Wednesday, March 6, 1996

1755 1 2 3 4 5 6 7 8 ALBANY, NEW YORK 9 March 6, 1996 10 11:05 a.m. 11 12 13 REGULAR SESSION 14 15 16 17 SENATOR JOHN R. KUHL, JR., Acting President 18 STEPHEN F. SLOAN, Secretary 19 20 21 22 23 1756 1 P R O C E E D I N G S 2 ACTING PRESIDENT KUHL: The 3 Senate will come to order. Ask the members who 4 are not in the chamber to come to the chamber. 5 Ask the other members to find their seats, the 6 staff to find their places and all the members, 7 the people in the chamber to rise and join me in 8 saying the Pledge of Allegiance to the Flag. 9 (The assemblage repeated the 10 Pledge of Allegiance to the Flag.) 11 We're very pleased to be joined 12 today by the Reverend Dr. Harold Lewis, who is 13 the rector of the St. Mark's Episcopal Church in 14 Brooklyn, New York. 15 Reverend Lewis. 16 REVEREND HAROLD LEWIS: Good 17 morning. 18 The words of a hymn composed by 19 Gilbert Chesterton early in this century sounds 20 as if the author was writing with today's 21 political climate in mind. He says, "O God of 22 earth and altar, bow down and hear our cry; our 23 earthly rulers falter; our people drift and 1757 1 die. The walls of gold entomb us; the swords of 2 scorn divide; take not our thunder from us, but 3 take away our pride. From all that terror 4 teaches; from lies of tongue and pen; from all 5 the easy speeches that comfort cruel men. From 6 sale and profanation of honor and the sword, 7 from sleep and from damnation, deliver us, good 8 Lord." 9 As we fast approach the third 10 millennium, we are ashamed that indices which 11 determine the standard of living in our great 12 nation whose walls are entombed with gold paint 13 a dismal picture indeed. 14 The infant mortality rate in New 15 York City rivals and even surpasses that of some 16 Third World nations. Homelessness and 17 joblessness and the pandemic of AIDS rear their 18 ugly heads as more and more of our people drift 19 and die, and as the momentum gathers in this 20 presidential election year, the lies of tongue 21 and pen are rife in a nation that once prided 22 itself on being a melting pot, although a more 23 politically correct metaphor today would be 1758 1 "salad bowl." In a nation whose prosperity is 2 directly attributable to the assiduous efforts 3 of immigrants, in a nation whose creed was 4 thought to be embodied in the words of Emma 5 Lazarus' poem, "Give me your tired, your poor, 6 your huddled masses yearning to breathe free," 7 candidates in easy speeches that comfort cruel 8 men nevertheless speak with xenophobic impunity 9 about our brothers and sisters from Latin 10 America, the Caribbean and elsewhere, who are 11 part and parcel of the American mosaic. 12 In a nation in which Martin 13 Luther King, Medgar Evers, Emmet Till and scores 14 of others known and unknown became modern day 15 martyrs in the cause of freedom, candidates, 16 even as we celebrated Black History Month, could 17 disparage African-Americans and treat them as if 18 they were interlopers on the American 19 landscape. 20 Our earthly rulers falter, 21 indeed, but our hymn writer offers hope. He 22 suggests a coalition of everyone committed to 23 uplift, and empowerment of everyone concerned 1759 1 about the common good. 2 He suggests that if we but allow 3 God to take away our pride, we can, indeed, be 4 awakened from the sleep of indifference and 5 apathy and deliver it from a damnation we will 6 suffer "from the sale and profanation" of our 7 honor. 8 He suggests that we can best 9 assault the ills that beset us if legislative 10 bodies such as yours, religious institutions and 11 others who are agents of change in our society 12 will join hands in a common purpose. He writes, 13 "Tie in a living tether, the prince and priest 14 enthrall; bind all our lives together; smite us 15 and save us all. In iron exaltation, aflame 16 with faith and free; lift up a living nation, a 17 single sword to Thee." Amen. 18 ACTING PRESIDENT KUHL: Reading 19 of the Journal. 20 THE SECRETARY: In Senate, 21 Tuesday, March 5th. The Senate met pursuant to 22 adjournment, Senator Kuhl in the Chair upon 23 designation of the Temporary President. The 1760 1 Journal of Monday, March 4th, was read and 2 approved. On motion, the Senate adjourned. 3 ACTING PRESIDENT KUHL: Hearing 4 no objection, the Journal stands approved as 5 read. 6 Presentation of petitions. 7 Messages from the Assembly. 8 Messages from the Governor. 9 Reports of standing committees. 10 Reports of select committees. 11 Communications and reports from 12 state officers. 13 Motions and resolutions. 14 The Chair recognizes Senator 15 Holland. 16 SENATOR HOLLAND: Mr. President, 17 on behalf of Senator Libous, please place a 18 sponsor's star on Calendar Number 348 and 364. 19 ACTING PRESIDENT KUHL: At the 20 request of the sponsor, Calendars number 348 and 21 364 are starred. 22 Senator Holland. 23 SENATOR HOLLAND: Also, on behalf 1761 1 of Senator Marchi, on page 12, I offer the 2 following amendments to Calendar Number 277, 3 Senate Print Number 546-A and ask that said bill 4 retain its place on the Third Reading Calendar. 5 ACTING PRESIDENT KUHL: The 6 amendments to Calendar Number 277 are received 7 and adopted. The bill will retain its place on 8 the Third Reading Calendar. 9 Senator Skelos, we have two 10 substitutions we can do at this time. 11 SENATOR SKELOS: Take the 12 substitutions. 13 ACTING PRESIDENT KUHL: The 14 Secretary will read the substitutions. 15 THE SECRETARY: On page 18, 16 Senator Johnson moves to discharge from the 17 Committee on Health, Assembly Bill Number 8603 18 and substitute it for the identical Calendar 19 Number 351. 20 On page 19, Senator Spano moves 21 to discharge from the Committee on Labor, 22 Assembly Bill Number 7679 and substitute it for 23 the identical Third Reading Calendar 358. 1762 1 ACTING PRESIDENT KUHL: Without 2 objection, the substitutions are ordered. 3 Senator Skelos, that brings us to 4 the calendar. 5 SENATOR SKELOS: Would you please 6 have the non-controversial calendar read. 7 ACTING PRESIDENT KUHL: The 8 Secretary will read the non-controversial 9 calendar. 10 THE SECRETARY: Calendar Number 11 123, by Senator Volker, Senate Print 2228-B, an 12 act to amend the Civil Practice Law and Rules, 13 in relation to the admissibility into evidence 14 of any writing, entry, print or representation 15 recorded by any process. 16 ACTING PRESIDENT KUHL: There's a 17 local fiscal impact note at the desk. The 18 Secretary will read the last section. 19 THE SECRETARY: Section 2. This 20 act shall take effect on the first day of 21 November. 22 ACTING PRESIDENT KUHL: Call the 23 roll. 1763 1 (The Secretary called the roll.) 2 THE SECRETARY: Ayes 36. 3 ACTING PRESIDENT KUHL: The bill 4 is passed. 5 THE SECRETARY: Calendar Number 6 226, by Senator Leibell, Senate Print 5928-A, an 7 act to amend the Real Property Tax Law, in 8 relation to local tax exemption for certain 9 non-profit housing accommodations. 10 ACTING PRESIDENT KUHL: The 11 Secretary will read the last section. 12 THE SECRETARY: Section 2. This 13 act shall take effect immediately. 14 ACTING PRESIDENT KUHL: Call the 15 roll. 16 (The Secretary called the roll.) 17 THE SECRETARY: Ayes 38. 18 ACTING PRESIDENT KUHL: The bill 19 is passed. 20 THE SECRETARY: Calendar Number 21 268, by Senator Levy, Senate Print 328-B, an act 22 to amend the Public Authorities Law and the 23 Railroad Law, in relation to operating a self 1764 1 propelled rail passenger car or locomotive while 2 under the influence of alcohol or drugs. 3 ACTING PRESIDENT KUHL: The 4 Secretary will read the last section. 5 THE SECRETARY: Section 5. This 6 act shall take effect on the first day of 7 November. 8 ACTING PRESIDENT KUHL: Call the 9 roll. 10 (The Secretary called the roll.) 11 THE SECRETARY: Ayes 38. 12 ACTING PRESIDENT KUHL: The bill 13 is passed. 14 THE SECRETARY: Calendar Number 15 284, by Senator Lack, Senate Print 4615, an act 16 to amend the Surrogate's Court Procedure Act, in 17 relation to the requirement of filing a bond 18 before preliminary letters testamentary are 19 issued. 20 ACTING PRESIDENT KUHL: The 21 Secretary will read the last section. 22 THE SECRETARY: Section 2. This 23 act shall take effect immediately. 1765 1 ACTING PRESIDENT KUHL: Call the 2 roll. 3 (The Secretary called the roll.) 4 THE SECRETARY: Ayes 39. 5 ACTING PRESIDENT KUHL: The bill 6 is passed. 7 THE SECRETARY: Calendar Number 8 303, by Senator Levy, Senate Print 2883, an act 9 to amend the Vehicle and Traffic Law, in 10 relation to increasing penalties for leaving the 11 scene of an accident without reporting. 12 ACTING PRESIDENT KUHL: The 13 Secretary will read the last section. 14 THE SECRETARY: Section 2. This 15 act shall take effect on the first day of 16 November. 17 ACTING PRESIDENT KUHL: Call the 18 roll. 19 (The Secretary called the roll.) 20 THE SECRETARY: Ayes 39. 21 ACTING PRESIDENT KUHL: The bill 22 is passed. 23 THE SECRETARY: Calendar Number 1766 1 307, by Senator Levy, Senate Print 5976-A, an 2 act to amend the Transportation Law, in relation 3 to establishing a demonstration program to 4 impose fines for failing to obey work zone speed 5 limits. 6 ACTING PRESIDENT KUHL: The 7 Secretary will read the last section. 8 THE SECRETARY: Section 3. This 9 act shall take effect in 30 days, after which it 10 shall have become law. 11 ACTING PRESIDENT KUHL: Call the 12 roll. 13 (The Secretary called the roll.) 14 THE SECRETARY: Ayes 39. 15 ACTING PRESIDENT KUHL: The bill 16 is passed. 17 THE SECRETARY: Calendar Number 18 309, by Senator Present, Senate Print 1929, an 19 act to amend the State Administrative Procedure 20 Act, in relation to adjudicatory proceedings. 21 ACTING PRESIDENT KUHL: The 22 Secretary will read the last section. 23 THE SECRETARY: Section 6. This 1767 1 act shall take effect on the 180th day. 2 ACTING PRESIDENT KUHL: Call the 3 roll. 4 (The Secretary called the roll.) 5 THE SECRETARY: Ayes 39. 6 ACTING PRESIDENT KUHL: The bill 7 is passed. 8 THE SECRETARY: Calendar Number 9 310, by Senator Present, Senate Print 1930, an 10 act to amend the State Administrative Procedure 11 Act and the Executive Law, in relation to 12 compliance requirements. 13 ACTING PRESIDENT KUHL: The 14 Secretary will read the last section. 15 THE SECRETARY: Section 7. This 16 act shall take effect on the first day of 17 October. 18 ACTING PRESIDENT KUHL: Call the 19 roll. 20 (The Secretary called the roll.) 21 THE SECRETARY: Ayes 40. 22 ACTING PRESIDENT KUHL: The bill 23 is passed. 1768 1 THE SECRETARY: Calendar Number 2 316, by Senator Sears, Senate Print 1321, an act 3 to amend the Penal Law, in relation to 4 unauthorized use of an emergency vehicle. 5 ACTING PRESIDENT KUHL: The 6 Secretary will read the last section. 7 THE SECRETARY: Section 2. This 8 act shall take effect on the first day of 9 November. 10 ACTING PRESIDENT KUHL: Call the 11 roll. 12 (The Secretary called the roll.) 13 THE SECRETARY: Ayes 40. 14 ACTING PRESIDENT KUHL: The bill 15 is passed. 16 THE SECRETARY: Calendar Number 17 327, by Senator Volker, Senate Print 3494, an 18 act to amend the Criminal Procedure Law, the 19 Family Court Act and the Penal Law, in relation 20 to crimes involving firearms committed on school 21 grounds. 22 ACTING PRESIDENT KUHL: The 23 Secretary will read the last section. 1769 1 THE SECRETARY: Section 11. This 2 act shall take effect on the first day of 3 November. 4 ACTING PRESIDENT KUHL: Call the 5 roll. 6 (The Secretary called the roll.) 7 THE SECRETARY: Ayes 43. 8 ACTING PRESIDENT KUHL: The bill 9 is passed. 10 THE SECRETARY: Calendar Number 11 360, by Senator Cook, Senate Print 762-B - 12 SENATOR GOLD: Lay it aside. 13 ACTING PRESIDENT KUHL: Lay the 14 bill aside. 15 THE SECRETARY: Calendar Number 16 365, by the Senate Committee on Rules, Senate 17 Print 5157, an act to amend the Education Law, 18 in relation to prompt initiation of disciplinary 19 action. 20 SENATOR GOLD: Lay it aside. 21 ACTING PRESIDENT KUHL: Lay the 22 bill aside. 23 THE SECRETARY: Calendar Number 1770 1 366, by the Senate Committee on Rules, Senate 2 Print 5160, an act to amend the Education Law, 3 in relation to the protection - 4 SENATOR SKELOS: Lay it aside for 5 the day. 6 ACTING PRESIDENT KUHL: Lay the 7 bill aside for the day. 8 THE SECRETARY: Calendar Number 9 368, by Senator Levy, Senate Print 1410, an act 10 to amend the Penal Law, in relation to the 11 offense of assault in the second degree in 12 certain instances. 13 SENATOR LEICHTER: Lay it aside. 14 ACTING PRESIDENT KUHL: Lay the 15 bill aside. 16 THE SECRETARY: Calendar Number 17 369, by the Senate Committee on Rules, Senate 18 Print 5162, an act to amend the Penal Law, in 19 relation to harassment of teachers and school 20 personnel. 21 SENATOR LEICHTER: Lay it aside. 22 ACTING PRESIDENT KUHL: Lay the 23 bill aside. 1771 1 Senator Skelos, that completes 2 the non-controversial calendar. 3 SENATOR SKELOS: Mr. President, 4 would you please take up the controversial 5 calendar. 6 ACTING PRESIDENT KUHL: The 7 Secretary will call the controversial calendar, 8 beginning with Calendar Number 360. 9 THE SECRETARY: Calendar Number 10 360, by Senator Cook, Senate Print 762-B, an act 11 to amend the Education Law and the Family Court 12 Act, in relation to reducing school violence and 13 to enact the School Safety and Educational 14 Enhancement Act. 15 ACTING PRESIDENT KUHL: Senator 16 Paterson. 17 SENATOR PATERSON: Explanation. 18 ACTING PRESIDENT KUHL: Senator 19 Cook, an explanation of Calendar Number 360 has 20 been asked for by the Acting Minority Leader, 21 Senator Paterson. 22 SENATOR COOK: Mr. President, the 23 issue of school violence is many-faceted, and 1772 1 there are several bills on this calendar which 2 try to deal with that issue in various ways. 3 The problem is very complicated, 4 and this particular bill tries to deal with it 5 comprehensively. The first, of course, is to 6 protect people from actual physical danger. 7 Attacks by students upon other students and upon 8 teachers, unfortunately, is something we're 9 seeing more of. I think Senator Volker's bills 10 really deal with that -- that particular problem 11 in more depth than this particular bill, but it 12 is a concern that we have and that this bill 13 does address. 14 The second concern, of course, is 15 the -- we're all concerned about trying to 16 improve the standards of performance of students 17 in the school, and one of the reasons why it's 18 so difficult to improve educational performance 19 is - 20 SENATOR GOLD: Mr. President. 21 ACTING PRESIDENT KUHL: Senator 22 Gold, why do you rise? 23 SENATOR GOLD: I don't want to be 1773 1 impolite, Senator Cook, but, Senator Cook, in 2 talking to a number of people over here, this 3 bill and apparently some of the others went 4 directly to third, and today's the first time on 5 it. These are serious measures, particularly 6 when they come from you because you're serious 7 about the subject, and the question is whether 8 or not, in all fairness to the issue, it might 9 not be better to lay these bills over a day or 10 at least perhaps give us some time to conference 11 them. I mean, it's a serious matter. 12 SENATOR COOK: Mr. President. 13 ACTING PRESIDENT KUHL: Senator 14 Cook. 15 SENATOR COOK: Mr. President, 16 this bill -- these bills, even though they've 17 only been on the calendar for one day, are 18 hardly new to anyone. They've been in print for 19 over a year. They've been on the agenda of the 20 Education Committee, so that there certainly was 21 fair warning that they were going to be reported 22 out. 23 We're considering the issue as to 1774 1 whether we need to move with them. I think the 2 Majority Leader's concern is that we try to deal 3 with some of the larger, more time-consuming 4 issues early in the session so that we don't get 5 the kind of logjam that sometimes occurs at a 6 later point, and why we're waiting for a 7 judgment on his part is I don't know what he may 8 have on the agenda to do next week, and I don't 9 want to put a bill which I assume is going to 10 take some time onto a calendar that may have 11 other bills that are going to be lengthy as 12 well. 13 So if we can stand at ease for 14 just a moment, we'll try to get a reading as to 15 what his plans are next week. If they don't - 16 if we aren't going to create a logjam, then I 17 don't have a particular problem with it. 18 ACTING PRESIDENT KUHL: Senator 19 Paterson, why do you rise? 20 SENATOR PATERSON: Mr. President, 21 I'm -- I understand the concern that the 22 Majority has for bills moving through here in a 23 reasonable period of time and I do understand 1775 1 that these bills were in print, but we have 2 about 1500 bills that we haven't acted on that 3 were in print and these bills went directly to 4 third reading by unanimous consent yesterday, so 5 we're trying to show our cooperation. 6 All we are saying is that if 7 there is a desire not to put these bill over for 8 a day, until next Monday, then why don't we just 9 have a brief recess so we can conference the 10 bills? There are some serious issues, as 11 Senator Gold pointed out, that are being 12 resolved in this bill, such as the suspension of 13 students, how do the students get back into 14 school, what are the costs, but I don't want to 15 ask any questions that the answers may actually 16 exist just through further perusal of the bill. 17 So I would just -- in recognition 18 of what Senator Cook says, I would just appeal 19 again that we at least be given the time to 20 conference these bills, and I would suggest that 21 if the time to make this decision is any longer, 22 that would exceed the time it would have taken 23 to have conferenced the bill. 1776 1 SENATOR COOK: Mr. President. 2 ACTING PRESIDENT KUHL: Senator 3 Cook. 4 SENATOR COOK: Mr. President, if 5 Senator Paterson, Senator Connor, some of them 6 would like to request of the Majority Leader an 7 opportunity for the Minority to have a 8 conference, I think that would be appropriate 9 for them to make that request directly to the 10 leader. 11 Frankly, as I indicated, this - 12 at least the bill that's particularly in front 13 of us right now has been around for three years, 14 so it's not a brand new issue. It also is 15 something that all of us ought to be pretty 16 cognizant of because it's a problem that is 17 endemic at the present time to almost every 18 place in our educational system. 19 So I'm not sure that the issues 20 we're going to discuss are brand new to anybody, 21 even though the specific order in which they may 22 appear in this particular bill might be -- might 23 be novel to some folks who haven't done their 1777 1 homework, but if -- I think that in the absence 2 of the Minority requesting a -- an opportunity 3 for a conference, if that's what they're doing, 4 that we need to proceed with the bills because, 5 as I understand, we do have some pressing 6 business for next week and that we need to 7 proceed with the bills that are on the calendar. 8 ACTING PRESIDENT KUHL: Senator 9 Cook, had you finished your explanation to the 10 request from Senator Paterson? I assume you 11 had. 12 Senator Paterson, you have the 13 floor. 14 SENATOR PATERSON: Well, Mr. 15 President, I really tried to be nice, but I'm 16 going to yield to Senator Gold. 17 SENATOR GOLD: That'll teach you. 18 ACTING PRESIDENT KUHL: The Chair 19 recognizes Senator Gold. 20 SENATOR GOLD: First of all, I 21 thought -- maybe I'm wrong, but I thought 22 Senator Cook indicated we were just going to be 23 in recess for a moment until some decision was 1778 1 made. Has a decision been made? Oh, it's been 2 made. 3 Well, Senator Cook, what I don't 4 understand, to tell you the truth, is yesterday 5 there was a bill out, I think by Senator 6 LaValle, and I was going to vote no and I 7 didn't. I figured, What the heck, but that bill 8 said we should put off the decision on Regents 9 until later in the year because in the beginning 10 of the year, we're so overwhelmed with the 11 budget that we can't handle other things. 12 Well, I think that's the wrong 13 philosophy. I think we ought to be handling 14 things, but I think it's interesting that your 15 comment is a direct contradiction to the bill we 16 had yesterday, because you're saying, "Well, 17 we've got to handle things," and it seems to me 18 it would have been more sensible to handle a 19 Regents, which is real, than bills which may not 20 have support in both houses, but just so I 21 understand, Mr. President, we are moving forward 22 with the bills, Senator Cook? 23 SENATOR COOK: Mr. President, 1779 1 it's my request that we continue with the 2 calendar as it's printed. 3 SENATOR GOLD: Mr. President. 4 ACTING PRESIDENT KUHL: Senator 5 Gold. 6 SENATOR GOLD: It's a complicated 7 bill, and I appreciate that Senator Cook wants 8 to go forward with it, so he has that right, but 9 I understand that Senator Mendez, who is the 10 Chair of our conference, is calling an immediate 11 conference of the Democrats, and since I feel 12 very comfortable about what I want to ask about 13 the bill, perhaps Senator Stachowski and I will 14 remain out here and ask some basic questions on 15 the bill and the rest of the members can yield 16 to Senator Mendez' request and go immediately to 17 the conference room. 18 SENATOR MENDEZ: Yes. There will 19 be -- Mr. President, there will be an immediate 20 conference of the Minority in Room - 21 ACTING PRESIDENT KUHL: Thank you 22 for suffering the interruption, Senator Gold. 23 Senator Mendez has called an 1780 1 immediate meeting of the Minority Conference in 2 the Minority Conference Room, Room 313. 3 Immediate meeting of the Minority Conference in 4 the Minority Conference Room. 5 Senator Gold, you continue to 6 have the floor - 7 SENATOR GOLD: Thank you. 8 ACTING PRESIDENT KUHL: -- on the 9 debate. 10 SENATOR GOLD: Thank you very 11 much, Mr. President, and I will assure the Chair 12 that I will try to stick to the point. 13 This is Calendar Number 360, I 14 believe. Is that correct, Mr. President? 15 ACTING PRESIDENT KUHL: That's 16 correct -- that's correct, Senator Gold. We're 17 on debate on Calendar Number 360. 18 SENATOR GOLD: Well, Mr. 19 President, while I -- I must say that this bill, 20 Calendar Number 360 which, as Senator Cook 21 pointed out, was introduced on January 18th, 22 1995, requires I believe a very serious 23 consideration because, to stay very germane to 1781 1 this bill, when it's introduced by not only 2 Senator Cook but by Senator Bruno who you may 3 remember is the President Pro Tem, and Senator 4 DeFrancisco who, with great distinction, sits in 5 the chair once occupied by Senator Lombardi - 6 it's interesting, Senator DeFrancisco. When 7 somebody buys a house, they always refer to it 8 as the -- for example, the Cook house, the 9 people who once owned it. Now you own it. If 10 your name is Smith, it never seems to become the 11 Smith house until after you move out of it, and 12 then somebody says, "Oh, they bought the Smith 13 house." 