THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234

 

TO:

EMSC-VESID Committee

FROM:

Jean C. Stevens

SUBJECT:

Proposed Amendment to the Regulations of the Commissioner Relating to the Uniform Violent and Disruptive Incident Reporting System

DATE:

June 8, 2006

STRATEGIC GOAL:

Goals 1 and 2

AUTHORIZATION(S):

 

 

SUMMARY

 

Issue for Decision

 

Should the Board of Regents approve the proposed amendment to section 100.2(gg) of the Regulations of the Commissioner relating to the uniform violent and disruptive incident reporting system?

 

Reason(s) for Consideration

 

Clarification of Commissioner’s Regulations and State statute.

 

Proposed Handling

 

This question will come before the Regents EMSC-VESID Committee for approval in June. 

 

Procedural History

 

The proposed amendment was discussed by the Committee at its November 2005 meeting and action in January was delayed because some revisions were made as a result of public comment received.  It was before the Regents in March for approval, but was taken off the agenda due to time constraints. 


 

Background Information

 

The proposed amendment is necessary to provide a ranking, standard for reporting, and more concise definition of reportable offenses as required by the uniform violent and disruptive incident reporting system for the reporting of incidents by school districts, BOCES, charter schools and county vocational education and extension boards, as required by Education Law section 2802, and thereby assure to the extent practicable that the reports are uniform and comparable throughout the State with respect to the type of incidents reported and the actions taken in response to such incidents.  The proposed amendment also establishes the use of a school violence index as a comparative measure of the level of school violence in a school.

 

A Notice of Proposed Rule Making was published in the State Register on November 9, 2005.  The proposed amendment was subsequently revised in response to public comment and a Notice of Revised Rule Making was published in the State Register on February 8, 2006.  Assessments of public comment with respect to both the original published rule and the revised rule making are attached.  A Notice of Continuation was published on April 19, 2006.

 

Recommendation

 

          VOTED:  That subdivision (gg) of section 100.2 of the Regulations of the Commissioner of Education be amended as submitted, effective July 13, 2006.

 

Timetable for Implementation

 

Upon adoption at the June Regents meeting, the proposed amendment will become effective on July 13, 2006.

 

 

 

Attachments

AMENDMENT TO THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

          Pursuant to sections 207 and 2802 of the Education Law and Chapter 402 of the Laws of 2005

Subdivision (gg) of section 100.2 of the Regulations of the Commissioner of Education is amended, effective July 13, 2006, as follows:

(gg)  Uniform violent or disruptive incident reporting system. School districts, boards of cooperative educational services, charter schools and county vocational education and extension boards shall submit to the commissioner annual reports of violent or disruptive incidents that occurred in the prior school year, commencing with the 2001-2002 school year, in accordance with Education Law section 2802 and this subdivision.

(1) Definitions: For the purposes of this subdivision:

(i) "School function" means a school-sponsored or school-authorized extracurricular event or activity, regardless of where such event or activity takes place, including any event or activity that may take place in another state. 

(ii)  "School property" shall mean in or within any building, structure, athletic playing field, playground, parking lot or land contained within the real property boundary line of a public elementary or secondary school; or in or on a school bus, as defined in section 142 of the Vehicle and Traffic Law; or at a school function.

(iii) "Physical injury" means impairment of physical condition or substantial pain.

(iv) "Serious physical injury" means physical injury which creates a substantial risk of death or which causes death or serious and protracted disfigurement or protracted impairment of health or protracted loss or impairment of the function of any bodily organ.

(v) "Weapon" means one or more of the following dangerous instruments:

(a) a firearm, including but not limited to a rifle, shotgun, pistol, handgun, silencer, electronic dart gun, stun gun, machine gun, airgun or spring gun;

(b) a switchblade knife, gravity knife, pilum  ballistic  knife,  cane sword,  dagger,  stiletto, dirk, razor, box cutter, metal knuckle knife, utility knife or other dangerous knife;

(c) a billy club, blackjack, bludgeon, chukka stick, or  metal  knuckles;

(d) a sandbag or sandclub;

(e) a sling shot or slungshot;

(f) a Martial arts instrument, including but not limited to a kung fu star, ninja star, nin chuck, or shirken;

(g) an explosive, including but not limited to a firecracker or  other fireworks;

(h) a  deadly  or  dangerous chemical, including but not limited to a strong acid or base, Mace, or pepper spray;

(i) an imitation gun;

(j) loaded or blank cartridges or other ammunition; or

(k) any other dangerous or deadly instrument possessed with intent to use the same unlawfully against another.

