§ 3214 — Student placement, suspensions and transfers

New York § 3214

• Jurisdiction: New York
• Law EDN: Education
• Title 4: Teachers and Pupils
• Part 1: Compulsory Education
• Art. 65: Compulsory Education and School Census

Text

§ 3214. Student placement, suspensions and transfers. 1. School\ndelinquent. A minor under seventeen years of age, required by any of the\nprovisions of part one of this article to attend upon instruction, who\nis an habitual truant from such instruction or is irregular in such\nattendance or insubordinate or disorderly or disruptive or violent\nduring such attendance, is a school delinquent.\n 2. Special day schools. The school authorities of any city or school\ndistrict may establish schools or set apart rooms in public school\nbuildings for the instruction of school delinquents, and fix the number\nof days per week and the hours per day of required attendance, which\nshall not be less than is required of minors attending the full time day\nschools.\n 2-a. a. Violent pupil. For the purposes of this section, a violent\npupil is an elementary or secondary student under twenty-one years of\nage who:\n (1) commits an act of violence upon a teacher, administrator or other\nschool employee;\n (2) commits, while on school district property, an act of violence\nupon another student or any other person lawfully upon said property;\n (3) possesses, while on school district property, a gun, knife,\nexplosive or incendiary bomb, or other dangerous instrument capable of\ncausing physical injury or death;\n (4) displays, while on school district property, what appears to be a\ngun, knife, explosive or incendiary bomb or other dangerous instrument\ncapable of causing death or physical injury;\n (5) threatens, while on school district property, to use any\ninstrument that appears capable of causing physical injury or death;\n (6) knowingly and intentionally damages or destroys the personal\nproperty of a teacher, administrator, other school district employee or\nany person lawfully upon school district property; or\n (7) knowingly and intentionally damages or destroys school district\nproperty.\n b. Disruptive pupil. For the purposes of this section, a disruptive\npupil is an elementary or secondary student under twenty-one years of\nage who is substantially disruptive of the educational process or\nsubstantially interferes with the teacher's authority over the\nclassroom.\n 3. Suspension of a pupil. a. The board of education, board of trustees\nor sole trustee, the superintendent of schools, district superintendent\nof schools or principal of a school may suspend the following pupils\nfrom required attendance upon instruction:\n A pupil who is insubordinate or disorderly or violent or disruptive,\nor whose conduct otherwise endangers the safety, morals, health or\nwelfare of others.\n b. (1) The board of education, board of trustees, or sole trustee,\nsuperintendent of schools, district superintendent of schools and the\nprincipal of the school where the pupil attends shall have the power to\nsuspend a pupil for a period not to exceed five school days. In the case\nof such a suspension, the suspending authority shall provide the pupil\nwith notice of the charged misconduct. If the pupil denies the\nmisconduct, the suspending authority shall provide an explanation of the\nbasis for the suspension. The pupil and the person in parental relation\nto the pupil shall, on request, be given an opportunity for an informal\nconference with the principal at which the pupil and/or person in\nparental relation shall be authorized to present the pupil's version of\nthe event and to ask questions of the complaining witnesses. The\naforesaid notice and opportunity for an informal conference shall take\nplace prior to suspension of the pupil unless the pupil's presence in\nthe school poses a continuing danger to persons or property or an\nongoing threat of disruption to the academic process, in which case the\npupil's notice and opportunity for an informal conference shall take\nplace as soon after the suspension as is reasonably practicable.\n (2) A teacher shall immediately report and refer a violent pupil to\nthe principal or superintendent for a violation of the code of conduct\nand a minimum suspension period pursuant to section twenty-eight hundred\none of this chapter.\n c. * (1) No pupil may be suspended for a period in excess of five\nschool days unless such pupil and the person in parental relation to\nsuch pupil shall have had an opportunity for a fair hearing, upon\nreasonable notice, at which such pupil shall have the right of\nrepresentation by counsel, with the right to question witnesses against\nsuch pupil and to present witnesses and other evidence on his or her\nbehalf. Where the pupil is a student with a disability or a student\npresumed to have a disability, the provisions of paragraph g of this\nsubdivision shall also apply. Where a pupil has been suspended in\naccordance with this subparagraph by a superintendent of schools,\ndistrict superintendent of schools, or community superintendent, the\nsuperintendent shall personally