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RULES AND REGULATIONS

Title 22--EDUCATION

STATE BOARD OF EDUCATION

[22 PA. CODE CHS. 7 AND 12]

Students and Student Services

[35 Pa.B. 6510]

   The State Board of Education (Board) deletes Chapter 7 and amends Chapter 12 (relating to students and student services) to read as set forth in Annex A. Notice of proposed rulemaking was published at 33 Pa.B. 5735 (November 22, 2003) with an invitation to submit written comments.

   Chapter 12 addresses student rights and responsibilities and student services. The final-form rulemaking amends Chapter 12 and replaces Chapter 7 by adding new sections to Chapter 12. The overarching purpose of the final-form rulemaking is to update and align the regulations with current statutory provisions and relevant case law. In addition, the final-form rulemaking adds a subchapter regarding student services and updates the same subject matter now included in Chapter 7.

Statutory Authority

   The Board takes this action under the authority granted to it by section 2603-B of the Public School Code of 1949 (code) (24 P. S. § 26-2603-B) and other sections of the code.

Background

   Chapter 7 sets forth the requirements for pupil services in public schools. Chapter 12 sets forth the requirements for students' rights and responsibilities. The final-form rulemaking consolidates the two chapters and generally reflects statutory changes that have been made, Department of Education policies and practices and court decisions that have been rendered since Chapter 12 was last amended in 1984. In addition, the Board is amending some provisions to afford public schools additional flexibility. The amendment to § 12.5 (relating to corporal punishment) reflects a change in Board policy, which the Board is authorized to make under the regulatory authority delegated to it in the code.

Summary of Amendments

   Title. The title of Chapter 12 has been changed from ''Students'' to ''Students and Student Services.'' In all of its regulations, the Board is using the term ''students,'' rather than ''pupils,'' to conform to common usage. The addition of ''student services'' to the title reflects the consolidation of Chapter 7 into Chapter 12.

   Chapter 7. The Board believes the Chapter 7 regulations are too prescriptive in today's educational environment. The regulations are inconsistent with other Board regulations in that they limit flexibility provided to school entities in the planning, implementation and administration of cost effective, comprehensive student services programs.

   The Board has reinserted the term ''full'' into § 12.1(a) (relating to free education and attendance). In addition, in subsection (b)(3), the term ''handicapping condition'' has been replaced with the term ''disability'' to reflect current usage.

   The Board has added homework to the student responsibilities listed in § 12.2 (relating to student responsibilities).

   The Board has amended § 12.3 (relating to school rules) to provide that school policies may not be discriminatory.

   In § 12.4 (relating to discrimination), the Board has reinserted the term ''full'' to state that students may not be denied access to a ''free and full public education.'' The Board also has added language to provide that students may not be subject to disciplinary action because of race, sex, color, religion, sexual orientation, national origin or disability.

   The Board has amended § 12.5 (relating to corporal punishment) to prohibit use of corporal punishment as a form of student discipline. The section permits use of reasonable force to quell a disturbance, take possession of weapons or dangerous objects and to protect persons or property.

   Section 12.6(a) (relating to exclusions from school) has been amended to update cross-references to Chapter 14 (relating to special education services and programs) and Federal regulations under the Individuals With Disabilities Education Act (IDEA) (20 U.S.C.A. §§ 1400--1482).

   Section 12.6(d) replaces current language that permits time extensions for conducting a formal disciplinary hearing if the hearing would not be unreasonably delayed. New language limits the extension to 15 days unless mutually agreed upon by both parties.

   Section 12.6(e)(2) has been amended to clarify the obligation of parents of expelled students to notify their board of school directors within 30 days if they are unable to provide for the education of their children. The school entity is then obligated to provide for the student's education. New language has also been added to clarify that a student with a disability must be provided educational services as required by IDEA.

   Section 12.8(b)(1)(ii) (relating to hearings) provides that students be given at least 3 days' notice of the time and place of a formal disciplinary hearing. This section also provides that students may be represented by counsel at their parents' expense and that parents or guardians may attend the hearing.

   Section 12.8(b)(1)(viii) has been updated to reflect current technology used to record and maintain a record of the formal hearing. The Board also has added a requirement that a copy of the hearing record be provided at no cost to a student who is indigent.

