent or person in parental relation shall be authorized to review all
55 evidence of the alleged misconduct, present the [pupil's] student's
56 version of the event [and], to ask questions of the complaining
A. 5691 8
1 witnesses, and to be represented by an attorney or advocate. The afore-
2 said notice and opportunity for an informal conference shall take place
3 prior to suspension of the [pupil] student unless the [pupil's]
4 student's presence in the school poses a continuing danger to persons or
5 property or an ongoing threat of disruption to the academic process, in
6 which case the [pupil's] student's notice and opportunity for an
7 informal conference shall take place as soon after the suspension begins
8 as is reasonably practicable.
9 [(2)] A teacher shall immediately report and refer a violent pupil
10 principal or superintendent for a violation of the code of conduct and a
11 minimum suspension period pursuant to section twenty-eight hundred one
12 of this chapter
13 c. (1)] d. The board of education or trustees, the chancellor of the
14 city school district in the case of the city school district of the city
15 of New York, other governing body, superintendent of schools, or
16 district superintendent of schools, shall have the power to suspend a
17 student for a period not to exceed twenty school days, provided that the
18 suspension of such student is not prohibited by paragraph c of subdivi-
19 sion two of section twenty-eight hundred one of this chapter. No [pupil]
20 student may be suspended for a period in excess of five school days
21 unless such [pupil] student and the parent or person in parental
22 relation to such [pupil] student shall have had an opportunity for a
23 fair hearing, upon reasonable written notice, [at] which shall include a
24 brief description of the facts upon which the alleged violations of the
25 code of conduct are based, the section of the code of conduct that the
26 student is alleged to have violated, and the date, time and place of the
27 hearing. Prior to the hearing, copies of all evidence regarding the
28 alleged incident shall be provided to the student and parent or person
29 in parental relation to the student. The hearing shall be convened with-
30 in five days of the written notice, unless the parent or person in
31 parental relation to the student or student requests a later date. At
32 the hearing, such [pupil] student shall have the right of representation
33 by [counsel] an attorney or advocate, with the right to request the
34 presence of and question witnesses against such [pupil] student and to
35 request the presence of and present witnesses and other evidence on [his
36 or her] their behalf. Where the [pupil] student is a student with a
37 disability or a student presumed to have a disability, the provisions of
38 paragraph [g] h of this subdivision shall also apply. Where a [pupil]
39 student has been suspended in accordance with this [subparagraph by a]
40 paragraph, the board of education or trustees, the chancellor of the
41 city school district in the case of the city school district of the city
42 of New York, other governing body, superintendent of schools, district
43 superintendent of schools, or community superintendent[, the superinten-
44 dent] shall personally hear and determine the proceeding or may, in [his
45 or her] their discretion, designate a hearing officer to conduct the
46 hearing. The entity or individual that conducts the hearing [officer]
47 shall be authorized to administer oaths and to issue subpoenas in
48 conjunction with the proceeding [before him or her]. A record of the
49 hearing shall be maintained, but no stenographic transcript shall be
50 required and [a tape] an audio recording shall be deemed a satisfactory
51 record. The entity or individual that conducts the hearing [officer]
52 shall make written findings of fact based on a preponderance of the
53 evidence and shall make recommendations as to the appropriate measure of
54 discipline [to the superintendent] if any. The report of the hearing
55 officer shall be advisory only, and the board of education or trustees,
56 the chancellor of the city school district in the case of the city
A. 5691 9
1 school district of the city of New York, other governing body, super-
2 intendent of schools or district superintendent of schools may accept
3 all or any part thereof. [An appeal will lie from the decision of the
4 superintendent to the board of education who shall make its decision
5 solely upon the record before it. The board may adopt in whole or in
6 part the decision of the superintendent of schools] The board of educa-
7 tion or trustees, the chancellor of the city school district in the case
8 of the city school district of the city of New York, other governing
9 body, superintendent of schools, or district superintendent of schools
10 shall issue a written decision to the school and parent or person in
11 parental relation to the student within three days of the hearing. The
12 written decision shall state the length of suspension, if any, findings
13 of fact, reasons for determination, length of suspension, if any, proce-
14 dures for appeal, and the date by which the appeal shall be filed.
15 Where the basis for the suspension is, in whole or in part, the
16 possession on school grounds or school property by the student of any
17 firearm, rifle, shotgun, dagger, dangerous knife, dirk, razor, stiletto
18 or any of the weapons, instruments or appliances specified in subdivi-
19 sion one of section 265.01 of the penal law, the hearing officer or
20 superintendent shall not be barred from considering the admissibility of
21 such weapon, instrument or appliance as evidence, notwithstanding a
22 determination by a court in a criminal or juvenile delinquency proceed-
23 ing that the recovery of such weapon, instrument or appliance was the
24 result of an unlawful search or seizure.