hear and determine the proceeding or\nmay, in his or her discretion, designate a hearing officer to conduct\nthe hearing. The hearing officer shall be authorized to administer oaths\nand to issue subpoenas in conjunction with the proceeding before him or\nher. A record of the hearing shall be maintained, but no stenographic\ntranscript shall be required and a tape recording shall be deemed a\nsatisfactory record. The hearing officer shall make findings of fact\nand recommendations as to the appropriate measure of discipline to the\nsuperintendent. The report of the hearing officer shall be advisory\nonly, and the superintendent may accept all or any part thereof. An\nappeal will lie from the decision of the superintendent to the board of\neducation who shall make its decision solely upon the record before it.\nThe board may adopt in whole or in part the decision of the\nsuperintendent of schools. Where the basis for the suspension is, in\nwhole or in part, the possession on school grounds or school property by\nthe student of any firearm, rifle, shotgun, dagger, dangerous knife,\ndirk, razor, stiletto or any of the weapons, instruments or appliances\nspecified in subdivision one of section 265.01 of the penal law, the\nhearing officer or superintendent shall not be barred from considering\nthe admissibility of such weapon, instrument or appliance as evidence,\nnotwithstanding a determination by a court in a criminal or juvenile\ndelinquency proceeding that the recovery of such weapon, instrument or\nappliance was the result of an unlawful search or seizure.\n * NB Effective until June 30, 2027\n * (1) No pupil may be suspended for a period in excess of five school\ndays unless such pupil and the person in parental relation to such pupil\nshall have had an opportunity for a fair hearing, upon reasonable\nnotice, at which such pupil shall have the right of representation by\ncounsel, with the right to question witnesses against such pupil and to\npresent witnesses and other evidence on his behalf. Where a pupil has\nbeen suspended in accordance with this subdivision by a superintendent\nof schools, district superintendent of schools, or community\nsuperintendent, the superintendent shall personally hear and determine\nthe proceeding or may, in his discretion, designate a hearing officer to\nconduct the hearing. The hearing officer shall be authorized to\nadminister oaths and to issue subpoenas in conjunction with the\nproceeding before him. A record of the hearing shall be maintained, but\nno stenographic transcript shall be required and a tape recording shall\nbe deemed a satisfactory record. The hearing officer shall make findings\nof fact and recommendations as to the appropriate measure of discipline\nto the superintendent. The report of the hearing officer shall be\nadvisory only, and the superintendent may accept all or any part\nthereof. An appeal will lie from the decision of the superintendent to\nthe board of education who shall make its decision solely upon the\nrecord before it. The board may adopt in whole or in part the decision\nof the superintendent of schools. Where the basis for the suspension is,\nin whole or in part, the possession on school grounds or school property\nby the student of any firearm, rifle, shotgun, dagger, dangerous knife,\ndirk, razor, stiletto or any of the weapons, instruments or appliances\nspecified in subdivision one of section 265.01 of the penal law, the\nhearing officer or superintendent shall not be barred from considering\nthe admissibility of such weapon, instrument or appliance as evidence,\nnotwithstanding a determination by a court in a criminal or juvenile\ndelinquency proceeding that the recovery of such weapon, instrument or\nappliance was the result of an unlawful search or seizure.\n * NB Effective June 30, 2027\n (2) Where a pupil has been suspended in accordance with this section\nby a board of education, the board may in its discretion hear and\ndetermine the proceeding or appoint a hearing officer who shall have the\nsame powers and duties with respect to the board that a hearing officer\nhas with respect to a superintendent where the suspension was ordered by\nhim. The findings and recommendations of the hearing officer conducting\nthe proceeding shall be advisory and subject to final action by the\nboard of education, each member of which shall before voting review the\ntestimony and acquaint himself with the evidence in the case. The board\nmay reject, confirm or modify the conclusions of the hearing officer.