14 But now I would recognize that 15 Senator DeFrancisco has been around awhile, 16 doing a wonderful job and I guess it's your seat 17 at this point, but these very distinguished men 18 are joined by our colleague from Brooklyn, 19 Senator DiCarlo, and Senator Farley. 20 So, as you can see right away, we 21 are developing some geographic support for the 22 bill, and as if that wasn't enough, Senator 23 Hannon, all the way from Long Island, has also 1782 1 agreed to sponsor this bill along with Senator 2 Hoblock, right from here in this very, very 3 Capital District. So, as you can see, the 4 sponsorship is such that I would have to take it 5 seriously, but if I didn't respect all of the 6 gentlemen I have already mentioned -- if I skip 7 down one line, I see Senator Marchi, and when 8 his name is on a bill, everybody listens. 9 So this bill which is before us, 10 I gather, is very important because it amends 11 Article 55 of the Education Law, which I think 12 is important to do because this particular bill 13 starts out by repealing the old 55, and if we 14 repeal the old 55 Senator Cook, I assume, is 15 suggesting that we ought to have a new 55. 16 Well, that makes sense. That makes sense, and 17 the name that we give this, Senator Bruno, is 18 the code of conduct on school district property. 19 SENATOR BRUNO: Thank you, 20 Senator. 21 SENATOR GOLD: That's a heck of a 22 name, a heck of a name. Code of conduct on 23 school district property, and it says "The Board 1783 1 of Education, as defined in Section 2 of this 2 chapter, of every school district within the 3 state of New York" -- so it's not just one 4 little old school district. We've got to deal 5 with all the little old school districts who, by 6 the way, are probably going to get messed up in 7 the funding provided by Governor Pataki, unless 8 we do something about it, and I hope we will do 9 that. " *** shall adopt and amend a code of 10 conduct for the maintenance of order on school 11 grounds," and I guess they'll discuss it a 12 little later. 13 I don't know what the "school 14 grounds" mean. In other words, is it just the 15 ground level? Is it just the concrete? Is it 16 the grass? Maybe it tells you in the bill. If 17 you're on the first floor, are you still on the 18 ground? I don't know. Suppose every school in 19 -- some schools down in the city of New York 20 have three or four floors. If you're on the 21 fourth floor, are you on the grounds? I don't 22 know. I hope it's going to tell me that because 23 I like to keep my feet on the ground, that's for 1784 1 sure. 2 It says, "but every school 3 district, however created --" in other words, 4 all of them, "shall adopt and amend a code of 5 conduct for the maintenance of order on school 6 grounds, including --" oh, you see, here we go 7 again, "-- including school buses." 8 Now, I'm glad that Senator Cook 9 put in language which says it specifically 10 includes school buses because normally I 11 wouldn't think that school buses are ground. 12 You know, when you're walking on the ground, you 13 don't necessarily think of a school bus, but 14 this specifically tells you that school buses 15 are included, and this code of conduct, even in 16 Syracuse, "shall provide for the enforcement 17 thereof which shall govern the conduct of 18 students, teachers also." 19 So we're not only talking about 20 students behaving themselves but teachers also. 21 It says "and other personnel." Well, 22 "personnel", I assume, means in the business 23 sense, people who work there, but it says, "as 1785 1 well as visitors and other licensees and 2 invitees," and that's interesting. That's 3 almost a law school course here, because I guess 4 you can be a visitor and maybe not be an 5 invitee, or maybe you're a visitor; you're not 6 an invitee but you're a licensee, or maybe 7 you're a visitor and you don't fit under those 8 categories. I don't know. I guess it doesn't 9 apply to trespasses because trespasses are 10 handled in other sections. 11 "Such code of conduct shall 12 include, at a minimum --" and if it says at "a 13 minimum", I assume, you know, you can also have 14 a maximum. You could have other things in there 15 also, but it's got to specifically, as a 16 minimum, say -- and it's got provisions 17 regarding conduct. Well, that's what the whole 18 darn thing says. It's a code of conduct, so I 19 assume it's going to have provisions. It's in 20 the book. That's what it says, it's in the 21 book. 22 "Dress --" oh, we're going to 23 have dress codes now. "Language deemed 1786 1 appropriate and acceptable on school grounds, 2 including school buses." Of course, this is 3 going to be some code of conduct. I wonder if 4 you can use different language on the bus than 5 you can use in the classroom? That's going to 6 be very interesting. I know when I was a kid, 7 the language on a bus was not exactly everything 8 you would say in the classroom, not if my mother 9 was in the classroom, I'll tell you that. " *** 10 and dress and language deemed inappropriate." 11 In other words, they're going to tell you what's 12 appropriate and they're going to tell you what's 13 inappropriate, which I think is a riot because 14 when you take a look at Webster's dictionary - 15 I mean, I don't believe they're going to cover 16 every word. 17 Are we going to have a code of 18 conduct that tells you every word that's deemed 19 appropriate or inappropriate? And then, you can 20 have a word that may be appropriate, but if you 21 put it together with a word that's inappropri 22 ate, now you've got a phrase. Now the phrase 23 may be inappropriate, although the word is 1787 1 appropriate. 2 Boy! This code of conduct -- I 3 think you're going to have to give a course to 4 teach kids what's in the code of conduct. It 5 may take two years in school to learn the code 6 of conduct, and now we're going to have kids in 7 school longer than we had them there before. 8 It's also going to have 9 "standards and procedures to assure security 10 and safety of students and school personnel." 11 Well, that is a very, very good goal, and I 12 don't think anybody in the state would disagree 13 that youngsters going to school should be safe 14 and that the teachers who give their heart and 15 soul to their profession should not be safe. 16 "There should also be provisions 17 for the removal from a classroom or from school 18 property." See, now it doesn't say "including 19 buses". Isn't this interesting? In the other 20 two places it says "school property" and it said 21 "including buses". So I guess when this says 22 "provisions for removal", maybe they don't want 23 people throwing people off the school buses. 1788 1 Maybe that's what they figured there. 2 "For persons who violate the 3 code, it should also include the stipulation 4 that upon the filing, bringing or entering of a 5 criminal complaint based upon an alleged 6 criminal act of a student, the student shall 7 immediately be removed from the classroom." 8 Now, I hope there's going to be some discussion 9 as to what you do with that student and, to tell 10 you the truth, I'm getting excited now. I can't 11 wait to get to that answer. 12 "There will be disciplinary 13 measures to be taken in incidents involving the 14 possession or use of illegal substances or 15 weapons, the use of physical force, vandalism, 16 violation of another student's civil rights." 17 Of course, I think this is interesting. 18 "Disciplinary measures will be 19 taken in incidents involving possession of 20 illegal substances or weapons." Well, I would 21 hope so. I don't know how a school district can 22 make regulations that violate state laws, but I 23 would certainly hope that there would be 1789 1 significant steps taken if they found weapons in 2 the possession of anyone in the school. 3 As a matter of fact, I thought we 4 were passing laws all the time to make it a 5 crime, and I don't know of anything in the law 6 that says that if a student brings a weapon into 7 a school, they somehow have some kind of a 8 privilege against being arrested, but it would 9 seem to me, under existing law, that any school 10 official has a right to do something; but, in 11 all fairness -- Senator Gonzalez, I'll see you 12 after conference -- I guess there should be some 13 procedure. 14 It says, "Procedures for deten 15 tion, suspension and expulsion of students." 16 Well, now, see, this is interesting, because on 17 page 1 it says that "the code of conduct should 18 include these subject matters at a minimum" but, 19 of course, it doesn't, so far at any rate, tell 20 you what any of those subject matters should 21 include. 22 So it's possible, so far, unless 23 there's more on the bill -- and in all fairness, 1790 1 I'm on page 2 and this bill has 14 pages -- I 2 don't know whether we're going to give the 3 school districts any further guidance as to what 4 to do, or whether we're just telling them that 5 they've got to have a code of conduct. I mean 6 the code of conduct could say "If you find a kid 7 with a weapon, you're supposed to turn around 8 three times and immediately go to your 9 classroom." I guess if that's in the code of 10 conduct, you've complied, but it will be 11 interesting to see if this bill becomes a law - 12 yes, Governor. Hello. This bill has attracted 13 so much attention we're getting calls from New 14 York City on this bill, I want to tell you. 15 At any rate, you've got this 16 thing -- I'm only up to, I guess -- what is 17 this, (f), and they've got a (g) and they've got 18 an (h) and an (i), and all of these things. 19 Then, if I skip through that, it 20 says that the code of conduct -- I mean, how are 21 you going to do this? How is it going to get 22 put together? And it's going to get put 23 together and developed by the board in 1791 1 consultation with teachers, community members, 2 including local law enforcement agencies - 3 That seems sensible -- local human resources 4 agencies, parents and students attending such 5 district, students and any other representatives 6 the board of education deems appropriate. 7 That makes me a little nervous 8 because how do you know what any one district is 9 going to deem appropriate? 10 Now, here's a good one, number 3 11 on page 2, "The Board of Education shall make 12 copies of the code of conduct available." Well, 13 it makes only sense that if you go to all the 14 trouble to have a code, that you shouldn't keep 15 it locked in a vault, and what was that movie 16 where -- oh, yeah, "Animal House". They put him 17 on secret probation. Remember that one? 18 SENATOR DeFRANCISCO: Double 19 secret probation. 20 SENATOR GOLD: Double secret 21 probation. That's one thing I like about 22 DeFrancisco, he knows his movies. 23 But double secret probation, now 1792 1 if we all knew that was not fair -- although 2 many of us laughed anyway, but here they're 3 going to make copies of the code of conduct and 4 they're going to make it available to the 5 students and their parents or guardians at the 6 beginning of each school year. Of course, if 7 it's as big as we think it is, they're going to 8 need the school year to learn it, so I don't 9 know what else to teach in that year. 10 " *** and make it available 11 thereafter upon request", which is important, 12 too, because youngsters sometimes lose it, and 13 if they lose it, it's nice to know under this 14 bill they can get another copy. 15 Then it discusses that "for the 16 purposes of this subdivision, a school district 17 shall mean --" and then it really goes ahead and 18 defines "school districts", and I'm hoping to 19 get to some meat, but at any rate, that takes 20 care of the first two pages. 21 Then it says now, "The code of 22 conduct" -- we are on page 3 -- "shall be 23 reviewed at least every three years in a manner 1793 1 consistent with subdivision (2) of this 2 section. It also says, "The districts shall 3 file a copy of the code with the Commissioner" 4 -- I guess, the Commissioner of Education- 5 "and all amendments to such code shall be 6 filed." 7 Of course, what I'm curious about 8 -- Senator Cook, would you yield to a 9 question? 10 SENATOR COOK: Certainly, 11 Senator. 12 ACTING PRESIDENT KUHL: The 13 Senator yields. 14 SENATOR COOK: I would consider 15 it a distinct honor to yield for a question to 16 you. 17 SENATOR GOLD: Senator, the bill 18 requires each district to prepare a code, and 19 we've basically given them an outline of what 20 they should do. Is there something in the bill 21 that I haven't gotten to yet which says that if 22 the Commissioner of Education doesn't like the 23 code or if somebody doesn't like the code, they 1794 1 can do anything about it? 2 SENATOR COOK: Yep. 3 SENATOR GOLD: Yeah. Thank you. 4 Would Senator Cook yield to a 5 question? 6 ACTING PRESIDENT KUHL: Senator 7 Cook, do you yield to another question? 8 SENATOR COOK: Yes. 9 ACTING PRESIDENT KUHL: The 10 Senator continues to yield. 11 SENATOR GOLD: I've always 12 admired your economy of words. Senator Cook, 13 can you just tell me - 14 SENATOR COOK: I admire yours 15 too, Senator. I've never seen you say anything 16 that was extraneous that really didn't fit into 17 the necessity of carrying out the business of 18 the - 19 SENATOR GOLD: I may need them to 20 print up that quote from you. 21 Senator Cook, can you tell me the 22 page and section number that - 23 SENATOR COOK: Well, I can tell 1795 1 you what it is, that the department is able to 2 withhold funding, which is basically the same 3 power that they have with anything else that - 4 where a district doesn't comply with the 5 regulations of the commissioner. 6 SENATOR GOLD: If the Senator 7 will yield to a question. What I'm getting at, 8 Senator - 9 ACTING PRESIDENT KUHL: Senator 10 Cook, do you continue to yield? 11 SENATOR COOK: Yes. 12 ACTING PRESIDENT KUHL: The 13 Senator continues to yield. 14 SENATOR GOLD: Senator, what I'm 15 getting at, supposing the school district does 16 exactly what it's supposed to do, it prepares a 17 code of conduct and it files it with the 18 Commissioner and the Commissioner takes a look 19 at it and he says, "Well, I don't like the code 20 of conduct." It complies with each of the 21 subdivisions and it deals with each of the 22 categories, but either the remedies are too 23 harsh or the remedies are non-remedies. Is 1796 1 there any review power over the substance of the 2 regulations by the commissioner? 3 SENATOR COOK: Mr. President, 4 there is no review power per se over the -- over 5 the regulations, except that, I presume, if 6 somebody sent in a letter and said, "No student 7 shall be disruptive in school," that the 8 Commissioner might, in that case, deem that it 9 wasn't really a serious code, but assuming that 10 they basically do provide a code of conduct and 11 provide the -- a description of what remedies 12 that would be taken -- and that's really the 13 importance of it, is the due process portion. 14 In other words, to notify parents and students 15 that there are certain requirements expected and 16 if they don't perform as anticipated, that there 17 will be some consequences. 18 SENATOR GOLD: Will the Senator 19 yield to another question? 20 ACTING PRESIDENT KUHL: Senator 21 Cook, do you continue to yield? The Senator 22 continues to yield. 23 SENATOR GOLD: Senator, it says 1797 1 that among the provisions -- and as a matter of 2 fact, it's subdivision (a) on page 2, it says - 3 SENATOR COOK: I'm glad you 4 started with subdivision (a), Senator. I would 5 hate to think you missed anything. 6 SENATOR GOLD: Oh, all right. 7 Thank you, Senator. 8 It says, " *** regarding conduct, 9 dress***" Now, on the word "dress", is it 10 permissible under this bill for a particular 11 school district to not only set a dress code but 12 perhaps set a uniform requirement? 13 SENATOR COOK: Senator, it would 14 be conceivably possible for them to do that, 15 yes. 16 SENATOR GOLD: If the Senator 17 will continue to yield. 18 ACTING PRESIDENT KUHL: Senator 19 Cook, do you continue to yield? 20 SENATOR COOK: Yes. 21 ACTING PRESIDENT KUHL: The 22 Senator continues to yield. 23 SENATOR GOLD: Senator, is there 1798 1 any provision in the bill so that if a 2 particular school district determined that it 3 wanted a uniform as the dress code and the 4 student could not afford to purchase the 5 uniform, is there a provision in here, monetary 6 availability for such a student? 7 SENATOR COOK: Mr. President, I 8 believe that under the constitutional provision 9 that a school district may not require the 10 payment of any fee or expense as a condition for 11 attending public school, that if there were such 12 a requirement that -- and a school and student 13 were able to demonstrate that they weren't able 14 to pay for it, that it would be either incumbent 15 upon the district to grant a waiver or to 16 provide the uniform. That would be my 17 interpretation. 18 SENATOR GOLD: If the Senator 19 will continue to yield. 20 ACTING PRESIDENT KUHL: Senator 21 Cook, do you continue to yield? The Senator 22 continues to yield. 23 SENATOR GOLD: Senator, you know, 1799 1 with all due respect to the Commissioner of 2 Education, commissioners come and go and 3 legislators come and go eventually too, and I 4 might have a great respect for your common sense 5 in a situation, but under the provisions of this 6 bill which you are candid enough and forthright 7 enough to indicate could have a school district 8 mandate uniforms for children if you have a 9 child who will not buy the uniform, is there 10 anything in the bill that sets up any kind of a 11 process, or is it just left to common sense, 12 which I would trust you with, but not 13 necessarily others. 14 SENATOR COOK: Mr. President, as 15 we've indicated, the code of conduct has the 16 ability -- the bill provides that the code of 17 conduct can have whatever provision the local 18 district determines. So if the local district 19 decides that there's some penalty involved, they 20 can do so. Now, I would think it would be very 21 hard in due process to sustain a suspension from 22 school for somebody for failure to wear a 23 uniform, but I would note that I believe 1800 1 President Clinton, as recently as a week or so 2 ago, indicated that he thought that school 3 uniforms might be a good idea. Now, I don't 4 know that I would necessarily subscribe to that 5 point of view, but it is a possibility. I know 6 that there have been some experiments, for 7 example, and I believe there was a school in 8 Chicago in which they're providing lab coats of 9 a sort for every student to wear to basically 10 cover up their clothing, the point being that 11 there's a perception on the part of some 12 educators that the competition among students to 13 wear certain types of clothing is, in fact - 14 does, in fact, incite a particular behavior on 15 the part of students that causes disruption in 16 the school and that that is, in fact, an option 17 that is being talked about. I won't say it's 18 being seriously talked about, although perhaps 19 it wouldn't be a bad idea if some school 20 district somewhere decided to try to do that. 21 It is certainly within the realm of possibility 22 if they might -- might say, "Yes, you're going 23 to have a wear uniforms." 1801 1 SENATOR GOLD: Mr. President, if 2 the Senator would be kind enough to yield to 3 another question. 4 ACTING PRESIDENT KUHL: The 5 Senator yields. 6 SENATOR COOK: Senator, it's kind 7 of fun when you really talk business, isn't it? 8 SENATOR GOLD: Yeah. 9 SENATOR COOK: Okay. 10 SENATOR GOLD: I think the 11 members of my conference would also be 12 enlightened by your answer if we didn't have to 13 go through this nonsense and we had a mature 14 attitude which allowed people time to conference 15 legislation. 16 If the Senator -- I happen to 17 believe -- and I hope you don't use this against 18 me in a campaign -- I think you're one of the 19 more serious people up here legislatively, and I 20 think you believe what you put out. 21 SENATOR COOK: Mr. President, 22 would the Senator yield? 23 SENATOR GOLD: Sure. 1802 1 SENATOR COOK: Senator - 2 ACTING PRESIDENT KUHL: The 3 Senator yields. 4 SENATOR COOK: What were you 5 doing between 9:00 and 10:00 this morning, if I 6 could be just -- or 9:00 and 11:00? 7 SENATOR GOLD: What was I doing? 8 SENATOR COOK: Yeah. I mean, 9 it's none of my business. 10 SENATOR GOLD: Senator, I'm glad 11 you asked, Senator, because at 9:45 -- I'm sorry 12 -- at 8:45 a.m. this morning, I arrived at the 13 State Police Academy and I met with Colonel 14 Dutcher for a period of time when they were 15 explaining to me their identification system. 16 SENATOR COOK: Mr. President. 17 ACTING PRESIDENT KUHL: Yeah. 18 SENATOR COOK: Would the Senator 19 -- the import of the question, was there any 20 good reason why the Minority, for having known 21 that this bill had been passed to third reading 22 yesterday, might not have had a conference at 23 some time between 9:00 and 11:00 this morning? 1803 1 SENATOR GOLD: Yeah, and the 2 answer is, Senator -- the answer is yes, and the 3 answer is that the Minority is probably the most 4 cooperative Minority that's ever been around, 5 but we have things to do also, and while you 6 have, on your side of the aisle, the right to 7 set agendas, there is a process, and if I can 8 answer the question and be very, very much on 9 point, Senator Cook, it is your party that sets 10 the rules, and your party has rules which says 11 -- and I teach this to students -- if you want 12 a bill to become a law, it goes through a 13 committee and it's reported from a committee and 14 it goes to first report, and it goes to second 15 report, and then it goes to third reading, and 16 as a matter of fact, on third reading it can be 17 debated, and you know why we have this thing 18 called an active list? Well, I take some honor 19 in that. 20 I walked over a number years ago 21 and said, "Why do you people go through the 22 charade of reading out 200 numbers, only to have 23 four -- Earl Brydges or Warren Anderson or now 1804 1 let's say Joe Bruno sitting there laying things 2 aside. If the Majority Leader lays it aside, 3 lay it aside, let us know what you really want. 4 So that was a time-saving mechanism, but you 5 gentlemen and lady set the agendas and you set 6 the rules. 7 Now, these bills that we're 8 talking about today, Senator Cook, are out here 9 because you asked us to waive the rules, and if 10 we don't waive the rules, then you say, "Why 11 don't we call a Rules Committee meeting and 12 we'll put these bills out of Rules and we're 13 going to mess up the rules anyway." 