25 [(2)] Where a [pupil] student has been suspended in accordance with
26 this section by a board of education, the board may in its discretion
27 hear and determine the proceeding or appoint a hearing officer who shall
28 have the same powers and duties with respect to the board that a hearing
29 officer has with respect to a superintendent where the suspension was
30 ordered by [him] the superintendent. The findings and recommendations of
31 the hearing officer conducting the proceeding shall be advisory and
32 subject to final action by the board of education, each member of which
33 shall before voting review the testimony and acquaint [himself] them-
34 selves with the evidence in the case. The board may reject, confirm or
35 modify the conclusions of the hearing officer.
36 [d.] e. (1) Consistent with the federal gun-free schools act, any
37 public school [pupil] student who is determined under this subdivision
38 to have brought a firearm to or possessed a firearm at a public school
39 shall be suspended for a period of not less than one calendar year and
40 any nonpublic school pupil participating in a program operated by a
41 public school district using funds from the elementary and secondary
42 education act of nineteen hundred sixty-five who is determined under
43 this subdivision to have brought a firearm to or possessed a firearm at
44 a public school or other premises used by the school district to provide
45 such programs shall be suspended for a period of not less than one
46 calendar year from participation in such program. The procedures of this
47 subdivision shall apply to such a suspension of a nonpublic school
48 [pupil] student. A superintendent of schools, district superintendent of
49 schools or community superintendent shall have the authority to modify
50 this suspension requirement for each student on a case-by-case basis.
51 The determination of a superintendent shall be subject to review by the
52 board of education or trustees, other governing body, or the chancellor
53 of the city school district in the case of the city school district of
54 the city of New York, pursuant to paragraph [c] d of this subdivision
55 and the commissioner pursuant to section three hundred ten of this chap-
56 ter. Nothing in this subdivision shall be deemed to authorize the
A. 5691 10
1 suspension of a student with a disability in violation of the individ-
2 uals with disabilities education act or article eighty-nine of this
3 chapter. A superintendent shall refer the [pupil] student under the age
4 of sixteen who has been determined to have brought a weapon or firearm
5 to school in violation of this subdivision to a presentment agency for a
6 juvenile delinquency proceeding consistent with article three of the
7 family court act except a student fourteen or fifteen years of age who
8 qualifies for juvenile offender status under subdivision forty-two of
9 section 1.20 of the criminal procedure law. A superintendent shall refer
10 any [pupil] student sixteen years of age or older or a student fourteen
11 or fifteen years of age who qualifies for juvenile offender status under
12 subdivision forty-two of section 1.20 of the criminal procedure law, who
13 has been determined to have brought a weapon or firearm to school in
14 violation of this subdivision to the appropriate law enforcement offi-
15 cials.
16 (2) Nothing in this paragraph shall be deemed to mandate such action
17 by a school district pursuant to subdivision one of this section where
18 such weapon or firearm is possessed or brought to school with the writ-
19 ten authorization of such educational institution in a manner authorized
20 by article two hundred sixty-five of the penal law for activities
21 approved and authorized by the trustees or board of education or other
22 governing body of the public school and such governing body adopts
23 appropriate safeguards to ensure student safety.
24 (3) As used in this paragraph:
25 (i) "firearm" shall mean a firearm as defined in subsection a of
26 section nine hundred twenty-one of title eighteen of the United States
27 Code; and
28 (ii) "weapon" shall be as defined in paragraph 2 of subsection g of
29 section nine hundred thirty of title eighteen of the United States Code.
30 [e.] f. Procedure after suspension. Where a [pupil] student has been
31 suspended pursuant to this subdivision and said [pupil is of compulsory
32 attendance age] student has the legal right to attend school, immediate
33 steps shall be taken for [his or her] their attendance upon instruction
34 elsewhere [or for supervision or detention of said pupil pursuant to the
35 provisions of article seven of the family court act]. Where a [pupil]
36 student has been suspended for cause, the suspension may be revoked by
37 the board of education or trustees, other governing body, or the chan-
38 cellor of the city school district in the case of the city school
39 district of the city of New York, whenever it appears to be for the best
40 interest of the school and the [pupil] student to do so. The board of
41 education may or trustees, the chancellor of the city school district in
42 the case of the city school district for the city of New York, or other
43 governing body, also condition a student's early return to school and
44 suspension revocation on the [pupil's] student's voluntary participation
45 in counseling or specialized classes, including anger management or
46 dispute resolution, where applicable.
47 [f.] g. Whenever the term "board of education or superintendent of
48 schools" is used in this subdivision, it shall be deemed to include
49 board of trustees, other governing body, the chancellor of the city
50 school district in the case of the city school district for the city of
51 New York, community boards of education and community superintendents
52 governing community districts in accordance with the provisions of arti-
53 cle fifty-two-A of this chapter.
