S T A T E O F N E W Y O R K
________________________________________________________________________
31
2009-2010 Regular Sessions
I N S E N A T E
(PREFILED)
January 7, 2009
___________
Introduced by Sen. FUSCHILLO -- read twice and ordered printed, and when
printed to be committed to the Committee on Education
AN ACT to amend the education law, in relation to conduct on school
property and at school-authorized activities
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 2 of the education law is amended by adding a new
subdivision 20 to read as follows:
20. SCHOOL-AUTHORIZED ACTIVITY. THE TERM "SCHOOL-AUTHORIZED ACTIVITY"
MEANS ANY ACTIVITY IN WHICH ATTENDANCE OR PARTICIPATION IS RELATED TO A
SCHOOL OR SCHOOL PROGRAM AND HAS BEEN AUTHORIZED BY THE BOARD OF EDUCA-
TION, THE BOARD OF TRUSTEES, A COMMON SCHOOL DISTRICT, A SUPERINTENDENT
OF SCHOOLS, A DISTRICT SUPERINTENDENT, A PRINCIPAL OR THE DESIGNEE OF
ANY SUCH PERSON, AND SHALL INCLUDE, BUT NOT BE LIMITED TO, SCHOOL FUNC-
TIONS, ATHLETIC EVENTS, FIELD TRIPS, PLAYGROUND ACTIVITIES, AND SCHOOL-
SPONSORED EXTRA-CURRICULAR EVENTS OR ACTIVITIES, PROVIDED THAT FOR
PURPOSES OF REPORTING CRIME ALLEGED TO HAVE OCCURRED DURING SCHOOL-AU-
THORIZED ACTIVITY, SUCH REPORTS SHALL BE MADE TO THE LOCAL LAW ENFORCE-
MENT AGENCY OR PRECINCT WHICH HAS JURISDICTION OF THE LOCATION WHERE THE
CRIME IS ALLEGED TO HAVE OCCURRED, IF DIFFERENT FROM THE JURISDICTION OR
PRECINCT IN WHICH THE SCHOOL ITSELF IS PHYSICALLY LOCATED.
S 2. Subdivision 2 of section 2801 of the education law, as added by
chapter 181 of the laws of 2000, the opening paragraph and paragraphs a
and c as amended by chapter 380 of the laws of 2001, is amended to read
as follows:
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
code of conduct for the maintenance of order on school property, includ-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00918-01-9
S. 31 2
ing a school function OR SCHOOL-AUTHORIZED ACTIVITY, which shall govern
the conduct of students, teachers and other school personnel as well as
visitors 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 include, at a minimum:
a. provisions regarding conduct, dress and language deemed appropriate
and acceptable on school property, including a school function OR
SCHOOL-AUTHORIZED ACTIVITY, and conduct, dress and language deemed unac-
ceptable and inappropriate on school property, including a school func-
tion OR SCHOOL-AUTHORIZED ACTIVITY, and provisions regarding acceptable
civil and respectful treatment of teachers, school administrators, other
school personnel, students and visitors on school property, including a
school function OR SCHOOL-AUTHORIZED ACTIVITY, 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 OR SCHOOL-AUTHORIZED ACTIVITY, 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. procedures by which violations are reported, determined, discipline
measures imposed and discipline measures carried out;
g. provisions ensuring such code and the enforcement thereof are in
compliance with state and federal laws relating to students with disa-
bilities;
h. provisions setting forth the procedures by which local law enforce-
ment agencies OR PRECINCTS IN THE JURISDICTIONS WHERE CODE VIOLATIONS
OCCUR shall be notified of code violations which constitute a crime;
i. provisions setting forth the circumstances under and procedures by
which persons in parental relation to the student shall be notified of
code violations;
j. provisions setting forth the circumstances under and procedures by
which a complaint in criminal court, a juvenile delinquency petition or
person in need of supervision petition as defined in articles three and
seven of the family court act will be filed;
k. circumstances under and procedures by which referral 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
S. 31 3
this section, the definition of "repeatedly are substantially disrup-
tive" shall be determined in accordance with the regulations of the
commissioner; and
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.
S 3. Paragraph a of subdivision 2-a of section 3214 of the education
law, as added by chapter 181 of the laws of 2000, is amended to read as
follows:
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 OR WHILE PARTICIPATING
IN A SCHOOL-AUTHORIZED ACTIVITY, an act of violence upon another student
or any other person lawfully upon said property;
(3) possesses, while on school district property OR WHILE PARTICIPAT-
ING IN A SCHOOL-AUTHORIZED ACTIVITY, a gun, knife, explosive or incendi-
ary bomb, or other dangerous instrument capable of causing physical
injury or death;
(4) displays, while on school district property OR WHILE PARTICIPATING
IN A SCHOOL-AUTHORIZED ACTIVITY, 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 OR WHILE PARTICIPAT-
ING IN A SCHOOL-AUTHORIZED ACTIVITY, to use any instrument 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 WHILE PARTICIPATING IN
A SCHOOL-AUTHORIZED ACTIVITY; or
(7) knowingly and intentionally damages or destroys school district
property.
S 4. Subparagraph 1 of paragraph c of subdivision 3 of section 3214 of
the education law, as amended by chapter 430 of the laws of 2006, is
amended to read as follows:
(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
S. 31 4
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 OR WHILE PARTICIPAT-
ING IN A SCHOOL-AUTHORIZED ACTIVITY by the student of any firearm,
rifle, shotgun, dagger, dangerous knife, dirk, razor, stiletto or any of
the weapons, instruments or appliances specified in subdivision 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 proceeding that the recov-
ery of such weapon, instrument or appliance was the result of an unlaw-
ful search or seizure.