(vi) "Violent or disruptive incident" shall mean one of the following categories of incidents that occurs on school property of the school district, board of cooperative educational services, charter school or county vocational education and extension board, committed with or without a weapon (except in the case of weapons possession):

          [(a) Weapons possession.  Possession of one or more of the following dangerous instruments, except possession in a classroom or laboratory as part of an instructional program or in a school-related activity under the supervision of a teacher or other school personnel as authorized by school officials:

(1) a firearm, including but not limited to a rifle, shotgun, pistol, handgun, silencer, electronic dart gun, stun gun, machine gun, airgun or spring gun;

(2) a switchblade knife, gravity knife, pilum  ballistic  knife,  cane sword,  dagger,  stiletto, dirk, razor, box cutter, metal knuckle knife, utility knife or other dangerous knife;

(3) a billy club, blackjack, bludgeon, chukka stick, or  metal  knuckles;

(4) a sandbag or sandclub;

(5) a sling shot or slungshot;

(6) a Martial arts instrument, including but not limited to a kung fu star, ninja star, nin chuck, or shirken;

(7) an explosive, including but not limited to a firecracker or other fireworks;

(8) a deadly or dangerous chemical, including but not limited to a strong acid or base, Mace, or pepper spray;

(9) an imitation gun;

(10) loaded or blank cartridges or other ammunition; or

(11) any other deadly or dangerous instrument.]

[(b) Weapons use.  Unlawful use of a weapon, as defined in clause (a) of this subparagraph, on school property.

           (c)]  (a) Homicide. Any conduct which results in the death of another person.

(b) Sex offenses.  (1) Forcible sex offenses. Forcible sex offenses involving forcible compulsion.  Incidents involving forcible compulsion and completed or attempted sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact with or without a weapon, including, but not limited to, rape and sodomy.

(2) Other sex offenses. Other sex offenses involving inappropriate sexual contact but no forcible compulsion, including, but not limited to, conduct that may be consensual or involve a child who is incapable of consent by reason of disability or because he or she is under 17 years of age, provided that such term shall not include consensual sexual conduct involving only students, and/or non-students 18 years of age or under, unless at least one of the individuals participating in the conduct is at least 4 years older than the youngest individual participating in the conduct. 
          [(d) Personal injury and intimidation. Any of the following acts:]

[(1)] (c) Robbery.  Forcible stealing of property from a person by using or threatening the immediate use of physical force upon that person, with or without the use of a weapon.

(d) Assault involving serious physical injury.  [The intentional] Intentionally or recklessly causing [of] serious physical injury to another person, with or without a [dangerous] weapon ,in violation of the school district code of conduct [;].

[(2)] (e) Arson.  Deliberately starting a fire with intent to damage or destroy property.

(f) Kidnapping.  To abduct, as defined in section 135.00 of the Penal Law, a person, so as to restrain such person with intent to prevent his or her liberation, by either:

(1) secreting or holding him or her in a place where he or she is not likely to be found, or

(2) using or threatening to use deadly physical force.

          (g) Other assaults involving physical injury.  Intentionally or recklessly causing physical injury to another person, with or without a weapon, in violation of the school district code of conduct.

(h) Reckless endangerment. Subjecting individuals to danger by recklessly engaging in conduct that creates a grave risk of death or serious physical injury, but no actual physical injury.

          (i) [Criminal harassment] Minor altercations involving physical contact and no physical injury. [Intentionally striking]  Striking, shoving or kicking another person or subjecting another person to unwanted physical contact [, or threatening to do the foregoing; following a person in or about a public place; or otherwise engaging in a course of conduct which alarms] with intent to harass, alarm or seriously [annoys] annoy another person, but no physical injury results [; where such behavior, under the district's code of conduct, is of sufficient seriousness to warrant the suspension or removal of a student or the referral of a student to the juvenile justice system, or disciplinary action against or dismissal of a school employee, or notification of law enforcement of the commission of a crime;].

[(3)] (j) Intimidation, harassment, menacing or bullying behavior and no physical contact.  Threatening, stalking or seeking to coerce or compel a person to do something; intentionally placing or attempting to place another person in fear of imminent physical injury; or engaging in verbal or physical conduct that threatens another with harm, including intimidation through the use of epithets or slurs involving race, ethnicity, national origin, religion, religious practices, gender, sexual orientation, age or disability that substantially disrupts the educational process.

[(4) Menacing.  Intentionally placing or attempting to place another person in fear of imminent physical injury; or]

[(5) Reckless endangerment.  Subjecting individuals to danger by recklessly engaging in conduct which creates a substantial risk of physical injury.]

(k) Burglary.  Entering or remaining unlawfully on school property with intent to commit a crime.

          (l) Criminal mischief.  Intentional or reckless damaging of the property of the school or of another person, including  but  not  limited  to vandalism and the defacing of property with graffiti.

[(6) Kidnapping. To abduct a person, which is defined in section 135.00 of the Penal Law as to restrain a person with intent to prevent his liberation by either:

(i) secreting or holding him in a place where he is not likely to be found, or

(ii) using or threatening to use deadly  physical force.

(e) Sexual offenses.  Rape, sodomy, sexual abuse, or other inappropriate contact of a sexual nature.