54 [g.] h. Discipline of students with disabilities and students presumed
55 to have a disability for discipline purposes. (1) Notwithstanding any
56 other provision of this subdivision to the contrary, a student with a
A. 5691 11
1 disability as such term is defined in section forty-four hundred one of
2 this chapter and a student presumed to have a disability for discipline
3 purposes, may be suspended or removed from [his or her] their current
4 educational placement, provided that the suspension of such student is
5 not prohibited by section twenty-eight hundred one of this chapter, for
6 violation of [school rules] the code of conduct only in accordance with
7 the procedures established in this section, the regulations of the
8 commissioner implementing this paragraph, and subsection (k) of section
9 fourteen hundred fifteen of title twenty of the United States code and
10 the federal regulations implementing such statute, as such federal law
11 and regulations are from time to time amended. Nothing in this paragraph
12 shall be construed to confer greater rights on such students than are
13 conferred under applicable federal law and regulations, or to limit the
14 ability of a school district to change the educational placement of a
15 student with a disability in accordance with the procedures in article
16 eighty-nine of this chapter.
17 (2) As used in this paragraph:
18 [(1)] (i) a "student presumed to have a disability for discipline
19 purposes" shall mean a student who the school district is deemed to have
20 knowledge was a student with a disability before the behavior that
21 precipitated disciplinary action under the criteria in subsection (k)
22 (5) of section fourteen hundred fifteen of title twenty of the United
23 States code and the federal regulations implementing such statute; and
24 (ii) a "manifestation team" means a representative of the school
25 district, the parent or person in parental relation, and relevant
26 members of the committee on special education, as determined by the
27 parent or person in parental relation and the district.
28 (3) In applying the federal law consistent with this section:
29 (i) in the event of a conflict between the procedures established in
30 this section and those established in subsection (k) of section fourteen
31 hundred fifteen of title twenty of the United States code and the feder-
32 al regulations implementing such statute, such federal statute and regu-
33 lations shall govern.
34 (ii) the board of trustees or board of education of any school
35 district, other governing body, the chancellor of the city school
36 district of the city of New York, a district superintendent of schools
37 or a building principal shall have authority, provided that suspension
38 of such student is not prohibited by paragraph c of subdivision two of
39 section twenty-eight hundred one of this chapter, to order the placement
40 of a student with a disability into an appropriate interim alternative
41 educational setting, another setting or suspension, provided that the
42 suspension of such student is not prohibited by section twenty-eight
43 hundred one of this chapter, for a period not to exceed five consecutive
44 school days where such student is suspended pursuant to this subdivision
45 and, except as otherwise provided in clause (vi) of this subparagraph,
46 the suspension does not result in a change in placement under federal
47 law.
48 (iii) the superintendent of schools of a school district, either
49 directly or upon recommendation of a hearing officer designated pursuant
50 to paragraph c of this subdivision, may order the placement of a student
51 with a disability into an interim alternative educational setting,
52 another setting or suspension, provided that the suspension of such
53 student is not prohibited by section twenty-eight hundred one of this
54 chapter, for up to ten consecutive school days, inclusive of any period
55 in which the student is placed in an appropriate interim alternative
56 educational setting, another setting or suspension pursuant to clause
A. 5691 12
1 (ii) of this subparagraph for the behavior, where the superintendent
2 determines in accordance with the procedures set forth in this subdivi-
3 sion that the student has engaged in behavior that warrants a suspen-
4 sion, and, except as otherwise provided in clause (vi) of this subpara-
5 graph, the suspension does not result in a change in placement under
6 federal law.
7 (iv) the superintendent of schools of a school district, either
8 directly or upon recommendation of a hearing officer designated pursuant
9 to paragraph c of this subdivision, may order the change in placement of
10 a student with a disability to an interim alternative educational
11 setting for up to forty-five school days under the circumstances speci-
12 fied in subsection (k)(1)(G) of section fourteen hundred fifteen of
13 title twenty of the United States code and the federal regulations
14 implementing such statute or a longer period where authorized by federal
15 law under the circumstances specified in subsection (k)(1)(C) of section
16 fourteen hundred fifteen of title twenty of the United States code and
17 the federal regulations implementing such statute, but in neither case
18 shall such period exceed the period of suspension ordered by a super-
19 intendent in accordance with this subdivision, provided that the suspen-
20 sion of such student is not prohibited by section twenty-eight hundred
21 one of this chapter.
22 (v) 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) notwithstanding any other provision of this subdivision to the
26 contrary, upon a determination by a manifestation team that the behavior
27 of a student with a disability was not a manifestation of the student's
28 disability, such student may be disciplined pursuant to this section in
29 the same manner and for the same duration as a nondisabled student,
30 except that such student shall continue to receive services to the
31 extent required under federal law and regulations, and such services may
32 be provided in an interim alternative educational setting, provided that
33 the suspension of such student is not prohibited by section twenty-eight
34 hundred one of this chapter.