   Section 12.8(b)(1)(ix) requires a formal hearing to be held within 15 school days of notification of the charges except when one of the following is needed: laboratory reports from law enforcement; evaluations, court or administrative proceedings regarding rights under IDEA are pending; or it is in the best interests of the victim of a sexual assault or victim of serious bodily injury. The section also provides that notice of appeal rights must be provided with the expulsion decision.

   Section 12.8(c) has been amended to add the subsection heading ''informal hearings'' to clarify the meaning and application of the subsection.

   Section 12.9(a) (relating to freedom of expression) has been amended to remove the legal reference to the Tinker v. Des Moines Community School District, 393 U. S. 503 (1969), decision of the United States Supreme Court and to replace it with a general statement that student rights to freedom of expression are guaranteed by the Constitution of the United States and the Constitution of the Commonwealth. The United States Supreme Court has issued additional decisions that further clarify and define student rights to free expression since the Tinker v. Des Moines Community School District decision was issued in 1969. Rather than list each of these cases, the Board has rewritten the subsection to refer to the basic source of student free speech rights, the Federal and State constitutions.

   In amending § 12.9, the Board does not intend to restrict or limit the long-held tradition of the Commonwealth to provide to students free speech rights that might be somewhat broader than those that are guaranteed by the United States Constitution. The Board intends to maintain this tradition as a matter of policy. In fact, to better reflect the Board's intent, the Office of General Counsel, in reviewing the amendments to § 12.9 for form and legality after the Board approved the final-form rulemaking, directed the Board to use the word ''guarantee'' in subsection (a) in place of the word ''established'' and to add ''shall'' to subsection (b). These two amendments make clear that § 12.9 establishes students rights to freedom of expression, with the Constitution of the United States and the Constitution of the Commonwealth guaranteeing rights cannot be denied to students by any public school entity, official or employee.

   Section 12.9(b) has been amended in response to comments received by the Board during the official public comment period and during a hearing of the House Education Committee. The amended language provides that students may express themselves unless the expression materially and substantially interferes with the educational process, threatens serious harm to the school or community, encourages unlawful activity or interferes with another individual's rights. The term ''serious'' has been inserted to assure that student speech that presents a serious threat, regardless of whether the threat is ''immediate,'' a term that the Board deleted from § 12.9(b), is not speech protected by the regulation. The term ''serious'' is to be interpreted as used in the opinion of the Supreme Court of Pennsylvania in its ruling in J.S. v. Bethlehem School District, 569 Pa. 638, 807 A.2d 847 (2002). The Court in that case held that if the communication were a serious expression of intent to inflict harm, a court would consider the statements, the context in which they were made, the reaction of listeners and others, as well as the nature of the comments in determining whether the communications constitute a true threat.

   Section 12.11 (relating to hair and dress) has been amended to reflect recent statutory authority that provides school boards authority to adopt dress codes or to require that students wear school uniforms. The section also has been amended to indicate when the length or style of hair presents a health or safety hazard, the hair shall be covered.

   Section 12.14 (relating to searches) has been amended to update language regarding searches of student lockers to make it consistent with current case law.

   Section 12.16 (relating to definitions) has been added to include definitions of ''corporal punishment,'' ''governing board,'' ''school entity,'' ''student assistance program'' and ''student services.''

   Section 12.31 (relating to general requirements) has been amended to provide that copies of the student record plan be submitted to the Department only upon request of the Secretary of Education (Secretary).

   Section 12.32 (relating to elements of the plan) has been amended to require that student records plans conform to applicable State and Federal laws, regulations and directives.

   Section 12.41(a) (relating to student services) requires that school entities prepare a written plan for the implementation of a comprehensive and integrated K-12 program of student services. The plan must be prepared and revised consistent with strategic planning requirements outlined in Chapter 4 (relating to academic standards and assessment).

   Section 12.41(b) describes the developmental services; diagnostic, intervention and referral services; and consultation and coordination services that must be provided by each school entity.

   Section 12.41(c) describes additional requirements for student services programs.

   Section 12.41(d) addresses the rights of students and parents to refuse to participate in surveys covered under section 445 of the General Education Provisions Act (20 U.S.C.A. § 1232h), regarding the Protection of Pupil Rights amendment.

   Section 12.42 (relating to student assistance program) has been added to require school entities to plan and provide for a student assistance program.

