S T A T E O F N E W Y O R K
________________________________________________________________________
1585
2011-2012 Regular Sessions
I N S E N A T E
January 10, 2011
___________
Introduced by Sen. OPPENHEIMER -- 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 involuntary transfer
of violent or disruptive pupils
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The subdivision heading and paragraph a of subdivision 3 of
2 section 3214 of the education law, as amended by chapter 181 of the laws
3 of 2000, are amended to read as follows:
4 [Suspension] DISCIPLINE of a pupil. a. The board of education, board
5 of trustees or sole trustee, the superintendent of schools, district
6 superintendent of schools or principal of a school may suspend the
7 following pupils from required attendance upon instruction AND/OR TRANS-
8 FER THE FOLLOWING PUPILS FROM THEIR CURRENT CLASSROOM SETTING TO A MORE
9 APPROPRIATE EDUCATIONAL SETTING IN ANOTHER SCHOOL:
10 A pupil who is insubordinate or disorderly or violent or disruptive,
11 or whose conduct otherwise endangers the safety, morals, health or
12 welfare of others.
13 S 2. Subparagraph 1 of paragraph c of subdivision 3 of section 3214 of
14 the education law, as amended by chapter 430 of the laws of 2006, is
15 amended to read as follows:
16 (1) No pupil may be suspended for a period in excess of five school
17 days AND/OR TRANSFERRED unless such pupil and the person in parental
18 relation to such pupil shall have had an opportunity for a fair hearing,
19 upon reasonable notice, at which such pupil shall have the right of
20 representation by counsel, with the right to question witnesses against
21 such pupil and to present witnesses and other evidence on his or her
22 behalf. Where the pupil is a student with a disability or a student
23 presumed to have a disability, the provisions of paragraph g of this
24 subdivision shall also apply. Where a pupil has been suspended AND/OR
25 TRANSFERRED in accordance with this subparagraph by a superintendent of
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05291-01-1
S. 1585 2
1 schools, district superintendent of schools, or community superinten-
2 dent, the superintendent shall personally hear and determine the
3 proceeding or may, in his or her discretion, designate a hearing officer
4 to conduct the hearing. The hearing officer shall be authorized to
5 administer oaths and to issue subpoenas in conjunction with the proceed-
6 ing before him or her. A record of the hearing shall be maintained, but
7 no stenographic transcript shall be required and a tape recording shall
8 be deemed a satisfactory record. The hearing officer shall make find-
9 ings of fact and recommendations as to the appropriate measure of disci-
10 pline to the superintendent. The report of the hearing officer shall be
11 advisory only, and the superintendent may accept all or any part there-
12 of. An appeal will lie from the decision of the superintendent to the
13 board of education who shall make its decision solely upon the record
14 before it. The board may adopt in whole or in part the decision of the
15 superintendent of schools. Where the basis for the suspension is, in
16 whole or in part, the possession on school grounds or school property by
17 the student of any firearm, rifle, shotgun, dagger, dangerous knife,
18 dirk, razor, stiletto or any of the weapons, instruments or appliances
19 specified in subdivision one of section 265.01 of the penal law, the
20 hearing officer or superintendent shall not be barred from considering
21 the admissibility of such weapon, instrument or appliance as evidence,
22 notwithstanding a determination by a court in a criminal or juvenile
23 delinquency proceeding that the recovery of such weapon, instrument or
24 appliance was the result of an unlawful search or seizure.
25 S 3. Subparagraph 1 of paragraph c of subdivision 3 of section 3214 of
26 the education law, as amended by chapter 380 of the laws of 2001, is
27 amended to read as follows:
28 (1) No pupil may be suspended for a period in excess of five school
29 days AND/OR TRANSFERRED unless such pupil and the person in parental
30 relation to such pupil shall have had an opportunity for a fair hearing,
31 upon reasonable notice, at which such pupil shall have the right of
32 representation by counsel, with the right to question witnesses against
33 such pupil and to present witnesses and other evidence on his behalf.
34 Where a pupil has been suspended AND/OR TRANSFERRED in accordance with
35 this subdivision by a superintendent of schools, district superintendent
36 of schools, or community superintendent, the superintendent shall
37 personally hear and determine the proceeding or may, in his discretion,
38 designate a hearing officer to conduct the hearing. The hearing officer
39 shall be authorized to administer oaths and to issue subpoenas in
40 conjunction with the proceeding before him. A record of the hearing
41 shall be maintained, but no stenographic transcript shall be required
42 and a tape recording shall be deemed a satisfactory record. The hearing
43 officer shall make findings of fact and recommendations as to the appro-
44 priate measure of discipline to the superintendent. The report of the
45 hearing officer shall be advisory only, and the superintendent may
46 accept all or any part thereof. An appeal will lie from the decision of
47 the superintendent to the board of education who shall make its decision
48 solely upon the record before it. The board may adopt in whole or in
49 part the decision of the superintendent of schools. Where the basis for
50 the suspension is, in whole or in part, the possession on school grounds
51 or school property by the student of any firearm, rifle, shotgun,
52 dagger, dangerous knife, dirk, razor, stiletto or any of the weapons,
53 instruments or appliances specified in subdivision one of section 265.01
54 of the penal law, the hearing officer or superintendent shall not be
55 barred from considering the admissibility of such weapon, instrument or
56 appliance as evidence, notwithstanding a determination by a court in a
S. 1585 3
1 criminal or juvenile delinquency proceeding that the recovery of such
2 weapon, instrument or appliance was the result of an unlawful search or
3 seizure.
4 S 4. Paragraph a of subdivision 5 of section 3214 of the education
5 law, as amended by chapter 181 of the laws of 2000, is amended to read
6 as follows:
7 a. The board of education, board of trustees or sole trustee, the
8 superintendent of schools, or district superintendent of schools may
9 transfer a pupil who has not been determined to be a student with a
10 disability as defined in section forty-four hundred one of this chapter,
11 or a student presumed to have a disability for discipline purposes as
12 defined in paragraph g of subdivision three of this section from regular
13 classroom instruction to an appropriate educational setting in another
14 school upon the written recommendation of the school principal and
15 following independent review thereof. For purposes of this section of
16 the law, "involuntary transfer" does not include a transfer made by a
17 school district as part of a plan to reduce racial imbalance within the
18 schools [or as], a change in school attendance zones or geographical
19 boundaries OR A TRANSFER AS A RESULT OF A DISCIPLINARY ACTION PURSUANT
20 TO PARAGRAPH C OF SUBDIVISION THREE OF THIS SECTION.
21 S 5. This act shall take effect on the first of September next
22 succeeding the date on which it shall have become a law; provided,
23 however, that the amendments made to subparagraph 1 of paragraph c of
24 subdivision 3 of section 3214 of the education law by section two of
25 this act shall be subject to the expiration and reversion of such
26 subparagraph pursuant to section 8 of chapter 430 of the laws of 2006,
27 when upon such date the provisions of section three of this act shall
28 take effect.