\n d. (1) Consistent with the federal gun-free schools act, any public\nschool pupil who is determined under this subdivision to have brought a\nfirearm to or possessed a firearm at a public school shall be suspended\nfor a period of not less than one calendar year and any nonpublic school\npupil participating in a program operated by a public school district\nusing funds from the elementary and secondary education act of nineteen\nhundred sixty-five who is determined under this subdivision to have\nbrought a firearm to or possessed a firearm at a public school or other\npremises used by the school district to provide such programs shall be\nsuspended for a period of not less than one calendar year from\nparticipation in such program. The procedures of this subdivision shall\napply to such a suspension of a nonpublic school pupil. A superintendent\nof schools, district superintendent of schools or community\nsuperintendent shall have the authority to modify this suspension\nrequirement for each student on a case-by-case basis. The determination\nof a superintendent shall be subject to review by the board of education\npursuant to paragraph c of this subdivision and the commissioner\npursuant to section three hundred ten of this chapter. Nothing in this\nsubdivision shall be deemed to authorize the suspension of a student\nwith a disability in violation of the individuals with disabilities\neducation act or article eighty-nine of this chapter. A superintendent\nshall refer the pupil under the age of sixteen who has been determined\nto have brought a weapon or firearm to school in violation of this\nsubdivision to a presentment agency for a juvenile delinquency\nproceeding consistent with article three of the family court act except\na student fourteen or fifteen years of age who qualifies for juvenile\noffender status under subdivision forty-two of section 1.20 of the\ncriminal procedure law. A superintendent shall refer any pupil sixteen\nyears of age or older or a student fourteen or fifteen years of age who\nqualifies for juvenile offender status under subdivision forty-two of\nsection 1.20 of the criminal procedure law, who has been determined to\nhave brought a weapon or firearm to school in violation of this\nsubdivision to the appropriate law enforcement officials.\n (2) Nothing in this paragraph shall be deemed to mandate such action\nby a school district pursuant to subdivision one of this section where\nsuch weapon or firearm is possessed or brought to school with the\nwritten authorization of such educational institution in a manner\nauthorized by article two hundred sixty-five of the penal law for\nactivities approved and authorized by the trustees or board of education\nor other governing body of the public school and such governing body\nadopts appropriate safeguards to ensure student safety.\n (3) As used in this paragraph:\n (i) "firearm" shall mean a firearm as defined in subsection a of\nsection nine hundred twenty-one of title eighteen of the United States\nCode; and\n (ii) "weapon" shall be as defined in paragraph 2 of subsection g of\nsection nine hundred thirty of title eighteen of the United States Code.\n e. Procedure after suspension. Where a pupil has been suspended\npursuant to this subdivision and said pupil is of compulsory attendance\nage, immediate steps shall be taken for his or her attendance upon\ninstruction elsewhere or for supervision or detention of said pupil\npursuant to the provisions of article seven of the family court act.\nWhere a pupil has been suspended for cause, the suspension may be\nrevoked by the board of education whenever it appears to be for the best\ninterest of the school and the pupil to do so. The board of education\nmay also condition a student's early return to school and suspension\nrevocation on the pupil's voluntary participation in counseling or\nspecialized classes, including anger management or dispute resolution,\nwhere applicable.\n f. Whenever the term "board of education or superintendent of schools"\nis used in this subdivision, it shall be deemed to include community\nboards of education and community superintendents governing community\ndistricts in accordance with the provisions of article fifty-two-A of\nthis chapter.\n * g. Discipline of students with disabilities and students presumed to\nhave a disability for discipline purposes. (1) Notwithstanding any other\nprovision of this subdivision to the contrary, a student with a\ndisability as such term is defined in section forty-four hundred one of\nthis chapter and a student presumed to have a disability for discipline\npurposes, may be suspended or removed from his or her current\neducational placement for violation of school rules only in accordance\nwith the procedures established in this section, the regulations of the\ncommissioner implementing this paragraph, and subsection (k) of section\nfourteen hundred fifteen of title twenty of the United States code and\nthe federal regulations implementing such statute, as such federal law\nand regulations are from time to time amended. Nothing in this paragraph\nshall be construed to confer greater rights on such students than are\nconferred under applicable federal law and regulations, or to limit the\nability of a school district to change the educational placement of a\nstudent with a disability in accordance with the procedures in article\neighty-nine of this chapter.