14 So, Senator, we did nothing wrong 15 here. If you and the committee chairmen on your 16 side want to abide by the rules and stop this 17 practice of reporting things directly to third 18 and just have them come on first report, second 19 report, then maybe, Senator, we can fit them 20 into a time slot. 21 I don't mean to be fresh at all, 22 Senator, because you know I have a genuine 23 regard for you but, Senator, we do have things 1805 1 to do, and that may be offensive to some of your 2 members, but our schedules are set more than 24 3 hours ahead of time and we just can't drop 4 everything every time you want, although I will 5 drop it when Paterson wants. 6 Can I yield to Senator Paterson? 7 ACTING PRESIDENT KUHL: Well, I 8 was going to recognize Senator Paterson anyway, 9 Senator Gold. 10 Senator Paterson, why do you 11 rise? 12 SENATOR PATERSON: Thank you, Mr. 13 President. 14 I just wanted to bring a point of 15 clarification to Senator Gold and Senator Cook 16 which would enhance this illuminating 17 discussion, which I think is actually more 18 exciting than a Colgate/Holy Cross basketball 19 game. The fact is that there were 48 bills that 20 were reported directly to third reading 21 yesterday. What I would like to know is which 22 conference should we have held, because the 23 active list wasn't available until about 9:00 1806 1 o'clock this morning, so you can understand that 2 it would have been hard to figure out which 3 conference we should have held since there were 4 about nearly 50 choices that we could have used 5 the two hours to discuss these issues. That's 6 why the whole process of the active list is very 7 important and the issue of notification is 8 really just a cooperative way that we can reach 9 a -- an understanding of what it is we are going 10 to be discussing. 11 So I just wanted the two 12 Senators, my colleagues, to have that 13 information to continue their discussion. 14 SENATOR GOLD: Thank you. 15 May I, Mr. President? 16 ACTING PRESIDENT KUHL: Senator 17 Gold. 18 SENATOR GOLD: Thank you. 19 So, Senator Cook, believe me, we, 20 I think in this session, certainly under Senator 21 Connor, I don't think there's a doubt in the 22 world that Senator Connor has led with 23 distinction and with cooperation since he has 1807 1 taken over in this Minority, and Senator 2 Paterson is directly on point. 3 So it's not a question of wanting 4 to conference and doing other things. On 5 another day, Senator Cook, you're entitled to 6 total honesty from me. On another morning, 7 maybe I would have had to tell you the truth 8 that I was trying to take money from Mike Tully 9 on a golf course, which everybody knows is 10 impossible with the handicap he plays under, but 11 this morning I had business, and that business 12 deals with legislation which is very important 13 to me, and that's the sale of guns and how we 14 can get guns into the hands of legitimate 15 citizens who may want them and stop them from 16 going to criminals. So this morning I did have 17 other things to do. 18 But if Senator Cook would yield 19 to a question, Mr. President - 20 ACTING PRESIDENT KUHL: Senator 21 Cook, do you yield? The Senator yields. 22 SENATOR GOLD: Under subdivision 23 (e) -- and now you can smile because I went (b), 1808 1 (c), (d) and I'm up to (e) already -- it says 2 that this code of conduct will talk about -- oh, 3 I'm sorry, (d) -- that if a student -- if 4 there's criminal activity -- now, wait. Where 5 is the one I want? I want to be specific. No, 6 I was right with (e) -- that if they find 7 possession of illegal weapons -- now, Senator, 8 is it your suggestion under this code that if 9 there was a district very, very liberal -- I've 10 got to get that word in because I know you guys 11 like to hit me with it, but supposing there was 12 a district that said, "if a student is found in 13 possession of a handgun more than three times 14 we're going to call the cops." I mean, to me, 15 that sounds absurd. If I caught him with a gun 16 the first time, I would take away that gun and 17 call the cops, but what happens -- I mean, the 18 commissioner gets these things and he says, 19 "Wait a minute. That's wonderful. They're 20 going to call the cops after three times", but 21 isn't there something more involved? I mean, 22 what does the commissioner do in that 23 situation? 1809 1 SENATOR COOK: The commissioner 2 doesn't do anything. The school district does. 3 SENATOR GOLD: In other words, 4 the school district has to vote and approve the 5 proposals and - 6 SENATOR COOK: The school 7 district provides a proposal -- I would 8 indicate, Senator, as you well know, that under 9 federal law, a student is automatically 10 suspended for having a gun one time in a 11 school. So it's a bit of a moot point but 12 nevertheless, as regard to this code of conduct, 13 that would be a provision that the school could 14 theoretically, at least, provide. 15 SENATOR GOLD: Now, Senator, if 16 you'll continue to yield, on page 3, it says 17 "where a student has been suspended under the 18 provisions of this section for any reason or 19 duration and said pupil is of compulsory 20 attendance age, the school district shall 21 continue to provide for his or her attendance 22 upon instruction. Such suspension may be 23 revoked by the board", et cetera but, Senator, 1810 1 are we, by this bill, suggesting that we are now 2 going to have either special schools or special 3 places that these people will be sent to? 4 SENATOR COOK: Senator, we're 5 requiring that there be some process by which 6 the education of the student will be continued. 7 Unfortunately, as you may assume, for some 8 students, suspension from school becomes a bit 9 of a reward. You act out enough and you figure, 10 "Well, I don't want to be in school anyway, so 11 I'll just go in and make a real nuisance of 12 myself and they'll suspend me from school and 13 I'll be out on the street doing what I want to 14 do." 15 This bill provides that if that 16 student is suspended that in some manner there 17 has to be a continuing education program. Now, 18 I believe that in the city of New York, there 19 probably aren't enough alternative schools, but 20 there are some alternative schools and they may, 21 in fact, have to have more. I'm not sure about 22 that. It may be that on a real small school 23 district where you just don't have the numbers 1811 1 -- and I'm not going to imply the incidents 2 would be any different in one place to another, 3 but you may have a real small school district 4 where you might only occasionally have a student 5 under suspension, then it might be necessary for 6 a tutor or some other provision that that - 7 that the educational program for the student 8 would continue, but it's my belief and the 9 belief, I think of those who are sponsoring the 10 bill, that education is important and that 11 permitting people a device by which they can, in 12 effect, escape or simply get out of the school, 13 which is where they don't want to be anyway, is 14 a mistake and we ought not to condone it. 15 SENATOR GOLD: Senator, if you'll 16 continue to yield - 17 ACTING PRESIDENT KUHL: Senator 18 Cook, do you continue to yield? 19 SENATOR COOK: Yes. 20 ACTING PRESIDENT KUHL: The 21 Senator continues to yield. 22 SENATOR GOLD: I believe -- thank 23 you, sir. I believe your language requires them 1812 1 to attend. It says that it will continue to 2 discuss -- I'm sorry -- "continue to provide for 3 his or her attendance upon instruction", so you 4 couldn't get out of it saying, "Look. Here's a 5 book. I want a report tomorrow. You do it at 6 home." It's got to be a place, right? It's got 7 to be a place. 8 SENATOR COOK: Senator, it has to 9 be a place, but the place could be the home, but 10 clearly it has to be with a qualified teacher 11 who is -- in other words, you can't simply send 12 a kid home with a book and say, "Here, go read 13 this" which, unfortunately, may be the case. 14 There has to be a specified place in which that 15 instruction is going to occur with a teacher 16 which means that if that happens to be the 17 living room of the home where the student lives, 18 that's the place and the student is required to 19 be there. 20 SENATOR GOLD: So if I'm 21 understanding you properly, if a district such 22 as New York City had an alternate school, an 23 alternative school, they could use that, but if 1813 1 you went into an area in a part of the state 2 that did not have a building, the student could 3 be suspended and be required from, let's say 4 9:00 to 3:00 or whatever period of time, to be 5 at their home available to a teacher and a 6 teacher is going to go into the student's home? 7 SENATOR COOK: If that, Senator, 8 is the -- is the decision that's made. Now, 9 Senator -- Senator, I would point out that it is 10 the local school district's discretion as to how 11 they're going to do this, and it might well be 12 that they're going to say that the student shall 13 attend the school and shall be in some 14 segregated setting within the school, that's - 15 that's a possibility. It could be -- as a 16 matter of fact, with the fiber-optics these 17 days, you can actually hook people into 18 telecommunication and have them attending the 19 actual classroom and some device could be - 20 could be built to ensure that the student is - 21 is participating, but in some manner, that 22 student has to be involved in instruction. 23 SENATOR GOLD: Thank you, Mr. 1814 1 President. 2 I understand that Senator 3 Paterson has some questions, and I would 4 certainly be glad to yield so he can make those 5 inquiries. 6 ACTING PRESIDENT KUHL: The Chair 7 recognizes Senator Paterson. 8 SENATOR PATERSON: Thank you very 9 much, Mr. President. 10 If Senator Cook would yield for a 11 question. 12 ACTING PRESIDENT KUHL: The 13 Senator yields. 14 SENATOR PATERSON: Senator, I 15 don't have a current memo on this particular 16 subject, so you may have actually even changed 17 this, so -- the one I have is from 1995, but who 18 will convene the conduct review boards in the 19 school districts? 20 SENATOR COOK: The conduct review 21 board, Senator, would be called by the 22 administration of the school. However, it is 23 mandatory that if a teacher requests that the 1815 1 board be convened, that the board shall be 2 convened because the teacher has an absolute 3 right if they are not satisfied -- and, 4 unfortunately, this seems to occur, that the 5 administration is dealing with -- appropriately 6 with a conduct problem of a particular student, 7 and in some cases, it has been alleged to us by 8 teachers, at least, that they send students to 9 the classroom, from the classroom to the 10 principal's office and the principal simply 11 sends them back and says "that's your problem." 12 Well, if that occurs on several occasions, the 13 teacher then has the option of saying, "Look, I 14 have had enough of this. I want you to call 15 this board into session because I want to have 16 an impartial hearing by a board made up of 17 teachers and administrators so that it's not a 18 one-way -- not a one-way street, but I want to 19 have someone who will hear my side of the story 20 because I haven't been able to get what I 21 perceived to be appropriate action from the 22 administration relative to this particular 23 student." 1816 1 ACTING PRESIDENT KUHL: Senator 2 Paterson. 3 SENATOR PATERSON: Thank you, Mr. 4 President. 5 And, Mr. President, to Senator 6 Cook, how is the parent of the child involved at 7 this point? 8 SENATOR COOK: The parent of the 9 child is first -- and I don't presume this is 10 probably much different than what occurs right 11 now. The parent of the child is, of course, 12 called by the administration, I would assume, 13 and again, that would be spelled out in the code 14 exactly how they're going to do it, but would be 15 called to a conference, much as they currently 16 are. Now, the thing that this code of conduct 17 -- that this bill does which is different and 18 which is, I would admit, a radical departure and 19 perhaps the most serious part of the bill is 20 that the parent can be held legally responsible, 21 and that is that if in the process of these 22 conferences, the parent simply refuses to 23 cooperate and the child simply doesn't change 1817 1 conduct -- his or her conduct, there is a Family 2 Court -- an ability on the part of the school 3 district to petition him to Family Court and 4 have a finding on the part of the Family Court 5 that, in fact, the parent is not carrying out 6 their responsibility to ensure that the child is 7 getting an appropriate education and can take 8 whatever action is appropriate, and it does set 9 up a probation system, where as -- where the - 10 presumably, if it went that far, the -- there 11 would be a counselor provided by the family that 12 would -- that would work with the family. As 13 you know, often this is a dysfunctional family, 14 and the point being that the probation officer 15 would then be able to bring in mental health 16 people or drug abuse people or whoever might be 17 necessary to try to rebuild the family, and this 18 is kind of the bridge that goes from the school 19 over to the human services system. I think - 20 and we're kind of walking into a different 21 discussion now, but I think it's important to 22 point out that this bill is not single-faceted. 23 It's not simply a matter of saying, "Oh, boy, if 1818 1 we could just whip these kids into shape, they 2 would behave themselves." It is a recognition 3 that often there are factors in the life of that 4 child that create the conditions under which 5 some of this disruption takes place. 6 So this becomes the vehicle which 7 by the Family Court can then move -- move the 8 entire family, if you will, under supervision so 9 that perhaps some problems that exist that are 10 even more widespread than the child's conduct at 11 school can be dealt with. 12 ACTING PRESIDENT KUHL: Senator 13 Paterson. 14 SENATOR PATERSON: Thank you, Mr. 15 President. That answer was quite informative. 16 Senator Cook, I think you have 17 defined quite clearly why we may need this to 18 occur, so this is not really antagonistic to 19 your point which I'm inclined to agree with 20 based on what you're saying. However, this will 21 create a greater burden on the school 22 administration and I would assume a need for 23 additional staff, if I'm not correct. 1819 1 SENATOR COOK: Mr. President, it 2 might be assumed that you would need additional 3 staff. I'm not sure that that would be true in 4 all cases. Frankly, Senator, I think if there's 5 a school district that is currently doing what 6 they ought to be doing, that this bill doesn't 7 create a need for additional staff. I think 8 that if there are people who are currently 9 trying to deal with behavior problems in the 10 school in both a firm and a sensitive manner, 11 that this bill is not going to make anything 12 different. 13 Hopefully, Senator, it's an 14 instruction, if nothing else, to school 15 districts that don't -- either don't know or 16 don't care about the problem as to how they 17 ought to deal with it, and I think that it is 18 probably, in some cases, going to require 19 someone else to handle some of this, but I would 20 point out, if you've got discipline problems in 21 a school, somebody's already dealing with those 22 problems, presumably. There's already someone 23 in the administration. If it's a small school, 1820 1 it probably is the principal. If it's a larger 2 district, it probably is someone else who's a 3 counselor in the school who's dealing with it, 4 but there are already people in place who are 5 doing this. 6 So I don't think that that 7 particular problem -- I don't think that the 8 school district will probably have to have more 9 people. The place where you may have additional 10 people, Senator, would be in the counseling 11 area, the probation area, and -- but I think 12 this is a necessity. 13 We have been working with -- and 14 I guess I have to say this -- with upstate 15 districts to try to build bridges between the 16 human services agencies and the schools. This 17 has been more difficult in the City because of 18 the size of the City, and we understand that 19 those problems are more complex, but we think 20 that it is really necessary to build that kind 21 of bridge and, frankly, if it does require some 22 personnel to make that happen, so be it. 23 My contention is that we're not 1821 1 going to deal with this problem -- and it's a 2 cause and effect situation -- we're not going to 3 deal with the discipline problem if we don't 4 deal with the family problems. We're not going 5 to deal with the educational problems if we 6 don't deal with discipline problems. So I think 7 one thing follows the other, and if we're really 8 serious about trying to improve the quality of 9 our educational program, I think we have to go 10 back to the roots of the problem and try to deal 11 with those roots, and that's what this bill is 12 attempting to do. 13 ACTING PRESIDENT KUHL: Senator 14 Paterson. 15 SENATOR PATERSON: Thank you, Mr. 16 President. 17 Senator, this is well stated and 18 well organized. The only part that I just have 19 some problems with is that what you're calling 20 for here is somewhat radical from what tradition 21 has been, which may actually inure to the 22 benefit of school children and their parents and 23 the entire school system, which we need, but 1822 1 interfacing with the Family Court which the 2 schools have previously not done is a highly 3 specialized kind of procedure which I would 4 assume would call for more staff or certainly a 5 more intricate awareness of what's going on. 6 There are lawyers who routinely go into Family 7 Courts who haven't figured out how they work 8 yet, and I'm just pointing out that I think it 9 might call for increased personnel. 10 I would like to ask Senator Cook, 11 Mr. President, to yield for another question. 12 ACTING PRESIDENT KUHL: Senator 13 Cook yields. 14 SENATOR PATERSON: Senator Cook, 15 the actual structure of the conduct review 16 boards and how they interface with the school 17 boards, are they appointed by the school 18 boards? 19 SENATOR COOK: Yeah, they're 20 appointed by the administration, Senator. 21 Hopefully the teachers would be appointed with 22 -- in consultation with the -- with the 23 appropriate representative body of the teachers, 1823 1 but we have at the present -- let me back up for 2 a moment. At the present time, as you know, the 3 disciplinary policy of the school is totally 4 within the control of the school board, the 5 administration, and we really don't change that 6 legal principle that it is their legal 7 responsibility, and I'm not sure we can change 8 that. They are a political body or a public 9 body, and I think ultimately they have to have 10 that legal responsibility. 11 This is really an effort for a 12 safety belt, and so that's the reason why we do 13 provide that the teacher representatives be on 14 the committee, but it is a committee that's 15 appointed by the Board of Education or in the 16 case of the City, I believe by the school 17 district administration, depending on the local 18 school district. 19 ACTING PRESIDENT KUHL: Senator 20 Paterson. 21 SENATOR PATERSON: Thank you, Mr. 22 President. 23 Senator Cook, if this works, it 1824 1 will be a safety net. If it doesn't work, it's 2 going to be providing additional layers of 3 bureaucratic supervision, and I want to try to 4 elicit from you which of the direction we're 5 going to be going in. I would seem to feel that 6 if the conduct review boards don't report 7 directly to the school boards, that after their 8 appointment, they become independent more as the 9 relationship with the Supreme Court Justice and 10 the President. 11 SENATOR COOK: Mr. President, I'm 12 sorry. Senator, I probably left you with the 13 wrong impression. They do report to the school 14 board. They are responsible to the school 15 board. They are -- they cannot take any action 16 in and of themselves. They are, in effect, 17 advisory, but they really do -- by their ability 18 to make recommendations, they have some 19 influence. 20 If there's a parallel, Senator, I 21 would point out that we do have committees that 22 review children with disabilities and that 23 recommend the individual education programs for 1825 1 those children. Their recommendations are 2 always subject to adoption by the local Board of 3 Education because that Board of Education is the 4 actual official body. In the same manner, any 5 recommendations of this committee would also be 6 subject to the same actual legal control of the 7 Board of Education. 8 SENATOR PATERSON: Thank you, 9 Senator. 10 I want to ask you a question 11 about how children with disabilities are - 12 ACTING PRESIDENT KUHL: Senator 13 Cook, do you continue to yield? 14 SENATOR COOK: Yes. 15 ACTING PRESIDENT KUHL: The 16 Senator continues to yield. 17 SENATOR PATERSON: I want to ask 18 you how they're handled under the current 19 legislation, but I would like to stay on this 20 particular point. Let me give you an example 21 because it seems that you have clarified this 22 for me, but let's say that the conduct review 23 board reports information to the superintendent 1826 1 of the school district. Does the school board 2 find out what the results of that review are? 3 SENATOR COOK: Yes. 4 SENATOR PATERSON: They do? All 5 right. That's most helpful. If the Senator 6 would continue to yield. 7 ACTING PRESIDENT KUHL: The 8 Senator continues to yield. 9 SENATOR PATERSON: My question 10 relates to the suspension of students who have 11 had a criminal complaint filed against them. Is 12 that a correct - 13 SENATOR COOK: Yes. 14 SENATOR PATERSON: - 15 assumption? Senator, it's my opinion that that 16 is creating a situation where the school board 17 is going to become the respondent in what could 18 be litigation on the civil rights issue of 19 whether or not the school has denied 20 constitutional presumption to the student based 21 on the actions of a Criminal Court but are not a 22 final action of the court. 23 SENATOR COOK: Senator, the -- in 1827 1 the first place, they have to be removed from 2 the classroom, not necessarily suspended from 3 the school. In the second place, the real point 4 of this is that the filing of a criminal 5 complaint has been the device that we have 6 adopted to try to identify the seriousness of 7 the activity of the child. We don't feel that 8 -- that necessarily we should Band-Aid the 9 removal of the student for what you might call 10 disruptive activity that falls short of criminal 11 activity. We think that a pattern of disruption 12 certainly should be grounds for doing that, but 13 we don't say they have to be removed at the 14 first instance. 