Wednesday, January 23, 2008

EXAMPLE 2: Firearms in Schools: Zero Tolerance & Suspensions

Again, Starting with a federal Statute

TITLE 20. EDUCATION
CHAPTER 70. STRENGTHENING AND IMPROVEMENT OF ELEMENTARY AND SECONDARY SCHOOLS
21ST CENTURY SCHOOLS
SAFE AND DRUG-FREE SCHOOLS AND COMMUNITIES
GUN POSSESSION
20 USCS § 7151


§ 7151. Gun-free requirements

(a) Short title. This subpart [this section] may be cited as the "Gun-Free Schools Act".

(b) Requirements.
(1) In general. Each State receiving Federal funds under any title of this Act [20 USCS §§ 6301 et seq.] shall have in effect a State law requiring local educational agencies to expel from school for a period of not less than 1 year a student who is determined to have brought a firearm to a school, or to have possessed a firearm at a school, under the jurisdiction of local educational agencies in that State, except that such State law shall allow the chief administering officer of a local educational agency to modify such expulsion requirement for a student on a case-by-case basis if such modification is in writing.
(2) Construction. Nothing in this subpart [this section] shall be construed to prevent a State from allowing a local educational agency that has expelled a student from such a student's regular school setting from providing educational services to such student in an alternative setting.
(3) Definition. For the purpose of this section, the term "firearm" has the same meaning given such term in section 921(a) of title 18, United States Code.

(c) Special rule. The provisions of this section shall be construed in a manner consistent with the Individuals with Disabilities Education Act [20 USCS §§ 1400 et seq.].

(d) Report to State. Each local educational agency requesting assistance from the State educational agency that is to be provided from funds made available to the State under any title of this Act [20 USCS §§ 6301 et seq.] shall provide to the State, in the application requesting such assistance--
(1) an assurance that such local educational agency is in compliance with the State law required by subsection (b); and
(2) a description of the circumstances surrounding any expulsions imposed under the State law required by subsection (b), including--
(A) the name of the school concerned;
(B) the number of students expelled from such school; and
(C) the type of firearms concerned.

(e) Reporting. Each State shall report the information described in subsection (d) to the Secretary on an annual basis.

(f) Definition. For the purpose of subsection (d), the term "school" means any setting that is under the control and supervision of the local educational agency for the purpose of student activities approved and authorized by the local educational agency.

(g) Exception. Nothing in this section shall apply to a firearm that is lawfully stored inside a locked vehicle on school property, or if it is for activities approved and authorized by the local educational agency and the local educational agency adopts appropriate safeguards to ensure student safety.

(h) Policy regarding criminal justice system referral.
(1) In general. No funds shall be made available under any title of this Act [20 USCS §§ 6301 et seq.] to any local educational agency unless such agency has a policy requiring referral to the criminal justice or juvenile delinquency system of any student who brings a firearm or weapon to a school served by such agency.
(2) Definition. For the purpose of this subsection, the term "school" has the same meaning given to such term by section 921(a) of title 18, United States Code.

Federal law becomes state law by mandate : NYS Education Law 3214

. [Until June 30, 2008]
(1) Consistent with the federal gun-free schools act, any public school pupil who is determined under this subdivision to have brought a firearm to or possessed a firearm at a public school shall be suspended for a period of not less than one calendar year and any nonpublic school pupil participating in a program operated by a public school district using funds from the elementary and secondary education act of nineteen hundred sixty-five who is determined under this subdivision to have brought a firearm to or possessed a firearm at a public school or other premises used by the school district to provide such programs shall be suspended for a period of not less than one calendar year from participation in such program. The procedures of this subdivision shall apply to such a suspension of a nonpublic school pupil. A superintendent of schools, district superintendent of schools or community superintendent shall have the authority to modify this suspension requirement for each student on a case-by-case basis. The determination of a superintendent shall be subject to review by the board of education pursuant to paragraph c of this subdivision and the commissioner pursuant to section three hundred ten of this chapter. Nothing in this subdivision shall be deemed to authorize the suspension of a student with a disability in violation of the individuals with disabilities education act or article eighty-nine of this chapter. A superintendent shall refer the pupil under the age of sixteen who has been determined to have brought a weapon or firearm to school in violation of this subdivision to a presentment agency for a juvenile delinquency proceeding consistent with article three of the family court act except a student fourteen or fifteen years of age who qualifies for juvenile offender status under subdivision forty-two of section 1.20 of the criminal procedure law. A superintendent shall refer any pupil sixteen years of age or older or a student fourteen or fifteen years of age who qualifies for juvenile offender status under subdivision forty-two of section 1.20 of the criminal procedure law, who has been determined to have brought a weapon or firearm to school in violation of this subdivision to the appropriate law enforcement officials.
(2) Nothing in this paragraph shall be deemed to mandate such action by a school district pursuant to subdivision one of this section where such weapon or firearm is possessed or brought to school with the written authorization of such educational institution in a manner authorized by article two hundred sixty-five of the penal law for activities approved and authorized by the trustees or board of education or other governing body of the public school and such governing body adopts appropriate safeguards to ensure student safety.
(3) As used in this paragraph:
(i) "firearm" shall mean a firearm as defined in subsection a of section nine hundred twenty-one of title eighteen of the United States Code; and
(ii) "weapon" shall be as defined in paragraph 2 of subsection g of section nine hundred thirty of title eighteen of the United States Code.

d. [Eff June 30, 2008] Consistent with the federal gun-free schools act of nineteen hundred ninety-four, any public school pupil who is determined under this subdivision to have brought a weapon to school shall be suspended for a period of not less than one calendar year and any nonpublic school pupil participating in a program operated by a public school district using funds from the elementary and secondary education act of nineteen hundred sixty-five who is determined under this subdivision to have brought a weapon to a public school or other premises used by the school district to provide such programs shall be suspended for a period of not less than one calendar year from participation in such program. The procedures of this subdivision shall apply to such a suspension of a nonpublic school pupil. A superintendent of schools, district superintendent of schools or community superintendent shall have the authority to modify this suspension requirement for each student on a case-by-case basis. The determination of a superintendent shall be subject to review by the board of education pursuant to paragraph c of this subdivision and the commissioner pursuant to section three hundred ten of this chapter. Nothing in this subdivision shall be deemed to authorize the suspension of a student with a disability in violation of the individuals with disabilities education act or article eighty-nine of this chapter. A superintendent shall refer the pupil under the age of sixteen who has been determined to have brought a weapon to school in violation of this subdivision to a presentment agency for a juvenile delinquency proceeding consistent with article three of the family court act except a student fourteen or fifteen years of age who qualifies for juvenile offender status under subdivision forty-two of section 1.20 of the criminal procedure law. A superintendent shall refer any pupil sixteen years of age or older or a student fourteen or fifteen years of age who qualifies for juvenile offender status under subdivision forty-two of section 1.20 of the criminal procedure law, who has been determined to have brought a weapon to school in violation of this subdivision to the appropriate law enforcement officials.

Appeals to the commissioner

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