Avoiding Disciplinary Placement in the New York High School System

As a parent of a high school student, you have immense hope for the opportunities in front of them. Whether you may envisage them as a doctor, lawyer, or engineer after a period of university studies or starting their own business and becoming a successful entrepreneur, all of these begin with a rewarding high school experience and subsequent diploma.

Parents understand that part of adolescence is making mistakes and overcoming them. Honest, hard-working kids get caught in bad situations. Infractions that once might have merited a call home, like shoving another student or cursing, are increasingly common grounds for suspension and expulsion in schools with zero-tolerance disciplinary policies. Occasionally, schools blame students for misconduct they didn't commit, categorizing your child alongside perennial offenders and leaving them with unjust penalties and consequences that will affect them for the rest of their lives.

You don't want a misunderstanding or miscommunication to threaten your child's future, but it can in some New York school districts. Therefore, it's imperative that you know how school districts handle repeat misbehavior and how it can negatively affect your child and impair their future.

Avoiding Alternative Education Placement in New York

When your child is accused of misbehaving at their New York high school, punishments can be as minor as an extra class assignment or could be as severe as expulsion. Penalties should depend on the severity of the alleged misconduct, but that isn't always the case. Your child will be at the mercy of the school administration and disciplinary boards that seek to protect their—not your child's—reputation.

One option that New York school districts have at their disposal for students on whom they have levied recurring punishments is to send them to an alternative education program (AEP) for a length of time. While this is an inconspicuous solution to help misbehaved schoolchildren, the problem is that New York AEPs can lead to unjust, harsh punishments, branding your child as a dejected delinquent.

Some students excel in an AEP, and it gives them a good stepping stone toward remediation, but that is only a fraction of the cases. Placement in such a program can affect many other students very poorly, causing them to take on unhealthy habits and have an identity crisis. Moreover, individual New York AEPs may have their own problems, including an outdated curriculum, substandard instruction, lack of quality support services, and lousy student culture.

If your child faces a New York high school disciplinary proceeding, the risk of them being relegated to an AEP is real and significant. To help you navigate the New York high school disciplinary system and keep your child out of an AEP, call student defense attorney Joseph D. Lento and the Lento Law Firm at (888) 535-3686 or fill out the online consultation form. They have years of paramount experience and have successfully defended high school students in New York and nationwide.

Student Codes of Conduct for School Discipline in New York

New York high schools don't just discipline as they see fit. In 2000, the New York legislature adopted the Safe Schools Against Violence in Education (SAVE) law. Chapter 16, Title II, Article 55, Section 2801 of New York's Education Law details how each district must create a code of conduct governing student behavior and activities occurring on school property.

Your child's school's student code of conduct is your first line of defense against unjust school discipline. Your student defense attorney will obtain and review that code of conduct to ensure that your school adheres to it and doesn't impose sanctions beyond its reach. The code of conduct should list prohibited behavior for students and consequences for committing this behavior. Although each school and district may differ in its code of conduct, some common prohibited behaviors according to New York's Education Law include:

  • Student or teacher assault
  • Weapons at school
  • Bullying/cyberbullying
  • Drug, alcohol, and tobacco use
  • Theft
  • Vandalism
  • Computer misuse

In addition to prohibited behaviors, the code of conduct will list consequences for students who have committed these behaviors. Your student disciplinary defense attorney can use the student code of conduct to ensure that your child's school administration doesn't impose sanctions beyond the severity of the infractions and beyond the school's reach. Typically, consequences include:

Loss of privileges: Students lose classroom privileges or are removed from extracurricular activities.

Behavioral counseling: The school establishes regular communication between the student, their parents or guardians, and a school administrator to discuss misbehavior and set expectations in line with the school's code of conduct.

Detention: Students must remain after school, show up before school, or on a Saturday to complete their schoolwork.

Exclusion: Some school districts allow teachers to exclude a student from their class for misbehavior, and the student is reassigned to another teacher.

Community service: Students must complete a set number of hours of service work to either the school or community.

In-school suspension (ISS): Students are removed from their regular classrooms and sent to an ISS classroom to complete assignments for one or more days.

Out-of-school suspension (OSS): Students are barred from attending school for no more than ten days.

Removal to an interim alternative education setting (IAES): Students are temporarily assigned to an alternative education setting, usually lasting no longer than 45 days.

Expulsion: Students are prohibited from attending their normal school for a certain period of time. Depending on the student's age and the school district, expelled students are required to attend an AEP.