15 On the other hand, if something 16 is serious enough that it has -- that it has 17 moved someone to actually enter a criminal 18 complaint, as the incident has been serious 19 enough, we think that the protection of the 20 safety of the other children in the classroom is 21 really the paramount issue here and that, 22 therefore, the student should be removed to a 23 place where they -- at least until this thing is 1828 1 resolved, they cannot harm the other students or 2 the teachers. 3 ACTING PRESIDENT KUHL: Senator 4 Paterson. 5 SENATOR PATERSON: Would there 6 then be a review of what the criminal complaint 7 was? 8 SENATOR COOK: Well, Senator, 9 presumably, as you know, if there's a criminal 10 complaint, there's a time limit under criminal 11 law that -- that this complaint would have to be 12 resolved, and so in the pendency of that 13 resolution, they would have to be kept out of 14 the classroom, but presumably, there would be 15 some proceeding at some point that would move 16 that forward so that if it were found -- if it 17 were determined to be unfounded, then, of 18 course, the suspension would immediately have to 19 be -- have to end. 20 ACTING PRESIDENT KUHL: Senator 21 Paterson. 22 SENATOR PATERSON: Thank you, Mr. 23 President. 1829 1 Of course, Senator, you were 2 among those who are advocating that we have a 3 speedier resolution of these criminal complaints 4 but, unfortunately, as it stands right now we 5 don't always have that, and I'm concerned about 6 the removal of the child from the classroom 7 where the complaint may not really relate to the 8 jeopardy of the other students who are in the 9 classroom, and so this is what I'm having a 10 little trouble understanding. If we were moving 11 the child from the classroom, to me, there is 12 actually, in a sense, some sort of a punitive 13 action being taken where we haven't necessarily 14 established that there's a cause because the 15 issue may not lie in what action the child took 16 in the classroom. It may really be a complaint 17 that's made outside of the whole ambit of the 18 school administration and the school grounds 19 entirely. 20 SENATOR COOK: Mr. President, 21 Senator, as you're aware, when it gets to the 22 area of child welfare and protection of 23 children, we have -- we have adopted a standard 1830 1 of -- which is somewhat different than would 2 apply for other persons. We remove, for 3 example, upon a complaint that there has been 4 abuse in a home that the child is endangered 5 without due process, frankly, for the parents, 6 immediately -- immediate removal. The Social 7 Services Department can actually bang on your 8 door and tell you, "We received a complaint from 9 the neighbor next door that you are doing 10 something which is endangering the life of the 11 -- the well-being of your child. I want the 12 child to go with me" and can actually do that, 13 and that is -- while it is something -- and we 14 read about incidents where this gets abused 15 occasionally and incidents where we consider 16 that maybe somebody used bad judgment, but the 17 premise of the law has always been that in the 18 case of children where there are -- there is the 19 possibility that a child is going to be injured, 20 that what we might consider to be the normal 21 standards that would apply to an adult, that we 22 use a different standard as it relates to the 23 child. 1831 1 Now, if you've got a child in a 2 classroom and that child has done something or 3 is alleged to have done something that is so 4 serious that it warrants a criminal complaint, 5 there is an endangerment or presumption of 6 endangerment to the other children in the 7 classroom, and because of that principle that we 8 -- that we interpret these things differently 9 as they relate to protecting the welfare of 10 children, we -- I think that that follows in the 11 line with what we're doing in this bill. 12 ACTING PRESIDENT KUHL: Senator 13 Paterson. 14 SENATOR PATERSON: Thank you, Mr. 15 President. 16 Senator, divorced from the 17 comparison you've made, isn't it true that there 18 is really a difference when you view the child 19 and you're able to come in as some service 20 agency may as opposed to getting a criminal 21 complaint where the nature of the complaint may 22 not even have been established and there's just 23 the fact that a complaint actually exists? Some 1832 1 criminal complaints are not even brought about 2 through the actions of the police. So I'm just 3 saying that in these types of situations, isn't 4 there a high cost of presumption without full 5 establishment, the way the bill reads, that 6 there's a necessity to remove the child from the 7 classroom when we don't know whether or not the 8 child is causing a danger and we at least have 9 the history that at the point we're removing the 10 child from the classroom, there was no other 11 indices that there be a removal because the 12 child is already in the classroom? 13 SENATOR COOK: Senator, you're 14 probably correct that there are other ways in 15 which this -- this could be accomplished, but as 16 we discussed the various alternatives for doing 17 it, in every case you get involved into a very 18 complicated process of due process, if I can - 19 may be redundant, and it really -- given the 20 situation that you have, where, for example, a 21 child may be actually physically brandishing a 22 weapon, you need to do something immediately to 23 remove that child from the classroom. 1833 1 Now, if you went the other route, 2 which I think you may be suggesting that you 3 ought to have some kind of a hearing, that you 4 ought to convene, perhaps with the committee on 5 conduct, you go through this, you run into the 6 whole issue of due process and in due course, 7 that's going to happen, but you really need some 8 device by which you can measure whether the 9 activity of a child is an actual endangerment to 10 other people in the classroom and the filing of 11 a criminal complaint seems to be a reasonable 12 measure of that. 13 I have to assume, Senator, that 14 if there is some disruption in a classroom, that 15 the school is not going to call in the police 16 and immediately file a criminal complaint 17 against the child if it is something that is not 18 of rather major consequence, because they don't 19 want to be involved in that either. They want 20 to deal with it within the school to the degree 21 they can. 22 So I think the filing of a 23 criminal complaint is a reasonable trigger for 1834 1 the school to be able to remove the child from 2 the classroom and thus protect the safety of the 3 other children. 4 ACTING PRESIDENT KUHL: Senator 5 Paterson. 6 SENATOR PATERSON: Thank you very 7 much, Senator Cook. 8 I want to ask you about the 9 distinction between the disabled children and 10 children who are just in the public school 11 system. 12 ACTING PRESIDENT KUHL: Senator 13 Cook, do you continue to yield? The Senator 14 continues to yield. 15 SENATOR COOK: Yes. 16 SENATOR PATERSON: You don't have 17 in your legislation any distinction, yet in 18 federal law, there is a significant distinction 19 to such an extent that the removal of the 20 disabled child, based on some of the issues that 21 we have been discussing this morning and this 22 afternoon, would lead me to feel that, again, 23 the school board would be right for some kind of 1835 1 lawsuit and litigation based on constitution 2 ality. I want to know if you gave it any 3 thought when you were drafting the legislation, 4 and if it's not in here, which I assume it is, 5 why you chose to delete it? 6 SENATOR COOK: Senator, there 7 actually is -- on page 2, Senator, there 8 actually is a phrase, line 17, that says that - 9 I'll read it, if I can see it, "provisions" - 10 this has to be in the code of conduct, Senator. 11 "Provisions ensuring such code and enforcement 12 thereof are in compliance with state and federal 13 laws relating to pupils with disabilities." 14 Would you like me to reread that? I know you 15 were busy at the moment. 16 SENATOR PATERSON: No. Actually, 17 Senator, what -- yes, if you wouldn't mind 18 reading it again. 19 SENATOR COOK: Okay. The phrase 20 says -- this is among the provisions that have 21 to be in the code of conduct. "Provisions 22 ensuring such code and enforcement thereof are 23 in compliance with state and federal laws 1836 1 relating to pupils with disabilities." 2 SENATOR PATERSON: Thank you, 3 Senator. 4 And I apologize because it is in 5 there and you've quite clearly corrected me on 6 that point. 7 If the Senator would yield for 8 another question. 9 ACTING PRESIDENT KUHL: The 10 Senator continues to yield. 11 SENATOR PATERSON: Senator, I'm 12 looking at a case -- I don't know whether or not 13 you're familiar with it. It's the case known as 14 Matter of Jeremy, and in this particular case, 15 the parent who apparently neglected the 16 education of this particular child was found by 17 the court to have done that but the court did 18 not feel that that was sufficient grounds to 19 establish a full case of neglect. 20 In view of that, does your 21 legislation depart from this judicial review and 22 aim to suggest now that there is a way that we 23 can hold a parent culpable for only the fact 1837 1 that the child has not been properly educated, 2 or that the environment for a proper education 3 has not been provided? 4 SENATOR COOK: Senator, I would 5 have to give you a qualified yes. We have not 6 -- we have tried not to make this into a 7 radical measure, but I would have to say that 8 the court would be instructed to consider an 9 allegation that the fact that the parent was not 10 ensuring that the child was receiving a proper 11 education would be a -- would be a finding of 12 neglect, yes. 13 SENATOR PATERSON: If there's 14 such a finding of neglect, you are still 15 advocating legislation that if this rule were to 16 take place - 17 SENATOR COOK: Let me read the 18 phrase that's in the bill. "Educationally 19 neglected child means a child whose parent or 20 other legally responsible person has failed to 21 supply the child with an adequate education in 22 accordance with the provisions of Part 1 of 23 Article 65 of the Education Law, which requires 1838 1 attendance at school," et cetera, "or whose 2 parents or other legally responsible person has 3 wrongfully interfered with or obstructed 4 reasonable efforts of school officials to 5 provide necessary and appropriate education for 6 the child." 7 So it is -- I guess I would have 8 to answer you, Senator, that it does expand the 9 definition of "neglect". 10 ACTING PRESIDENT KUHL: Senator 11 Paterson. 12 SENATOR PATERSON: Thank you, Mr. 13 President. 14 Well, that's exactly my point, 15 Senator Cook, that that part of -- Part 1 of 16 Section 65 of the Education Law by itself does 17 not seem to be rising to the threshold according 18 to this court decision in the Third Department 19 in 1994 that this was enough that would 20 establish what you are trying to seek in this 21 bill; and without even commenting on whether or 22 not I agree with you, I'm just saying that I 23 don't know if it would stand for judicial review 1839 1 on this particular point, and I wondered if it 2 would be not more prudent to, in a sense, find 3 other violations before making that 4 determination as was set forth in this case in 5 the Matter of Jeremy. 6 SENATOR COOK: Senator, of 7 course, I can't predict what a court would do, 8 and I have to presume that if we're able to 9 enact this into law that there will be court 10 decisions from time to time that are going to 11 require it to be refined in various ways. But 12 it would be my interpretation that by the fact 13 that we have made this statement in this section 14 of law, it, in effect, underlines the 15 responsibilities that are in the other section, 16 and that in fact the failure of the parent to do 17 what is necessary to enable the school district 18 to carry out their responsibilities would be an 19 instruction to the Court, if you will, of 20 legislative intent. 21 So I think that this covers it. 22 If it does not cover it, then I assume we'll 23 have to make another effort to refine it more, 1840 1 but I am reluctant as I have indicated in other 2 cases to make this bill so ironclad that we 3 don't give the local people the ability to deal 4 with individual cases. These are -- this is a 5 very sensitive matter. It's sensitive relative 6 to the children, sensitive relative to the 7 parent, and I don't want to be in a position of 8 mandating a type of action that is so ironclad 9 that justice would not be served in some 10 particular case. 11 I guess if we have to err a bit 12 on the side of leaving the door open on some 13 possible abuses, then I guess that would be the 14 way I would choose to go. 15 SENATOR PATERSON: Thank you very 16 much. 17 ACTING PRESIDENT KUHL: Senator 18 Paterson. 19 SENATOR PATERSON: This is a 20 concept you believe in, and this is something 21 that may or may not stand for review, and I 22 certainly understand why you would want to put 23 it in the legislation. I just don't feel it 1841 1 belongs there based on the edict of the court in 2 this 1994 case in the Third Department. 3 I want to thank Senator Cook for 4 his answers to my questions which he may have 5 found to be a little basic, maybe a little 6 simplistic, perhaps a little pedantic, maybe 7 even a little callow, a little puerile, perhaps 8 a little immature, maybe even a little dumb. 9 SENATOR COOK: Mr. President. 10 ACTING PRESIDENT KUHL: Senator 11 Cook, why do you rise? 12 SENATOR COOK: Mr. President, I 13 don't know what most of those words mean, so I 14 don't really consider them to be any of them. 15 Thank you. 16 SENATOR PATERSON: But I want to 17 assure Senator Cook that I have retained a 18 mentor from the psychic hotline, and, therefore, 19 I will know what bills are coming out in the 20 future and I promise to be more prepared. 21 Thank you. 22 ACTING PRESIDENT KUHL: Senator 23 Stachowski, why do you rise? 1842 1 SENATOR STACHOWSKI: If Senator 2 Cook will yield for a couple of questions? 3 ACTING PRESIDENT KUHL: Senator 4 Stachowski, I'm keeping a list. I have Senator 5 Dollinger and then Senator Lachman. 6 SENATOR STACHOWSKI: I was 7 sitting here the whole time. I'm sorry. 8 ACTING PRESIDENT KUHL: For the 9 benefit of the members, I would remind them that 10 this debate started at 11:18 so that there's 11 approximately 45 minutes left until you get to 12 the two-hour time period. 13 Senator Dollinger, you said that 14 you wish to yield to Senator Stachowski. 15 SENATOR DOLLINGER: I do, Mr. 16 President. 17 ACTING PRESIDENT KUHL: Senator 18 Stachowski. How about you, Senator Lachman, do 19 you wish to yield to Senator Stachowski? 20 SENATOR LACHMAN: Yes, I do. 21 ACTING PRESIDENT KUHL: Senator 22 Seabrook, you wish to speak on the issue? 23 All right. 1843 1 Senator Stachowski, the Chair 2 recognizes you. 3 SENATOR STACHOWSKI: I apologize, 4 Mr. President, for not raising my hand when 5 David and I were the only two here, but I didn't 6 realize everybody had put their hand up as they 7 came in. 8 Senator, if you would just yield, 9 because there was a memo, but that was on the 10 "A" print, and you may have addressed their 11 problems, and so I just wanted to ask you these 12 couple questions. Statewide Youth Advocacy, 13 Inc., had a question about Section 5 concerning 14 the mandating of an automatic suspension of a 15 student upon allegation by a school official to 16 a Family Court presentment agency or district 17 attorney of conduct that might rise to the level 18 of a crime. Their question was would this 19 deprive students of their due process rights and 20 be tantamount to a punishment without a trial. 21 Has that been addressed since the original 22 bill? 23 SENATOR COOK: Senator, it has 1844 1 not been addressed, and I think we had a bit of 2 this conversation before. 3 Due process is very important in 4 our society, but we've also -- we've also -- as 5 it relates to the protection of the welfare of 6 children, we have in other cases said that the 7 tantamount thing is the protection of the safety 8 of the child, and if there is a situation in 9 which a person is involved in criminal conduct 10 that may in fact endanger other children in the 11 classroom, that's something where we think it's 12 important that we separate that child from the 13 rest of the students until that matter has been 14 resolved. 15 We could have done it in 16 different ways. But had we done it in different 17 ways, it would have made a long process during 18 which time, presumably, that child would have 19 still been in the classroom and the other 20 children and the teachers could have been 21 endangered by their conduct. So we have used 22 this as the measure by which we can determine 23 how a child will be removed. 1845 1 Now, we could have said, well, 2 there has to be a finding that the other 3 children are in imminent danger. What does that 4 mean? That means then you've got to go through 5 a hearing process and all the due process, and 6 that's true, but I think we have made the 7 presumption here that what we want to do is to 8 get the child out of the classroom into a, if 9 you will, a segregated setting so that they are 10 not endangering other students. 11 SENATOR STACHOWSKI: The only 12 reason I asked that question was because part of 13 the concern of the school boards is additional 14 lawsuits, and this would seem to be an area that 15 could cause that. 16 SENATOR COOK: Senator, I think 17 we have probably protected them from additional, 18 because we have given them an absolute 19 standard. If we had done the other thing, where 20 they had to make the finding, then I think you 21 might possibly have been putting them in danger 22 because then it would have been a decision on 23 their part. But where you have an absolute 1846 1 standard and they follow that standard, I think 2 they are protected. 3 SENATOR STACHOWSKI: If Senator 4 would yield, again. 5 ACTING PRESIDENT KUHL: Senator 6 Cook, do you continue to yield? 7 Senator Cook yields. 8 SENATOR STACHOWSKI: Senator, 9 there is another area that they brought up, and 10 it also struck me in going through the bill was 11 there is an awful lot of things referred to 12 Family Court, and it seems to me that, at least 13 in hearing from people that deal in Family 14 Court, they are kind of crowded already and now 15 we are sending this whole additional caseload to 16 them. 17 How do we propose they will 18 handle this? Are we going to increase the 19 number of family judges, therefore, maybe doing 20 another full employment thing for lawyers and 21 maybe lawyers who don't have great practices, 22 giving them a chance to earn a living by 23 becoming judges. That's a question I have. I 1847 1 threw those extra two things in because you and 2 I share a common interest in lawyer full 3 employment bills so - 4 SENATOR COOK: Senator, I'm 5 concerned that we don't overburden Family Court 6 because I happen to think it is the most 7 important court we have, and we certainly don't 8 want to clutter them up. I would tell you that 9 as we constructed this process, we see the 10 Family Court proceeding as an absolute ultimate 11 thing that would happen in a very, very tiny 12 minority of the cases. I can not imagine that a 13 school district is going to use this process 14 very often. They certainly are -- there are 15 certainly other procedures set up along the way 16 that are going to make the situation such that 17 hopefully the problem will get resolved, and it 18 would only be in the case where it's blatant, 19 and I think there would have to be a showing in 20 the Family Court where blatantly the parent has 21 either neglected or interfered with the 22 education of the child that you would ever get 23 to Family Court. 1848 1 So I understand your concern. I 2 don't disagree with it, but I don't think it's 3 going to cause an awful lot of these cases to 4 end up in Family Court. 5 SENATOR STACHOWSKI: One last 6 question, Mr. President, if Senator Cook will 7 yield. 8 Do you see with this process and 9 this way of dealing with students in the 10 classroom that are disruptive and probably 11 speeding up the way they are removed as opposed 12 to the way they are now, maybe, would this in a 13 way enhance the enrollment at the various 14 schools that are designed to handle kids that 15 can't manage in regular school settings, and 16 this would alleviate, probably, a financial 17 crush that they are getting currently in -- you 18 know, in - 19 SENATOR COOK: Well, Senator - 20 SENATOR STACHOWSKI: You know I'm 21 referring more to special ed' schools where they 22 become deemed emotionally challenged children, 23 and if this is a bill that's going to help them 1849 1 in the long run, then I'm all for it. 2 SENATOR COOK: I wish I could 3 answer you in the affirmative, but I'm always 4 reluctant, frankly, when I put a bill out here 5 to say it's going to save a lot of money because 6 I hope it does; but, frankly, we're trying to 7 deal with a problem, and that's the thrust that 8 we're going at. 9 SENATOR STACHOWSKI: Mr. 10 President, it's more as a statement. I didn't 11 catch at the beginning if there were memos in 12 favor of this bill because the only thing I had 13 was on the original, and I'm sorry I didn't mean 14 to ask another question but I just wanted to 15 make sure if there were any people -- I know who 16 is against it. But I would like to know if 17 there were groups in favor of it, and for that 18 reason I'd have to ask Senator Cook to yield 19 once more, and then I am finished. 20 Thank you very much. 21 SENATOR COOK: Mr. President, we 22 don't have memorandums in support of this 23 specific bill. Frankly, we have stolen pieces 1850 1 from a lot of different places, and I think 2 those principles have been endorsed by various 3 people in various bills, some of which Senator 4 Saland may have introduced or Senator Volker, 5 and, in fact, one of the bills which is the next 6 one on the calendar for which we do have memos, 7 but not this specific bill. 8 ACTING PRESIDENT KUHL: Chair 9 recognizes Senator Dollinger. 10 SENATOR DOLLINGER: Mr. 11 President. Will Senator Cook yield? 12 ACTING PRESIDENT KUHL: Senator 13 Cook, do you yield to Senator Dollinger? 14 Senator yields. 15 SENATOR DOLLINGER: I apologize 16 some of my questions dovetail Senator Paterson 17 and Senator Gold, but a couple quick things. On 18 page 2 of the bill, which is number 360, is that 19 correct, Senator? 20 SENATOR COOK: Page 2? 21 SENATOR DOLLINGER: Page 2 of 22 Bill 360. 23 SENATOR COOK: Yes. 1851 1 SENATOR DOLLINGER: Where it 2 talks about the stipulation upon the filing of a 3 criminal complaint, the student shall immediate 4 ly be removed from the classroom, one of the 5 things that I noticed in this bill and in the 6 other bills is that there's an emphasis on the 7 phrase "classroom." Do you intend here that he 8 be removed from all his classes? 