\n (2) As used in this paragraph:\n (1) a "student presumed to have a disability for discipline purposes"\nshall mean a student who the school district is deemed to have knowledge\nwas a student with a disability before the behavior that precipitated\ndisciplinary action under the criteria in subsection (k) (5) of section\nfourteen hundred fifteen of title twenty of the United States code and\nthe federal regulations implementing such statute; and\n (ii) a "manifestation team" means a representative of the school\ndistrict, the parent or person in parental relation, and relevant\nmembers of the committee on special education, as determined by the\nparent or person in parental relation and the district.\n (3) In applying the federal law consistent with this section:\n (i) in the event of a conflict between the procedures established in\nthis section and those established in subsection (k) of section fourteen\nhundred fifteen of title twenty of the United States code and the\nfederal regulations implementing such statute, such federal statute and\nregulations shall govern.\n (ii) the trustees or board of education of any school district, a\ndistrict superintendent of schools or a building principal shall have\nauthority to order the placement of a student with a disability into an\nappropriate interim alternative educational setting, another setting or\nsuspension for a period not to exceed five consecutive school days where\nsuch student is suspended pursuant to this subdivision and, except as\notherwise provided in clause (vi) of this subparagraph, the suspension\ndoes not result in a change in placement under federal law.\n (iii) the superintendent of schools of a school district, either\ndirectly or upon recommendation of a hearing officer designated pursuant\nto paragraph c of this subdivision, may order the placement of a student\nwith a disability into an interim alternative educational setting,\nanother setting or suspension for up to ten consecutive school days,\ninclusive of any period in which the student is placed in an appropriate\ninterim alternative educational setting, another setting or suspension\npursuant to clause (ii) of this subparagraph for the behavior, where the\nsuperintendent determines in accordance with the procedures set forth in\nthis subdivision that the student has engaged in behavior that warrants\na suspension, and, except as otherwise provided in clause (vi) of this\nsubparagraph, the suspension does not result in a change in placement\nunder federal law.\n (iv) the superintendent of schools of a school district, either\ndirectly or upon recommendation of a hearing officer designated pursuant\nto paragraph c of this subdivision, may order the change in placement of\na student with a disability to an interim alternative educational\nsetting for up to forty-five school days under the circumstances\nspecified in subsection (k)(1)(G) of section fourteen hundred fifteen of\ntitle twenty of the United States code and the federal regulations\nimplementing such statute or a longer period where authorized by federal\nlaw under the circumstances specified in subsection (k)(1)(C) of section\nfourteen hundred fifteen of title twenty of the United States code and\nthe federal regulations implementing such statute, but in neither case\nshall such period exceed the period of suspension ordered by a\nsuperintendent in accordance with this subdivision.\n (v) the terms "day," "business day," and "school day" shall be as\ndefined in section 300.11 of title thirty-four of the code of federal\nregulations.\n (vi) notwithstanding any other provision of this subdivision to the\ncontrary, upon a determination by a manifestation team that the behavior\nof a student with a disability was not a manifestation of the student's\ndisability, such student may be disciplined pursuant to this section in\nthe same manner and for the same duration as a nondisabled student,\nexcept that such student shall continue to receive services to the\nextent required under federal law and regulations, and such services may\nbe provided in an interim alternative educational setting.\n (vii) an impartial hearing officer appointed pursuant to subdivision\none of section forty-four hundred four of this chapter may order a\nchange in placement of a student with a disability to an appropriate\ninterim alternative educational setting for not more than forty-five\nschool days under the circumstances specified in subsections (k)(3) and\n(k)(4) of section fourteen hundred fifteen of title twenty of the United\nStates code and the federal regulations implementing such statutes,\nprovided that such procedure may be repeated, as necessary.\n (viii) nothing in this section shall be construed to authorize the\nsuspension or removal of a student with a disability from his or her\ncurrent educational placement for violation of school rules following a\ndetermination by a manifestation team that the behavior is a\nmanifestation of the student's disability, except as authorized under\nfederal law and regulations.\n (ix) the commissioner shall implement this paragraph by adopting\nregulations which coordinate the procedures required for discipline of\nstudents with disabilities, and students presumed to have a disability\nfor discipline purposes, pursuant to subsection (k) of section fourteen\nhundred fifteen of title twenty of the United States code and the\nfederal regulations implementing such statute, with the general\nprocedures for student discipline under this section.