PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of section 100.2(l); and addition of section 119.6 to Title 8 NYCRR.
Statutory authority:
Education Law, sections 11(1)-(7), 12(1) and (2), 13(1)-(3), 14(1) and (3), 101(not subdivided), 207(not subdivided), 305(1) and (2), 2801(1)-(5); and L. 2010, ch. 482, sections 2 and 4
Subject:
Code of Conduct.
Purpose:
Conform Commissioners Regulations on Codes of Conduct to the Dignity for All Students Act (ch. 482, L. 2010).
Text of final rule:
1. Paragraph (2) of subdivision (l) of section 100.2 of the Regulations of the Commissioner of Education is amended, effective July 1, 2012, as follows:
(2) Code of Conduct
(i) On or before July 1, 2001, each board of education and board of cooperative educational services shall adopt and provide for the enforcement of a written code of conduct for the maintenance of order on school property and at school functions, as defined in Education Law, [section] sections 11(1) and (2) and 2801(1), which shall govern the conduct of students, teachers, other school personnel, and visitors. Such a code shall be developed in collaboration with student, teacher, administrator, and parent organizations, school safety personnel and other school personnel 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. The City School District of the City of New York shall adopt a district-wide code of conduct and each community school district may, upon approval of the chancellor, adopt and implement additional policies, which are consistent with the city school district's district-wide code of conduct, to reflect the individual needs of each community school district. A school district or board of cooperative educational services shall adopt its code of conduct only after at least one public hearing that provides for the participation of school personnel, parents, students, and any other interested parties.
(ii) The code of conduct shall include, but is not limited to:
(a) provisions regarding conduct, dress and language deemed appropriate and acceptable on school property and at school functions, and conduct, dress, and language deemed unacceptable and inappropriate on school property and provisions regarding acceptable civil and respectful treatment of teachers, school administrators, other school personnel, students, and visitors on school property and at school functions, 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) provisions prohibiting discrimination and harassment against any student, by employees or students on school property or at a school function, that creates a hostile environment by conduct, with or without physical contact and/or by verbal threats, intimidation or abuse, of such a severe nature that:
(1) has or would have the effect of unreasonably and substantially interfering with a student's educational performance, opportunities or benefits, or mental, emotional and/or physical well-being; or
(2) reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety.
Such conduct shall include, but is not limited to, threats, intimidation, or abuse based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practices, disability, sexual orientation, gender as defined in Education Law § 11(6), or sex; provided that nothing in this subdivision shall be construed to prohibit a denial of admission into, or exclusion from, a course of instruction based on a person's gender that would be permissible under Education Law sections 3201-a or 2854(2) (a) and Title IX of the Education Amendments of 1972 (20 U.S.C. section 1681, et seq.), or to prohibit, as discrimination based on disability, actions that would be permissible under section 504 of the Rehabilitation Act of 1973;
[(b)] (c) standards and procedures to assure security and safety of students and school personnel;
[(c)] (d) provisions for the removal from the classroom [and from], school property and school functions of students and other persons who violate the code;
[(d)] (e) provisions prescribing the period for which a disruptive pupil may be removed from the classroom for each incident, provided that no such pupil shall return to the classroom until the principal makes a final determination pursuant to Education Law section 3214(3-a)(c), or the period of removal expires, whichever is less;
[(e)] (f) disciplinary measures to be taken in incidents on school property or at school functions involving the possession or use of illegal substances or weapons, the use of physical force, vandalism, violation of another student's civil rights, harassment and threats of violence;
(g) provisions for responding to acts of discrimination and harassment against students by employees or students on school property or at a school function pursuant to clause (b) of this subparagraph;
[(f)] (h) provisions for detention, suspension and removal from the classroom of students, consistent with Education Law section 3214 and other applicable Federal, State, and local laws including provisions for the school authorities to establish policies and procedures to ensure the provision of continued educational programming and activities for students removed from the classroom, placed in detention, or suspended from school, which shall include alternative educational programs appropriate to individual student needs;
[(g)] (i) procedures by which violations are reported, determined, discipline measures imposed and discipline measures carried out;
[(h)] (j) provisions ensuring such code and the enforcement thereof are in compliance with State and Federal laws relating to students with disabilities;
[(i)] (k) provisions setting forth the procedures by which local law enforcement agencies shall be notified of code violations which constitute a crime;
[(j)] (l) provisions setting forth the circumstances under and procedures by which persons in parental relation to the student shall be notified of code violations;
[(k)] (m) provisions setting forth the circumstances under and procedures by which a complaint in criminal court, a juvenile delinquency petition or person in need of supervision petition as defined in [articles] Articles three and seven of the Family Court Act will be filed;
[(l)] (n) circumstances under and procedures by which referral to appropriate human service agencies shall be made;
[(m] (o) a minimum suspension period, for any student who repeatedly is substantially disruptive of the educational process or substantially interferes 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 requirement, "repeatedly is substantially disruptive of the educational process or substantially interferes with the teacher's authority over the classroom" shall mean engaging in conduct which results in the removal of the student from the classroom by teacher(s) pursuant to the provisions of Education Law section 3214(3-a) and the provisions set forth in the code of conduct on four or more occasions during a semester, or three or more occasions during a trimester, as applicable;
[(n)] (p) a minimum suspension period for acts that would qualify the pupil to be defined as a violent pupil pursuant to Education Law section 3214(2-a)(a), 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;
[(o)] (q) a bill of rights and responsibilities of students which focuses upon positive student behavior and a safe and supportive school climate, [and] which shall be written in plain-language, publicized and explained in an age-appropriate manner to all students on an annual basis; and
[(p)] (r) guidelines and programs for in-service education programs for all district staff members to ensure effective implementation of school policy on school conduct and discipline, including but not limited to, guidelines on promoting a safe and supportive school climate while discouraging, among other things, discrimination or harassment against students by students and/or school employees; and including safe and supportive school climate concepts in the curriculum and classroom management.