9 SENATOR COOK: Well, Senator, the 10 intention is they are going to be removed from 11 the usual classroom. The reason it says 12 "classroom" is that they are not suspended from 13 school. 14 SENATOR DOLLINGER: Right. That 15 dovetails with 365 which involves the ability to 16 remove from the class but requires them to 17 provide alternate education. 18 Thank you. 19 Again, if Senator Cook will 20 continue to yield? 21 ACTING PRESIDENT KUHL: Senator 22 continues to yield. 23 SENATOR DOLLINGER: In the 1852 1 Section in line 13 and 14 of the bill, it talks 2 about expulsion of students. Could you just 3 tell me, so I understand, what are the 4 circumstances under which a student can be 5 expelled from school currently? 6 SENATOR COOK: I have to 7 apologize, Senator, we've got to - 8 The staff tells me that word 9 "expulsion" is not a legal term, that, frankly, 10 it shouldn't be in the lettering. We don't 11 think it does any harm because it doesn't mean 12 anything. 13 SENATOR DOLLINGER: I guess - 14 through you, Mr. President. 15 I wasn't familiar with the 16 circumstances under which you could expel a 17 student from school, and that's why I asked the 18 question. The phrase "expulsion" is in there, 19 and I was wondering whether you were introducing 20 a new concept that would be included in the code 21 of conduct that we have no state rule that 22 permits an expulsion of a student. 23 I suggest even if this bill 1853 1 passes, I guess, if it sees life hereafter - 2 SENATOR COOK: I think you are 3 correct, Senator. 4 SENATOR DOLLINGER: The red pen 5 might go there. 6 SENATOR COOK: I think you're 7 correct. 8 SENATOR DOLLINGER: I have just 9 two other clarifying questions. 10 On page 7, when it talks about 11 the definition of "educationally neglected 12 child," does this include any requirement that 13 it be willful? 14 SENATOR COOK: Well, Senator, 15 yes, because it says that the legally 16 responsible person has failed to supply the 17 child with an adequate education, et cetera, or 18 has wrongfully interfered with or obstructed the 19 reasonable efforts of the school officials to 20 provide an education. 21 I think that if you wrongfully 22 interfere with, I think that's willful. 23 SENATOR DOLLINGER: Right, but 1854 1 again through you, Mr. President, if Senator 2 Cook will continue to yield. 3 ACTING PRESIDENT KUHL: Senator 4 Cook continue to yield? 5 Senator continues to yield. 6 SENATOR DOLLINGER: My question 7 is, what is the phrase that you failed to 8 provide the child with an "adequate education"? 9 Does that mean that, if your child fails to get 10 his or her high school diploma at the end of 11 grade 12, that you've failed? 12 SENATOR COOK: No, Senator, and 13 that's why that other phrase is in there 14 relative to attending school; that, 15 unfortunately, there isn't any way that we can 16 compel a child to learn, I guess. But if the 17 parent has ensured that the child has attended 18 school and that has not interfered in any way 19 with the efforts that the school has made to 20 provide the education to the child, then the 21 parent has fulfilled their responsibility. 22 SENATOR DOLLINGER: Again through 23 you, Mr. President, if Senator Cook will yield? 1855 1 ACTING PRESIDENT KUHL: Senator 2 continues to yield. 3 SENATOR DOLLINGER: Give me an 4 example of what the "wrongfully interfered with 5 or obstructed the reasonable efforts of school 6 officials to provide necessary and appropriate 7 education" - 8 SENATOR COOK: Sure. 9 SENATOR DOLLINGER: Give me an 10 example of that. 11 SENATOR COOK: There is a 12 requirement that when the child is suspended 13 that the educational program has to be carried 14 out. Let's assume that we've got a tutoring 15 situation, which you heard about -- you may have 16 not heard about it because you weren't here, but 17 in a small school district, this might be one 18 alternative that the school will use, and the 19 parent says, "No, I'm not going to let some 20 tutor come into my house; I don't want them 21 here," and I guess probably they may even be 22 within their rights to do that. I suppose they 23 probably are. But they basically said, "My 1856 1 child is not going to go to school. They don't 2 need to go to school." That's wrongfully 3 interfering. In other words, the parents in 4 some manner, if you will, take the side of the 5 child -- and that's not a right term, but they 6 interfere with the efforts of the school to do 7 whatever the school is trying to do to get this 8 child to attend the alternative school or to do 9 the things that are required and, if the parent 10 just basically says, "No, you know, it's not 11 important. I'm not even going to talk to the 12 school. I'm not going to show up for 13 conferences." 14 This whole Family Court 15 procedure, as I indicated earlier, is a last - 16 the last desperate effort, if you will, to do 17 something about the child's education, and it 18 really is envisioned that this would almost 19 never occur, and it would have to be a very 20 blatant thing that would occur. 21 SENATOR DOLLINGER: Again through 22 you, Mr. President. If Senator Cook will yield. 23 ACTING PRESIDENT KUHL: Senator 1857 1 Cook, do you continue to yield? 2 Senator continues to yield. 3 SENATOR DOLLINGER: I read that 4 as an either/or phrase. It says that you failed 5 to supply the child with adequate education, and 6 then it makes reference to the fact in I assume 7 Article 65, and I apologize for the fact that I 8 didn't read it. 9 SENATOR COOK: It's basically 10 attendance. 11 SENATOR DOLLINGER: Compulsory 12 education requirement. So, in other words, this 13 says that if you fail to supply the child with 14 adequate education. Is there a definition of 15 the phrase, "adequate education" in Article 65 16 of the Education Law? 17 SENATOR COOK: No, Senator, there 18 is not. Senator, I'm not an attorney. You 19 are. You probably deal in Family Court. There 20 are a lot of judgment calls in here. The school 21 has really got to basically make a strong case. 22 We have done everything we can to ensure that 23 the child has had an education. We have tried 1858 1 to contact the parent. We have set up all sorts 2 of alternative ways to get this education, and 3 these people just plain refuse to cooperate, and 4 I think the burden of proof is plainly upon the 5 school to make that kind of showing, and that's 6 really what we're talking about. 7 SENATOR DOLLINGER: Mr. 8 President, if Senator Cook, will yield to just 9 one more question. 10 ACTING PRESIDENT KUHL: Senator 11 continues to yield. 12 SENATOR DOLLINGER: The 13 adjustment agency procedure that's part 2 of the 14 bill which starts on page 8 and goes to page 9 15 and 10. My question is, one, are there 16 currently adjustment agencies set up; and, two, 17 what's the cost of this kind of an adjustment 18 agency as contained in this bill? What will it 19 cost the Family Court to set up an educational 20 supervision unit, which is what I think this 21 envisions? Is that a correct characterization 22 in generic terms, "an educational supervision 23 unit"? 1859 1 SENATOR COOK: Yes. Senator, in 2 some cases there will probably have to be an 3 additional cost. In many areas, in most areas 4 we have -- as we had this discussion a bit 5 earlier, we have been working with human 6 services agencies and probation and health 7 people and mental health people and the schools 8 to develop a kind of a bridge, a relationship 9 with families so that we deal with the 10 dysfunctional family problem which may be at the 11 base of the child's educational problem. 12 So I guess my answer is that we 13 think that in most cases this really exists. It 14 just formalizes something that's there. But, 15 frankly, in some cases, if it does not exist it 16 probably -- and, again, I'm not going to make 17 any rash claims, but I think it will very 18 closely pay for itself. Because if we are able 19 to develop that kind of relationship between the 20 school and the home and the human services 21 agencies, we're going to forego some other kinds 22 of problems that they are going to have to deal 23 with, anyway. 1860 1 So in all probability, you talk 2 about probation services, if you don't deal with 3 this, you are going to have these kids in 4 probation sooner or later, anyway. 5 SENATOR DOLLINGER: I agree with 6 that. 7 On the bill, Mr. President. 8 ACTING PRESIDENT KUHL: Senator 9 Dollinger on the bill. 10 SENATOR DOLLINGER: I don't think 11 anyone in this chamber has the concern for 12 education that the Chairman of the Education 13 Committee has, and I understand how this problem 14 that this bill seeks to address, the difficulty 15 of getting parents to monitor the education of 16 their children, which I know the Chairman of the 17 Education Committee believes is the key to our 18 economic future in this state for everyone -- it 19 is the doorway to opportunity. It's the doorway 20 to the middle class. It's the doorway to the 21 American dream. I understand your frustration 22 that prepares a bill like this that says we've 23 got to begin to try to legally use every tool we 1861 1 can to get parents more involved in the 2 education of their children. 3 However, in reading this bill, 4 albeit quickly, I see that the way it works may 5 do just the opposite -- may do just the 6 opposite. May not. 7 I'm concerned about the 8 definition of "educationally neglected" because 9 it doesn't imply a willful standard. It simply 10 says that they failed to supply the child with 11 adequate education in accordance with the 12 provisions of the compulsory education statute. 13 My fear is and the reason why, 14 although I know it's a legal argument to analyze 15 that and pick through it, is that so many times 16 in this chamber, I have heard members stand up 17 and say, "Those courts, they are out of control. 18 They are interpreting things inconsistent with 19 our intent. They are running roughshod over 20 what we intended to have done. 21 The reason why they do is because 22 we leave these things somewhat inartfully 23 drafted to say what is an adequate education for 1862 1 a child? We don't define that. So we let the 2 courts go galloping through our mind to try to 3 figure out what we meant, and they may decide 4 that failure to supervise the homework is a 5 basis for educational neglect. 6 There is no willful requirement 7 here. It doesn't mention the word "willful". 8 It may be just a negligence standards; that is, 9 if you just happen to fail to do it. 10 It then says if you obstruct the 11 school from achieving the goal. Well, does that 12 mean if you don't monitor the child doing his 13 homework? I agree with you, if you don't come 14 to parent teacher conferences, could that be 15 another factor? That may all go into it. 16 That may be the kind of thing 17 that an inventive lawyer, either for a school 18 district or for a family says yes or no, these 19 should be factors. 20 The problem is we're going to end 21 up with a whole series of adjustment procedures 22 and a whole series of potential problems for 23 which we haven't sat down, thought it through 1863 1 and, I think, perhaps more artfully drafted it. 2 I'm also concerned about the 3 adjustment bureau. I understand and I agree 4 with the Chairman of the Education Committee, 5 that, in many cases, we may see these children 6 time and time again. We may find them in the 7 Family Court system. We may find them in the 8 criminal justice system, and it seems to me that 9 the benevolent intent behind adjustment 10 procedures is to get intervention quicker and, 11 hopefully, get the education on a sound base, 12 get the family more involved in education, and 13 we won't have to worry about getting them 14 involved in the Family Court or getting them 15 involved in the criminal justice system. 16 So there are lots of good things 17 in this bill, lots of good intentions in this 18 bill. I guess I learned a long time ago that 19 certain roads may be paved with good intentions. 20 Frankly, even at this point, I'm 21 going to wait for the rest of the debate to see 22 how I vote on this bill. I think the intention 23 is important. I think the message is very 1864 1 important. Whether this sends the message is 2 the question I'm going to wait for the rest of 3 the debate to figure out whether it answers it. 4 Thank you. 5 ACTING PRESIDENT KUHL: Chair 6 recognizes Senator Lachman. 7 SENATOR LACHMAN: Mr. President. 8 Distinguished Chair of the Education Committee, 9 I'm not going to ask any questions and, 10 therefore, will not presuppose that you have to 11 yield. 12 I just want to enunciate three 13 principles, which will reflect my votes on this 14 package of five bills. 15 The first principle is that all 16 children in all schools have the equal ability 17 to learn, regardless of their background, their 18 socioeconomic status, their race, their national 19 origin. 20 The second principle is that all 21 these children cannot adequately learn unless 22 they are placed within a safe and secure 23 environment, which is essential to the process 1865 1 of learning, and if these bills go in the 2 direction of securing that safe environment, 3 then I will vote for these bills. 4 3. There is a United States 5 Supreme Court decision, Tinker versus Iowa, that 6 I believe the Supreme Court ruled on in 1972 7 that stated categorically that the civil 8 liberties and civil rights of all children do 9 not stop at the schoolhouse door. I assume that 10 the distinguished chair and the members of the 11 committee have taken that into consideration in 12 the construction of the bills that now appear 13 before us. 14 Those are the three principles 15 that will guide my decision on the votes that I 16 will offer to these bills. 17 Thank you. 18 ACTING PRESIDENT KUHL: Chair 19 recognizes Senator Seabrook. 20 SENATOR SEABROOK: Yes, Mr. 21 President. Will Senator Cook yield for a couple 22 questions, please? 23 ACTING PRESIDENT KUHL: Senator 1866 1 Cook, do you yield to Senator Seabrook? 2 Senator yields. 3 SENATOR SEABROOK: Senator Cook, 4 just a couple of questions that I have. Are 5 there codes of conduct in existence today? 6 SENATOR COOK: Yes. Senator, 7 most schools do have codes of conduct. I think 8 -- as a matter of fact, I think perhaps there's 9 even a regulation by the commissioner that 10 requires codes of conduct. 11 Our point, frankly, in putting 12 that language in this bill was to clarify that 13 if school districts wish to do certain things in 14 their code of conduct that they have the legal 15 power to do it. 16 But your answer is, yes, in 17 general, there are codes of conduct in most 18 schools. 19 SENATOR SEABROOK: So there is no 20 real compelling interest to change this now, 21 that -- a real ground swell of talking about the 22 change of the code of conduct? 23 SENATOR COOK: Senator, the code 1867 1 of conduct is the starting point for the 2 construct of the bill. If you start in the 3 middle of the process and you say, okay, if a 4 child is misbehaving in school you are going to 5 do da-da-da da-da, and you don't define at the 6 initial point what is expected of the child and 7 you don't advise the parents and the child what 8 those expectations are, then it starts to beg 9 the question later on in the process as to why 10 the process exists. 11 So the code of conduct is really 12 the starting point for the process. 13 SENATOR SEABROOK: Will the 14 Senator yield for another question? 15 ACTING PRESIDENT KUHL: Senator 16 yields. 17 SENATOR SEABROOK: The issue of a 18 dress and language that is deemed appropriate, 19 is that in existence presently? 20 SENATOR COOK: Senator, there is 21 a certain amount of controversy over that issue, 22 as you may well be aware. We have not yielded 23 to the temptation of trying to say what that 1868 1 code shall consist of, simply because we 2 recognize that in different districts in 3 different parts of the state that standard might 4 be different; that what would be -- I hate to 5 bring this up, but the obscenity code, as you 6 know, really relates to acceptable community 7 standards, and I think that what we're trying to 8 do is say that the school district may establish 9 standards for speech and dress that are 10 acceptable to the school and are in conformity, 11 if you will, with general community standards. 12 SENATOR SEABROOK: Will the 13 Senator yield again? 14 ACTING PRESIDENT KUHL: Senator 15 Cook, do you continue to yield? 16 The Senator continues to yield. 17 SENATOR SEABROOK: That's an 18 interesting point as it relates to the language 19 question, and I guess it has a little to do with 20 geographical areas, as well, because I have some 21 concern about it, a kid who might transfer to 22 another district and just so happens to hear the 23 rap record, "Bitches With an Attitude," and if 1869 1 he moved to a further district that had some 2 problems -- and they are on the Top 10 chart in 3 the rock industry right now. So would that be 4 considered language that would be inadequate? 5 SENATOR COOK: Senator, I think 6 you would have to -- if you are going to get 7 into any kind of punitive action, you are always 8 going to be subject to a review of what is 9 reasonable and constitutional and, if the use of 10 certain slang is part of your normal language 11 and that were banned, that would probably exceed 12 the constitutional limits of what you can do. 13 On the other hand, if there are certain words 14 which we usually define as four-letter words and 15 people have them emblazoned on their T-shirts or 16 they utilize those words in discussion in the 17 classroom, or they use them in, if you might 18 say, a threatening manner in normal discussion 19 in the school, then you might -- then I think 20 that begins to fall into the area where you 21 might be able to define it. 22 Interesting area, and, again, I 23 keep going off into dangerous territory here, 1870 1 but it's a little bit akin to sexual harassment 2 complaints. There's not a clear defining line 3 as to what constitutes a sexual harassment. It 4 is a pattern as to what you do and how you do it 5 and how you say it, and I think that's why we've 6 tried to let the school district make that 7 definition that they can define what they 8 consider to be a -- to create a problem. 9 Senator, part of the situation is 10 I'm not trying to altogether deal just with 11 violence. I think -- to talk about the 12 philosophy for a little minute. 13 I think that part of the reason 14 why we have violence in the high school is 15 because at the elementary level, we often just 16 kind of slough off activities on the part of 17 younger children who just don't think they have 18 to show any respect for the teacher or respect 19 for the other students, and they call people 20 names. They do all sorts of things, and we sort 21 of say, yes, that's just kids growing up; and 22 I'm not one who believes that we can have a 23 rigid whip standard as to what perhaps you and I 1871 1 experienced when we were in school, either. 2 SENATOR SEABROOK: True. 3 SENATOR COOK: But I think some 4 place there is a middle ground. 5 SENATOR SEABROOK: Right. 6 SENATOR COOK: That's really what 7 we're trying to do. 8 SENATOR SEABROOK: That was the 9 point of concern that I had as relates to the 10 language situation, and in New York City, where 11 the mayor has a slogan that our city can kick 12 your ass -- your city's ass, and if they move 13 upstate they can create a language problem, and 14 so that's why I have some concern about its 15 usage in the language area. 16 SENATOR COOK: Senator, I'm also 17 of the opinion that it's not inappropriate to 18 establish a climate in which people understand 19 that the school building and the school property 20 is a place different from the street. 21 SENATOR SEABROOK: I agree. 22 SENATOR COOK: I think that 23 perhaps part of our problem with school conduct 1872 1 has been the perception that we have built, 2 unintentionally, through the years, that there 3 is no difference, and I think that part of the 4 seriousness of education of a child -- how they 5 regard education, how they regard the classroom, 6 how they regard why they are there, is partially 7 communicated by the fact that you say to kids, 8 "You know, I don't mind if you say that down on 9 the street corner, that's your business, but you 10 don't say it here." 11 SENATOR SEABROOK: Right. 12 SENATOR COOK: That's part of the 13 philosophy. 14 SENATOR SEABROOK: One other 15 thing that I have a concern about the bill, and 16 perhaps you can clarify it. There is the 17 question that is fundamental to the rights which 18 we cherish in America and that's due process, 19 and one of the things that is within here, I saw 20 that a criminal complaint or an alleged criminal 21 complaint could actually remove the student from 22 the classroom, just an alleged. We don't get 23 removed from this house for alleged complaints. 1873 1 So I have a question and a 2 concern about due process, and that is, what 3 provisions are provided in here, one, for due 4 process; two, for legal representation that 5 should be provided in this particular forum 6 because you are actually going to a tribunal, 7 and what's provided there? 8 SENATOR COOK: Senator, nothing 9 is provided, and we've had this discussion two 10 or three times. I realize through no fault of 11 your own or other people, you have not been in 12 the classroom -- in the classroom -- in the 13 chamber. 14 As regards to the welfare of 15 children, we have done things in law and they 16 have been upheld that would not normally be due 17 process, and I cited in discussion with someone 18 else the case that if someone alleges that a 19 parent is abusing the child that child welfare 20 authorities may appear at the door and actually 21 take that child out of the home immediately on 22 the complaint based on the assumption that the 23 higher responsibility of the state is to protect 1874 1 the child from injury, and this is really on the 2 same basis. It is based on the assumption that 3 if you have a child who has done something that 4 is serious enough to warrant a criminal 5 complaint -- and we've used that as kind of a 6 benchmark -- that what you need to do is get 7 that child out of the classroom and into some 8 other place. 9 We're not putting them in jail. 10 We were not detaining them after school. We are 11 not doing anything else except putting them in a 12 different setting within the school until -- and 13 this is where the due process comes in -- until 14 the due process that relates to the criminal 15 complaint is resolved in another forum, but it 16 isn't related in the school, but it is really 17 based on the assumption that you have a 18 responsibility to protect the other children in 19 the classroom; and, frankly, the teacher from 20 what might be a criminal activity. 