Summary of Public Comments and Changes

   The proposed amendments were published at 33 Pa.B. 5735. The proposed rulemaking was also published on the Department's website at www.pde.state.pa.us. The Board accepted formal written comments within a 30-day public comment period after publication of the proposed rulemaking.

   The Board received comments from members and staff of the House Education Committee and the Independent Regulatory Review Commission (IRRC). In addition, comments were received from 14 commentators during the 30-day public comment period. These included comments submitted by: the Education Law Center; the Pennsylvania School Boards Association (PSBA); the Pennsylvania Parent Teacher Association (PTA); the Pennsylvania Psychological Association; the Colonial School District; Goehring Rutter & Boehm--Attorneys at Law; the Behavioral Health Training and Education Network; the National Coalition to Abolish Corporal Punishment in Schools; the National Center for the Study of Corporal Punishment and Alternatives at Temple University; the Center for Safe Schools; and four private citizens--Terry Hasenauer, Harold Smith, Hosla Carter and Eloise C. Stoehr. Comments were also received after the official comment period but before the Board adopted the final-form rulemaking from the School District of Philadelphia, the Pennsylvania State Education Association (PSEA) and scores of private citizens.

   Following is a summary of the comments and the Board's response to those comments:

§ 12.1. Free education and attendance.

   Comment: The Education Law Center supports the amendment.

§ 12.4. Discrimination.

   Comment: The Education Law Center and IRRC suggested replacing the term ''handicaps'' with ''disabilities.''

   Response: The Board amended the term as suggested.

§ 12.5. Corporal punishment.

   Comment: Letters in support of the Board's action to ban corporal punishment were received from: the Democratic Chairperson of the House Education Committee; the Education Law Center; the PTA; the Pennsylvania Psychological Association; the National Coalition to Abolish Corporal Punishment in Schools; the National Center for the Study of Corporal Punishment and Alternatives at Temple University, Center for Safe Schools; the Colonial School District; and two private citizens.

   A letter opposing the ban and recommending that use of corporal punishment be permitted was received from a private citizen. The PSBA suggested the issue was one that should be addressed by the General Assembly, not the Board. The House Education Committee also provided comments from several of its members who expressed concern that corporal punishment can be an effective method of improving student behavior and should not be eliminated. The letter suggested language that would permit continued use of corporal punishment under carefully defined circumstances. In addition, at a hearing held on February 23, 2005, members of the House Education Committee, supported by a memorandum of the House Education Committee's staff, suggested that the ban on corporal punishment contradicts statutory provisions in the code.

   Response: The Board believes the use of corporal punishment, as a method of student discipline in public schools, is ineffective and unsupported by research. Research shows that corporal punishment is used more often on poor children and minorities. Schools where corporal punishment is used generally have poorer academic achievement, higher truancy, greater school violence and higher dropout rates. Research also shows that corporal punishment is frequently used as the first method of discipline for minor misbehaviors rather than a form of discipline of the last resort. Corporal punishment is a risk factor for a number of negative outcomes. It also does not model good adult behavior as it teaches children that it is permissible to hit someone smaller and weaker when they are not compliant.

   The Board also believes that it has the statutory authority under Article XXVI-B of the code (24 P. S. §§ 26-2601-B--26-2606-B) to define and prohibit corporal punishment in the public schools. In Girard School District v. Pittenger, 481 Pa. 91, 99-100, 392 A.2d 261, 265 (1978), the Supreme Court of Pennsylvania held that ''in issuing the regulations on 'Student Rights and Responsibilities[,]' the State Board [of Education] was acting within the field of education and, as such, was not exceeding the authority of the General Assembly's grant of legislative rule-making power . . . .'' Inasmuch as there is no provision of the code expressly empowering school districts or school personnel to inflict corporal punishment as part of its policy of disciplining students, the Board believes that it has the statutory authority to ban the practice of corporal punishment, as that term is defined in new § 12.16.

   Comment: During a hearing held on February 23, 2005, members of the House Education Committee shared concerns that without a definition of ''corporal punishment,'' any type of physical activity could be construed to be corporal punishment.

   Response: The Board agrees and has included a definition of ''corporal punishment'' in § 12.16.

§ 12.6. Exclusions from school.

   Comment: In subsection (a), IRRC suggested changing the term ''exceptional students'' to ''students with disabilities.''

   Response: The Board amended the regulation as suggested.

   Comment: The Education Law Center supports the amendment to subsection (d).

