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LAWS of New York 2001, CHAPTER 380

AN ACT to amend the education law, the criminal procedure law and the family court act, in relation to improving school safety

Became a law October 23, 2001, with the approval of the Governor. Passed by a majority vote, three-fifths being present.

EXPLANATION--Matter in italics is new; matter in brackets [ ] is old law to be omitted.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Section 1. Subparagraph 1 of paragraph c of subdivision 3 and clause (ii) of subparagraph 3 of paragraph g of subdivision 3 of section 3214 of the education law, as amended by chapter 181 of the laws of 2000, are 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 [section] subdivision by a superintendent of schools, district superintendent of schools, or community superintendent [or principal of a school], 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 administer oaths and to issue subpoenas in conjunction with the proceeding before him. 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 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 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 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 recovery of such weapon, instrument or appliance was the result of an unlawful search or seizure.

(ii) the trustees or board of education of any school district, a district superintendent of schools or a building principal [delegated authority to suspend students pursuant to this subdivision,] 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) of this subparagraph, the suspension does not result in a change in placement under federal law.

§ 2. The opening paragraph and paragraphs a and c of subdivision 2 of section 2801 of the education law, as added by chapter 181 of the laws of 2000, are amended to read as follows:

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, including a school function, 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, 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 administrators, other school personnel, students and visitors on school property, 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;

c. provisions for the removal from the classroom and from school property, including a school function, of students and other persons who violate the code;

§ 3. Paragraph a of subdivision 5 of section 2801 of the education law, as added by chapter 181 of the laws of 2000, is amended to read as follows:

a. 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, chancellor, or other governing body shall reapprove any such updated code only after at least one public hearing that provides for the participation of school personnel, parents, students and any other interested parties.

§ 4. Subdivision 1 of section 2801-a of the education law, as added by chapter 181 of the laws of 2000, is amended to read as follows:

1. The board of education or 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 education and extension board and the chancellor of the city school district of the city of New York shall adopt and amend a comprehensive district-wide school safety plan and building-level school safety plans regarding crisis intervention, emergency response and management, provided that in the city school district of the city of New York, such plans shall be adopted by the chancellor of the city school district. Such plans shall be developed by a district-wide school safety team and a building-level school safety team established pursuant to subdivision four of this section and shall be in a form developed by the commissioner in consultation with the division of criminal justice services, the superintendent of the state police and any other appropriate state agencies. A school district having only one school building, shall develop a single building-level school safety plan, which shall also fulfill all requirements for development of a district-wide plan.

§ 5. Subdivision 1 of section 2802 of the education law, as added by chapter 181 of the laws of 2000, is amended to read as follows:

1. [Definitions. As used in this section: a. For purposes of this section, "school property" shall have the same meaning as defined in paragraph a of subdivision two of section twenty- eight hundred one of this article. b.] The commissioner, in conjunction with the division of criminal justice services, shall promulgate regulations defining "violent or disruptive incidents" for the purposes of this section.

§ 6. Section 305 of the education law is amended by adding a new subdivision 31 to read as follows:

31. The commissioner shall direct that each school district, charter school, and private elementary and secondary school appoint a designated educational official for the purposes set forth in section 380.90 of the criminal procedure law, subdivision seventeen of section 301.2 and subdivision three of section 380.1 of the family court act. In addition, the commissioner shall promulgate rules and regulations, in consultation with the office of court administration, to facilitate electronic access by the courts to the names and addresses of such designated educational officials.

§ 7. Subdivision 1 of section 380.90 of the criminal procedure law, as added by chapter 181 of the laws of 2000, is amended to read as follows:

1. "Designated educational official" shall mean (a) an employee or representative of a school district who is designated by the school district or (b) an employee or representative of a charter school or private elementary or secondary school who is designated by such school to receive records pursuant to this section and to coordinate the student's participation in programs which may exist in the school district or community, including: non-violent conflict resolution programs, peer mediation programs and youth courts, extended day programs and other school violence prevention and intervention programs.

§ 8. Subdivision 17 of section 301.2 of the family court act, as added by chapter 181 of the laws of 2000, is amended to read as follows:

17. "Designated educational official" shall mean

(a) an employee or representative of a school district who is designated by the school district or

(b) an employee or representative of a charter school or private elementary or secondary school who is designated by such school to receive records pursuant to this article and to coordinate the student's participation in programs which may exist in the school district or community, including: non-violent conflict resolution programs, peer mediation programs and youth courts, extended day programs and other school violence prevention and intervention programs which may exist in the school district or community. Such notification shall be kept separate and apart from such student's school records and shall be accessible only by the designated educational official. Such notification shall not be part of such student's Permanent school record and shall not be appended to or included in any documentation regarding such student and shall be destroyed at such time as such student is no longer enrolled in the school district. At no time shall such notification be used for any purpose other than those specified in this subdivision.