(iii) Additional responsibilities.
(a) Each board of education and, in the case of the City School District of the City of New York, the chancellor of such city school district, and each board of cooperative educational services shall annually review and update as necessary its code of conduct, taking into consideration the effectiveness of code provisions and the fairness and consistency of its administration. A school district may establish a committee pursuant to Education Law section 2801(5) (a) to facilitate the review of its code of conduct and the district's response to code of conduct violations. A board of education or board of cooperative educational services may adopt any revision to the code of conduct only after at least one public hearing that provides for the participation of school personnel, parents, students, and any other interested party. Each district shall file a copy of its code of conduct and any amendments with the commissioner, in a manner prescribed by the commissioner, no later than 30 days after their respective adoptions.
(b) Each board of education and board of cooperative educational services shall ensure community awareness of its code of conduct by:
(1) posting the complete code of conduct, respectively, on the Internet web site, if any, of the school or school district, or of the board of cooperative educational services, including any annual updates to the code made pursuant to clause (a) of this subparagraph and any other amendments to the code;
[(1)] (2) providing copies of a summary of the code of conduct to all students, in an age-appropriate version, written in plain-language, at a [general] school assembly to be held at the beginning of each school year;
[(2)] (3) [mailing] providing a plain language summary of the code of conduct to all persons in parental relation to students before the beginning of [the] each school year and making such summary available thereafter upon request;
[(3)] (4) providing each existing teacher with a copy of the complete code of conduct and a copy of any amendments to the code as soon as practicable following initial adoption or amendment of the code, and providing new teachers with a complete copy of the current code upon their employment; and
[(4)] (5) making complete copies available for review by students, parents or [other] persons in parental relation to students, [nonteaching] other school staff and other community members.
2. Section 119.6 of the Regulations of the Commissioner of Education is added, effective July 1, 2012, as follows:
119.6 Policies against discrimination and harassment. Each charter school shall include in its disciplinary rules and procedures pursuant to Education Law section 2851(2)(h) or, if applicable, in its code of conduct:
(a) provisions, in an age-appropriate version and written in plain-language, prohibiting discrimination and harassment against any student, by employees or students on school property or at a school function, that creates a hostile environment by conduct, with or without physical contact and/or by verbal threats, intimidation or abuse, of such a severe nature that:
(1) has or would have the effect of unreasonably and substantially interfering with a student's educational performance, opportunities or benefits, or mental, emotional and/or physical well-being; or
(2) reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety.
Such conduct shall include, but is not limited to, threats, intimidation, or abuse based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practices, disability, sexual orientation, gender as defined in Education Law § 11(6), or sex; provided that nothing in this subdivision shall be construed to prohibit a denial of admission into, or exclusion from, a course of instruction based on a person's gender that would be permissible under Education Law sections 3201-a or 2854(2)(a) and Title IX of the Education Amendments of 1972 (20 U.S.C. section 1681, et seq.), or to prohibit, as discrimination based on disability, actions that would be permissible under section 504 of the Rehabilitation Act of 1973;
(b) provisions for responding to acts of discrimination and harassment against students by employees or students on school property or at a school function as defined in Education Law sections 11(1) and (2), pursuant to subdivision (a) of this section, including but not limited to disciplinary measures to be taken; and
(c) guidelines on promoting a safe and supportive school climate while discouraging, among other things, discrimination or harassment against students by students and/or school employees; and including safe and supportive school climate concepts in the curriculum and classroom management.