35 (vii) an impartial hearing officer appointed pursuant to subdivision
36 one of section forty-four hundred four of this chapter may order a
37 change in placement of a student with a disability to an appropriate
38 interim alternative educational setting for not more than forty-five
39 school days under the circumstances specified in subsections (k)(3) and
40 (k)(4) of section fourteen hundred fifteen of title twenty of the United
41 States code and the federal regulations implementing such statutes,
42 provided that such procedure may be repeated, as necessary, provided
43 that the suspension of such student is not prohibited by section twen-
44 ty-eight hundred one of this chapter.
45 (viii) nothing in this section shall be construed to authorize the
46 suspension or removal of a student with a disability from [his or her]
47 their current educational placement for violation of school rules
48 following a determination by a manifestation team that the behavior is a
49 manifestation of the student's disability, except as authorized under
50 federal law and regulations.
51 (ix) the commissioner shall implement this paragraph by adopting regu-
52 lations which coordinate the procedures required for discipline of
53 students with disabilities, and students presumed to have a disability
54 for discipline purposes, pursuant to subsection (k) of section fourteen
55 hundred fifteen of title twenty of the United States code and the feder-
A. 5691 13
1 al regulations implementing such statute, with the general procedures
2 for student discipline under this section.
3 [3-a.] i. When a student is suspended from school consistent with
4 this section and section twenty-eight hundred one of this chapter, the
5 principal, or the principal's designee, in consultation with the
6 student's teachers, shall within twenty-four hours create an education
7 plan for the student for each class in which the student is enrolled,
8 provided that if such twenty-four hour period does not end on a school
9 day, it shall be extended to the corresponding time on the next school
10 day. The education plan shall make provisions for a student's on-going
11 academic instruction during the suspension and shall include the steps
12 the school will take to provide the student with a successful re-entry
13 to school. The student shall have the opportunity to earn all academic
14 credit they would have been eligible to earn had the student been in
15 class, including the opportunity to complete any missed assignments or
16 take any missed examination or assessments during the student's suspen-
17 sion. If an examination or assessment cannot be rescheduled, the student
18 shall be allowed on school property to take such assessment or examina-
19 tion on the day and time that the assessment or examination is given.
20 3. Teacher removal of a [disruptive pupil] student. In addition, any
21 teacher shall have the power and authority to remove a [disruptive pupil
22 as defined in subdivision two-a of this section,] student from such
23 teacher's classroom consistent with discipline measures contained in the
24 code of conduct adopted by the board pursuant to section twenty-eight
25 hundred one of this chapter. Such classroom removal shall not exceed
26 one-half school day on the same school day. The school authorities of
27 any school district, board of cooperative educational services, or char-
28 ter school shall establish policies and procedures to ensure the
29 provision of continued educational programming and activities for
30 students removed from the classroom pursuant to this subdivision [and
31 provided further that nothing]. When a student is removed from the
32 classroom, the student shall have the opportunity to earn all academic
33 credit including the opportunity to complete any missed assignments or
34 take any missed examinations or assessments during the student's
35 removal. If an examination or assessment cannot be rescheduled, the
36 student shall be allowed on school property to take such assessment or
37 examination on the day and time that the assessment or examination is
38 given. Nothing in this subdivision shall authorize the removal of a
39 [pupil] student in violation of any state or federal law or regulation.
40 No [pupil] student shall return to the classroom until the principal
41 makes a final determination pursuant to paragraph c of this subdivision,
42 or the period of removal expires, whichever is less.
43 a. Such teacher shall inform the [pupil] student and the school prin-
44 cipal of the reasons for the removal. If the teacher finds that the
45 [pupil's] student's continued presence in the classroom does not pose a
46 continuing danger to persons or property and does not present an ongoing
47 threat of disruption to the academic process, the teacher shall, prior
48 to removing the student from the classroom, provide the student with an
49 explanation of the basis for the removal and allow the [pupil] student
50 to informally present the [pupil's] student's version of relevant
51 events. In all other cases, the teacher shall provide the [pupil]
52 student with an explanation of the basis for the removal and an informal
53 opportunity to be heard within twenty-four hours of the [pupil's]
54 student's removal, provided that if such twenty-four hour period does
55 not end on a school day, it shall be extended to the corresponding time
56 on the next school day.
A. 5691 14
1 b. The principal shall inform the parent or person in parental
2 relation to such [pupil] student of the removal and the reasons therefor
3 within twenty-four hours of the [pupil's] student's removal, provided
4 that if such twenty-four hour period does not end on a school day, it
5 shall be extended to the corresponding time on the next school day. The
6 [pupil] student and the parent or person in parental relation shall,
7 upon request, be given an opportunity for an informal conference with
8 the principal to discuss the reasons for the removal. If the [pupil]
9 student denies the charges, the principal shall provide an explanation
10 of the basis for the removal and allow the [pupil] student and/or person
11 in parental relation to the [pupil] student an opportunity to present
12 the [pupil's] student's version of relevant events. Such informal [hear-
13 ing] conference shall be held within forty-eight hours of the [pupil's]
14 student's removal, provided that if such forty-eight hour period does
15 not end on a school day, it shall be extended to the corresponding time
16 on the second school day next following the [pupil's] student's removal.