(f) Use, possession or sale of drugs or alcohol.  Illegally using or possessing a controlled substance or marijuana or alcohol on school property, including having such substance on a person or in a locker or vehicle or other personal space; or selling or distributing a controlled substance or marijuana on school property; or finding a controlled substance, marijuana or alcohol on school property that is not in the possession of any  person; provided that nothing herein shall be construed to apply to the lawful administration of a prescription drug on school property.]

[(g)] (m) [Theft] Larceny and other theft offenses. [Wrongfully taking, depriving or withholding property from another, including but not limited to robbery or theft with force] Unlawful taking and carrying away of personal property with intent to deprive the rightful owner of property permanently or unlawfully withholding property from another.

[(h) Behavior risking injury.  Any of the following acts that create a risk of injury to students and/or school employees:]

[(1)] (n) Bomb threat.  A telephoned, written or electronic message that a bomb, explosive [or], chemical or biological weapon has been or will be placed on school property.

[(2)] (o) False alarm. Falsely activating a fire alarm or other disaster alarm.

[(3) Arson. Deliberately starting a fire with intent to destroy property.]

[(4)] (p) Riot.  Simultaneously with four or more persons engages in tumultuous and violent conduct and thereby intentionally or recklessly causes or creates a grave risk of physical injury or substantial property damage or causes public alarm.

[(i) Burglary.  Entering school property with intent to commit a crime.]

[(j) Criminal mischief.  Intentional or reckless damaging of the property of the school or of another person, including but not limited to vandalism and the defacing of property with graffiti.]

          (q) Weapons possession.  Possession of a weapon, except possession in a classroom or laboratory as part of an instructional program or in a school-related activity under the supervision of a teacher or other school personnel as authorized by school officials.

(r) Drug use, possession or sale.  Illegally using or possessing a controlled substance or marijuana, on school property, including having such substance on a person in a locker, vehicle, or other personal space; selling or distributing a controlled substance or marijuana, on school property; finding a controlled substance or marijuana, on school property that is not in the possession of any person; provided that nothing herein shall be construed to apply to the lawful administration of a prescription drug on school property.

(s) Alcohol use, possession or sale.  Illegally using or possessing alcohol on school property, including having such substance on a person or in a locker, vehicle, or other personal space; illegally selling or distributing alcohol on school property; finding alcohol on school property that is not in the possession of any person.

(t) Other disruptive incidents. Other incidents involving disruption of the educational process.

(2) Recording of offenses. (i) For purposes of reporting pursuant to this subdivision, each incident shall be reported once in the highest ranking category of offense that applies, except that incidents involving a weapon and one of the offenses listed in clauses (a) through (p) of subparagraph (vi) of paragraph (1) of this subdivision shall be reported in the highest ranking category of offense that applies as an offense committed with a weapon, and not in weapons possession; and incidents involving drug use, possession or sale and/or alcohol use, possession or sale and another offense shall be reported in the highest ranking category in clauses (a) through (q) of subparagraph (vi) of paragraph (1) of this subdivision that applies. If the offense involves only the use, possession or sale of drugs or alcohol, it shall be recorded in the applicable category of drug or alcohol use, possession or sale as an incident involving drug or alcohol use, possession or sale only. For purposes of determining the highest ranking offense pursuant to this subparagraph, offenses shall be ranked in the order that they appear in clauses (a) through (p) of subparagraph (vi) of paragraph (1) of this subdivision, followed by weapons possession, drug use, possession or sale and alcohol use, possession or sale, and other disruptive incidents.

          (ii) The offenses described in clauses (i), (k), (l), (m), (p) and (t) of subparagraph (vi) of paragraph (1) of this subdivision shall only be reported where such behavior, under the district's code of conduct, is of sufficient seriousness to warrant the suspension or removal of a student or the referral of a student to a counseling or treatment program or transfer of a student to an alternative education program, or the referral of a student to  the juvenile justice system, or disciplinary action against or dismissal of a school employee, or notification of law enforcement of the commission of a crime, whether or not the perpetrators are identified. All incidents involving bomb threats or false alarms as defined in clauses (n)  and (o) of subparagraph (vi) of paragraph (1) of this subdivision shall be reported. All incidents involving intimidation, harassment, menacing or bullying behavior as defined in clause (j) of subparagraph (vi) of paragraph (1) of this subdivision that are the subject of a written or oral complaint to the school principal or other school administrator responsible for school discipline, or are otherwise directly observed by such principal or administrator, shall be reported.  

 

          (3) Submission  of report. Each school district, board of cooperative educational services, charter school and county vocational education and extension board shall annually submit its report on violent or disruptive incidents, in the manner prescribed by the commissioner, on or before [September 30th, commencing with September 30, 2002] the basic educational data system (BEDS) reporting deadline or such other date as determined by the commissioner.

