PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of sections 100.2(l) and 119.6 of 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), and 2801(1)-(5); L. 2012, ch. 102
Subject:
Code of conduct.
Purpose:
Conform regulations to code of conduct provisions in the Dignity for All Students Act, as amended by ch. 102, L. 2012.
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, 2013, as follows:
(2) Code of Conduct
(i) . . .
(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 at school functions 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 or persons in parental relation;
(b) provisions prohibiting [discrimination and] harassment, bullying, and/or discrimination against any student, by employees or students [on school property or at a school function,] that creates a hostile school environment by conduct [, with or without physical contact and/or by verbal] or by threats, intimidation or abuse, including cyberbullying as defined in Education Law section 11(8), [of such a severe nature] that either:
(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, including conduct, threats, intimidation or abuse that reasonably causes or would reasonably be expected to cause emotional harm; or
(2) reasonably causes or would reasonably be expected to cause physical injury to a student or to cause a student to fear for his or her physical safety,
(3) Such conduct shall include acts of harassment and/or bullying that occur:
(i) on school property, as defined in section 100.2(kk)(1)(i) of this Part; and/or
(ii) at a school function, as defined in section 100.2(kk)(1) of this Part; or
(iii) off school property where such acts create or would foreseeably create a risk of substantial disruption within the school environment, where it is foreseeable that the conduct, threats, intimidation or abuse might reach school property.
(4) For purposes of this paragraph, the term “threats, intimidation or abuse” shall include verbal and non-verbal actions.
(5) For purposes of this paragraph, "emotional harm" that takes place in the context of "harassment or bullying" means harm to a student's emotional well-being through creation of a hostile school environment that is so severe or pervasive as to unreasonably and substantially interfere with a student's education.
(6) Such conduct shall include, but is not limited to [, threats, intimidation, or abuse] acts 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;
(c) standards and procedures to assure the security and safety of all students and school personnel;
(d) . . .
(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) disciplinary measures to be taken for incidents on school property or at school functions involving harassment, bullying and/or discrimination;
[(g)] (h) provisions for responding to acts of [discrimination, and] harassment, bullying, and/or discrimination against students by employees or students pursuant to clause (b) of this subparagraph which, with respect to such acts against students by students, incorporate a progressive model of student discipline that includes measured, balanced and age-appropriate remedies and procedures that make appropriate use of prevention, education, intervention and discipline, and considers among other things, the nature and severity of the offending student’s behavior(s), the developmental age of the student, the previous disciplinary record of the student and other extenuating circumstances, and the impact the student’s behaviors had on the individual(s) who was physically injured and/or emotionally harmed. Responses shall be reasonably calculated to end the harassment, bullying, and/or discrimination, prevent recurrence, and eliminate the hostile environment. This progressive model of student discipline shall be consistent with the other provisions of the code of conduct;
[(h)] (i). . .
[(i)] (j). . .
[(j)] (k) provisions ensuring that such code and the enforcement thereof are in compliance with State and Federal laws relating to students with disabilities;
[(k)] (l) provisions setting forth the procedures by which local law enforcement agencies shall be notified promptly of code violations, including but not limited to incidents of harassment, bullying, and/or discrimination, which may constitute a crime.
[(l)] (m). . .
[(m)] (n). . .
[(n)] (o) circumstances under and procedures by which referral to appropriate human service agencies shall be made, as needed;
[(o)] (p). . .
[(p)] (q). . .
[(q)] (r) 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]
[(r)] (s) 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, bullying and discrimination against students by students and/or school employees; and including safe and supportive school climate concepts in the curriculum and classroom management; and
(t) a provision prohibiting retaliation against any individual who, in good faith, reports or assists in the investigation of harassment, bullying, and/or discrimination.
(iii) Additional responsibilities.
(a) . . .
(b) Each board of education and board of cooperative educational services shall ensure community awareness of its code of conduct by:
(1) . . .
(2) . . .
(3) [providing] mailing a plain language summary of the code of conduct to all persons in parental relation to students before the beginning of each school year and making such summary available thereafter upon request;
(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
(5) . . .
2. Section 119.6 of the Regulations of the Commissioner of Education is amended, effective July 1, 2013, as follows:
§ 119.6 Policies against [discrimination and] harassment, bullying, and discrimination. 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, bullying, and/or discrimination 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] or by threats, intimidation or abuse, including cyberbullying as defined in Education Law section 11(8), [of such a severe nature] that either:
(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, including conduct, threats, intimidation or abuse that reasonably causes or would reasonably be expected to cause emotional harm; or
(2) reasonably causes or would reasonably be expected to cause physical injury to a student or to cause a student to fear for his or her physical safety.
(3) Such conduct shall include acts of harassment and/or bullying that occur:
(i) on school property, as defined in section 100.2(kk)(1)(i) of this Part; and/or
(ii) at a school function, as defined in section 100.2(kk)(1) of this Part; or
(iii) off school property where such acts create or would foreseeably create a risk of substantial disruption within the school environment, where it is foreseeable that the conduct, threats, intimidation or abuse might reach school property.