17 For purposes of this subdivision, "school day" shall mean a school day
18 as defined pursuant to clause (v) of subparagraph three of paragraph g
19 of subdivision three of this section.
20 c. The principal shall not set aside the discipline imposed by the
21 teacher unless the principal finds that the charges against the [pupil]
22 student are not supported by substantial evidence or that the [pupil's]
23 student's removal is otherwise in violation of law or that the conduct
24 warrants suspension from school pursuant to this section and a suspen-
25 sion will be imposed. The principal's determination made pursuant to
26 this paragraph shall be made by the close of business on the day
27 succeeding the forty-eight hour period for an informal hearing contained
28 in paragraph b of this subdivision.
29 d. The principal may, in [his or her] their discretion, designate a
30 school district administrator, to carry out the functions required of
31 the principal under this subdivision.
32 4. Expense. [a.] The expense attending the commitment and costs of
33 maintenance of any [school delinquent] student placed as a result of a
34 finding related to school or educational issues shall be a charge
35 against the city or district where [he] the student resides, if such
36 city or district employs a superintendent of schools; otherwise it shall
37 be a county charge.
38 [b. The school authorities may institute proceedings before a court
39 having jurisdiction to determine the liability of a person in parental
40 relation to contribute towards the maintenance of a school delinquent
41 under sixteen years of age ordered to attend upon instruction under
42 confinement. If the court shall find the person in parental relation
43 able to contribute towards the maintenance of such a minor, it may issue
44 an order fixing the amount to be paid weekly.]
45 5. Involuntary transfers of [pupils] students who have not been deter-
46 mined to be a student with a disability or a student presumed to have a
47 disability for discipline purposes.
48 a. The board of education[, board of] or trustees [or sole trustee,],
49 the chancellor of the city school district in the case of the city
50 school district of New York, other governing body, the superintendent of
51 schools, or district superintendent of schools may transfer a [pupil]
52 student who has not been determined to be a student with a disability as
53 defined in section forty-four hundred one of this chapter, or a student
54 presumed to have a disability for discipline purposes as defined in
55 paragraph [g] h of subdivision [three] two of this section from regular
56 classroom instruction to an appropriate educational setting in another
A. 5691 15
1 school upon the written recommendation of the school principal and
2 following independent review thereof. For purposes of this section of
3 the law, "involuntary transfer" does not include a transfer made by a
4 school district as part of a plan to reduce racial imbalance within the
5 schools or as a change in school attendance zones or geographical bound-
6 aries.
7 b. A school principal may initiate a non-requested transfer where it
8 is believed that such a [pupil] student would benefit from the transfer,
9 or when the [pupil] student would receive an adequate and appropriate
10 education in another school program or facility.
11 No recommendation for [pupil] student transfer shall be initiated by
12 the principal until such [pupil] student and a parent or person in
13 parental relation has been sent written notification of the consider-
14 ation of transfer recommendation. Such notice shall set a time and place
15 of an informal conference with the principal and shall inform such
16 parent or person in parental relation and such [pupil] student of their
17 right to be accompanied by counsel or an individual of their choice.
18 c. After the conference and if the principal concludes that the
19 [pupil] student would benefit from a transfer or that the [pupil]
20 student would receive an adequate and appropriate education in another
21 school program or facility, the principal may issue a recommendation of
22 transfer to the superintendent. Such recommendation shall include a
23 description of behavior and/or academic problems indicative of the need
24 for transfer; a description of alternatives explored and prior action
25 taken to resolve the problem. A copy of that letter shall be sent to the
26 parent or person in parental relation and to the [pupil] student.
27 d. Upon receipt of the principal's recommendation for transfer and a
28 determination to consider that recommendation, the superintendent shall
29 notify the parent or person in parental relation and the [pupil] student
30 of the proposed transfer and of their right to a fair hearing as
31 provided in paragraph c of subdivision three of this section and shall
32 list community agencies and free legal assistance which may be of
33 assistance. The written notice shall include a statement that the
34 [pupil] student or parent or person in parental relation has ten days to
35 request a hearing and that the proposed transfer shall not take effect,
36 except upon written parental consent, until the ten day period has
37 elapsed, or, if a fair hearing is requested, until after a formal deci-
38 sion following the hearing is rendered, whichever is later.
39 Parental consent to a transfer shall not constitute a waiver of the
40 right to a fair hearing.
41 6. Transfer of a [pupil] student. Where a suspended [pupil] student
42 is to be transferred pursuant to subdivision five of this section, [he
43 or she] the student shall remain on the register of the original school
44 for two school days following transmittal of [his or her] their records
45 to the school to which [he or she] the student is to be transferred. The
46 receiving school shall immediately upon receiving those records trans-
47 mitted by the original school, review them to insure proper placement of
48 the [pupil] student. Staff members who are involved in the [pupil's]
49 student's education must be provided with pertinent records and informa-
50 tion relating to the background and problems of the [pupil] student
51 before the [pupil] student is placed in a classroom.