Final rule as compared with last published rule:
Nonsubstantive changes were made in sections 100.2(l)(2) and 119.5.
Text of rule and any required statements and analyses may be obtained from:
Mary Gammon, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-8857, email: legal@mail.nysed.gov
Revised Regulatory Impact Statement
Since publication of a Notice of Proposed Rule Making in the State Register on January 25, 2012, nonsubstantial changes were made to the proposed rule as follows:
1. Proposed section 119.5 of the Commissioner's Regulations was renumbered as section 119.6, because a section 119.5 was previously added to the Commissioner's Regulations as part of a separate rule making (EDU-42-11-00016-A; January 4, 2012 State Register).
2. Proposed section 100.2(l)(2)(iii)(b)(1) was revised to clarify that only those schools, school districts and boards of cooperative educational services that maintain websites are required to post their codes of conduct, and any updates and amendments to them, on such websites.
These changes require that the Paperwork section of the previously published Regulatory Impact Statement be revised to read as follows:
6. PAPERWORK:
The proposed amendment requires:
• each school district to file its code of conduct and any amendments with the Commissioner, in a manner prescribed by the Commissioner, within 30 days after their respective adoptions;
• each school district and BOCES to post the complete code of conduct, and any updates and amendments to the code, on the school's or school district's Internet web site, if any;
• each school district and BOCES to provide all students with copies of a summary of the code of conduct, in an age-appropriate version, written in plain-language, at a school assembly to be held at the beginning of each school year;
• each school district and BOCES to provide a plain language summary of the code of conduct to all persons in parental relation to students before the beginning of the school year, and make the summary available thereafter upon request.
Revised Regulatory Flexibility Analysis
Since publication of a Notice of Proposed Rule Making in the State Register on January 25, 2012, a nonsubstantial change was made to the proposed rule as described in the Statement Concerning the Regulatory Impact Statement filed herewith.
These changes require that the Compliance section of the previously published Regulatory Flexibility Analysis for Small Businesses and Local Government be revised to read as follows:
COMPLIANCE REQUIREMENTS:
Consistent with Education Law section 2801 and Article 2, as respectively amended and added by Chapter 482 of the Laws of 2010, the proposed amendment requires each school district and BOCES code of conduct to include:
• provisions prohibiting discrimination and harassment against any student by employees or students on school property or at a school function, that creates a hostile environment by conduct, with or without physical contact and/or by verbal threats, intimidation or abuse, of such a severe nature that: (1) has or would have the effect of unreasonably and substantially interfering with a student's educational performance, opportunities or benefits, or mental, emotional and/or physical well-being; or (2) reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety. Such conduct shall include, but is not limited to, threats, intimidation or abuse based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practices, disability, sexual orientation, gender as defined in Education Law section 11(6), or sex;
• provisions for responding to such acts of discrimination or harassment against students by employees or students on school property or at a school function;
• a bill of rights and responsibilities of students which focuses upon positive student behavior and a safe and supportive school climate, which shall be written in plain-language, publicized and explained in an age-appropriate manner to all students on an annual basis; and
• guidelines and programs for in-service education programs for all district staff members to ensure effective implementation of school policy on school conduct and discipline, including but not limited to, guidelines on promoting a safe and supportive school climate while discouraging, among other things, discrimination or harassment against students by students and/or school employees, and including safe and supportive school climate concepts in the curriculum and classroom management.
The proposed amendment further requires:
• each school district to file its code of conduct and any amendments with the Commissioner, in a manner prescribed by the Commissioner, within 30 days after their respective adoptions;
• each school district and BOCES to post the complete code of conduct, and any updates and amendments to the code, on the school's or school district's Internet web site, if any;
• each school district and BOCES to provide all students with copies of a summary of the code of conduct, in an age-appropriate version, written in plain-language, at a school assembly to be held at the beginning of each school year;
• each school district and BOCES to provide a plain language summary of the code of conduct to all persons in parental relation to students before the beginning of the school year, and make the summary available thereafter upon request.
The proposed amendment also requires that charter schools include in their disciplinary rules and procedures pursuant to Education Law section 2851(2)(h) or, if applicable, in its code of conduct, provisions prohibiting discrimination and harassment against any student, by employees or students on school property or at a school function; provisions for responding to acts of discrimination and harassment against students by employees or students on school property or at a school function; and (c) guidelines on promoting a safe and supportive school climate while discouraging, among other things, discrimination or harassment against students by students and/or school employees; and including safe and supportive school climate concepts in the curriculum and classroom management.