   Comment: The PSBA suggested retaining the current language in subsection (d) and suggested that there are situations when the 15-day time frame to hold a hearing is problematic.

   Response: The Board believes a 15-day time frame is reasonable and appropriate. Sufficient flexibility is provided to school entities while also ensuring that students are not excluded from school for long periods without appropriate due process.

   Comment: The Education Law Center commented that it believes the language in subsection (e), though an improvement over current regulation, is too weak to ensure that an expelled child receives a sufficient educational program. It also suggested including a statement that students with a disability are entitled to a Free Appropriate Public Education (FAPE) as provided by IDEA.

   Response: The Board believes standards established by court rulings have addressed this matter and does not believe it should prescribe additional requirements beyond those established by the courts. The Board has added language stating that students with a disability are entitled to FAPE.

   Comment: IRRC recommended the Board clarify when a school district is required to begin providing educational services after being notified by the parent that they are unable to provide their child with an education.

   Response: The Board added language that requires school districts to provide educational services within 10 days of notification.

§ 12.8. Hearings.

   Comment: IRRC suggested identifying the minimum time period that qualifies as sufficient notice.

   Response: The Board established 3 days as sufficient notice.

   Comment: The Education Law Center suggested the notice of a right to appeal the expulsion decision should be provided with notification of expulsion decision, not with the notification of charges as proposed. It also suggested that a copy of the hearing transcript be provided at no cost to a student who cannot afford it.

   Response: The Board agrees and made both changes.

   Comment: The School District of Philadelphia expressed concerns about the 15-day time frame and noted situations where the time frame is not practical. It suggested exceptions to the time frame, such as when laboratory tests are needed from law enforcement, an administrative hearing or judicial proceeding is pending resulting from the student invoking their rights under IDEA or a victim of a sexual assault or serious bodily injury is not available due to their physical or emotional condition.

   Response: The Board agrees and incorporated the exceptions to the regulation.

   Comment: The PSBA expressed a number of concerns and raised questions about the regulation. It recommended that the Board maintain the existing language. Goehring, Rutter and Boehm also expressed concerns that providing a copy of the expulsion policy to students together with notification of charges would provide a small but additional paperwork burden on schools.

   Response: The Board believes expulsion hearings are serious matters in which students should be entitled to information relevant to the rules and procedures followed by the school entity. The Board believes the additional paperwork requirement is minimal and justified given the serious action contemplated by the governing board. Except for the changes to this section previously noted, the Board has retained the regulation as proposed.

§ 12.9. Freedom of expression.

   Comment: IRRC recommended that in subsection (a), the citation to Supreme Court's Tinker decision issued in 1969 be replaced with a citation to the Supreme Court's 1986 opinion in Bethel School District v. Fraser, 478 U. S. 675. The PSBA also expressed its concerns that Bethel School District and Hazelwood School District v. Kulmeier, 484 U. S. 260, from 1988 are relevant to this section and are needed to reflect accurately the rulings of the United States Supreme Court on the subject.

   Response: The Board amended the regulation to reflect that the Constitution of the United States and the Constitution of the Commonwealth guarantee students a right to freely express themselves in school. This language will ensure that its meaning and intent is preserved when additional court rulings are issued regarding student freedom of expression in the future.

   Comment: The PSBA expressed a concern that, in subsection (b), the term ''immediate harm'' might suggest that there must be an immediacy of harm before a threat falls outside the protection of the First Amendment. It suggested deletion of the word ''immediate.'' In addition, at a hearing held by the House Education Committee on February 23, 2005, a number of its members expressed concern about this subsection, particularly about the term ''immediate and serious harm to the welfare of the school or community.''

   Response: The Board agrees with comments submitted by the PSBA and by members of the House Education Committee. The Board amended the clause to read ''serious harm to the school or community.'' The Board believes this new language appropriately balances the rights of students with the need of school officials to maintain a well-ordered educational environment.

   Comment: The PSBA expressed concern that the regulation is contrary to a 1989 court decision that ruled the hallways of a public school during the school day are not considered public forums. In addition, the PSBA stated the regulations encroach upon authority declared by the United States Supreme Court in its Hazelwood decision.

   Response: The Board believes that the regulation provides sufficient authority to school officials to regulate student conduct and the distribution of materials in public schools buildings.

§ 12.14. Searches.