52 7. Transfer of disciplinary records. Notwithstanding any other
53 provision of law to the contrary, each local educational agency, as such
54 term is defined in subsection thirty of section eighty-one hundred one
55 of the Elementary and Secondary Education Act of 1965, as amended, shall
56 establish procedures in accordance with section eighty-five hundred
A. 5691 16
1 thirty-seven of the Elementary and Secondary Education Act of 1965, as
2 amended, and the Family Educational Rights and Privacy Act of 1974, to
3 facilitate the transfer of disciplinary records relating to the suspen-
4 sion or expulsion of a student to any public or nonpublic elementary or
5 secondary school in which such student enrolls or seeks, intends or is
6 instructed to enroll, on a full-time or part-time basis.
7 § 5. Subparagraph 1 of paragraph c of subdivision 3 of section 3214 of
8 the education law, as amended by chapter 380 of the laws of 2001, is
9 amended to read as follows:
10 [(1)] d. The board of education or trustees, the chancellor of the
11 city school district in the case of the city school district of the city
12 of New York, other governing body, superintendent of schools, or
13 district superintendent of schools, shall have the power to suspend a
14 student for a period not to exceed twenty school days, provided that the
15 suspension of such student is not prohibited by paragraph c of subdivi-
16 sion two of section twenty-eight hundred one of this chapter. No [pupil]
17 student may be suspended for a period in excess of five school days
18 unless such [pupil] student and the parent or person in parental
19 relation to such [pupil] student shall have had an opportunity for a
20 fair hearing, upon reasonable written notice[, at which] shall include a
21 brief description of the facts upon which the alleged violations of the
22 code of conduct are based, the section of the code of conduct that the
23 student is alleged to have violated, and the date, time and place of the
24 hearing. Prior to the hearing, copies of all evidence regarding the
25 alleged incident shall be provided to the student and parent or person
26 in parental relation to the student. The hearing shall be convened with-
27 in five days of the written notice, unless the parent or person in
28 parental relation to the student or student requests a later date. At
29 the hearing, such [pupil] student shall have the right of representation
30 by [counsel] an attorney or advocate, with the right to request the
31 presence of and to question witnesses against such [pupil] student and
32 to request the presence of and present witnesses and other evidence on
33 [his] their behalf. Where a [pupil] student has been suspended in
34 accordance with this subdivision [by a], the board of education or trus-
35 tees, the chancellor of the city school district in the case of the city
36 school district of the city of New York, other governing body, super-
37 intendent of schools, district superintendent of schools, or community
38 superintendent[, the superintendent] shall personally hear and determine
39 the proceeding or may, in [his] their discretion, designate a hearing
40 officer to conduct the hearing. The entity or individual that conducts
41 the hearing [officer] shall be authorized to administer oaths and to
42 issue subpoenas in conjunction with the proceeding [before him]. A
43 record of the hearing shall be maintained, but no stenographic tran-
44 script shall be required and [a tape] an audio recording shall be deemed
45 a satisfactory record. The entity or individual that conducts the hear-
46 ing [officer] shall make written findings of fact based on a preponder-
47 ance of the evidence and shall make recommendations as to the appropri-
48 ate measure of discipline [to the superintendent] if any. The report of
49 the hearing officer shall be advisory only, and the board of education
50 or trustees, the chancellor of the city school district in the case of
51 the city school district of the city of New York, other governing body,
52 superintendent of schools or district superintendent of schools may
53 accept all or any part thereof. [An appeal will lie from the decision of
54 the superintendent to the board of education who shall make its decision
55 solely upon the record before it. The board may adopt in whole or in
56 part the decision of the superintendent of schools] The board of educa-
A. 5691 17
1 tion or trustees, the chancellor of the city school district in the case
2 of the city school district of the city of New York, other governing
3 body, superintendent of schools, or district superintendent of schools
4 shall issue a written decision to the school and parent or person in
5 parental relation to the student within three days of the hearing. The
6 written decision shall state the length of suspension, if any, findings
7 of fact, reasons for determination, length of suspension, if any, proce-
8 dures for appeal, and the date by which the appeal shall be filed.
9 Where the basis for the suspension is, in whole or in part, the
10 possession on school grounds or school property by the student of any
11 firearm, rifle, shotgun, dagger, dangerous knife, dirk, razor, stiletto
12 or any of the weapons, instruments or appliances specified in subdivi-
13 sion one of section 265.01 of the penal law, the hearing officer or
14 superintendent shall not be barred from considering the admissibility of
15 such weapon, instrument or appliance as evidence, notwithstanding a
16 determination by a court in a criminal or juvenile delinquency proceed-
17 ing that the recovery of such weapon, instrument or appliance was the
18 result of an unlawful search or seizure.