[(3)] (4) Content of report.  Each [annual] individual violent or disruptive incident report shall be in a form prescribed by the commissioner and shall contain the following information concerning each violent or disruptive incident that occurred in the prior school year:

(i) the number and types of offenders, identified as student, teacher, school safety officer, other school staff, student intruder, visitor, unknown or other;

(ii) if any offender is a student, the age and grade of the student;

(iii) the location at which the incident occurred, including:

(a) the school building in which the incident occurred or whose real property boundary line includes the athletic playing field, playground, parking lot or land on which the incident occurred, and whether the incident occurred in a classroom, laboratory, hall, staircase, gymnasium, locker room or pool, cafeteria, bathroom, auditorium, playground or athletic field or otherwise on school grounds; or

(b) where applicable, that the incident occurred on a school bus; or

(c) where applicable, that the incident occurred at a school function conducted off school grounds.

(iv) the types of incident, identified by category listed in clauses [(1)(iii) (a) to (l)]  (a) through (t) of subparagraph (vi) of paragraph (1) of this subdivision;

(v) whether the incident occurred during or outside of regular school hours;

(vi) where the incident involves a weapon, whether the  weapon was a firearm, knife or other weapon;

(vii) whether the incident was bias-related, drug-related, or gang or group-related;

(viii) the actions taken by the school in response to the incident, including when the incident was reported to police or other law enforcement officials and whether disciplinary action was taken against the offenders;

(ix) any student discipline or referral action taken against a student/offender, including but not limited to an out-of-school suspension, a teacher removal, an involuntary transfer to an alternative placement, an in-school suspension, a referral for community service, a referral for counseling, or a referral to the juvenile justice system or the criminal justice system, and the duration of such action; and

(x) the number and nature of the victims, identified as a student,  teacher, school safety officer, other school staff or other and the victim's age and grade where the victim is a student.

[(4)] (5)  Preparation of report.  Each annual violent or disruptive incident report shall be in a form prescribed by the commissioner and shall contain such information as the commissioner shall prescribe, including but not limited to information on the frequency and types of incidents, offenders, [actions taken by the school in response] victims and student discipline or referral actions taken, as is available on the date the annual report is submitted.

[(5)] (6) Local procedures.  The governing body of each school district, board of cooperative educational services, charter school and county vocational education and extension board shall establish local procedures for the reporting of violent or disruptive incidents by each building and/or program under its jurisdiction. Such procedures shall assure that copies of each violent or disruptive incident report at the building or program level are retained for period prescribed by the commissioner in the applicable records retention schedule, and are available for inspection by the department upon request; provided that a district or board that adopts an electronic reporting system may fulfill such requirement by retaining an electronic record of the information reported at the building or program level.

[(6)] (7) Confidentiality. Pursuant to subdivision 6 of section 2802 of the Education Law, all personally identifiable information included in a violent or disruptive incident report shall be confidential, and shall not be disclosed to any person for use by any person for purposes other than the purposes of section 2802 of the Education Law, except as otherwise authorized by law.

          (8) School violence index.  Each school year, commencing with the 2005-2006 school year, the department shall establish a school violence index as a comparative measure of the level of school violence in a school. The school violence index will be computed in accordance with a formula established by the commissioner that takes into account the enrollment of the school and is weighted to reflect the most serious violent incidents, which shall include but need not be limited to the following categories of incidents: homicide, forcible sexual offense, robbery, assault resulting in serious physical injury, arson, kidnapping, and incidents involving the possession, use or threatened use of a weapon.

         


PROPOSED AMENDMENT OF SECTION 100.2(gg) OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO SECTIONS 101, 207, 305, 2801 and 2802 OF THE EDUCATION LAW AND CHAPTER 402 OF THE LAWS OF 2005, RELATING TO THE UNIFORM VIOLENT INCIDENT REPORTING SYSTEM

ASSESSMENT OF PUBLIC COMMENT

Since publication of a Notice of Proposed Rule Making in the State Register on November 9, 2005 the State Education Department received the following comments:

COMMENT:  A recommendation was received to modify the requirement to report all incidents of intimidation, harassment, menacing or bullying by requiring only those incidents that have been investigated and substantiated as fact to be reported. If this is not possible, than at least require that only written and not oral complaints be reported.

DEPARTMENT RESPONSE:  The regulations were developed in consultation with executive and legislative staff and the Division of Criminal Justice Services and there was an intent to include all incidents of intimidation, harassment, menacing and bullying that are serious enough to result in a complaint to the principal’s office or the office of  another school administrator responsible for discipline in the school.  The purpose  of this requirement is to ensure that all complaints of intimidation, harassment, menacing and bullying are treated seriously and reported, not just those complaints that are determined by school officials to warrant an investigation and then are determined to be substantiated.  A high volume of complaints of bullying and harassment may indicate a problem with the school climate, even if school officials believe that some of the complaints are unsubstantiated.