21 I had an instance in my district, 22 and I'm sure other people can cite the same 23 thing, where a child walked into a classroom and 1875 1 shot the teacher. Now, if we had a due process 2 that said, Well, gee, you know, this kid shot 3 the teacher; maybe we ought to convene a board 4 and we ought to have a hearing and we ought to 5 discuss whether this child is an endangerment to 6 people in the classroom," you know, three or 7 four weeks later we might be able to take the 8 kid out of the classroom. 9 Obviously, that's a stretch of 10 the point, but the point being I think there's 11 adequate precedent that it does not violate due 12 process to assume that we have to protect the 13 other children from danger. 14 SENATOR SEABROOK: Just one other 15 question, Senator, what happens when the removal 16 of that child on this alleged complaint, the 17 complaint is found to be unfounded? Can that 18 child bring an education neglect proceeding 19 against that teacher for not being allowed the 20 privilege to participate in a regular setting of 21 that classroom in which they were assigned? 22 SENATOR COOK: Senator, there's 23 no right to participate in a given classroom. 1876 1 If you and I and everybody in this room attends 2 a given school, they assign us to classrooms on 3 some basis -- you know, whatever basis. And if 4 they decide to assign us to one classroom with 5 one teacher, they haven't violated our rights by 6 doing that. So by removing that child -- and, 7 remember, in other sections of the bill, it says 8 you have to continue the education program. 9 SENATOR SEABROOK: Right. 10 SENATOR COOK: So by removing the 11 child from that classroom, they really aren't 12 violating their rights because they are 13 continuing the education; and, also, as I 14 pointed out earlier, they are not saying you got 15 to stay after school or do anything of the other 16 -- anything other that's punitive. It's simply 17 at that point you are sort of saying, you know, 18 we've got to protect these other kids. We need 19 to get you down the hall in a room where you are 20 not going to endanger them. 21 SENATOR SEABROOK: Thank you, 22 Senator. 23 On the bill. 1877 1 ACTING PRESIDENT KUHL: Senator 2 Seabrook, on the bill. 3 SENATOR SEABROOK: I think the 4 bill which we are looking at today has some 5 merits but a lot of deep concern. I think that 6 what Senator Cook is attempting to do is 7 something that's real, and we understand that. 8 Those codes existed when I was in school and 9 when Senator Cook was in school in terms of the 10 duties and responsibilities and that code that 11 existed from the family that exuded into the 12 school, so we understood that. 13 But I think that there are some 14 grave concerns as it relates to the real 15 issues. I think that dealing on the basis of 16 those individuals who bring weapons into schools 17 is certainly on point and should be dealt with, 18 but I have some real concerns about changing the 19 code that is already in existence and certainly 20 has not shown that it needs to be changed as it 21 relates to dress, although I do believe that 22 there should be a uniform pattern that says that 23 teachers as well as students should have some 1878 1 sense of a dress code, but since we live in 2 America and we allow people to -- as long as 3 they present themselves, they are entitled to 4 dress as they desire. 5 I think also, when we talk about 6 the whole question of language, I have some 7 concerns, although I do understand. But when 8 you hear those in higher offices than us use 9 those particular words that we thought were 10 considered bad and profane words and now are a 11 part of the lexicon of the day, so we have some 12 question about how do we take away that so there 13 are some constitutional questions that I think 14 need to be answered. 15 But I think as it moves in the 16 direction of talking about dealing with this 17 question of violence, I have a concern because I 18 think that when we start allowing the 19 suspensions and involvement of teachers involved 20 in suspension, we've seen what has happened in 21 special education in our society, and in 22 particular in New York City and the higher 23 percentage of African-Americans who are the 1879 1 predominant males in special education. They 2 represent 87 percent of all of the suspensions 3 in New York City, and so there's a serious 4 concern and a problem; and does the dress code 5 or does the language create that problem that 6 causes the suspension? 7 I dare say that there are some 8 other compelling factors that I think that this 9 body should look at which I think could 10 eliminate a lot of the violence and problems 11 within schools. I think if we decided to spend 12 the amount of dollars that we spend on a kid in 13 a private institution, that we produce all of 14 these individuals. Then we spend $16,000 in a 15 school in the Bronx in Riverdale, which are 16 private schools, and we spend about $7800 on a 17 kid in the public school system, and sometimes 18 less. So I think when we do that we are 19 basically saying you get what you pay for. 20 I would hope -- and I agree that 21 there should be conduct within the schools and 22 responsibility, and teachers should have more 23 responsibility as well as dealing with the 1880 1 administrators. But I think we're really moving 2 down a very slippery slope when we start 3 treading on some constitutional questions, and 4 perhaps a bill that specifically deals with 5 cleaning up that act on violence, I think it's 6 apropos to deal with that. When we start 7 talking about dealing with these constitutional 8 questions, I have grave concerns about dealing 9 with that as it relates to children, although I 10 applaud some of the things that's in the bill. 11 I'm in total agreement that we 12 need to begin to focus on that and direct, but I 13 would say that this bill right now is a little 14 too broad and it treads on dealing with some 15 constitutional questions. 16 ACTING PRESIDENT KUHL: Chair 17 recognizes Senator Montgomery, and also to 18 remind the members that this debate started at 19 11:18. 20 Senator Montgomery. 21 SENATOR MONTGOMERY: Thank you, 22 Mr. President. I will be as brief as I can. If 23 the sponsor, Senator Cook, would yield. 1881 1 ACTING PRESIDENT KUHL: Senator 2 Cook, do you yield to Senator Montgomery? 3 The Senator yields. 4 SENATOR MONTGOMERY: Senator 5 Cook, I also certainly applaud your wish to 6 establish sort of a code of behavior and 7 interaction, a standard, I suppose, for all of 8 the parties within a school community. But I 9 would like to ask you a question. 10 Your bill spends a lot of time, 11 if I'm on the right bill, talking about dealing 12 with parents who are deemed to -- or students 13 who are deemed to be educationally neglected by 14 their parents, and I just wanted to ask you a 15 couple of questions about that. 16 On page 5, starting at line 23, 17 where the new section that you are adding, it 18 says, "Where a request for the filing of a 19 juvenile delinquency petition is submitted by a 20 school principal or school superintendent 21 pursuant to" section, subdivision, and what have 22 you, "such principal or superintendent may 23 suspend such pupil for a period not to exceed 20 1882 1 school days, and the hearing requirements of 2 this section shall be stayed, pending a 3 determination by presentment agency or district 4 attorney to commence a proceeding against such 5 student. If no proceeding is commenced within 6 such time period, the hearing requirements 7 apply." 8 Can you explain? Does that mean 9 then that the school itself now can -- the 10 period of time that a student can be suspended 11 can exceed 20 school days, depending on the 12 ability of the court to convene or to get a 13 date? What does that mean, that 20-day 14 section? 15 SENATOR COOK: Only, Senator, if 16 there's actually a delinquency case that is 17 filed. In other words, they can't suspend them 18 just on a whim. At that point, if they are 19 involved in a juvenile delinquency proceeding, 20 then they can stay suspended for the duration of 21 that proceeding. 22 SENATOR MONTGOMERY: So who 23 determines that it's a juvenile delinquency - 1883 1 it says a petition. 2 SENATOR COOK: If there is a 3 petition in the court, yes, for the pendency of 4 that. 5 SENATOR MONTGOMERY: In other 6 words, this is a case of a child who has already 7 been determined to be a juvenile delinquent? 8 SENATOR COOK: No, it's the case 9 where you might be filing simultaneously - 10 well, it could be, but it's a case where you 11 might be filing simultaneously a petition. 12 Senator, the safety valve in this 13 is the other piece that says you got to continue 14 the educational program. Reluctantly, I have to 15 confess that that is going to cost the district 16 some money. The district is not going to be 17 anxious to have that child suspended for any 18 longer than they have to, knowing that during 19 that period of time they are going to have to be 20 paying for an alternative type of education. So 21 I think that's the reason why the school is not 22 going to do it for any longer than they have to; 23 and, secondly, it could be argued that it's 1884 1 actually beneficial to the child to have the 2 alternative education, because in many instances 3 those types of schools, those types of programs 4 really do help children who are having problems 5 in school or creating problems because they are 6 having problems. 7 SENATOR MONTGOMERY: I was just 8 trying to clarify that, if the principal has 9 filed for a juvenile delinquency petition with 10 the court, the child can be suspended up to 20 11 days. So the bill provides for that. 12 All right. I just wanted to be 13 clear about that. 14 Senator, I think it's at the 15 bottom of that same page, where it talks about 16 the jurisdiction of the court depending on the 17 age referral to presentment agency or district 18 attorney, on line 40, where a school principal 19 or superintendent determines that conduct by a 20 student endangers the health, safety or security 21 of others, including but not limited to conduct 22 constituting possession of deadly weapon, which 23 clearly we know is beyond -- it goes beyond just 1885 1 simply misconduct. 2 But you are now saying that the 3 principal or that school or the school district 4 or an agent of the school will file for that 5 child to go directly to the D.A. or some other 6 agency of law. 7 SENATOR COOK: They may file. 8 SENATOR MONTGOMERY: So the 9 school now has a direct relationship, in other 10 words, with the D.A.'s office. 11 SENATOR COOK: For the complaint, 12 Yes. 13 SENATOR MONTGOMERY: The same 14 with the police department. So they no longer 15 have to deal at all with the local police 16 department. They can just go directly to the 17 D.A. 18 SENATOR COOK: Yeah. Now, that 19 presumes that they have the expertise to collect 20 the evidence and do all that kind of stuff, and 21 I think they do that under some hazard because, 22 as you know, under the rules of evidence, if 23 they take the information in to the D.A. which 1886 1 has been improperly developed and they're not 2 trained to do that kind of thing, they may well 3 not have much of a case. So I think they do 4 that with some -- under some - 5 SENATOR MONTGOMERY: Now, 6 Senator, you know, in New York City there's been 7 this ongoing battle between the mayor and the 8 Board of Ed' regarding the police department 9 being involved, so I'm just, you know, noting 10 that this seems to move that around altogether, 11 that we no longer really need to have the police 12 there, we can just -- the school itself has a 13 relationship with the D.A. or can have in cases 14 where the student is deemed to -- to have 15 violated your code vis-a-vis this legislation. 16 SENATOR COOK: Well, Senator, you 17 say violate the code. That's -- that's not 18 quite true. 19 SENATOR MONTGOMERY: Or violated 20 the law. 21 SENATOR COOK: They have to have 22 violated the law and actually endanger someone, 23 and as you're aware -- I don't know whether it 1887 1 happens in every school building in New York, 2 but the ones that I have been in have a security 3 -- usually, I guess it's a private -- a private 4 security force that's in the school, and there 5 may at some point be -- restrained a student who 6 was actually endangering other people and that 7 permits the school administration utilizing, I 8 guess what resources they have. Usually it's 9 the district attorney. 10 SENATOR MONTGOMERY: Senator 11 Cook, when a parent has been deemed to be 12 neglectful, who can make that determination and 13 how does that happen vis-a-vis your 14 legislation? 15 SENATOR COOK: It has to be the 16 Family Court judge, Senator. 17 SENATOR MONTGOMERY: Who can 18 refer that parent to the courts. 19 SENATOR COOK: Yeah. This is 20 basically a petition -- it establishes a ground 21 and a procedure by which the school district can 22 -- and I'm being repetitious with some other 23 people, but I don't know how else to say it. 1888 1 Basically it goes to the Family Court, to be 2 inartful about it, and says, "Look, we've tried 3 everything under the -- that we know how to do 4 to get the parents to come in, to cooperate with 5 us and work with us to try to deal with problems 6 that this child perhaps has and is creating in 7 the school", and they have just plain refused to 8 cooperate, and we cannot -- this child cannot 9 obtain an education if there is not some action 10 on the part of the parent, and they have to, 11 obviously, make a showing before the Family 12 Court judge that that is the case, and I would 13 have to say I think this would be a very, very 14 rare occasion on which this would occur, in the 15 first instance, and secondly, that a Family 16 Court judge would be -- have to be pretty well 17 convinced that the case was -- was pretty 18 overwhelming before the Family Court judge is 19 going to make this kind of a finding. I mean, 20 it's a little bit -- it's not quite like saying, 21 you know, they haven't fed them for three days. 22 That's pretty obvious. 23 I think the finding that somebody 1889 1 hasn't cooperated in the education is going to 2 be a little tougher to prove, but the point is 3 that there are cases where families just plain 4 refuse to cooperate with the school and hope 5 fully this will be a little bit of encouragement 6 for them to be a bit more open to doing that. 7 SENATOR MONTGOMERY: Okay. Thank 8 you, Senator Cook. 9 Mr. President, just on the bill 10 briefly. 11 ACTING PRESIDENT KUHL: Senator 12 Montgomery, on the bill. 13 SENATOR MONTGOMERY: I guess the 14 -- while the intent of the legislation is noble 15 and I believe certainly no one in this room 16 would argue with the -- with the desire to have 17 a standard of operating -- a standard of 18 relating, rather, to each other in school the 19 same as we have in this body and in other bodies 20 that we operate in as adults is most desirable. 21 I do have some very particular 22 issues that the bill, in my mind, does not 23 address. One is that I think we create for the 1890 1 school system an arm -- a position of being an 2 arm of law enforcement, and I certainly don't 3 believe that is either the intent of the sponsor 4 or the desire of local boards of education and 5 local schools, but this certainly -- this 6 legislation, in my mind, does that, that we now 7 have the school reaching directly into the 8 courts, filing petitions against students and 9 their parents for various infractions. 10 The bill states also -- there are 11 two aspects that are particularly disturbing. 12 One is that in an event where the school 13 determines that the parent is neglectful, 14 vis-a-vis, Senator Cook, then there is a 15 determination that all of the children in that 16 family are also neglected. So that if the 17 parent is having difficulty with one child 18 because that child happens to be a particularly 19 difficult personality, has a particular conflict 20 with the school for this year or maybe over a 21 period of time, it is assumed that that parent 22 is neglectful of all other children in the 23 family, even though that may not be so. 1891 1 There is an another section which 2 provides for the fact that a person -- a family 3 who is residing in a residence that is for 4 homeless families or a family who is currently 5 -- it says "in determining the jurisdiction of 6 the court under this article, the child need not 7 be in the care or custody of the respondent as 8 of the date of the petition." So that parent 9 may be in some sort of a treatment program or 10 may be separated from the child at the moment 11 for one reason or another, but the family may be 12 living in a homeless shelter and the school can 13 still petition for them to be brought to court 14 under this law. 15 So I think it's quite interesting 16 that we are establishing very strict standards 17 of behavior for children and for parents, and we 18 are also establishing that parents may even be 19 arrested and jailed for up to six months under 20 this legislation if they -- if they are deemed 21 to be neglectful under this law, but we have not 22 been able to somehow deal with how does the 23 system respond with a lot more latitude and 1892 1 flexibility so that it can more adequately reach 2 out to provide support and, indeed, as you -- as 3 you say in this bill, appropriate education. I 4 mean, the school fails children by the millions 5 and I don't -- I don't see anywhere -- I don't 6 have anywhere any proposal as to what should we 7 do about schools who fail children. So, 8 obviously, that's -- that's something that we 9 can't deal with here, and I'm not saying that 10 you, Senator Cook, don't intend to deal with it 11 and would not like to, but I do say that we've 12 gone quite far, I think, in looking to make 13 arrest of parents for being neglectful, as 14 defined by this law, for allowing for a school 15 to put a child into the court system on its own 16 will and there's just not -- there's not the 17 kind of supports and safeguards that I think are 18 crucial, especially in the city of New York 19 where we have some 200,000 students who are - 20 who are suspended on any given day in that - 21 from that system. 22 So, Senator Cook, while I 23 understand your -- your desire to establish a 1893 1 code, I think this just reaches a bit far in 2 terms of making parents ultimately possibly the 3 scapegoat for the failure of the system. 4 So I will be voting no on this, 5 Mr. President. 6 ACTING PRESIDENT KUHL: The 7 Secretary will read the last section. 8 THE SECRETARY: Section 10. This 9 act shall take effect January 1, 1997. 10 ACTING PRESIDENT KUHL: Call the 11 roll. 12 The Chair recognizes Senator 13 Wright to explain his vote. 14 (The Secretary called the roll.) 15 ACTING PRESIDENT KUHL: Senator 16 Wright to explain his vote. 17 SENATOR WRIGHT: Thank you, Mr. 18 President. 19 I had the occasion two years ago 20 to serve with Senator Cook in several days of a 21 seminar referred to as "Vision 21", and during 22 that seminar, we had several days of interaction 23 with school personnel, both at the teaching as 1894 1 well as the administrative level but, equally 2 important, we had the opportunity to interact 3 with students, interact with individuals from 4 the community, from the business community, all 5 of the -- what have become known as the 6 stakeholders, if you will, in the education 7 process, and while we spend a great deal of time 8 here in Albany talking about the finances of 9 education, they wanted to spend time talking 10 about what was actually going on within the 11 school themselves, and one of the key issues was 12 the environment of the school relative to safety 13 and creating a learning environment, and what 14 came through time and time again from the 15 average individual participating in this several 16 days seminar was "Our focus is all wrong. We 17 spend all of our time focusing on the three and 18 four percent that are disruptive and not 19 focusing on the other 95 percent of the students 20 who are there to learn." 21 I think what this bill does is 22 says "We recognize the rights of the other 95 23 percent of the student population who are in 1895 1 that school to learn." I think Senator Cook 2 should be commended for his efforts. He's 3 starting in the right direction in terms of what 4 needs to be done, in terms of restoring an 5 environment to our classrooms that's conducive 6 to learning where our children can feel safe and 7 in turn the teachers themselves can feel safe. 8 I'm fully in support of this bill 9 and vote aye. Thank you. 10 ACTING PRESIDENT KUHL: Senator 11 Wright will be recorded in the affirmative. 12 Senator Leichter to explain his 13 vote. 14 SENATOR LEICHTER: Mr. 15 President. Senator Cook, I think you've 16 addressed a very important issue, and since I 17 know you, I know you've addressed it in a very 18 sincere fashion and have given it a lot of 19 thought, but unfortunately, I think the way this 20 was rushed to the floor has really marred what 21 should be a much more thoughtful and much more 22 deliberative process to deal with a very 23 important issue. 1896 1 You yourself -- I heard you say 2 -- I was in our room and heard you over the 3 squawk box -- I think I heard you correctly, the 4 bill has been sort of patched together from 5 various bills, that the people in the advocacy 6 groups, the school boards, those who really are 7 most affected by the bill haven't even had a 8 chance to look at it, to respond to it, to put 9 in their memos on it. Where are the hearings 10 before these groups on this bill? You put in a 11 bill and you have to admit that you have a word 12 in there where you talk about expulsion when it 13 doesn't even exist under the law. You set up a 14 very complicated new procedure for the Family 15 Court. Has this been checked with OCA? How is 16 this going to work? I'm not even sure that that 17 sort of an agency can act within the confines of 18 the judicial system. It seems to me that you're 19 -- you're mixing some executive and judicial 20 functions. 21 So, Senator, this really deserves 22 more thought, more consideration, more work. 23 Should we have codes? I think that's an 1897 1 excellent idea. Should the penalty be as you've 2 provided in here? I don't know. I see 3 provisions in there just upon the filing of any 4 criminal complaint, a student is ousted. You 5 know that a criminal complaint can be filed by 6 an individual. I can go to court and file a 7 criminal complaint against you. Under the 8 wording of that bill, that person would be 9 suspended from school. There are things of that 10 sort that really need work, that need to be 11 thought out. 12 I know that you're dealing with 13 this in a bona fide manner. I don't think it's 14 just a matter of getting headlines, and so on, 15 and I know there's a philosophy that you people 16 have about having codes, having greater 17 discipline, and you may be right in some 18 instances, but let's do it in a deliberative, 19 careful fashion. I think that we hurt the issue 20 in proceeding as we have with this bill, and 21 while it has some good ideas, it really is not 22 well worded. It's not well thought out. It 23 requires more work. 1898 1 I vote in the negative. 