19 § 6. Paragraph g of subdivision 3 of section 3214 of the education
20 law, as amended by chapter 181 of the laws of 2000, clause (ii) of
21 subparagraph 3 as amended by chapter 380 of the laws of 2001, is amended
22 to read as follows:
23 [g.] h. Discipline of students with disabilities and students presumed
24 to have a disability for discipline purposes. (1) Notwithstanding any
25 other provision of this subdivision to the contrary, a student with a
26 disability as such term is defined in section forty-four hundred one of
27 this chapter and a student presumed to have a disability for discipline
28 purposes, may be suspended or removed from [his or her] their current
29 educational placement, provided that the suspension of such student is
30 not prohibited by section twenty-eight hundred one of this chapter, for
31 violation of school rules only in accordance with the procedures estab-
32 lished in this section, the regulations of the commissioner implementing
33 this paragraph, and subsection (k) of section fourteen hundred fifteen
34 of title twenty of the United States code and the federal regulations
35 implementing such statute, as such federal law and regulations are from
36 time to time amended. Nothing in this paragraph shall be construed to
37 confer greater rights on such students than are conferred under applica-
38 ble federal law and regulations, or to limit the ability of a school
39 district to change the educational placement of a student with a disa-
40 bility in accordance with the procedures in article eighty-nine of this
41 chapter.
42 (2) As used in this paragraph, a "student presumed to have a disabili-
43 ty for discipline purposes" shall mean a student who the school district
44 is deemed to have knowledge was a student with a disability before the
45 behavior that precipitated disciplinary action under the criteria in
46 subsection (k)(8) of section fourteen hundred fifteen of title twenty of
47 the United States code and the federal regulations implementing such
48 statute.
49 (3) In applying the federal law consistent with this section:
50 (i) in the event of a conflict between the procedures established in
51 this section and those established in subsection (k) of section fourteen
52 hundred fifteen of title twenty of the United States code and the feder-
53 al regulations implementing such statute, such federal statute and regu-
54 lations shall govern.
55 (ii) the board of trustees or board of education of any school
56 district, other governing body, the chancellor of the city school
A. 5691 18
1 district in the case of the city school district of the city of New
2 York, a district superintendent of schools or a building principal shall
3 have authority, provided that the suspension of such student is not
4 prohibited by section twenty-eight hundred one of this chapter, to order
5 the placement of a student with a disability into an appropriate interim
6 alternative educational setting, another setting or suspension for a
7 period not to exceed five consecutive school days where such student is
8 suspended pursuant to this subdivision and, except as otherwise provided
9 in clause (vi) of this subparagraph, the suspension does not result in a
10 change in placement under federal law.
11 (iii) the superintendent of schools of a school district, either
12 directly or upon recommendation of a hearing officer designated pursuant
13 to paragraph c of this subdivision, may order the placement of a student
14 with a disability into an interim alternative educational setting,
15 another setting or suspension for up to ten consecutive school days,
16 inclusive of any period in which the student is placed in an appropriate
17 interim alternative educational placement, another setting or suspension
18 pursuant to clause (ii) of this subparagraph for the behavior, where the
19 superintendent determines in accordance with the procedures set forth in
20 this subdivision that the student has engaged in behavior that warrants
21 a suspension, and, except as otherwise provided in clause (vi) of this
22 subparagraph, the suspension does not result in a change in placement
23 under federal law, provided that the suspension of such student is not
24 prohibited by section twenty-eight hundred one of this chapter.
25 (iv) the superintendent of schools of a school district, either
26 directly or upon recommendation of a hearing officer designated pursuant
27 to paragraph c of this subdivision, may order the change in placement of
28 a student with a disability to an interim alternative educational
29 setting for up to forty-five days, but not to exceed the period of
30 suspension ordered by a superintendent in accordance with this subdivi-
31 sion, under the circumstances specified in subsection (k)(1) of section
32 fourteen hundred fifteen of title twenty of the United States code and
33 the federal regulations implementing such statute, provided that the
34 suspension of such student is not prohibited by section twenty-eight
35 hundred one of this chapter.
36 (v) the terms "day," "business day," and "school day" shall be as
37 defined in section 300.9 of title thirty-four of the code of federal
38 regulations.
39 (vi) notwithstanding any other provision of this subdivision to the
40 contrary, upon a determination by the committee on special education
41 that the behavior of a student with a disability was not a manifestation
42 of the student's disability, such student may be disciplined pursuant to
43 this section in the same manner as a nondisabled student, except that
44 such student shall continue to receive services to the extent required
45 under federal law and regulations, provided that the suspension of such
46 student is not prohibited by section twenty-eight hundred one of this
47 chapter.