COMMENT: There is a federal law making it a serious crime to have sex or sexually molest or abuse a person with a severe disability, irrespective of that person’s age, irrespective of the status of the person doing the abuse or molestation, etc.  I suggest that you change these regulations to reflect the federal law unless you wish to continue countenancing sexual abuse and molestation of severely disabled persons of any age under your jurisdiction.  I find it incredible that a SEA to not count “consensual” sexual abuse or molestation of a severely disabled person as a serious reportable crime pursuant to NCLB’s Unsafe School Choice provisions.

DEPARTMENT RESPONSE:  This commenter has misinterpreted the language of the proposed regulations.  The regulations do not countenance sexual abuse and molestation of severely disabled persons.  If a person is unable to consent to sexual contact due to a disability, the regulations require that the incident be reported, based on the nature of the incident, in either the forcible sex offenses category or the other sex offenses category.  The affirmative defense for a consensual sexual act based on the age of the offender would not apply to such an incident where the victim is incapable of consent by reason of disability.  In fact, the reference to an individual who cannot consent by reason of disability was included to accomplish precisely the opposite of what this commenter suggests--to ensure that sexual offenses against severely disabled individuals must be reported.  The Department will further address this issue in guidance.  The language that makes age an affirmative defense in the other sex offense category when the offender is less than 4 years older than the victim at the time of the offense was added to address concerns that the regulations should include such an affirmative defense in order to better align the regulations with the Penal Law.  Pursuant to Penal Law §§130.30 and 130.45, it is an affirmative defense to the crimes of rape in the 2nd degree and criminal sexual act in the 2nd degree that the defendant is less than 4 years older than the victim at the time of the act.  The language was also added so that consensual sexual contact between minors would not be a reportable offense.  This affirmative defense does not apply to the forcible sex offenses category.  

COMMENT: Why was in violation of the district's code of conduct added to two definitions?

DEPARTMENT RESPONSE:  The language "in violation of the school district's code of conduct" was added to the assaults involving serious injury and other assaults involving physical injury categories to ensure that school district officials do not report injuries involving reckless behavior that are sustained during activities such as gym classes or school  athletic events unless the conduct that causes the injuries violates the school district's code of conduct.  The regulations were developed in consultation with executive and legislative staff and the Division of Criminal Justice Services and the language was also added to address concerns about the potential for school districts to report incidents that the uniform violent or disruptive incident reporting  system was never designed to collect. 

COMMENT:  The regulations exclude reporting criteria for certain incidents (a) through (h) and (q), (r) and (s).  Language should be added that:

“The offenses described in clauses (a) through (h) of subparagraph (vi) of paragraph (1) of this subdivision should be reported whether or not the perpetrators are identified.”

“The offenses described in clauses (q), (r), and (s) of subparagraph (vi) of paragraph (1) of this subdivision involving the illegal possession or use of the specified items shall be reported.”

“The offenses described in clauses (r) and (s) of subparagraph (vi) of paragraph (1) of this subdivision involving the sale of the specified items shall be reported whether or not the perpetrators are identified.”

DEPARTMENT RESPONSE:  With respect to the request for additional language on each crime, while we agree that crimes need to be reported regardless of whether  an offender is identified, we do not believe that it is necessary to add language to the regulations and think that the suggested language would make the regulatory language more confusing.  It is the Department’s position that this issue can be effectively dealt with in guidance. 

We also believe that the suggested drug and alcohol language would be redundant and can be dealt with more effectively in guidance.

COMMENT:  The language in (2) (ii) “… or are otherwise directly observed by such principal or administrator, shall be reported.”  This language does not place responsibility on teachers or other school personnel to report crimes they observe.

DEPARTMENT RESPONSE:  The language on the reporting of harassment and bullying contemplates that teachers and other school staff may be the individuals filing a complaint with a school administrator.  Imposing a duty on teachers and other school staff would go beyond the intended scope of this rulemaking and the statutory authority under which the regulation is to be adopted.  Requiring reporting by all school employees could result in double counting of incidents, which  would be unworkable.  Incidents serious enough to be reported should be referred to the principal or other school administrator for discipline.  Incidents observed by the principal or other school administrator were included in the rule to assure that such incidents are not missed merely because the principal or other school administrator observed the incident rather than received a complaint for another individual about it.  It will be the responsibility of the building principal or other administrator to ensure that each incident is only reported once.

COMMENT:  Definitions.  To ensure consistency between school districts and to provide guidance to school districts with respect to the proper classification of a crime, we urge SED to add the following to the beginning of the proposed regulation:  "(1). Where conflict or confusion between this subdivision [i.e., proposed regulation] and the Penal Law exist, the Penal Law shall or case law shall control."