S 5. Subparagraph 1 of paragraph c of subdivision 3 of section 3214 of
the education law, as amended by chapter 380 of the laws of 2001, is
amended to read as follows:
(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 behalf. Where a pupil has
been suspended in accordance with this subdivision by a superintendent
of schools, district superintendent of schools, or community superinten-
dent, the superintendent shall personally hear and determine the
proceeding or may, in his discretion, designate a hearing officer to
conduct the hearing. The hearing officer shall be authorized to adminis-
ter oaths and to issue subpoenas in conjunction with the proceeding
before him. A record of the hearing shall be maintained, but no steno-
graphic 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 superintendent 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 superinten-
dent of schools. Where the basis for the suspension is, in whole or in
part, the possession on school grounds [or], school property OR WHILE
PARTICIPATING IN A SCHOOL-AUTHORIZED ACTIVITY 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-
ing that the recovery of such weapon, instrument or appliance was the
result of an unlawful search or seizure.
S 6. Subparagraphs 1 and 2 of paragraph d of subdivision 3 of section
3214 of the education law, as amended by chapter 425 of the laws of
2002, are amended to read as follows:
S. 31 5
(1) 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 OR WHILE PARTIC-
IPATING IN A SCHOOL-AUTHORIZED ACTIVITY shall be suspended for a period
of not less than one calendar year and any 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 subdivision 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 OR
SCHOOL-AUTHORIZED ACTIVITIES shall be suspended for a period of not less
than one calendar year from participation in such program. The proce-
dures of this subdivision shall apply to such a suspension of a nonpub-
lic school pupil. A superintendent of schools, district superintendent
of schools or community superintendent shall have the authority to modi-
fy 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 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 OR TO A
SCHOOL-AUTHORIZED ACTIVITY 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 crim-
inal procedure law, who has been determined to have brought a weapon or
firearm to school OR TO A SCHOOL-AUTHORIZED ACTIVITY in violation of
this subdivision to the appropriate law enforcement officials.
(2) Nothing in this paragraph shall be deemed to mandate such action
by a school district pursuant to subdivision one of this section where
such weapon or firearm is possessed or brought to school OR TO A
SCHOOL-AUTHORIZED ACTIVITY with the written authorization of such educa-
tional 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.
S 7. Paragraph d of subdivision 3 of section 3214 of the education
law, as amended by chapter 181 of the laws of 2000, is amended to read
as follows:
d. Consistent with the federal gun-free schools act of nineteen
hundred ninety-four, any public school pupil who is determined under
this subdivision to have brought a weapon to school OR TO A SCHOOL-AU-
THORIZED ACTIVITY shall be suspended for a period of not less than one
calendar year and any 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 subdivision to have brought a weapon to a public school or
other premises used by the school district to provide such programs OR
S. 31 6
SCHOOL-AUTHORIZED ACTIVITIES shall be suspended for a period of not less
than one calendar year from participation in such program. The proce-
dures of this subdivision shall apply to such a suspension of a nonpub-
lic school pupil. A superintendent of schools, district superintendent
of schools or community superintendent shall have the authority to modi-
fy 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 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 to school OR TO A SCHOOL-AU-
THORIZED ACTIVITY 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 superinten-
dent 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 determined to have brought a weapon to
school OR TO A SCHOOL-AUTHORIZED ACTIVITY in violation of this subdivi-
sion to the appropriate law enforcement officials.
S 8. Section 3028-c of the education law, as added by chapter 181 of
the laws of 2000, is amended to read as follows:
S 3028-c. Protection of school employees who report acts of violence
and weapons possession. Any school employee having reasonable cause to
suspect that a person has committed an act of violence while in or on
school property OR WHILE PARTICIPATING IN A SCHOOL-AUTHORIZED ACTIVITY,
or having reasonable cause to suspect that a person has committed an act
of violence upon a student, school employee or volunteer either upon
school grounds, WHILE PARTICIPATING IN A SCHOOL-AUTHORIZED ACTIVITY or
elsewhere, or having reasonable cause to suspect that a person has
brought a gun, knife, bomb or other instrument capable of or that
appears capable of causing death or physical injury upon school grounds
OR WHILE PARTICIPATING IN A SCHOOL-AUTHORIZED ACTIVITY who in good faith
reports such information to school officials, to the commissioner, or to
law enforcement authorities, shall have immunity from any civil liabil-
ity that may arise from the making of such report, and no school
district or school district employee shall take, request or cause a
retaliatory action against any such employee who makes such report.
S 9. This act shall take effect on the first of July next succeeding
the date on which it shall have become a law, provided that the amend-
ments to subparagraph 1 of paragraph c of subdivision 3 of section 3214
of the education law, made by section four of this act, shall be subject
to the expiration and reversion of such subparagraph pursuant to section
8 of chapter 430 of the laws of 2006, as amended, when upon such date
section five of this act shall take effect, provided, further, that the
amendments to subparagraphs 1 and 2 of paragraph d of subdivision 3 of
section 3214 of the education law, made by section six of this act,
shall be subject to the expiration and reversion of such paragraph
pursuant to section 4 of chapter 425 of the laws of 2002, as amended,
when upon such date the provisions of section seven of this act shall
take effect.