Revised Rural Area Flexibility Analysis
Since publication of a Notice of Proposed Rule Making in the State Register on January 25, 2012, a nonsubstantial change was made to the proposed rule as described in the Statement Concerning the Regulatory Impact Statement filed herewith.
These changes require that the Reporting, Recordkeeping and Other Compliance Requirements; and Professional Services section of the previously published Rural Area Flexibility Analysis be revised to read as follows:
2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
Consistent with Education Law section 2801 and Article 2, as respectively amended and added by the Dignity for All Students Act ("Dignity Act" - Chapter 482 of the Laws of 2010, the proposed amendment requires each school district and BOCES code of conduct to include:
• provisions prohibiting discrimination and harassment against any student by employees or students on school property or at a school function, that creates a hostile environment by conduct, with or without physical contact and/or by verbal threats, intimidation or abuse, of such a severe nature that: (1) has or would have the effect of unreasonably and substantially interfering with a student's educational performance, opportunities or benefits, or mental, emotional and/or physical well-being; or (2) reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety. Such conduct shall include, but is not limited to, threats, intimidation or abuse based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practices, disability, sexual orientation, gender as defined in Education Law section 11(6), or sex;
• provisions for responding to such acts of discrimination or harassment against students by employees or students on school property or at a school function;
• a bill of rights and responsibilities of students which focuses upon positive student behavior and a safe and supportive school climate, which shall be written in plain-language, publicized and explained in an age-appropriate manner to all students on an annual basis; and
• guidelines and programs for in-service education programs for all district staff members to ensure effective implementation of school policy on school conduct and discipline, including but not limited to, guidelines on promoting a safe and supportive school climate while discouraging, among other things, discrimination or harassment against students by students and/or school employees, and including safe and supportive school climate concepts in the curriculum and classroom management.
The proposed amendment further requires:
• each school district to file its code of conduct and any amendments with the Commissioner, in a manner prescribed by the Commissioner, within 30 days after their respective adoptions;
• each school district and BOCES to post the complete code of conduct, and any updates and amendments to the code, on the school's or school district's Internet web site, if any;
• each school district and BOCES to provide all students with copies of a summary of the code of conduct, in an age-appropriate version, written in plain-language, at a school assembly to be held at the beginning of each school year;
• each school district and BOCES to provide a plain language summary of the code of conduct to all persons in parental relation to students before the beginning of the school year, and make the summary available thereafter upon request.
The proposed amendment also requires that charter schools include in their disciplinary rules and procedures pursuant to Education Law section 2851(2)(h) or, if applicable, in its code of conduct, provisions prohibiting discrimination and harassment against any student, by employees or students on school property or at a school function; provisions for responding to acts of discrimination and harassment against students by employees or students on school property or at a school function; and (c) guidelines on promoting a safe and supportive school climate while discouraging, among other things, discrimination or harassment against students by students and/or school employees; and including safe and supportive school climate concepts in the curriculum and classroom management.
The proposed amendment will not impose any additional professional services requirements.
Revised Job Impact Statement
Since publication of a Notice of Proposed Rule Making in the State Register on January 25, 2012, a nonsubstantial change was made to the proposed rule as described in the Statement Concerning the Regulatory Impact Statement filed herewith.
The proposed amendment, as revised, applies to school districts, boards of cooperative educational services (BOCES) and charter schools and relates to implementation of codes of conduct and disciplinary rules and procedures for the maintenance of public order on school property and at school functions consistent with the Dignity for All Students Act (L. 2010, Ch. 482). The proposed revised amendment will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the proposed revised amendment that it will have a positive impact, or no impact, on jobs or employment opportunities, no further steps were needed to ascertain those facts and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.
Assessment of Public Comment
Since publication of a Notice of Proposed Rule Making in the State Register on January 18, 2012, the State Education Department received the following comments.
1. COMMENT:
We commend the State Education Department for its thoughtful approach to implementing DASA. Successful implementation is critical to the safety and well-being of New York students. We fully support the proposed rule as a component of such implementation.
DEPARTMENT RESPONSE:
No response is necessary, as the comment is supportive.
2. COMMENT:
The proposed rule's provision that the complete code of conduct, including annual updates and other amendments to the code, be posted on the Internet web site of each school district will impose a hardship on small school districts that do not maintain an Internet web site. It was suggested that, in lieu of such requirement, a school district be allowed to mail copies of the code to all families in the district.
DEPARTMENT RESPONSE:
The proposed provision [section 100.2(l)(2)(iii)(b)(1)] is intended to require only those schools, school districts and boards of cooperative educational services that maintain websites to post their codes of conduct, and any updates and amendments to them, on such websites. The proposed amendment has been revised to clarify this. The Department may consider issuing guidance with respect to those schools and school districts that do not maintain websites.