DEPARTMENT RESPONSE:  The uniform violent or disruptive incident reporting  (UVADIR) system is a school, not criminal justice, based system.  Part of the legislative intent underlying the UVADIR is to collect data on "disruptive" incidents that are not necessarily criminal offenses.  Thus, not surprisingly, pure Penal Law definitions have been shown to not work in this system.  Unlike in New York City, police officers do not report violent or disruptive incidents in the schools in the rest of the state.  In most schools, school administrators, who have little or no training in how to interpret and/or apply the Penal Law, report violent or disruptive incidents.  The Department initially referenced the Penal Law definitions in our original regulations and guidance and most of the field found these definitions confusing and unworkable.  Consequently, the Department, in consultation with the executive and legislative staff and the Division for Criminal Justice Services decided to deviate from Penal Law definitions to a certain extent in order to create definitions of offenses that were more applicable to a school setting and more comprehensible to and user friendly for school administrators.  Most school administrators have found these modified Penal Law definitions to be more understandable and easier to use than the pure Penal Law definitions.  It is the Department's position that pure Penal Law definitions will only work in this system if police officers are assigned to report all the violent or disruptive incidents in every school in this State.

COMMENT:  School Function.  In conformance with federally recognized crime reporting systems, only crimes that occur inside a jurisdiction are recorded in that jurisdiction's crime figures.  Accordingly, any crime that occurs in another location outside of NYC will not be recorded in NYC crime statistics.

DEPARTMENT COMMENT:  Pursuant to Chapter 402 of the Laws of 2005, the definition of a "school function" in Education Law §2801(1) was amended to read as follows: "a school function shall mean a school-sponsored or school-authorized extracurricular event or activity regardless of where such event or activity takes places, including any event or activity that takes place in another state."  The regulations' school function definition has been amended to conform with the aforementioned statutory amendment.  This school function definition only applies to the uniform violent or disruptive incident reporting system and is required by State law.

COMMENT:  Weapons.  a.  While the regulations include the Penal Law §265.01(1) per se weapons offense, they improperly expand the per se weapons category to include deadly or dangerous instruments for which an "intent to unlawfully use that item against another" is required for the item to be considered a weapon, as in Penal Law §265.01(2).

b.  The Regulation misses the critical component "with intent to use the same unlawfully against another," as in Penal Law §265.01(2).

DEPARTMENT RESPONSE:  The Department agrees that the regulation should be clarified to provide that "other deadly or dangerous instruments" should be reported only when possessed with an intent to use the item as a weapon, so that items such as nail files or pens or pencils that are not ordinarily considered weapons are only reported where there is an intent to use them as a weapon.  Accordingly, we have revised section 100.2(gg)(1)(v)((k) to read as follows: "any other dangerous or deadly instrument possessed with intent to use the same unlawfully against another."

COMMENT:  Weapons.  In order to account for non-per se penal law weapons, New York City suggests that the SED create a second category of "weapons" to be labeled "dangerous instruments" and to be tracked in the incident reporting system.  This category would include items whose possession violates municipal or local law, or school code of conduct.

DEPARTMENT RESPONSE:  The Department believes that the proposed change is unnecessary and detrimental because having two separate weapons categories would be confusing to school districts.  However, nothing prohibits school districts from collecting data on "dangerous instruments" if they so choose.

COMMENT:  Drug and Alcohol Offenses.  The regulation and implementing forms contemplate the reporting of alcohol possession.  This information is beyond the intent of the UVADIR.

DEPARTMENT RESPONSE:  Education Law §2802 requires the Commissioner to report to the Governor, Legislature and Board of Regents concerning the prevalence of both violent and disruptive incidents in public schools.  There is a federal requirement that the Department report incidents of alcohol possession and use in public schools. Rather than collect such data separately, the Department has included alcohol offenses in the UVADIR. The Department has also determined that alcohol possession is a disruptive incident for uniform violent or disruptive incident reporting purposes.

COMMENT: Sexual Offenses.  a.  The proposed amendment does not comport with the Penal Law.  Serious sex offenses should be Rape in the 1st degree, Criminal Sexual Act in the 1st Degree, Aggravated Sexual Assault in the 3rd, 2nd and 1st degrees and Sexual Abuse in the 1st degree.

b.  The proposed amendment does not comport with the Penal Law.  Other sex offenses shall be considered any other offense in the Penal Law, Article 130.

DEPARTMENT RESPONSE:  The uniform violent or disruptive incident reporting system is a school, not criminal justice, based system.  The Department initially referenced the Penal Law sex offenses definitions in guidance and most of the field found these definitions confusing and unworkable.  Unlike in New York City, in the rest of the State, most, if not all, of the uniform violent or disruptive incident reporting is done by school administrators, who have little or no training in interpreting and/or applying the Penal Law.  Consequently, the Department, in consultation with executive and legislative staff and the Division of Criminal Justice Services, decided to deviate from Penal Law sex offense definitions to a certain extent in order to create sex offense definitions that were more applicable to a school setting and more comprehensible to and user friendly for school administrators.  Most school administrators have found these sex offense definitions to be more understandable and easier to use than the pure Penal Law sex offense definitions.  It is the Department's position that pure Penal Law definitions will only work in this system, if police officers are assigned to report all the violent or disruptive incidents in every school in this State.  