2 ACTING PRESIDENT KUHL: Senator 3 Leichter will be recorded in the negative. 4 The Chair recognizes Senator 5 Mendez to explain her vote. 6 SENATOR MENDEZ: Thank you, Mr. 7 President. 8 I also think that Senator Cook 9 has come up with the idea -- with proposing a 10 solution to a problem. 11 However, I have great, great 12 displeasure with some aspects of this bill 13 because it ends up being, Mr. President, a 14 marriage between the public school system and 15 the criminal justice system. 16 The positive aspect of the bill 17 is that about the code of conduct. It should be 18 like years before in which students, all 19 students did go to school with a uniform and 20 then parents who were not that affluent wouldn't 21 have to be accosted by their own children to buy 22 these kinds of jeans or these kinds of sneakers 23 or whatever. This is a dangerous thing. 1899 1 The negative aspects of the bill, 2 Mr. President, I believe violate horribly the 3 rights of the students, and we must find 4 solution to the violence in schools in a 5 different fashion. In fact, everybody's 6 accepting about the violence in school. In New 7 York City, there are at least 1.1 million 8 students, one percentage of students who are - 9 a simple -- a simple - 10 ACTING PRESIDENT KUHL: Excuse 11 me, Senator Mendez. 12 SENATOR MENDEZ: -- a simple 13 little process - 14 ACTING PRESIDENT KUHL: I can 15 hear you now. Thank you. 16 SENATOR MENDEZ: -- of dealing 17 with unruly children has existed for years and 18 years in our schools, and that is a teacher has 19 the right to take an unruly child, a child that 20 misbehaves and send him or her to the princi 21 pal's office, and then the executive director of 22 that little school, in this instance the 23 principal, is the one that should be dealing 1900 1 with these. 2 For those reasons, I vote in the 3 negative. 4 ACTING PRESIDENT KUHL: Senator 5 Mendez in the negative. 6 Senator Abate to explain her 7 vote. 8 SENATOR ABATE: Yes. I would 9 like to explain why I am not voting for this 10 legislation. 11 All of us have started out 12 applauding Senator Cook, and I do that because 13 -- I do that also because I think everyone in 14 this room has an enormous amount of respect for 15 Senator Cook and we know that when he sponsors a 16 piece of legislation, he does it in an informed, 17 thoughtful and in a manner because he believes 18 in what he's putting forward. 19 I oppose this bill on two 20 grounds. One is the process. I received this 21 bill for the first time this morning. Sometimes 22 bills aren't as complicated as others. We can 23 get bills ten or fifteen minutes in advance, 1901 1 look at them, understand the intent and also 2 look and understand what would be the 3 implications of the enforcement of the 4 provisions of this bill. 5 This bill, however, is very 6 complicated. It involves a lot of pieces, not 7 just of our education system, but as impacts on 8 other systems also. I think we should not rush 9 to pass this bill because I don't know the 10 effects of this bill. I think this is a kind of 11 bill where we should have public hearings. As 12 Senator Leichter said, I would like to hear from 13 Family Court to see what it would mean to move 14 the jurisdiction of education neglect cases from 15 the school system and move them to the Family 16 Court system. What does that mean in terms of 17 presentment? How are the corporation counsel or 18 other attorneys going to be involved? There's 19 so many unanswered questions in this bill that I 20 believe need to be answered. 21 I'm particularly troubled by the 22 provision about automatically suspending 23 students, and I'm told that that does not mean 1902 1 we kick students out of the school. It means we 2 remove them from classes. There may be some 3 jurisdictions that, when you move someone from a 4 classroom, you move into an empty classroom and 5 nothing will be going on. I don't know what 6 that means, and clearly it cannot be 7 automatically done just because there's been a 8 filing of a Criminal Court complaint. It may or 9 may not warrant removal, but one has to look at 10 some kind of fact-finding process to see whether 11 it warrants removing that child from the 12 classroom. 13 I think the way many provisions 14 of this bill are written is just much too 15 broad. I agree that we should not tolerate 16 violence in the classroom. Teachers should not 17 be exposed to violence. I can imagine what it 18 must be like to be assaulted as a teacher and 19 the next day to have to come into that classroom 20 and face that same situation. I mean, I think 21 we're all sympathetic. I'm not sure, though, 22 that the provisions in this bill protect 23 teachers, will encourage quality education and 1903 1 also protect the rights of students at the same 2 time. 3 So while I agree with the intent, 4 the devil is always in the detail, and I'm 5 hoping that those of us who do not support it 6 today send a strong message to you, Senator 7 Cook. Please take another look at this bill to 8 see if we can accomplish what you want to do but 9 in a much more, I think judicious, middle ground 10 way, and I think we'll be much more effective in 11 doing so. 12 ACTING PRESIDENT KUHL: Senator 13 Abate in the negative. 14 Senator Marcellino to explain his 15 vote. 16 SENATOR MARCELLINO: Mr. 17 President, thank you. 18 And I too would like to rise and 19 congratulate my colleague and chairman of the 20 Education Committee, Senator Cook, for bringing 21 to the floor an issue that has to be addressed 22 and must be addressed. 23 For many years, I taught in the 1904 1 New York City school system and was responsible 2 for discipline as the dean of students in that 3 school. The situation of a teacher in a 4 classroom trying to teach when students feel 5 that the discipline code in the school has no 6 meaning because it cannot be enforced on them, 7 that lawyers now have the right to sit in on 8 what used to be guidance situations, where 9 teachers have to continue teaching a class after 10 a student gets up, curses them out because he or 11 she doesn't agree with something or doesn't like 12 something that was said, or has a fight with a 13 kid next to him, curses the teacher out and then 14 40 minutes of a class is left and you have to 15 teach a class that has been disrupted, the 16 students are in disarray and they're not ready 17 to learn. That whole system has got to change. 18 If we're talking about quality 19 education, and we do constantly talk about 20 quality education, how education is the most 21 important thing, that our students and children 22 is the most important thing, and we all want the 23 best for our students, I say to you and I submit 1905 1 to you, you can't have quality education without 2 a safe environment for teachers to teach and 3 students to learn. 4 Those who are unruly must be 5 taken out of the classroom so that those who 6 want to learn can learn, and the only way to do 7 that is to seriously address the issue of 8 discipline and control. 9 Public school education is taking 10 a major hit, is not working, is failing 11 throughout this country. You hear it over and 12 over again how public school systems are not 13 doing the job they once did, how they're 14 failing, and I submit to you, one of the reasons 15 is because they no longer have control of the 16 students in the system. We've over 17 rationalized. We've put too many legal 18 impediments in the way of control. 19 Public schools must take everyone 20 who walks in the door and cannot exclude 21 anyone. I agree with that 100 percent. That's 22 the philosophy of public education and it should 23 continue. We're a great nation because of 1906 1 that. Wouldn't do anything to change that, but 2 those who will not learn and go out of their way 3 to prevent others from learning must be removed 4 so that those who wish to learn can learn. This 5 bill begins the process, begins the debate. I 6 will support it. I vote for it and I applaud 7 Senator Cook for bringing it up. 8 Thank you. 9 ACTING PRESIDENT KUHL: Senator 10 Marcellino will be recorded in the affirmative. 11 The Chair recognizes Senator Gold 12 to explain his vote. 13 SENATOR GOLD: Thank you, Mr. 14 President. 15 First of all, before I make any 16 other comments, I do want to take some 17 difference with Senator Marcellino when he talks 18 about lawyers and legal impediments. Maybe it's 19 my background and my prejudice, but I think an 20 awful lot of lawyers save as many lives as 21 doctors, and let's not belittle civil rights and 22 all of that. 23 The other point I want to make is 1907 1 that we have a process, conference committees - 2 I don't know whether we're going to get to 3 that. Maybe during the budget we'll get to 4 that. I think that there are some times when a 5 signal goes out that something's important and 6 it's just got to be on the table, and I think 7 this is one of those situations, and were I to 8 vote in the negative, I would vote in the 9 negative based upon the concerns of Senator 10 Abate and the concerns of Senator Leichter. 11 In an earlier discussion, someone 12 said to Senator Abate, "Yeah, you're talking 13 like a lawyer" and she looked at him and said, 14 "Well, what are we? We're lawmakers. We're 15 lawyers. This stuff has legal implications and 16 we ought to be apprised of that." 17 I am going to vote for the bill, 18 and the reason I'm going to vote for it is that 19 I think that there are very strong ideas that 20 the bill is dealing with that should be 21 discussed. I cannot believe that the Assembly 22 would pass this bill in its current form, 23 although I can believe that if we push hard 1908 1 enough, the Assembly will get involved in this 2 issue and perhaps we will have a Conference 3 Committee and perhaps we can have Senator 4 Babbush and Senator Leichter, Senator Abate and 5 we have people on that committee who can deal 6 with some of the technical aspects which, in all 7 fairness, Senator Cook, I think could use a 8 little polishing up, but I don't know how we get 9 to polish unless we get it out there on the 10 table, and while I don't believe in one-house 11 bills, I don't believe in all of that, I do 12 believe that every once in a while, we need an 13 issue on the table out there because it's a sign 14 that we're going to deal with it, and I don't 15 know how you cannot deal with it. I don't care 16 whether you're a liberal or a conservative or 17 what you want to call yourself. In the privacy 18 of personal conversation over a Coke or a 19 martini, everybody I know admits that, if you 20 want children to have an opportunity, they've 21 got to be able to get a safe education, and so 22 it's something that we can argue about the 23 commas, we can dot the i's, cross the t's, and 1909 1 more importantly, because that's not what 2 Senator Leichter and Senator Abate were talking 3 about. They were talking about things which I 4 think are really very substantive. We've got to 5 get to those issues also. 6 But I'm going to vote yes today 7 to get it out on the table and, Senator Cook, my 8 congratulations. 9 ACTING PRESIDENT KUHL: Senator 10 Gold will be recorded in the affirmative. 11 Announce the results. 12 THE SECRETARY: Those recorded in 13 the negative on Calendar Number 360 are Senators 14 Abate, Leichter, Mendez, Montgomery, Paterson, 15 Seabrook and Smith. Ayes 51, nays 7. 16 ACTING PRESIDENT KUHL: The bill 17 is passed. 18 The Secretary will continue to 19 call the controversial calendar. 20 THE SECRETARY: Calendar Number 21 365, by the Senate Committee on Rules, Senate 22 Print 5157, an act to amend the Education Law, 23 in relation to the prompt initiation of 1910 1 disciplinary action. 2 ACTING PRESIDENT KUHL: The 3 Secretary will read the last section. 4 SENATOR MONTGOMERY: Explanation. 5 SENATOR DOLLINGER: Explanation. 6 ACTING PRESIDENT KUHL: Senator 7 Cook, an explanation has been asked for by two 8 Senators, Senator Montgomery and also Senator 9 Dollinger. 10 SENATOR COOK: Mr. President, 11 this essentially - 12 SENATOR SKELOS: Mr. President. 13 ACTING PRESIDENT KUHL: Senator 14 Skelos, why do you rise? 15 SENATOR SKELOS: Yes. If we 16 could have the last section read for Senator 17 Leichter to vote. 18 ACTING PRESIDENT KUHL: The 19 Secretary will read the last section. 20 THE SECRETARY: Section 2. This 21 act shall take effect on the first day of 22 September. 23 ACTING PRESIDENT KUHL: Call the 1911 1 roll. 2 (The Secretary called the roll.) 3 ACTING PRESIDENT KUHL: Senator 4 Leichter, how do you vote? 5 SENATOR LEICHTER: No. 6 ACTING PRESIDENT KUHL: Senator 7 Leichter will be recorded in the negative. The 8 roll call is withdrawn. 9 Senator Cook for an explanation. 10 SENATOR COOK: Mr. President, the 11 prob... well, in a very confined way, this bill 12 parallels the other bill, the real difference 13 being that it permits the teacher to actually 14 suspend the student from the classroom for up to 15 five days. It does not have any of the Family 16 Court provisions in it, but it does say that the 17 teacher may actually suspend the child from the 18 classroom, not suspend him from school, and it 19 does require that the educational program be 20 continued. 21 SENATOR DOLLINGER: Mr. 22 President. 23 ACTING PRESIDENT KUHL: Senator 1912 1 Cook, do you yield to Senator Dollinger? 2 SENATOR COOK: Yes. 3 ACTING PRESIDENT KUHL: The 4 Senator yields. 5 SENATOR DOLLINGER: Just a couple 6 quick questions, Senator. First of all, so I 7 understand it, on page 2 of the bill it talks 8 about alternative educational settings that 9 disruptive students will be placed in. 10 SENATOR COOK: I beg your 11 pardon? I'm having trouble hearing. 12 SENATOR DOLLINGER: I apologize. 13 On page 2 of the bill it talks about the 14 alternative educational settings. Do you know 15 how many districts in the state currently have 16 those alternative settings? 17 SENATOR COOK: Senator, no, I 18 don't. I assume that probably everybody has an 19 alternative setting of some sort, but whether it 20 actually falls within the confines of what you 21 and -- you might be envisioning, I'm not sure 22 that's the case. It's a little bit -- as I said 23 on the other bill, it depends on the school 1913 1 district. In a very small school district, the 2 alternative setting may be a tutor going to the 3 home. 4 SENATOR DOLLINGER: Okay. 5 Through you, Mr. President, if Senator Cook will 6 continue to a yield. 7 ACTING PRESIDENT KUHL: Senator 8 Cook, do you continue to yield? 9 SENATOR COOK: Yes. 10 ACTING PRESIDENT KUHL: The 11 Senator continues to yield. 12 SENATOR DOLLINGER: What happens 13 if the student in the alternative setting is 14 disruptive? 15 SENATOR COOK: Well, Senator, I 16 think that there's no particular provision in 17 this bill because -- and that's part of the 18 problem of the reason in our comprehensive bill 19 that we put the Family Court provision in there 20 because we really felt that you needed some 21 other step. You can go through, with this bill, 22 all of the steps that are currently available in 23 terms of a disruptive student. The real 1914 1 difference that this makes with current law, 2 frankly, is that one provision that the teacher 3 may remove the student from the classroom. 4 SENATOR DOLLINGER: Let's talk 5 about that again if we can, Mr. President, if 6 Senator Cook will yield. 7 ACTING PRESIDENT KUHL: Senator 8 Cook, do you continue to yield? 9 SENATOR COOK: Yes. 10 ACTING PRESIDENT KUHL: The 11 Senator continues to yield. 12 SENATOR DOLLINGER: As I read 13 this bill, what it says is that a teacher may 14 suspend -- may remove a student from his or her 15 classroom for five days. 16 SENATOR COOK: Yep. 17 SENATOR DOLLINGER: Just so I 18 make sure I understand that, if I'm disruptive 19 in Teacher Onorato's classroom and I engage in 20 disruptive behavior, he can toss me out of the 21 classroom for five days, but I can still go to 22 Senator Montgomery's class, can't I? 23 SENATOR COOK: You could go 1915 1 wherever the administration tells you to go. In 2 other words, the principal -- as I envision it, 3 the teacher would simply call the principal and 4 say, "I'm not going to put up with this kid 5 anymore. I want him out of my classroom". It 6 then becomes incumbent upon the principal to 7 say, "All right. We'll put him in Senator 8 Montgomery's classroom or somebody else's or 9 we're going to put him in the back office and 10 send a teacher down there" or whatever. So 11 that's -- it's really moot on that, but I would 12 point out, Senator, that's not really different 13 from what currently happens. 14 SENATOR DOLLINGER: Well, that's 15 what I'm trying to find out. I understand -- I 16 read it -- and again, I'm one of those lawyers 17 who tends to read these things very carefully as 18 I expressed earlier, because I want to make sure 19 when we pass a law, we don't have some day have 20 the courts doing something that we didn't 21 intend, and the best way to do that is to make 22 sure that our draftsmanship is precise and 23 accurate, but as I read this, this says that a 1916 1 teacher -- Teacher Onorato can say to me, 2 student "You have been disruptive. You can't 3 come to my class. You're being tossed out", and 4 when I went to school, that was being known as 5 going to see the principal. When you were sent 6 down to the principal's office, it was akin to 7 going to purgatory when I was in school, but you 8 go to the principal's office, then Teacher 9 Onorato can continue to exclude me for up to 10 five days of class just from his class, but as a 11 student, I get to continue to go to all my other 12 classes, all right? And this bill says that you 13 have to have an alternative education so I make 14 up for the five classes that I missed with 15 Senator Onorato, because I agree with you. If 16 we get to the point where it goes to the 17 principal and the principal decides that the 18 conduct is worthy of suspension, that then 19 triggers the ten-day suspension language which 20 is contained on page 3 of the bill, is that 21 correct? 22 SENATOR COOK: Yeah. And - 23 which isn't a lot different -- while the present 1917 1 suspension period, I think is five, it extends 2 it to ten. 3 SENATOR DOLLINGER: Well, but - 4 again through you, Mr. President, that's perhaps 5 what I don't understand. This bills says that 6 the teacher can remove the student from his or 7 her class for five days without any kind of 8 hearing except the informal hearing that's 9 referred to here, which is a conference 10 initiated by the principal with the parent, 11 which they can come in for an informal 12 conference. The principal could trigger a 13 suspension under the language in paragraph (d) 14 which says "in case of a suspension" -- a 15 suspension would be a provision that says, "You 16 don't go to any class. You don't go to Teacher 17 Onorato's, Teacher Montgomery's or any other 18 class. You're suspended and you have to go to 19 an alternative setting", is that correct? 20 SENATOR COOK: Yeah. Senator, if 21 I may try to uncomplicate this. 22 SENATOR DOLLINGER: Okay. 23 SENATOR COOK: The only 1918 1 difference -- two differences between this bill 2 and the present law is the ability of the 3 teacher to suspend the student from their own 4 class for five days and the extension of the 5 suspension from school which is currently five 6 days to ten days. Everything else stays the way 7 it is in present law. 8 SENATOR DOLLINGER: Okay. Again 9 through you, Mr. President, just for a 10 clarification again. The suspension can't occur 11 without the formal hearing occurring, is that 12 correct? 13 SENATOR COOK: Up to ten days, 14 Senator, without a hearing, understanding that 15 there is a commissioner's regulation that says 16 that they're supposed to continue to have an 17 education program but, of course, there's no 18 legal teeth -- well, there's no statutory teeth 19 in that. 20 SENATOR DOLLINGER: Again, I just 21 want to make sure I understand this. On page 3 22 of the bill, it says -- Subdivision (d) which 23 changes from five days to ten days, my question 1919 1 is it says here "the suspending authority shall 2 provide the pupil with notice and if the pupil 3 denies such conduct, explanation -- an 4 opportunity to explain his version of the 5 relevant events. The aforesaid notice and 6 opportunity shall be heard to take place prior 7 to the suspension of the pupil." 8 SENATOR COOK: Senator, the 9 suspension -- if the school proposes to suspend 10 the student for more than ten days, then that 11 hearing process clicks in. If it's less than 12 that, then it doesn't. You don't have to have 13 the hearing. Under present law, if you suspend 14 a student for more than five days, you have to 15 have the hearing. If you don't suspend -- if 16 you only suspend him for up to five days, then 17 the hearing isn't necessary. The only change 18 we're making is changing five to ten and 19 permitting the teacher to suspend the student 20 from the classroom. 21 SENATOR DOLLINGER: But again, 22 just to make sure I understand this. Section 23 (d) says if you're going to suspend for less 1920 1 than ten days -- ten days or less, you have to 2 have a hearing before you can have the 3 suspension occur. 4 SENATOR COOK: Senator, we're 5 dealing with some semantics here. What you're 6 talking about and the language you're referring 7 to says, in effect, the principal has got to 8 bring the student into the room and confer with 9 them and give them a chance to make their case, 10 but it is not in the legal sense of the word the 11 hearing that the due process in which the 12 student really has, if you will, rights that 13 they can affirm. 14 SENATOR DOLLINGER: Okay. Again, 15 let me make sure -- I'll condense it real 16 quickly. The teacher gets to remove the 17 students for five days with just an informal 18 conference. If the - 19 SENATOR COOK: And the -- no. 20 And also the principal can suspend with an 21 informal conference. 22 SENATOR DOLLINGER: Right, but 23 the teacher gets five days informal conference. 1921 1 If the suspension is going to be for ten days or 2 less, than there has to be what is sort of an 3 interim process- 4 SENATOR COOK: That's another 5 informal conference. 6 SENATOR DOLLINGER: -- which is 7 not a formal hearing, but nonetheless is a 8 hearinglike setting in which relevant conduct 9 explanations can be given. 