Bullying and violence in our schools is finally getting the attention it deserves. Victims of bullying and violence in schools have options. One option may be to transfer to a different school. In New York State, pursuant to No Child Left Behind, when a student is the victim of a violent offense while in or on the grounds of a public school, the District must notify the parents or guardians of the student of their right to transfer their child to a safe public school within the district (Chapter 425 of the Laws of 2002). The Safe Schools Against Violence in Education Act (“SAVE”) requires all school districts to establish and maintain Codes of Conduct which include procedures for notifying law enforcement agencies about potential crimes. However, it must be noted that the safe public school choice option is not available where there are no safe public schools within the student’s district at the same grade level.
Policies regarding Safety transfers in New York City schools can be found in Chancellor’s Regulation A-449. Parents or guardians may ask for their child to be granted a safety transfer if:
The student is a victim of a violent criminal offense on school property pursuant to Every Student Succeeds Act (ESSA); or
There is a situation (including complaints of harassment, intimidation, or bullying) in which it is determined that a student’s continued presence in the school is unsafe for the student.
The second option is far more expansive in scope than the ESSA category of safety transfer. Both categories of Safety Transfers have very strict timelines associated with them.
ESSA Safety Transfers are coordinated by the Borough Director of Suspensions. The Executive Director of Borough Enrollment shall make the determination as to whether or not to grant non-ESSA safety transfers within 1 week of the required documentation being submitted by the Principal/Designee. There are two ways that non-ESSA safety transfer requests can be made. Schools may request a safety transfer by submitting documentation to the Family Welcome Center. Families may also request a safety transfer by going to the Family Welcome Center and submitting documentation themselves, such as a police report.
For a safety transfer to be considered, schools must fax to the Family Welcome Center: School Occurrence Report or other school documentation; Police report, Docket number, or court documentation if applicable; Safety Transfer Summary of Investigation Form; and Safety Transfer Intake Form. If the Executive Director of Borough Enrollment determines that a Safety Transfer will address the safety issue, (regardless of where the incident took place), the Safety Transfer will be approved and a new placement will be found by the Office of Student Enrollment. It is very important to remember that these safety transfers may be based on incidents that take place off school grounds. In all cases, the review and determination should take no more than 5 business days.
As I said earlier, under the No Child Left Behind Act (now ESSA), a student who is a victim of a violent criminal offense in or on school grounds must be notified that she has the right to transfer to a safe school. If the student requests a transfer, it must be granted if it is determined that the student has been the victim of a violent crime on the school’s grounds. A student may also request a non-ESSA safety transfer where she was not the victim of a violent criminal offense on school grounds. The request should be granted when it is determined that the student’s continued presence in the school is unsafe for the student.
Unfortunately, a little legalese is necessary here. A “violent criminal offense” is defined as a crime that involves the infliction of a “serious physical injury” (e.g. an injury that creates a substantial risk of death) upon another, a forcible sex offense, or other offense that involves the use or threatened use of a deadly weapon. The regulation goes into quite a lot of detail about “deadly weapons.” For instance, an unloaded gun would not qualify. But a “metal knuckle knife,” dagger, or a “pilum ballistic knife” would qualify as deadly weapons.
Should school personnel learn that a student may be a victim of a violent criminal offense, the Principal or her Designee must conduct a full investigation and contact the NYPD, the Emergency Information Center and the student’s parents immediately. Within one school day of being contacted, the NYPD must confirm whether they are investigating the allegation. The Principal must then notify the Borough Director of Suspensions within 24 hours of receiving the NYPD’s verbal confirmation. The Borough Director must determine if there is reason to believe the student was a victim of a violent criminal offense on school grounds within 24 hours of being informed by the Principal. If the Borough Director determines there is reason to believe the allegation, the student is entitled to a transfer. The Borough Director must then notify the parent(s) in writing of the right to transfer to another public school within 24 hours. The burden is on the DOE. If the parent does not respond within five days, the Borough Director must contact the parent. Parents should be aware that the DOE can’t just sent their child to any school they want. “To the extent possible,” the student should be transferred to a school that is “making adequate yearly progress” and has not been identified as being a school “in need of improvement.” The Borough Director must inform the parent of the transfer site within 10 calendar days of her original determination. Finally, the parent of the student may still elect to have the child remain in the original school.
As discussed earlier, it is possible to get a safety transfer even if your child was not attacked by someone with brass knuckles. If the student’s guardian has requested a safety transfer and it is determined that a student’s continued presence in the school is unsafe for the student, a transfer must occur. If it is a school-related safety incident, the Principal must conduct a full investigation, prepare an occurrence report, obtain statements from the parties and witnesses, and take appropriate disciplinary action. Within 48 hours of the parent’s request, the Principal or her Designee must make a recommendation as to whether she believes a safety transfer is warranted. Within one week of receiving the Principal’s recommendation, the Student Enrollment’s Executive Director of Borough Enrollment must determine and notify the parent in writing as to whether the safety transfer has been granted. When a safety transfer is granted, the sending school must provide the Executive Director with the student’s Individualized Education Program (“IEP”) or Section 504 Accommodation Plan, if applicable.
Parents of children with disabilities must be aware that the DOE is required to place their child in a school that can meet his or her individualized educational needs. If your child requires a 12:1:1 class and the DOE wants to place him in a school that does not have that type of class, tell the DOE that it is unacceptable.
Finally, there are anti-retaliation provisions associated with bullying and violence. I have seen instances where schools have reported parents to Child Protective Services after they had complained of their children being bullied.
If you have any specific questions, please contact me.
