(a) Definitions of Part 120 of the Regulations of the Commissioner of Education

Provisions of

Part 120 of the Regulations of the Commissioner of Education

Relevant to Unsafe School Choice

NOTE: Bold text relates specifically to victims of violent criminal offenses

AMENDMENT OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

Pursuant to Education Laws sections 101, 207, 215, 305(1), (2) and (33), 2802(7), 3713 (1) and

(2), 3214(3)(d) and (f) and a Chapter of the Laws of 2002 (as proposed in A.11858)

Part 120 of the Regulations of the Commissioner of Education is added, effective July 23,

2002, as follows:

PART 120 NO CHILD LEFT BEHIND ACT OF 2001

Purpose...
General Definitions…
Title I Public School Choice...
Supplemental Educational Services...

120.5 Unsafe school choice. Each local educational agency shall ensure that any student
who attends a persistently dangerous public elementary or secondary school, as determined by
the Commissioner pursuant to subdivision (a) of this section, or who is a victim of a violent
criminal offense, as defined pursuant to subdivision (b) of this section, that occurred on the
grounds of a public elementary or secondary school that the student attends, shall be
allowed to attend a safe public school at the same grade level within the local educational
agency. For purposes of this section, a "safe public school" shall mean a public school that
has not been designated by the Commissioner as a persistently dangerous public
elementary or secondary school.

(a) …

(1) …

(2) …

(3) …

(b) Victims of violent criminal offenses. Each local educational agency that is
required to provide unsafe school choice shall establish procedures for determinations by
the superintendent of schools or other chief school officer of whether a student is the victim
of a violent criminal offense that occurred on school grounds of the school that the student
attends. Such superintendent of schools or other chief school officer shall, prior to making
any such determination, consult with any law enforcement agency investigating such
alleged violent criminal offense and consider any reports or records provided by such
agency. The trustees or board of education or other governing board of a local educational
agency may provide, by local rule or by-law, for appeal of the determination of the
superintendent of schools to such governing board. The determination of such chief school
officer pursuant to this subdivision shall not have collateral estoppel effect in any student
disciplinary proceeding brought against the alleged victim or perpetrator of such violent
criminal offense. For purposes of this subdivision, "violent criminal offense" shall mean a
crime that involved infliction of serious physical injury upon another as defined in the
penal law, a sex offense that involved forcible compulsion or any other offense defined in the
penal law that involved the use or threatened use of a deadly weapon.

(c) Transfer. Any student who transfers to a safe public school pursuant to the
provisions of this section shall be enrolled in the classes and other activities of the public
school to which such student transfers in the same manner as all other children at the
public school.

(d) Notification. Each local educational agency that is required to provide school
choice pursuant to the provisions of this section and section 2802 of the Education Law
shall establish procedures for notification of parents of, or persons in parental relation to,
students attending schools that have been designated as persistently dangerous and parents of, or
persons in parental relation to, students who are victims of violent criminal offenses of their
right to transfer to a safe public school within the local educational agency and procedures
for such transfer. Such notice shall be, to the extent practicable, provided in the dominant
language or mode of communication used by the parents or persons in parental relation to+
such students. Nothing in this subdivision shall be construed to require such notification
where there are no other public schools within the local educational agency at the same
grade level or such transfer to a safe public school within the local educational agency is
otherwise impossible or to require a local educational agency that has only one public
school within the local educational agency or only one public school at each grade level to
develop such procedures.

(1)…

(2) Where a student has been determined to be the victim of a violent criminal
offense, as defined in subdivision (b) of this section, the local educational agency shall
notify the parents of, or persons in parental relation to, such student of his or her right to
transfer to a safe public school within the local educational agency and the procedures for
such transfer. The local educational agency shall so notify the parents of, or persons in
parental relation to, such student within twenty-four hours of such determination.

(e) Duration of unsafe school choice. Any student who transfers to a safe public
school pursuant to the provisions of this section shall be permitted to remain in such safe
public school until the student has completed the highest grade level in the school such
student has transferred to, or for such other period prescribed by the United States
Department of Education, whichever is less.

(f) When the Commissioner has designated a school of a local educational agency as a
persistently dangerous public elementary or secondary school, or when a student has been the
victim of a violent criminal offense that occurred on the grounds of a public elementary or
secondary school that the student attends, it shall be the responsibility of such local
educational agency, based on objective criteria, to designate a safe public school or schools
within the local educational agency to which students may transfer. Nothing in this
subdivision shall be construed to require a local educational agency to designate a safe
public school where there are no other public schools within the local educational agency at
the same grade level or such transfer to a safe public school within the local educational
agency is otherwise impossible or to require a local educational agency that has only one
public school within the local educational agency or only one public school at each grade
level to make such a designation.

(g) Transportation. The local educational agency shall provide transportation for
any student permitted to transfer to the safe public school within the local educational
agency it has designated pursuant to subdivision (f) of this section, within the
transportation limits established pursuant to section 3635 and subdivision 4 of section 4401
of the Education Law.

(h) In the event that a local educational agency fails to comply with the school
choice provisions of this section or section 2802 of the Education Law, the parent or person
in parental relation to a student attending a school that has been designated as persistently
dangerous and the parent, or persons in parental relation to a student who is the victim of a
violent criminal offense, may commence an appeal to the Commissioner pursuant to section
310 of the Education Law.

(i) …

August 29 Field Memo
NCLB Violent Criminal Offenses List
Chapter 425 of the Laws of 2002, Relevant to Unsafe School Choice


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