   Comment: The PSBA expressed concern that the regulation provides a more stringent standard for locker searches than is constitutionally required.

   Response: The Board chose to maintain the long-standing standard as outlined in the regulation.

§ 12.16. Definitions.

   Comment: At a hearing of the House Education Committee, some members expressed concern that ''corporal punishment'' was not defined in the regulation.

   Response: The Board agrees and has added a definition of ''corporal punishment.''

   Comment: A private citizen commented that the definition for ''student assistance program'' should be amended to state that the program is designed to assist students who are experiencing a barrier to learning consistent with language contained in a Department Basic Education Circular.

   Response: The Board believes that it is the purpose and function of all student services to address barriers to learning. It is not solely the purview of the student assistance program, which was first established to address substance abuse issues in schools.

§ 12.32. Elements of the plan.

   Comment: IRRC expressed concerns to the Board about the requirement for the Department to issue guidelines on student services because guidelines are not binding. The PSBA recommended that the Board create regulations since delegating issuance of guidelines to the Department would not allow for public input.

   Response: The Board amended this section using language suggested by IRRC.

§ 12.41. Student services.

   Comment: Several members of the House Education Committee, the Pennsylvania Psychological Association and a private citizen recommended that the descriptors for educational specialists outlined in Chapter 7 be retained, or that Chapter 7 itself be retained. These commentators share a concern that the quality and effectiveness of student services would be reduced as a consequence of the proposed rulemaking.

   Response: The Board believes that Chapter 7 is too prescriptive in today's educational environment. The regulations are inconsistent with other Board regulations in that they limit flexibility provided to school entities in the planning, implementation and administration of cost effective, comprehensive student services programs. The Board believes that the final-form rulemaking provides an appropriate balance between defining what services school entities must provide while providing them flexibility in delivery of the services.

   Comment: The PSBA, the Education Law Center, the Pennsylvania Psychological Association, a private citizen and IRRC commented that subsection (d) was unclear and needed additional work, or may even be unnecessary.

   Response: The Board agrees and has rewritten subsection (d) to address parental and student rights under the Federal Protection of Pupil Rights amendment.

   Comment: IRRC suggested clarity would be improved in subsection (a) by defining developmental, diagnostic, intervention, referral, consultation and coordination services. The PSEA and a private citizen also commented that the proposed language suffers from a lack of specificity and suggested that the Board restore the descriptors in Chapter 7.

   Response: The Board concurs that the regulation required additional clarity and has described the activities more fully in the final-form rulemaking. However, the Board believes that the descriptors in Chapter 7 are too detailed and limit the flexibility of school entities in the design of a comprehensive system of student support services.

   Comment: A private citizen commented that the Board should clarify who may administer medications in schools.

   Response: School health regulations and guidance generally fall under the authority of the Department of Health. Therefore, it would not be appropriate for the Board to issue regulations on this issue.

   Comment: The PSBA commented that subsection (e), which states that student services staff must be specifically licensed or certified, is unnecessary since Chapter 49 (relating to certification of professional personnel) provides for certification and that the proposed language can only restrict staffing decisions by school officials.

   Response: The Board believes that it is important that personnel, both those employed by the school entity and those employed by community agencies, be properly licensed or certified. Chapter 49 and Department policies describe the qualifications and scope of responsibilities for professional school employees. With staff from community agencies now providing services to students in schools on a routine basis, the Board believes that all individuals providing services to students should be properly credentialed.

   Comment: The Pennsylvania Psychological Association and the Colonial School District support the addition of language to clarify that outside agencies providing services in schools are to be coordinated by and under the general direction of the school entity.

Additional Comments.

   Comment: IRRC suggested clarity would be improved through consistent use of a single term when referring to a school board, board of school directors, governing board, and the like. The Education Law Center also suggested that it be made clear that charter schools must follow Chapter 12 regulations.

   Response: The Board concurs and is using the term ''governing board'' throughout the regulations and has included it in the definitions in § 12.16. The definition includes charter schools to clearly indicate these regulations apply to charter schools.

   Comment: IRRC suggested using the term ''parents'' or ''guardians'' consistently throughout the regulations.

   Response: The Board has amended the regulations to reflect this suggestion.

   Comment: A private citizen suggested that the Board address school policies regarding off-campus student conduct, as many school entities now have these policies. These policies principally address acceptable off-campus student conduct as a condition of student participation in extracurricular activities, such as intramural and interscholastic sports, clubs and related activities that are considered privileges, not entitlements.