(4) For purposes of this section, the term “threats, intimidation or abuse” shall include verbal and non-verbal actions.
(5) For purposes of this section, "emotional harm" that takes place in the context of "harassment or bullying" means harm to a student's emotional well-being through creation of a hostile school environment that is so severe or pervasive as to unreasonably and substantially interfere with a student's education.
(6) Such conduct shall include, but is not limited to [, threats, intimidation, or abuse] acts 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, bullying, and/or discrimination 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;
(c) guidelines on promoting a safe and supportive school climate while discouraging, among other things, [discrimination or] harassment, bullying, and/or discrimination against students by students and/or school employees; and including safe and supportive school climate concepts in the curriculum and classroom management.
(d) provisions which enable students, parents and persons in parental relation to make an oral or written report of harassment, bullying, and/or discrimination to teachers, administrators, and other school personnel that the school district deems appropriate; and
(e) a provision prohibiting retaliation against any individual who, in good faith, reports or assists in the investigation of harassment, bullying, and/or discrimination.
Final rule as compared with last published rule:
Nonsubstantive changes were made in section 100.2(l)(2).
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) 474-6400, email: legal@mail.nysed.gov
Revised Regulatory Impact Statement
Since publication of a Notice of Proposed Rule Making in the State Register on February 13, 2013, a nonsubstantial revision was made to the proposed rule as follows.
Section 100.2(l)(2)(ii)(b) has been revised to refer to “. . . a hostile school environment" in order to clarify that, consistent with the Dignity Act, the provision is meant to address harassment, bullying and discrimination of students within the school environment.
The above change does not require any further revisions to the previously published Regulatory Impact Statement.
Revised Regulatory Flexibility Analysis and Revised Rural Area Flexibility Analysis
SMALL BUSINESS AND LOCAL GOVERNMENTS
Since publication of a Notice of Proposed Rule Making in the State Register on February 13, 2013, a nonsubstantial revision was made to the proposed rule as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith.
The change does not require any further changes to the previously published Regulatory Flexibility Analysis and Rural Area Flexibility Analysis.
Revised Job Impact Statement
Since publication of a Notice of Proposed Rule Making in the State Register on February 13, 2013, a nonsubstantial revision was made to the proposed rule as set forth in the Statement Concerning the Regulatory Impact Statement submitted herewith.
The proposed amendment, as revised, applies to school districts, boards of cooperative educational services (BOCES) and charter schools and is necessary to implement the code of conduct requirements of the Dignity for All Students Act, as amended by Chapter 102 of the Laws of 2012. 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.
Initial Review of Rule
As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2018, which is the 4th or 5th year after the year in which this rule is being adopted. This review period, justification for proposing same, and invitation for public comment thereon, were contained in a RFA, RAFA or JIS:
Assessment of Public Comment
Since publication of a Notice of Proposed Rule Making in the State Register on February 13, 2013, the State Education Department received the following comments.
1. COMMENT:
The proposed amendment includes all the various policy and guideline components from the Dignity for All Students Act (L.2010, Ch 482 - "Dignity Act"), as amended by Chapter 102 of the Laws of 2012) into the Code of Conduct. However, we believe the language of the law indicates that these requirements are separate from the Code of Conduct. Education Law § 12(1) provides that no student shall be subjected to harassment, bullying or discrimination, and Education Law § 12(2) specifically directs that the Code of Conduct include the provision in § 12(1). However, Education Law § 13 requires that school districts establish policies and procedures intended to create a school environment that is free from harassment, bullying and discrimination, and directs that districts "include appropriate references to the provisions of the school district's code of conduct " in such policies and procedures. This suggests that the Dignity Act requires more than adding provisions to the Code of Conduct. We believe the law requires, and we recommend, a “bullying” policy be developed which is separate from the Code of Conduct. Codes of Conduct already include many provisions and the Dignity Act element could easily get lost and overlooked. In addition, placing the Dignity Act provisions in a separate policy document would facilitate parents and students in locating the district's Dignity Act requirements.
DEPARTMENT RESPONSE:
The commenter is reading Education Law § 12 too narrowly by appearing to say that Education Law § 12(2) merely requires the code of conduct to contain an age-appropriate version of the policy contained in Education Law § 12(1), and nothing else. However, Education Law § 12(2) also states that a summary of the policy must be included in any summaries required by Education Law § 2801. The State Education Department believes that this means Education Law § 12(2) requires that the code of conduct must include more than the provision contained in Education Law § 12(1) because it would not be possible to "summarize" any further the brief prohibition language against harassment, bullying and discrimination contained in § 12(1). In addition, Education Law § 12(2)’s reference to an age-appropriate version of the policy contained in Education Law 12(1) requires more than simply restating the provisions of Education Law 12(1) in an age appropriate manner.