\n * NB Effective until June 30, 2027\n * g. Discipline of students with disabilities and students presumed to\nhave a disability for discipline purposes. (1) Notwithstanding any other\nprovision of this subdivision to the contrary, a student with a\ndisability as such term is defined in section forty-four hundred one of\nthis chapter and a student presumed to have a disability for discipline\npurposes, may be suspended or removed from his or her current\neducational placement for violation of school rules only in accordance\nwith the procedures established in this section, the regulations of the\ncommissioner implementing this paragraph, and subsection (k) of section\nfourteen hundred fifteen of title twenty of the United States code and\nthe federal regulations implementing such statute, as such federal law\nand regulations are from time to time amended. Nothing in this paragraph\nshall be construed to confer greater rights on such students than are\nconferred under applicable federal law and regulations, or to limit the\nability of a school district to change the educational placement of a\nstudent with a disability in accordance with the procedures in article\neighty-nine of this chapter.\n (2) As used in this paragraph, a "student presumed to have a\ndisability for discipline purposes" shall mean a student who the school\ndistrict is deemed to have knowledge was a student with a disability\nbefore the behavior that precipitated disciplinary action under the\ncriteria in subsection (k)(8) of section fourteen hundred fifteen of\ntitle twenty of the United States code and the federal regulations\nimplementing such statute.\n (3) In applying the federal law consistent with this section:\n (i) in the event of a conflict between the procedures established in\nthis section and those established in subsection (k) of section fourteen\nhundred fifteen of title twenty of the United States code and the\nfederal regulations implementing such statute, such federal statute and\nregulations shall govern.\n (ii) the trustees or board of education of any school district, a\ndistrict superintendent of schools or a building principal shall have\nauthority to order the placement of a student with a disability into an\nappropriate interim alternative educational setting, another setting or\nsuspension for a period not to exceed five consecutive school days where\nsuch student is suspended pursuant to this subdivision and, except as\notherwise provided in clause (vi) of this subparagraph, the suspension\ndoes not result in a change in placement under federal law.\n (iii) the superintendent of schools of a school district, either\ndirectly or upon recommendation of a hearing officer designated pursuant\nto paragraph c of this subdivision, may order the placement of a student\nwith a disability into an interim alternative educational setting,\nanother setting or suspension for up to ten consecutive school days,\ninclusive of any period in which the student is placed in an appropriate\ninterim alternative educational placement, another setting or suspension\npursuant to clause (ii) of this subparagraph for the behavior, where the\nsuperintendent determines in accordance with the procedures set forth in\nthis subdivision that the student has engaged in behavior that warrants\na suspension, and, except as otherwise provided in clause (vi) of this\nsubparagraph, the suspension does not result in a change in placement\nunder federal law.\n (iv) the superintendent of schools of a school district, either\ndirectly or upon recommendation of a hearing officer designated pursuant\nto paragraph c of this subdivision, may order the change in placement of\na student with a disability to an interim alternative educational\nsetting for up to forty-five days, but not to exceed the period of\nsuspension ordered by a superintendent in accordance with this\nsubdivision, under the circumstances specified in subsection (k)(1) of\nsection fourteen hundred fifteen of title twenty of the United States\ncode and the federal regulations implementing such statute.\n (v) the terms "day," "business day," and "school day" shall be as\ndefined in section 300.9 of title thirty-four of the code of federal\nregulations.\n (vi) notwithstanding any other provision of this subdivision to the\ncontrary, upon a determination by the committee on special education\nthat the behavior of a student with a disability was not a manifestation\nof the student's disability, such student may be disciplined pursuant to\nthis section in the same manner as a nondisabled student, except that\nsuch student shall continue to receive services to the extent required\nunder federal law and regulations.\n (vii) an impartial hearing officer appointed pursuant to subdivision\none of section forty-four hundred four of this chapter may order a\nchange in placement of a student with a disability to an appropriate\ninterim alternative educational setting for not more than forty-five\ndays under the circumstances specified in subsections (k)(2) and (k)(7)\nof section fourteen hundred fifteen of title twenty of the United States\ncode and the federal regulations implementing such statutes, provided\nthat such procedure may be repeated, as necessary.