10 SENATOR COOK: It's probably a 11 parent conference. You bring the parents in, 12 the kid in, you say, you know, "You have been a 13 real disruption here. What do you think about 14 this?" And after all is said and done, the 15 principal says "You know, you're going to have 16 to pay some penance. You're out for ten days." 17 That's about what happens. It is different from 18 the formal hearing process where everybody gets 19 to assert their rights. 20 SENATOR DOLLINGER: After ten 21 days, full due process protections click in? 22 Okay. 23 On the bill, Mr. President. 1922 1 ACTING PRESIDENT KUHL: Senator 2 Dollinger on the bill. 3 SENATOR DOLLINGER: I guess I 4 concur with Senator Cook. I don't see that this 5 has a significant alteration from the current 6 practice with which we try to deal with 7 disruptive students. It does provide for 8 alternative settings. 9 I think Senator Cook may be 10 familiar with the experience in Rochester, where 11 in an attempt to solve the problem of disruptive 12 pupils, the city of the Rochester developed an 13 alternative school, Josh Lofton, for pupils that 14 had disruptive problems. That has already come 15 and gone. We've already sort of been through 16 that phase in Rochester. There were great 17 difficulties with that school. Only portions of 18 that concept of a separate school remain, and 19 we've tried to deal with the disruption problem 20 on a school-by-school basis. 21 So it seems to me this moves in 22 the right direction. I think that the balancing 23 that's struck here between five days for a 1923 1 teacher to remove from their class, it's 2 narrowly confined to just include the class. A 3 teacher can't say "You can't come to school." 4 What a teacher can say is "You can't come into 5 my classroom because of your behavior." It 6 seems to me that's reasonable. 7 The interim due process 8 protection of a suspension, which would be a 9 removal from all of your classes for a period of 10 less than ten days has some informal due process 11 and after ten days you then have the full due 12 process protection. I think that's a reasonable 13 balance and I'm prepared to support the bill. 14 I would also point out, I think, 15 Senator Cook, you and I may have gotten our 16 education in the same places. I talked about 17 going to the principal's office as like going to 18 purgatory. You say that those who go there do 19 penance. It may say something about our 20 collective and shared pasts. 21 ACTING PRESIDENT KUHL: The Chair 22 recognizes Senator Abate on the bill. 23 SENATOR ABATE: Yes. Mr. 1924 1 President, will Senator Cook yield to a very 2 brief question? 3 ACTING PRESIDENT KUHL: Senator 4 Cook, do you yield to Senator Abate? The 5 Senator yields. 6 SENATOR ABATE: If I can preface 7 my question with just a remark. I'm less 8 troubled by this bill. I think teachers need 9 the tools to control the classroom, but I am 10 concerned about the language itself, if it's 11 going to be interpreted correctly. 12 If you look at subsection (3) 13 (b), it describes who is a disruptive student, 14 and clearly the first part talks about 15 individuals who commit an act of violence. I 16 think that's clear in terms of interpretation. 17 The second part, though, concerns 18 me, "or upon the personal property of a teacher 19 or any other person lawfully upon the school 20 district property." So does that mean if a 21 student kicks the tires of a car outside or 22 breaks a window or -- does it have to be within 23 the classroom? I mean, what are you talking 1925 1 about when you wrote this section; what do you 2 mean, violence upon property. 3 SENATOR COOK: Senator, I'm 4 advised that the teacher can only the remove the 5 student under (3)(a), that the -- I don't know 6 where it says that -- okay. If you look on line 7 42 - 8 SENATOR ABATE: Yes. I see the 9 word "after" -- oh, in the same section? Yes - 10 no, I understand that the teacher -- upon these 11 acts, if they identify a disruptive student, the 12 teacher could remove that individual from his or 13 her classroom. I guess I would ask you and 14 would you consider looking at drafting that 15 language, "violence upon personal property", 16 because I think that's subject to interpreta 17 tion, and does that mean kicking some books that 18 are on the floor, and does it have to be more 19 narrowly defined; and that's my concern. 20 Senator Cook, is that a yes? 21 SENATOR COOK: Well, Senator, I 22 guess I have to confess, I didn't write the 23 bill. 1926 1 SENATOR ABATE: Right. Okay. 2 Thank you very much, Senator. 3 ACTING PRESIDENT KUHL: The 4 Secretary will read the last section. 5 THE SECRETARY: Section 2. This 6 act shall take effect on the first day of 7 September. 8 ACTING PRESIDENT KUHL: Call the 9 roll. 10 (The Secretary called the roll.) 11 ACTING PRESIDENT KUHL: Announce 12 the results when tabulated. 13 THE SECRETARY: Those recorded in 14 the negative on Calendar 365 are Senators 15 Leichter and Montgomery. Ayes 56, nays 2. 16 ACTING PRESIDENT KUHL: The bill 17 is passed. 18 The Secretary will continue to 19 call the controversial calendar. 20 THE SECRETARY: Calendar Number 21 368, by Senator Levy, Senate Print 1410, an act 22 to amend the Penal Law, in relation to the 23 offense of assault in the second degree in 1927 1 certain instances. 2 ACTING PRESIDENT KUHL: The 3 Secretary will read the last section. 4 THE SECRETARY: Section 2. This 5 act shall take effect on the first day of 6 November. 7 ACTING PRESIDENT KUHL: Call the 8 roll. 9 (The Secretary called the roll.) 10 THE SECRETARY: Ayes - 11 ACTING PRESIDENT KUHL: Announce 12 the results when tabulated. 13 THE SECRETARY: Ayes 57, nays 1, 14 Senator Montgomery recorded in the negative. 15 ACTING PRESIDENT KUHL: The bill 16 is passed. 17 Senator DiCarlo. 18 SENATOR DiCARLO: On that last 19 bill, 368, I would like to vote in the negative, 20 no. 21 ACTING PRESIDENT KUHL: Senator 22 DiCarlo will be recorded in the negative on 23 Calendar Number 368. 1928 1 THE SECRETARY: Calendar Number 2 369, by the Senate Committee on Rules, Senate 3 Print 5162, an act to amend the Penal Law, in 4 relation to harassment of teachers and school 5 personnel. 6 SENATOR PATERSON: Explanation. 7 SENATOR VOLKER: Mr. President, 8 although I'm not Senate Rules, I'm the closest 9 thing to Senate Rules right now. 10 This legislation, as the title 11 that was read, says -- would provide that any 12 person who, with intent to harass, annoy or 13 alarm a school employee, which would mean a 14 teacher or anybody employed by the school, 15 subjects that employee to physical contact on 16 school grounds or within 1,000 feet of school 17 grounds would be guilty of aggravated 18 harassment, which is a Class A misdemeanor. 19 Basically what this does is to 20 elevate what is now a violation, it's called an 21 offense or violation to a misdemeanor. A 22 misdemeanor means that you can spend up to a 23 year in jail, and that's basically it. This 1929 1 type of bill has been asked for by a number of 2 groups, particularly in New York City and in the 3 urban areas who have seen an increasing number 4 of assaults or near assaults as they're called, 5 particularly on school employees. 6 ACTING PRESIDENT KUHL: Senator 7 Dollinger. 8 SENATOR DOLLINGER: Mr. 9 President, I believe there's an amendment at the 10 desk. 11 ACTING PRESIDENT KUHL: There is 12 an amendment at the desk. 13 SENATOR DOLLINGER: Mr. 14 President, I would waive the reading of the 15 amendment and ask for permission to explain it 16 briefly. 17 ACTING PRESIDENT KUHL: Reading 18 of the amendment is waived. Recognize Senator 19 Dollinger to explain. 20 SENATOR DOLLINGER: Mr. 21 President, this is an amendment that 22 incorporates a provision of a bill that I've 23 carried for the last year that deals with a 1930 1 problem very supportive of the problem that 2 Senator Volker of the Committee on Codes has 3 raised with respect to this bill, the problem of 4 what happens inside the classroom and on the 5 school grounds with respect to teachers. 6 My concern is and, frankly, stems 7 from incidents that occurred in my home district 8 in Monroe County. It's the safety and security 9 of children going to school. We have had a 10 number of highly publicized incidents in Monroe 11 County where people have driven by school 12 children approaching schools and harassed them 13 and threatened them, and we've been told by the 14 Monroe County Sheriff's Department that they 15 don't have an adequate tool to use against those 16 whose conduct annoys or threatens children on 17 their way to school. 18 So what this amendment seeks to 19 do is to raise that conduct, the conduct often 20 times of older children, in some cases adults, 21 in some cases people driving in cars as they 22 approach children who are going to school, that 23 it will raise it to the level of aggravated 1931 1 harassment and make it a Class A misdemeanor to 2 engage in that kind of conduct. 3 This specific statute relates to 4 an incident that happened actually next door to 5 my district in the 55th District at the 6 Jefferson Middle School in Pittsford and - 7 maybe the Jefferson Primary School in Pittsford, 8 when a car approached three school children as 9 they were walking up the driveway to school, 10 made threatening, annoying comments to them, and 11 we were told by the sheriff of Monroe County 12 that they couldn't prosecute that crime other 13 than as a violation. 14 So this is a bill that I think 15 addresses a very specific problem. The same 16 types of concerns about security for those 17 inside school buildings should extend to those 18 who are outside school buildings, and most 19 importantly, the most important people in our 20 schools, the children who are walking and need 21 to know that we in this state will protect them 22 while they walk to school. 23 I would ask that this be 1932 1 amended. It amends the same section. I believe 2 it's the right thing to do to send a message to 3 everyone in this state that we will protect our 4 children as they walk to school. I'd ask that 5 the amendment be accepted, Mr. President. 6 ACTING PRESIDENT KUHL: Chair 7 recognizes Senator Volker on the amendment. 8 SENATOR VOLKER: Mr. President, I 9 would only say, Senator Dollinger, that that is 10 a problem that you probably don't realize what 11 you've done here, but we looked into it and this 12 is really overkill. What you have done here is 13 you have made a misdemeanor for "any". This 14 could be inside the school with a shoving match 15 where a shoving match between two 15-year-olds 16 could end up a misdemeanor because it would not 17 only apply to people outside the school but 18 would also apply to people inside the school and 19 if they're 16 or under and they have any 20 relationship to the school, you would make a 21 shoving match between two juveniles very 22 potentially would be subject to a misdemeanor. 23 I don't think you really intend 1933 1 that. I think the problem is the reason you put 2 that section in there that says "or to a person 3 under 16 years of age" is because quite 4 obviously once you get outside the realm of the 5 thousand feet of the school district you can't 6 cover that unless you raise the statute 7 generally. So you have hit the problem. 8 The real way to deal with this I 9 suppose is to raise the penalty for the statute 10 in general. We have had some difficulty doing 11 that, particularly on the other side of this 12 Capitol. What we are specifically targeting 13 here is the problem people within the school. 14 We'd be happy to talk about dealing with the 15 issue with children and, by the way, I'd be 16 happy to talk to the sheriff of Monroe County. 17 I can assure you that there are some things that 18 could be done if those kinds of situations 19 happened on a regular basis. There are some - 20 some law enforcement things that can be done to 21 deal with that, but I think part of the problem 22 is you are probably dealing with juveniles on 23 juveniles and that's always a big problem 1934 1 because of the Family Court situation, and 2 that's not so easily resolved either in this 3 house or in the other house. 4 Let me just say to you that I 5 think we're trying to deal here with a very 6 specific problem, with the problem on the school 7 grounds or within the proximity to the school 8 grounds that involves employees, not just 9 teachers, but school employees. I think your 10 proposal is something to look at but, frankly, I 11 think it goes too far and I think would doom 12 this whole proposal to defeat in the other 13 house, without question. 14 ACTING PRESIDENT KUHL: Senator 15 Dollinger. 16 SENATOR DOLLINGER: Mr. 17 President, I would say that we did have a 18 discussion about this in the Codes Committee, 19 but it seems to me that we so seldom in this 20 house get a chance to take care of a specific 21 problem, and I agree with the chairman of the 22 Codes Committee that the bill is -- as drafted 23 on the floor, is aimed and targeted at a 1935 1 specific problem. 2 What I'm suggesting is that the 3 question that I'm calling attention to is 4 equally as significant, equally as important, 5 and from my perspective as much a problem in my 6 district as the problem that's highlighted by 7 this bill. Since what we're going to do is 8 change the aggravated harassment sections of the 9 Penal Law to protect the class of people inside 10 the school, we ought to change the aggravated 11 harassment to protect an even more vulnerable 12 class of people who are on school grounds or 13 approaching the schools. 14 So it seems to me that we get - 15 seldom get chances to have bills come up to 16 change the aggravated harassment section 17 involving schools and conduct in schools. Let's 18 do it as a package. Let's protect the kids on 19 their way to school. Let's protect those in 20 buildings. If it's overly broad, it can either 21 be worked out in conference committee or, quite 22 frankly, I'm one of those who have been told a 23 number of times in this chamber, Don't worry, 1936 1 we'll let the judiciary apply a reasoned law to 2 these statutes and we won't have to worry about 3 them being overly broad because the judiciary 4 will correct that problem in the event it 5 becomes one. 6 ACTING PRESIDENT KUHL: Excuse 7 me, Senator Dollinger. 8 Senator Nozzolio, why do you 9 rise? 10 SENATOR NOZZOLIO: I rise to ask 11 Senator Dollinger if he would yield to a 12 question. 13 ACTING PRESIDENT KUHL: Senator 14 Dollinger, will you yield to Senator Nozzolio? 15 SENATOR DOLLINGER: Yes. 16 ACTING PRESIDENT KUHL: Senator 17 Dollinger yields. 18 SENATOR NOZZOLIO: Thank you, Mr. 19 President. 20 Rick, you're normally very 21 tenacious about drafting standards, about 22 legislative language that could be subject to 23 misinterpretation. 1937 1 SENATOR DOLLINGER: I appreciate 2 the compliment. Frankly, I don't understand - 3 I can't understand how since none of my bills 4 make it to the floor, so - 5 SENATOR NOZZOLIO: However - 6 however, I think there's a problem here, Rick, 7 and I looked at section 3 (aa) line 7 of the 8 amendment which talks about shoving, kicking. 9 In effect, Rick -- Senator Dollinger, would not 10 an individual who was under 16 on a JV 11 basketball team shoving another individual on 12 the floor of the gym be subject to penalties 13 under this statute that you're suggesting? 14 SENATOR DOLLINGER: I don't think 15 there's a court that would apply that kind of 16 reasonable interpretation of this statute. No, 17 I don't believe that would ever apply. 18 SENATOR NOZZOLIO: No? 19 SENATOR DOLLINGER: Any more so 20 than, quite frankly, if a 15-year-old while 21 playing his teacher on the same basketball court 22 happened to shove the teacher. I don't think, 23 under Senator Volker's statute, that would 1938 1 constitute the same kind of conduct. 2 SENATOR NOZZOLIO: Senator, your 3 language says that "shove or otherwise subject 4 such person to physical contact." Contact in 5 and of itself under your language will, in fact, 6 as I read it, subject a broad interpretation and 7 I believe that because of that broadness that 8 this is so broadly written that it -- although 9 the intent may be very good, I believe in effect 10 what assurances -- I mean, put that in the form 11 of a question that what assurances do we have at 12 all that some legitimate sanctioned athletic 13 activaty or a pick-up game that may not be 14 sanctioned out in the school yard, be not 15 subject to misinterpretation? 16 SENATOR DOLLINGER: Well, Mr. 17 President, first of all, it's the same language, 18 the same kind of language is used in the 19 underlying statute. Seems to me that that 20 criticism could apply to the legislation 21 proposed through the Committee on Rules through 22 Senator Volker, and I point out that a 23 reasonable court, a reasonable court, a 1939 1 reasonable judge would say, Wait a second. You 2 go on a basketball court, you consent to a 3 certain amount of physical contact. 4 This certainly doesn't affect 5 that. This is a question where the conduct is 6 unconsented. I think anybody would say that 7 shoving a teacher on a basketball court, an 8 unintentional shove that is the kind of 9 consentual activity that's part of contact 10 sports. 11 What this is designed to do pure 12 and simple is to amend the statute to 13 say, if you pull up next to someone, a little 14 kid walking to school and you harass him or 15 threaten him, it's going to be a Class A 16 misdemeanor. 17 As I pointed out, and I talked to 18 Senator Volker, perhaps he could talk to the 19 sheriff of Monroe County or the district 20 attorney of Monroe County. When we had an 21 incident back there in the spring, they called 22 me and said, We can't do it. We need changes in 23 law. 1940 1 The aggravated harassment statute 2 is the way to do it. At the time Senator Jones 3 and I drafted this bill specifically at their 4 request. I now specifically request on behalf 5 of the district attorney of Monroe County, the 6 sheriff of Monroe County, the people of Monroe 7 County and the people of the state of New York, 8 that this be made a part of this law and a part 9 of this bill by approval of the amendment. 10 ACTING PRESIDENT KUHL: The 11 question is on the amendment. All those in 12 favor signify by saying aye. 13 (Response of "Aye.") 14 Opposed nay. 15 (Response of "Nay." ) 16 ACTING PRESIDENT KUHL: The nays 17 have it. The amendment is defeated. 18 Secretary will read the last 19 section on the main bill. 20 THE SECRETARY: Section 2. This 21 bill shall take effect on the first of 22 September. 23 ACTING PRESIDENT KUHL: Call the 1941 1 roll. 2 (The Secretary called the roll.) 3 ACTING PRESIDENT KUHL: The Chair 4 recognizes Senator DiCarlo to explain his vote. 5 SENATOR DiCARLO: Thank you, Mr. 6 President. 7 I'm going to vote no on this bill 8 for the same reason I voted no on the bill right 9 before this. If you want to increase the 10 penalties on assaults in all of these areas, I'm 11 with you a hundred percent, but I just think 12 it's wrong that we increase penalties for 13 certain groups of citizens in this state. 14 So that's the reason I'm going to 15 vote no, not because I'm opposed to increasing 16 penalties but just because I think we shouldn't 17 be doing this. 18 ACTING PRESIDENT KUHL: Announce 19 the results. 20 THE SECRETARY: Ayes 57, nays 21 one, Senator DiCarlo voting in the negative. 22 ACTING PRESIDENT KUHL: The bill 23 is passed. 1942 1 The Chair recognizes Senator 2 Mendez. 3 SENATOR MENDEZ: Yes. I was out 4 of the chamber for a while. I want to be 5 recorded in the negative on bill Calendar Number 6 365. 7 ACTING PRESIDENT KUHL: Without 8 objection, Senator Mendez will be recorded in 9 the - 10 SENATOR MENDEZ: Yes on 368. 11 ACTING PRESIDENT KUHL: Without 12 objection, Senator Mendez will be recorded in 13 the negative on Calendar Number 365 and yes on 14 Calendar Number 368. 15 Senator Skelos? 16 SENATOR SKELOS: Is there any 17 housekeeping at the desk. 18 ACTING PRESIDENT KUHL: Yes, we 19 have a committee report that could be read in. 20 SENATOR SKELOS: Have it read. 21 ACTING PRESIDENT KUHL: Yes, I 22 have to return to reports of standing committees 23 and ask the Secretary to read. 1943 1 THE SECRETARY: Senator LaValle, 2 from the Committee on Higher Education, reports 3 the following bills: 4 Senate Bill 35, by Senator 5 Holland, an act to authorize the Salvation Army 6 Eastern Territorial School for Officers 7 Training; 8 Senate Print 211, by Senator 9 Holland, an act authorizing the United States 10 military to recruit on the campuses; 11 Senate 3731, by Senator Nozzolio, 12 an act to amend the Education Law, in relation 13 to the registration of non-resident 14 pharmacists. 15 All bills reported directly to 16 third reading. 17 ACTING PRESIDENT KUHL: Without 18 objection, all bills reported directly to third 19 reading. 20 Senator Mendez. 21 SENATOR MENDEZ: Yes, Mr. 22 President. I wanted to announce an immediate 23 closed conference of the Minority in Room 314. 1944 1 ACTING PRESIDENT KUHL: There 2 will be an immediate meeting, a closed 3 conference, closed conference of the Minority in 4 Room 314. Immediate closed conference of the 5 Minority in Room 313, Minority Conference Room. 6 SENATOR SKELOS: Mr. President, 7 can I have unanimous consent to make a 8 statement? 9 ACTING PRESIDENT KUHL: Without 10 objection. Hearing no objection, the Chair 11 recognizes Senator Skelos for a unanimous 12 consent statement. 13 SENATOR SKELOS: Mr. President, 14 for the last several weeks we've seen a horrible 15 bloodletting of innocent people in Israel - 16 four bombs since February 25th, 60 people killed 17 including many women and children, more than 100 18 wounded. 19 This, unfortunately, seems to 20 threaten the peace process in Israel and the 21 people of Israel, the country that I had the 22 pleasure to visit several years ago feel power 23 less to stop the bombings striking at the heart 1945 1 of this beautiful country. 2 I would just request that we 3 adjourn in memory of those who tragically lost 4 their lives by these acts of cowardice, and pray 5 for the recovery of those injured. 6 (A moment of silence was 7 observed.) 8 ACTING PRESIDENT KUHL: Senator 9 Skelos. 10 SENATOR SKELOS: Mr. President, 11 there being no further business, I move we 12 adjourn in memory of those who lost their lives 13 in Israel and again with the prayers that those 14 who are injured have a speedy recovery and that 15 we adjourn until Monday, March 11th, 1996 at 16 3:00 p.m., sharp, intervening days to be 17 legislative days. 18 ACTING PRESIDENT KUHL: Without 19 objection, the Senate stands adjourned in the 20 memory of those unfortunate individuals who 21 suffered from severe tragedy in Israel. 22 (Whereupon at 2:23 p.m., the 23 Senate adjourned.)