More importantly, the code of conduct governs the conduct of students, teachers, other school personnel and visitors. Thus, when Education Law § § 12 and 13 are read together and the intent of the code of conduct is considered, it is a reasonable interpretation of the Department's statutory authority to require the field to include its Dignity Act related policy in the code of conduct. In addition, the Department believes that it is both practical and functional for all policies addressing the conduct of students, faculty, school staff, and visitors be compiled into a code of conduct. Nevertheless, this does not preclude a school district from further elaborating on its policy in a separate document, which could be referenced in its code of conduct.
2. COMMENT:
Section 100.2(l)(2)(ii)(b), which requires a code of conduct to include "provisions prohibiting harassment, bullying, and/or discrimination against any student, by employees or students that creates a hostile environment ", should be revised to refer to ". . . a hostile school environment." Otherwise, the language suggests that school districts are responsible for the environment everywhere.
DEPARTMENT RESPONSE:
The Department agrees with this comment. A nonsubstantial revision has been made to section 100.2(l)(2)(ii)(b) to refer to “. . . a hostile school environment" in order to clarify that Dignity Act addresses harassment, bullying and discrimination of students within the school environment.
3. COMMENT:
Why was the phrase "of such a severe nature" removed from section 100.2(l)(2)(ii)(b)?
DEPARTMENT RESPONSE:
The phrase was removed in order to conform the regulation to the Dignity Act, as amended by Chapter 102 of the Laws of 2012. The phrase "of such a severe nature" does not appear in the statute, and the proposed amended provision more accurately reflects the statutory requirements.
4. COMMENT:
Section 100.2(l)(2)(ii)(b) would benefit by cross-referencing the definition of "harassment or bullying" in section 100.2(kk)(1)(viii) to avoid repetitious language.
DEPARTMENT RESPONSE:
The Department believes that a revision is not appropriate here, because the definition in section 100.2(kk)(1)(viii) applies to the reporting requirements under the Dignity Act and refers to only "harassment or bullying"; and the provision in section 100.2(l)(2)(ii)(b) refers to "harassment, bullying, and/or discrimination" and is thus broader in application.
5. COMMENT:
Is section 100.2(l)(2)(ii)(b)(4) appropriate in saying "for purposes of this paragraph"?
DEPARTMENT RESPONSE:
Yes, because the provision is applicable to the entire Code of Conduct regulation, which is found in paragraph (2) of subdivision (l) of section 100.2.
6. COMMENT:
Clauses (g) and (h) of section 100.2(l)(2)(ii) should be combined. Clause (g) addresses discipline for harassment/bullying, while clause (h) addresses discipline, prevention and remediation. Why mention discipline in one context using the progressive model language in (h), but not include the language in (g)?
DEPARTMENT RESPONSE:
The Department does not believe it would be appropriate to merge these provisions. The provisions in (h) concerning a progressive model apply to student discipline. However, codes of conduct apply to students, teachers and other school personnel and visitors. Therefore, the provisions in clause (g) regarding disciplinary measures to be taken for incidents involving harassment, bullying and/or discrimination can include such conduct by students, teachers, school personnel and others and therefore are of broader application than clause (h), which applies only to students. Accordingly, it is appropriate to place such provisions in separate clauses.
7. COMMENT:
The State Education Department is commended for its thoughtful approach to implementing the Dignity for All Students Act. 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 implement.
DEPARTMENT RESPONSE:
The Department appreciates the support as we work to ensure that all students are educated in a safe and supportive environment.
8. COMMENT:
There is nothing in the Dignity Act or any related statutory provision that permits or requires the State Education Department to dictate to charter schools how to draft their codes of conduct.
DEPARTMENT RESPONSE:
The Department disagrees. Education Law § 2854(1)(b) provides that charter schools shall meet the same health and safety, civil rights, and student assessment requirements applicable to other public schools, except as otherwise specifically provided in Article 56 of the Education Law. The Dignity Act imposes certain health, safety and civil rights requirements on public schools. Consistent with the Dignity Act, section 119.6 was added to in 2012 to require charter schools to include in their disciplinary rules and procedures pursuant to Education Law section 2851(2)(h) or, if applicable, in their codes 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.
Subsequently, Chapter 102 of the Laws of 2012 was enacted to significantly expand the scope and intent of the Dignity Act to include provisions on bullying and cyberbullying and to make the Act applicable in certain instances to conduct occurring off school property. The Department lacks authority to revise statutory requirements and/or exempt charter schools from these requirements.
The proposed amendment is necessary to implement the code of conduct requirements of Chapter 102 of the Laws of 2012 and, consistent with that statute, amends section 119.6 to refer to harassment, bullying and discrimination, including cyberbullying; provide a definition of "emotional harm"; include acts of harassment and/or bullying that occur off school property where such acts create or would foreseeably create a risk of substantial disruption within the school environment, where it is foreseeable that the conduct, threats, intimidation or abuse might reach school property; include provisions which enable students, parents and persons in parental relation to make an oral or written report of harassment, bullying, and/or discrimination to teachers, administrators, and other school personnel that the school district deems appropriate; and includes a provision prohibiting retaliation against any individual who, in good faith, reports or assists in the investigation of harassment, bullying, and/or discrimination.