\n (viii) nothing in this section shall be construed to authorize the\nsuspension or removal of a student with a disability from his or her\ncurrent educational placement for violation of school rules following a\ndetermination by the committee on special education that the behavior is\na manifestation of the student's disability, except as authorized under\nfederal law and regulations.\n (ix) the commissioner shall implement this paragraph by adopting\nregulations which coordinate the procedures required for discipline of\nstudents with disabilities, and students presumed to have a disability\nfor discipline purposes, pursuant to subsection (k) of section fourteen\nhundred fifteen of title twenty of the United States code and the\nfederal regulations implementing such statute, with the general\nprocedures for student discipline under this section.\n * NB Effective June 30, 2027\n 3-a. Teacher removal of a disruptive pupil. In addition, any teacher\nshall have the power and authority to remove a disruptive pupil, as\ndefined in subdivision two-a of this section, from such teacher's\nclassroom consistent with discipline measures contained in the code of\nconduct adopted by the board pursuant to section twenty-eight hundred\none of this chapter. The school authorities of any school district shall\nestablish policies and procedures to ensure the provision of continued\neducational programming and activities for students removed from the\nclassroom pursuant to this subdivision and provided further that nothing\nin this subdivision shall authorize the removal of a pupil in violation\nof any state or federal law or regulation. No pupil shall return to the\nclassroom until the principal makes a final determination pursuant to\nparagraph c of this subdivision, or the period of removal expires,\nwhichever is less.\n a. Such teacher shall inform the pupil and the school principal of the\nreasons for the removal. If the teacher finds that the pupil's continued\npresence in the classroom does not pose a continuing danger to persons\nor property and does not present an ongoing threat of disruption to the\nacademic process, the teacher shall, prior to removing the student from\nthe classroom, provide the student with an explanation of the basis for\nthe removal and allow the pupil to informally present the pupil's\nversion of relevant events. In all other cases, the teacher shall\nprovide the pupil with an explanation of the basis for the removal and\nan informal opportunity to be heard within twenty-four hours of the\npupil's removal, provided that if such twenty-four hour period does not\nend on a school day, it shall be extended to the corresponding time on\nthe next school day.\n b. The principal shall inform the person in parental relation to such\npupil of the removal and the reasons therefor within twenty-four hours\nof the pupil's removal, provided that if such twenty-four hour period\ndoes not end on a school day, it shall be extended to the corresponding\ntime on the next school day. The pupil and the person in parental\nrelation shall, upon request, be given an opportunity for an informal\nconference with the principal to discuss the reasons for the removal. If\nthe pupil denies the charges, the principal shall provide an explanation\nof the basis for the removal and allow the pupil and/or person in\nparental relation to the pupil an opportunity to present the pupil's\nversion of relevant events. Such informal hearing shall be held within\nforty-eight hours of the pupil's removal, provided that if such\nforty-eight hour period does not end on a school day, it shall be\nextended to the corresponding time on the second school day next\nfollowing the pupil's removal. For purposes of this subdivision, "school\nday" shall mean a school day as defined pursuant to clause (v) of\nsubparagraph three of paragraph g of subdivision three of this section.\n c. The principal shall not set aside the discipline imposed by the\nteacher unless the principal finds that the charges against the pupil\nare not supported by substantial evidence or that the pupil's removal is\notherwise in violation of law or that the conduct warrants suspension\nfrom school pursuant to this section and a suspension will be imposed.\nThe principal's determination made pursuant to this paragraph shall be\nmade by the close of business on the school day next succeeding the end\nof the forty-eight hour period for an informal hearing contained in\nparagraph b of this subdivision.\n d. The principal may, in his or her discretion, designate a school\ndistrict administrator, to carry out the functions required of the\nprincipal under this subdivision.\n 4. Expense. a. The expense attending the commitment and costs of\nmaintenance of any school delinquent shall be a charge against the city\nor district where he resides, if such city or district employs a\nsuperintendent of schools; otherwise it shall be a county charge.