Pursuant to the No Child Left Behind Act of 2001 (Pub.L. 107-110) ("NCLB"), when a student becomes the victim of a violent criminal offense while in or on the grounds of the public elementary or secondary school he or she attends, the local educational agency ("LEA") must notify the parent(s) or guardian(s) of the student of their right to transfer the child to a safe public school within the district. Legislation to implement this safe public school choice option was enacted as Chapter 425 of the Laws of 2002 ("Chapter 425"). Additionally, at its July meeting, the Board of Regents adopted emergency regulations implementing the State legislation. Copies of the pertinent portions of Chapter 425 and the regulation are attached to this memorandum.

This memorandum addresses the key policy and procedural steps that must be taken by LEAs to ensure that a safe public school choice option is available to students who are victims of a violent crime starting with the 2002-2003 school year:

• The new law requires the school superintendent to determine if a student has been the victim of a violent criminal offense.
• "Violent criminal offense" means a crime that:
• involves infliction of a serious physical injury(1) upon another as defined in the State Penal Law; or
• a sex offense that involves forcible compulsion; or
• any other offense defined in the Penal Law that involves the use or threatened use of a deadly weapon(2).
• A list of violent criminal offenses classified as felonies in the Penal Law is attached to this memorandum for your information.
• Before the school superintendent determines that a student is the victim of a violent criminal offense, he or she must consult with any law enforcement agency investigating the alleged violent criminal incident and consider any reports or records provided by such agency. However, a criminal conviction is not required prior to the school superintendent’s determination that a student has been a victim of a violent criminal offense. The list attached to this memorandum should provide a starting point for a discussion with law enforcement officials as to whether a particular incident indicates that a student has been the victim of a violent criminal offense.
• A school superintendent may also wish to consult with the school district’s attorney prior to making a determination, based upon the information described above, that a student has been a victim of a violent criminal offense.
• It should be further noted that the Safe Schools Against Violence in Education Act ("SAVE") requires all school districts to establish and maintain Codes of Conduct that include procedures for notifying local law enforcement agencies of code violations that may constitute crimes. (See, Education Law §2801[2][h]).
• A board of education may adopt a policy to permit the appeal of a school superintendent’s determination regarding whether a student has been a victim of a violent criminal offense to the board.
• Pursuant to the NCLB, state law and regulation, the safe public school choice option will not be available in school districts where there are no other safe public schools within the district at the same grade level.
• In those school districts where the safe public school choice option will be available, each board of education should adopt a policy establishing the procedures for the designation of an alternative safe public school or schools to which a student who has been determined to be the victim of a violent criminal offense can transfer. Such school or schools must be at the same grade level as the school from which the student is transferring.
• Each school board must adopt a policy establishing procedures for the notification of the parent(s) or guardian(s) of a student who has been determined to be a victim of a violent criminal offense of their right to transfer the child to a safe public school within the district within 24 hours of such final determination. The notice must be in a language understood by the parent(s) or guardian(s) of the student. However, school districts are not obligated to notify parents or guardians if there are no other safe public schools within the district at the same grade level.
• Pursuant to the Unsafe School Choice Option Draft Non-Regulatory Guidance issued by the United States Department of Education, school districts should offer the parent(s) or guardian(s) of a student who has been determined to be a victim of a violent criminal offense an opportunity to transfer their child to a safe public school within the district within 10 calendar days of such determination. While the parent(s) or guardian(s) of the student must be offered the opportunity to transfer their child, they may elect to have the child remain at the school.
• To the extent possible, students should be transferred to schools that are making adequate yearly progress and have not been identified as requiring school improvement, corrective action or restructuring.
• Regardless of whether the safe public school choice option is available in a school district, the SAVE law (Education Law §2802 and 8 NYCRR §100.2[gg]) requires the completion and maintenance a Violent and Disruptive Incident Report ("VADIR") for each violent or disruptive incident that occurs.

It is strongly recommended that school superintendents maintain appropriate documentation regarding their consultations with law enforcement officials as well as their procedures for parent notification and student transfer in the event questions arise in the future.

If further assistance is needed on this provision of school choice, please contact Rebecca Gardner at (518) 486-6090.

Attachments

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