Emergency Removals in New York Schools

Schools are also allowed to conduct emergency removals from school in certain cases. In New York, schools may carry out an emergency AEP placement on “violent pupils.” Section 3214 of New York's Education Law deems violent pupils as students who:

  • Are elementary or secondary students under the age of 21
  • Commit acts of violence upon students, teachers, administrators, or other school employees on school property
  • Possess, brandish, or threaten to use a firearm, knife, explosive or incendiary bomb, or other dangerous instruments capable of causing physical injury or death
  • Knowingly and intentionally damage or destroy the personal property of a teacher, administrator, school district employee, or school district property

Hearing Process for Suspension and Expulsions in New York

Section 3214 of New York's Education Law states that a student who is “insubordinate or disorderly or violent or disruptive, or whose conduct otherwise endangers the safety, morals, health or welfare of others” can be suspended from school. Removal from school may not last more than five school days unless the student and student's parent or guardian have had an opportunity for a fair hearing.

Upon “reasonable notice,” a student will have the right to retain legal representation, question witnesses against the student, and present witnesses for testimony on their behalf. The superintendent will determine the manner of and preside over the hearing or designate a hearing officer to conduct the hearing. The hearing officer will maintain audio or written recordings of the hearing and make recommendations based on the allegations as to the appropriate measure of discipline for the superintendent.

The student and their attorney may appeal the disciplinary measures to the New York Board of Education, which will adopt in whole or in part the superintendent's decision.

If a student is between the ages of 6 and 16—or 6 to 17 in some school districts—the school must arrange alternative academic instruction during the suspension's full term. This may occur in school in a separate area or out of school—either off-site or at home. If the student is 17 or older, a school doesn't have to provide alternate academic instruction, although some schools will.

The Manifestation Determination Review in New York High Schools

A “change in placement” is when a school suspends a student for more than ten consecutive school days or 11 total days in the same school year for discipline related to a pattern of misbehaviors. The school administration will conduct a Manifestation Determination Review (MDR) when this occurs. The purpose of the MDR is to determine whether a student's disability caused the behavior that led to the suspension or if the behavior resulted from the school's failure to implement the student's Individualized Educational Plan (IEP).

Typically, the MDR is conducted after the superintendent's disciplinary determination and must happen within ten school days of the suspension, resulting in a disciplinary change in placement. The MDR team, consisting of school representatives with knowledge of the student, relevant members of the district's Committee on Special Education, and the student's parent or guardian, will consider all relevant information in the student's file to understand if there is a connection between misbehavior and a potential disability.

If the student has regular contact with behavioral counselors or other healthcare providers, it will be a good idea if they are present in the meeting.

Some disabilities include:

  • Autism
  • Emotional disabilities
  • Hearing impairment
  • Intellectual disabilities
  • Learning disabilities
  • Orthopedic disabilities
  • Speech or language impairment
  • Traumatic brain injuries
  • Visual impairment

According to New York's Office of Children and Family Services, students with disabilities can receive a suspension lasting fewer than ten days to the same extent as students who don't have a disability. If the school's MDR team decides that an incident or pattern of misbehavior was caused by a student's disability or an IEP not being implemented, the student has the right to return to school immediately. If the MDR team doesn't discover a disability, the suspension will continue. If the suspension is longer than ten school days, a superintendent may order a student to an IAES.

Challenging the MDR Process

A student or their parent or guardian may seek an expedited hearing if they don't agree with the MDR team's findings, procedures, or results thereof. The student and their parent or guardian can file a due process complaint, including the reasoning behind the disagreement and any supporting documentation.

The expedited process requires:

  • Convening a resolution session within seven calendar days of receiving the complaint
  • In-person hearing within 20 school days
  • Decision made by hearing officer within ten school days following the hearing

The student will remain in the IAES pending the outcome.

New York Students' Rights and Program Requirements

Students placed in IAES have rights. A student placed in the temporary program must:

  1. Continue to receive educational services to participate in the general education curriculum, aligned with New York State Education Department (NYSED) standards of mathematics, writing, social studies, reading, and science.
  2. The work or instruction can't be “busy work” or assignments below their academic progress or grade level.
  3. Academic counseling required before entrance into the program must continue throughout IAES.
  4. A student will receive, if necessary, a functional behavioral assessment or behavioral intervention services designed to address recurrent violations.
  5. Academic, personal, and career guidance counseling should be provided as needed during the program.

Other Alternative Education Programs for Disciplined New York Youth

New York's AEPs provide additional options for students at risk of dropping out of school to remain engaged in a learning environment that focuses on their particular skills, abilities, and learning styles. NYSED's Student Support Services (SSS) office is responsible for three alternative education programs: Alternative Transition Program (ATP), Alternative High School Equivalency Preparation Program (AHSEP), and Education of Incarcerated Youth Program (IY).

ATP: For high school-age students at risk of dropping out, this program provides at least 27.5 education hours per week to meet the full-