\n b. The school authorities may institute proceedings before a court\nhaving jurisdiction to determine the liability of a person in parental\nrelation to contribute towards the maintenance of a school delinquent\nunder sixteen years of age ordered to attend upon instruction under\nconfinement. If the court shall find the person in parental relation\nable to contribute towards the maintenance of such a minor, it may issue\nan order fixing the amount to be paid weekly.\n 5. Involuntary transfers of pupils who have not been determined to be\na student with a disability or a student presumed to have a disability\nfor discipline purposes.\n a. The board of education, board of trustees or sole trustee, the\nsuperintendent of schools, or district superintendent of schools may\ntransfer a pupil who has not been determined to be a student with a\ndisability as defined in section forty-four hundred one of this chapter,\nor a student presumed to have a disability for discipline purposes as\ndefined in paragraph g of subdivision three of this section from regular\nclassroom instruction to an appropriate educational setting in another\nschool upon the written recommendation of the school principal and\nfollowing independent review thereof. For purposes of this section of\nthe law, "involuntary transfer" does not include a transfer made by a\nschool district as part of a plan to reduce racial imbalance within the\nschools or as a change in school attendance zones or geographical\nboundaries.\n b. A school principal may initiate a non-requested transfer where it\nis believed that such a pupil would benefit from the transfer, or when\nthe pupil would receive an adequate and appropriate education in another\nschool program or facility.\n No recommendation for pupil transfer shall be initiated by the\nprincipal until such pupil and a person in parental relation has been\nsent written notification of the consideration of transfer\nrecommendation. Such notice shall set a time and place of an informal\nconference with the principal and shall inform such person in parental\nrelation and such pupil of their right to be accompanied by counsel or\nan individual of their choice.\n c. After the conference and if the principal concludes that the pupil\nwould benefit from a transfer or that the pupil would receive an\nadequate and appropriate education in another school program or\nfacility, the principal may issue a recommendation of transfer to the\nsuperintendent. Such recommendation shall include a description of\nbehavior and/or academic problems indicative of the need for transfer; a\ndescription of alternatives explored and prior action taken to resolve\nthe problem. A copy of that letter shall be sent to the person in\nparental relation and to the pupil.\n d. Upon receipt of the principal's recommendation for transfer and a\ndetermination to consider that recommendation, the superintendent shall\nnotify the person in parental relation and the pupil of the proposed\ntransfer and of their right to a fair hearing as provided in paragraph c\nof subdivision three of this section and shall list community agencies\nand free legal assistance which may be of assistance. The written notice\nshall include a statement that the pupil or person in parental relation\nhas ten days to request a hearing and that the proposed transfer shall\nnot take effect, except upon written parental consent, until the ten day\nperiod has elapsed, or, if a fair hearing is requested, until after a\nformal decision following the hearing is rendered, whichever is later.\n Parental consent to a transfer shall not constitute a waiver of the\nright to a fair hearing.\n 6. Transfer of a pupil. Where a suspended pupil is to be transferred\npursuant to subdivision five of this section, he or she shall remain on\nthe register of the original school for two school days following\ntransmittal of his or her records to the school to which he or she is to\nbe transferred. The receiving school shall immediately upon receiving\nthose records transmitted by the original school, review them to insure\nproper placement of the pupil. Staff members who are involved in the\npupil's education must be provided with pertinent records and\ninformation relating to the background and problems of the pupil before\nthe pupil is placed in a classroom.\n 7. Transfer of disciplinary records. Notwithstanding any other\nprovision of law to the contrary, each local educational agency, as such\nterm is defined in subsection thirty of section eighty-one hundred one\nof the Elementary and Secondary Education Act of 1965, as amended, shall\nestablish procedures in accordance with section eighty-five hundred\nthirty-seven of the Elementary and Secondary Education Act of 1965, as\namended, and the Family Educational Rights and Privacy Act of 1974, to\nfacilitate the transfer of disciplinary records relating to the\nsuspension or expulsion of a student to any public or nonpublic\nelementary or secondary school in which such student enrolls or seeks,\nintends or is instructed to enroll, on a full-time or part-time basis.\n