The Department has also revised section 100.2(gg)(1)(vi)(b)(1) and 100.2(gg)(8) by replacing the term "serious sex offenses" with the term "forcible sex offenses."  However, the definition for this category of sex offenses has remained the same.  This category title change was made to address misperceptions that the Department does not consider all sex offenses to be serious offenses and to clarify the sex offenses reporting requirements for school districts.  The forcible sex offenses category is used to report specific incidents of sexual conduct that involve forcible compulsion.  The other sex offenses category is used to report all other sex offenses.  Based on the circumstances under which the sex offenses are committed, some of the sex offenses that are considered violent felony offenses, pursuant to Penal Law §70.02, will be reported in the forcible sex offenses category, while others will be reported in the other sex offenses category.  If any further clarification is needed regarding which of these two categories a Penal Law sex offense falls under, such clarification can be made more effectively in guidance. 

COMMENT:  Harassment, Menacing, or Bullying Behavior.  It is unclear why SED groups criminal and non-criminal behaviors together in the caption "Intimidation, Harassment, Menacing, or Bullying."  The terms "bullying and intimidation," which do not have Penal Law definitions, are subjective and unsuitable for a consistent reporting system.  The type of conduct usually associated with bullying can easily be described under other Penal Law charges if such behavior rises to the level of a crime.

DEPARTMENT RESPONSE:  Education Law §2802 requires the Commissioner to report to the Governor, Legislature and Board of Regents concerning the prevalence of both violent and disruptive incidents in public schools.  The regulations were developed in consultation with executive and legislative staff and the Division of Criminal Justice Services and there was an intent that all disruptive incidents that involve bullying and intimidation should be reported even if they do not constitute crimes under the Penal Law.

COMMENT:  Minor Assaults.  The term "assault" is a statutorily defined term in the Penal Law.  "Assault," as defined by the Legislature, requires physical injury or attempted physical injury.  Using the term "minor assault" in the proposed Regulation will be confusing and misleading because its usage here is inconsistent with the definition of assault in the Penal Law.  Moreover, the definition of "minor assault" in the proposed amendments is a mixture of the Penal Law offenses of harassment and assault.  We suggest that the phrase "minor altercation" be used instead, i.e., "minor altercation not involving physical injury."  

DEPARTMENT RESPONSE:  The Department agrees with the comment and has revised section 100.2(gg)(1)(i) by replacing the term "minor assaults involving physical contact and no physical injury" with the term "minor altercations involving physical contact and no physical injury."

COMMENT:  School Violence Index.  New York City tracks violent incidents on school grounds according to the following well-understood definition of violent crimes: murder, rape, robbery, assault (felony and misdemeanor), and sex offenses.  The proposed amendment should do the same.

DEPARTMENT RESPONSE:  The school violence index is intended to measure both potential and actual school violence problems.  The number of weapons possession incidents in a school has repeatedly been found to be a probative indicator of whether a school could have or has violence problems. 

COMMENT:  Submission of Report.  Even if SED were to accept all of the suggested changes herein the submission of a report in compliance with SED regulations will still require New York City to merge data from different agencies, which operate different data systems.  Accordingly, a September or BEDS day deadline does not allow the City sufficient time to approach the reporting requirements proposed in this amendment to the regulations.

DEPARTMENT RESPONSE:  Pursuant to Education Law §2802(3), all public school districts, boards of cooperative educational services and county vocational education and extension boards are required to report, on the same date, annually to the Commissioner information concerning violent and disruptive incidents that occurred in the prior school year.  Pursuant to Education Law §2802(5), by January 1st of each year, the Commissioner must report to the Governor, Legislature and the Board of Regents concerning the prevalence of violent and disruptive incidents in the public schools.  Thus, in order for the Department to meet its January 1st reporting deadline, it must set a date for the submission of local educational agencies' (LEAs) violent and disruptive incidents data that provides the Department with ample time to review and analyze the data and to draft the report to the Governor, Legislature and the Board of Regents.

COMMENT:  Weapons Scanning.  Many of the schools in New York City employ magnetometers and x-ray scanners to screen students and visitors prior to entry to school.  Through this process, weapons, as defined by this Regulation, and dangerous instruments, as defined by the City, are detected and confiscated before they enter these school buildings.  The inclusion of these incidents in a calculation of school violence penalizes these schools for their preventative actions and does not reflect the improvements in school safety that these methods bring out.

DEPARTMENT RESPONSE:  Pursuant to Education Law §§2801(1) and 2802(3)(f), LEAs are required to report all weapons incidents that occur on school property, including incidents involving the confiscation of weapons at school building doors as a result of scanning devices.  The regulations were developed in consultation with executive and legislative staff and the Division of Criminal Justice Services and the number of weapons possession incidents in a school has repeatedly been found to be a probative indicator of whether the school could have or has violence problems. 