48 (vii) an impartial hearing officer appointed pursuant to subdivision
49 one of section forty-four hundred four of this chapter may order a
50 change in placement of a student with a disability to an appropriate
51 interim alternative educational setting for not more than forty-five
52 days under the circumstances specified in subsections (k)(2) and (k)(7)
53 of section fourteen hundred fifteen of title twenty of the United States
54 code and the federal regulations implementing such statutes, provided
55 that such procedure may be repeated, as necessary, provided that the
A. 5691 19
1 suspension of such student is not prohibited by section twenty-eight
2 hundred one of this chapter.
3 (viii) nothing in this section shall be construed to authorize the
4 suspension or removal of a student with a disability from his or her
5 current educational placement for violation of school rules following a
6 determination by the committee on special education that the behavior is
7 a manifestation of the student's disability, except as authorized under
8 federal law and regulations.
9 (ix) the commissioner shall implement this paragraph by adopting regu-
10 lations which coordinate the procedures required for discipline of
11 students with disabilities, and students presumed to have a disability
12 for discipline purposes, pursuant to subsection (k) of section fourteen
13 hundred fifteen of title twenty of the United States code and the feder-
14 al regulations implementing such statute, with the general procedures
15 for student discipline under this section.
16 § 7. Paragraphs a, b and c of subdivision 3-a of section 3214 of the
17 education law, as added by chapter 181 of the laws of 2000, are amended
18 to read as follows:
19 a. Such teacher shall inform the [pupil] student and the school prin-
20 cipal of the reasons for the removal. If the teacher finds that the
21 [pupil's] student's continued presence in the classroom does not pose a
22 continuing danger to persons or property and does not present an ongoing
23 threat of disruption to the academic process, the teacher shall, prior
24 to removing the student from the classroom, provide the student with an
25 explanation of the basis for the removal and allow the [pupil] student
26 to informally present the [pupil's] student's version of relevant
27 events. In all other cases, the teacher shall provide the [pupil]
28 student with an explanation of the basis for the removal and an informal
29 opportunity to be heard within twenty-four hours of the [pupil's]
30 student's removal.
31 b. The principal shall inform the parent or person in parental
32 relation to such [pupil] student of the removal and the reasons therefor
33 within twenty-four hours of the [pupil's] student's removal. The [pupil]
34 student and the parent or person in parental relation shall, upon
35 request, be given an opportunity for an informal conference with the
36 principal to discuss the reasons for the removal. If the [pupil] student
37 denies the charges, the principal shall provide an explanation of the
38 basis for the removal and allow the [pupil] student and/or parent or
39 person in parental relation to the [pupil] student an opportunity to
40 present the [pupil's] student's version of relevant events. Such
41 informal [hearing] conference shall be held within forty-eight hours of
42 the [pupil's] student's removal.
43 c. The principal shall not set aside the discipline imposed by the
44 teacher unless the principal finds that the charges against the [pupil]
45 student are not supported by substantial evidence or that the [pupil's]
46 student's removal is otherwise in violation of law or that the conduct
47 warrants suspension from school pursuant to this section and a suspen-
48 sion will be imposed. The principal's determination made pursuant to
49 this paragraph shall be made by the close of business on the day
50 succeeding the forty-eight hour period for an informal hearing contained
51 in paragraph b of this subdivision.
52 § 8. This act shall take effect September 1, 2024; provided, however
53 that:
54 a. the amendments to subdivision 3 of section 2801 of the education
55 law made by section two of this act shall be subject to the expiration
56 and reversion of such subdivision pursuant to section 34 of chapter 91
A. 5691 20
1 of the laws of 2002, as amended, when upon such date the provisions of
2 section three of this act shall take effect;
3 b. the amendments to subparagraph 1 of paragraph c of subdivision 3 of
4 section 3214 of the education law made by section four of this act shall
5 be subject to the expiration and reversion of such subparagraph pursuant
6 to subdivision (a) of section 8 of chapter 430 of the laws of 2006, as
7 amended, when upon such date the provisions of section five of this act
8 shall take effect;
9 c. the amendments to paragraph g of subdivision 3 of section 3214 of
10 the education law made by section four of this act shall be subject to
11 the expiration and reversion of such paragraph pursuant to section 22 of
12 chapter 352 of the laws of 2005, as amended, when upon such date the
13 provisions of section six of this act shall take effect;
14 c-1. the amendments to clause (v) of subparagraph 3 of paragraph g of
15 subdivision 3 of section 3214 of the education law made by section four
16 of this act shall be subject to the expiration and reversion of such
17 clause pursuant to subdivision d of section 27 of chapter 378 of the
18 laws of 2007, as amended, when upon such date the provisions of section
19 six of this act shall take effect; and
20 d. the amendments to paragraphs a, b and c of subdivision 3-a of
21 section 3214 of the education law made by section four of this act shall
22 be subject to the expiration and reversion of such paragraphs pursuant
23 to section 12 of chapter 147 of the laws of 2001, as amended, when upon
24 such date the provisions of section seven of this act shall take effect.