§ 9. Subdivision 1 of section 3004-b of the education law, as added by chapter 180 of the laws of 2000, is amended to read as follows:

1. Criminal history records search. Upon receipt of an application for certification as a superintendent of schools, teacher, administrator or supervisor, teaching assistant or school personnel required to hold a teaching or administrative license or certificate, the commissioner shall, subject to the rules and regulations of the division of criminal justice services, initiate a criminal history records search of the person making application. Prior to initiating the fingerprinting process, the commissioner shall furnish the applicant with the form described in paragraph (c) of subdivision thirty of section three hundred five of this chapter and shall obtain the applicant's consent to the criminal history records search. The commissioner shall obtain from each applicant two sets of fingerprints and the division of criminal justice services processing fee imposed pursuant to subdivision eight-a of section eight hundred thirty-seven of the executive law and any fee imposed by the federal bureau of investigation. The commissioner shall promptly transmit such fingerprints and fees to the division of criminal justice services for its full search and retain processing. The division of criminal justice services is authorized to submit the fingerprints and the appropriate fee to the federal bureau of investigation for a national criminal history record check. The division of criminal justice services and the federal bureau of investigation shall forward such criminal history record to the commissioner in a timely manner. For the purposes of this section the term "criminal history record" shall mean a record of all convictions of crimes and any pending criminal charges maintained on an individual by the division of criminal justice services and the federal bureau of investigation. In addition, upon request from an applicant who has applied for employment with the city school district of the city of New York, the commissioner shall have the authority to forward a copy of such criminal history record to the city school district of the city of New York by the most expeditious means available. Furthermore, upon notification that [an] such applicant is employed by the city school district of the city of New York, the division of criminal justice services shall have the authority to provide subsequent criminal history notifications directly to the city school district of the city of New York. Upon request from an applicant who has already been cleared for licensure and/or employment by the city school district of the city of New York, such school district shall have the authority to forward a copy of the applicant's criminal history record to the commissioner, by the most expeditious means available, for the purposes of this section. Furthermore, upon notification that such applicant has been certified, the division of criminal justice services shall have the authority to provide subsequent criminal history notifications directly to the commissioner. All such criminal history records processed and sent pursuant to this subdivision shall be confidential pursuant to the applicable federal and state laws, rules and regulations, and shall not be published or in any way disclosed to persons other than the commissioner, unless otherwise authorized by law. No cause of action against the department or the division of criminal justice services for damages related to the dissemination of criminal history records pursuant to this subdivision shall exist when the department or division of criminal justice services has reasonably and in good faith relied upon the accuracy and completeness of criminal history information furnished to it by qualified agencies. The provision of such criminal history record by the division of criminal justice services shall be subject to the provisions of subdivision sixteen of section two hundred ninety-six of the executive law. The commissioner shall consider such criminal history record pursuant to article twenty- three-A of the correction law.

§ 10. Section 3035 of the education law is amended by adding a new subdivision 3-a to read as follows:

3-a. Upon request from a prospective employee who has been cleared by the commissioner for employment and/or certification, the commissioner shall have the authority to forward a copy of such criminal history record to the city school district of the city of New York by the most expeditious means available. Furthermore, upon notification that such prospective employee is employed by the city school district of the city of New York, the division of criminal justice services shall have the authority to provide subsequent criminal history notifications directly to the city school district of the city of New York. Upon request from a prospective employee who has been cleared for licensure and/or employment by the city school district of the city of New York, such school district shall have the authority to forward a copy of the prospective employee's criminal history record to the commissioner, by the most expeditious means available, for the purposes of this section. Further- more, upon notification that such prospective employee is employed by a school district outside the city of New York, the division of criminal justice services shall have the authority to provide subsequent criminal history notifications directly to the commissioner.

§ 11. This act shall take effect immediately; provided, however, sections one through eight of this act shall be deemed to have been in full force and effect on and after November 1, 2000 and sections nine and ten of this act shall be deemed to have been in full force and effect on and after July 1, 2001.