In addition, the violent incident categories that are used for the designation of potentially persistently dangerous schools have been identified after consultation with executive branch, legislative, law enforcement and education staff.  The categories represent very serious offenses that threaten the safety and welfare of the student body.  Among the issues the Department is currently considering are the respective weightings of certain incidents, especially weapons that are discovered and confiscated as a result of scanning devices that have been purchased by school officials to keep students safe.  The issue of weapons confiscation has broader implications, as many schools do not have these devices.  The Department is reviewing 2003-04 data to determine the most appropriate response to this concern.  The fundamental question associated with this decision is how much of a threat is created by students who attempt to enter the school building with weapons.  The Department is considering amending the current weightings to provide the highest point totals to offenses where a person experiences bodily harm or serious psychological trauma. Incidents such as homicide, assault resulting in serious physical injury, serious sexual offenses, and kidnapping would be included in this category.  The second category would include offenses that seriously threaten the safety and welfare of the students.  Arson, robbery and all incidents that involve the use of a weapon are proposed to be included in this category.  Finally, weapons possession incidents only would be placed in the third category and weighted accordingly.  Thus, the Department believes that no further amendments are necessary at this time.

COMMENT:  Historically, Special Act School Districts have provided services to students who have needs beyond the continuum of services that local school districts are able to provide.  Most frequently, one of the primary reasons for referral to such a setting as ours is for behavior management purposes.  All but one Special Act School District serve students with violent behavior, conduct and behavioral disorders in their profiles.  We are by definition a resource network of facilities where these students are sent to address their behavior management issues.  Consequently, we recommend that consideration be give to the children we serve and the manner in which we currently report such data.

We believe that the collection and public reporting of such data represent an unfair picture of our mission and the population we serve.

We believe that if consideration is given to the needs of the children we serve and the nature of the mission of Special Act School Districts, a different mechanism should be developed to collect information about our progress with individual students.  The same yardstick that applies to regular school districts that serve a continuum of student[s] cannot be employed to measure the very places that the most violent youth are sent for treatment.

DEPARTMENT RESPONSE:  Special act school districts are created by special acts of the Legislature.  They are designated by the Legislature as public school districts.  Pursuant to Education Law §2802(3), the uniform violent incident reporting system requires public school districts to annually report to the Commissioner information concerning violent and disruptive incidents that occurred during the prior school year.  Thus, since special act school districts are public school districts, they are statutorily required to report violent and disruptive incidents under the uniform violent incident reporting system. 

 

 

PROPOSED AMENDMENT OF SECTION 100.2(gg) OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO SECTIONS 101, 207, 305, 2801 and 2802 OF THE EDUCATION LAW AND CHAPTER 402 OF THE LAWS OF 2005, RELATING TO THE UNIFORM VIOLENT INCIDENT REPORTING SYSTEM

ASSESSMENT OF PUBLIC COMMENT

Since publication of a Notice of Revised Rule Making in the State Register on February 8, 2006 the State Education Department (SED) received the following comments:

COMMENT: 

With respect to paragraph (2)(ii) of section 100.2(gg), the regulations exclude reporting criteria for certain incidents (a) through (h) and (q), (r) and (s).  The following language should be added to make it clear that these offenses must be reported whether or not the perpetrator is identified:

“The offenses described in clauses (a) through (h) of subparagraph (vi) of paragraph (1) of this subdivision should be reported whether or not the perpetrators are identified.”

“The offenses described in clauses (q), (r), and (s) of subparagraph (vi) of paragraph (1) of this subdivision involving the illegal possession or use of the specified items shall be reported whether or not the perpetrators are identified.”

“The offenses described in clauses (r) and (s) of subparagraph (vi) of paragraph (1) of this subdivision involving the sale of the specified items shall be reported whether or not the perpetrators are identified.”

Not including the language above might lead to an unintended legal interpretation at some point in the future.  Given that the proposed regulations specify reporting criteria for only certain offenses, it could be argued that its exclusion from other clauses was purposeful and the legislative intent was to limit the extent of reporting with respect to these other offenses. 

          In addition, concern was expressed with the clarity of the information that would be provided via guidance.  Because the goal is the accurate reporting of crimes whether or not a perpetrator is identified, the language must be clarified.

DEPARTMENT RESPONSE: 

With respect to the request for additional language on each crime, while we agree that crimes need to be reported regardless of whether  an offender is identified, we do not believe that it is necessary to add language to the regulations and think that the suggested language would make the regulatory language more confusing. 

It is the Department’s position that this issue can be effectively dealt with in guidance, and the Department has posted on its website a Questions and Answers  (Q&A) section addressing this issue, among others.  The Q& A section is intended to supplement the Directions for Completing the Summary of Violent and Disruptive Incidents form and the Glossary of Terms in Reporting Violent and Disruptive Incidents.  The website address is: http://www.emsc.nysed.gov/sss/SDFSCA/uvirpage.htm