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