   Response: The General Assembly has delegated broad authority to school boards to ''prescribe, adopt, and enforce such reasonable rules and regulations as it may deem proper regarding [extracurricular activities].'' See section 510(a) of the code (24 P. S. § 5-510(a)). Therefore, the Board has chosen not to regulate on this issue.

Application of Education Empowerment Act

   In consolidating the regulations in Chapter 7 into Chapter 12, the question arose: How does the Board's reorganization affect those chapters under the Mandate Waiver Program established by section 1714-B of the Education Empowerment Act (EEA) (24 P. S. § 17-1714-B)?

   Under the Mandate Waiver Program, the Department is empowered to waive certain statutory and regulatory mandates in response to applications of a school district, intermediate unit or area vocational-technical school. The EEA expressly exempts from the Department's waiver authority certain specified statutes and regulations. Among the regulations exempted from the waiver program is Chapter 12. See section 17-1714-B(h) of the EEA.

   The Board previously considered the effect of moving regulatory language from one chapter to another and its effect on the Mandate Waiver Program. The Board established Chapter 16 (relating to special education for gifted students) after having previously addressed gifted education as part of Chapter 14. In that case, the Secretary asked the Department's Office of Chief Counsel to render an opinion on the issue. The Office of Chief Counsel advised the Secretary that because the General Assembly clearly intended to exempt from the Mandate Waiver Program all of Chapter 14, including the provisions governing gifted education, new Chapter 16 governing gifted education would also be exempt from the Mandate Waiver Program under section 1714-B(h) of the EEA. The change in numbering of the regulations by the Board would not alter the clear legislative intent to exempt from the program all Board regulations contained in Chapter 14 at the time the EEA went into effect.

   The Board believes this principle also applies to the consolidation of Chapters 7 and 12. The General Assembly clearly intended to include Chapter 7 in the Mandate Waiver Program, including all of the provisions governing pupil personnel services. The change in numbering or title of the regulations by the Board would not alter the clear legislative intent to permit inclusion in the program all Board regulations in Chapter 7 at the time the EEA went into effect. Therefore, the Board submits its final-form rulemaking with a statement of its understanding that § 12.41 would be eligible for waiver under the Mandate Waiver Program established by the EEA, on application of a school district, intermediate unit or area vocational-technical school to the Department.

Fiscal Impact and Paperwork Requirements

   Because the final-form rulemaking largely reflects changes in Federal and State statutes, Federal regulations and court decisions, costs associated with compliance with the final-form rulemaking should be negligible. The final-form rulemaking is aligned with current statutory provisions and relevant case law. To comport with the new provisions of the final-form rulemaking, school districts might have to change their disciplinary policies and procedures, as well as their expulsion hearing policies. School districts also might have to revise their student records policies to comply with the guidance provided by the Department. There may be limited costs associated with each of these changes.

   The student assistance program, which is currently operated under Department guidelines, is mandated by the regulations. This change should not result in additional costs. The regulations require the Department to issue program guidelines for student services programs. This includes the development of a comprehensive written plan for student services. Since school entity strategic planning requirements in Chapter 4 already require school entities to address student support services as part of the overall strategic plan, costs associated with this final-form rulemaking should be minimal.

   School entities may need to revise and update school district policies regarding student discipline and the maintenance of student records due to these regulations. Based on guidance to be provided by the Department, each school entity would need to update its student records policy. Compliance with these requirements is estimated to be less than $20,000. Actual costs incurred by each school entity for compliance with these requirements will vary from school entity to school entity. However, school entities that have updated student records policies based on Federal laws and court decisions already meet these new requirements. Schools that currently describe student services in their strategic plans, as required by § 4.13 (relating to strategic plans), or in other documents, may currently meet this requirement as well.

   By consolidating the regulations into the new student services section of Chapter 12, previously addressed in Chapter 7, schools will be provided additional flexibility to deliver a comprehensive program of student services to their students. Depending upon implementation on the local level, this might lead to improving the scope and quality of services provided to students while also providing cost savings.

Effective Date

   The final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin.

Sunset Date

   In accordance with its policy and practice respecting all regulations promulgated by it, the Board will review the effectiveness of Chapter 12 after 4 years. Therefore, no sunset date is necessary.

Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on August 30, 2003, the Board submitted a copy of the notice of proposed rulemaking, published at 33 Pa.B. 5735, to IRRC and the Chairpersons of the House and Senate Committees on Education for review and comment.

   Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.

   Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on October 5, 2005, the final-form rulemaking was approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on October 6, 2005, and approved the final-form rulemaking.

Contact Person

   The official responsible for information on the final-form rulemaking is Jim Buckheit, Executive Director, State Board of Education, 333 Market Street, Harrisburg, PA 17126-0333, (717) 787-3787, TDD (717) 787-7367.

Findings

   The Board finds that:

   (1)  Public notice of the intention to adopt this final-form rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder, 1 Pa.  Code §§ 7.1 and 7.2.

   (2)  A public comment period was provided as required by law, and all comments were considered.

   (3)  The final-form rulemaking is necessary and appropriate for the administration of the code.

Order

   The Board, acting under authorizing statute, orders that:

   (a)  The regulations of the Board, 22 Pa. Code Chapters 7 and 12, are amended by deleting §§ 7.1, 7.2, and 7.11--7.14 and 12.33 and Exhibit A and Sample Forms A--D of Chapter 12; and by amending §§ 12.1--12.9, 12.11, 12.12, 12.14, 12.31 and 12.32; and by adding §§ 12.16, 12.41 and 12.42 to read as set forth in Annex A.

   (b)  The Executive Director will submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form as required by law.

   (c)  The Executive Director of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.

   (d)  This order is effective upon final publication in the Pennsylvania Bulletin.

JIM BUCKHEIT,   
Executive Director

   (Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 35 Pa.B. 5893 (October 22, 2005).)

   Fiscal Note: 6-280. (1) General Fund; (2) Implementing Year 2004-05 is $5,000; (3) 1st Succeeding Year 2005-06 is $0; 2nd Succeeding Year 2006-07 is $0; 3rd Succeeding Year 2007-08 is $0; 4th Succeeding Year 2008-09 is $0; 5th Succeeding Year 2009-10 is $0; (4) 2003-04 Program--$26,219,000; 2002-03 Program--$26,674,000; 2001-02 Program--$27,820,000; (7) General Government Operations; (8) recommends adoption. This is a onetime cost associated with consulting with stakeholders in the development of guidelines for maintenance of student records and for student support services.

Annex A

TITLE 22.  EDUCATION

PART I.  STATE BOARD OF EDUCATION

Subpart A.  MISCELLANEOUS PROVISIONS

CHAPTER 7.  (Reserved)

§ 7.1. (Reserved).
§ 7.2. (Reserved).
§§ 7.11--7.14. (Reserved).

CHAPTER 12. STUDENTS AND STUDENT SERVICES

STUDENT RIGHTS AND RESPONSIBILITIES

§ 12.1. Free education and attendance.

   (a)  All persons residing in this Commonwealth between the ages of 6 and 21 years are entitled to a free and full education in the Commonwealth's public schools.

   (b)  Parents or guardians of all children between the ages of 8 and 17 are required by the compulsory attendance law to ensure that their children attend an approved educational institution, unless legally excused. Students who have not graduated may not be asked to leave school merely because they have reached 17 years of age if they are fulfilling their responsibilities as students. A student may not be excluded from the public schools or from extracurricular activities because:

   (1)  The student is married.

   (2)  The student is pregnant.

   (3)  The student has a disability as identified by Chapter 15 (relating to protected handicapped students).

   (4)  The student is an eligble student identified under Chapter 14 (relating to special education services and programs).

§ 12.2. Student responsibilities.

   (a)  Student responsibilities include regular school attendance, conscientious effort in classroom work and homework, and conformance to school rules and regulations. Most of all, students are responsible to share with the administration and faculty a responsibility to develop a climate within the school that is conducive to wholesome learning and living.

   (b)  No student has the right to interfere with the education of fellow students. It is the responsibility of each student to respect the rights of teachers, students, administrators and all others who are involved in the educational process.

   (c)  Students should express their ideas and opinions in a respectful manner.

   (d)  It is the responsibility of the students to conform to the following:

   (1)  Be aware of all rules and regulations for student behavior and conduct themselves in accordance with them. Students should assume that, until a rule is waived, altered or repealed in writing, it is in effect.

   (2)  Volunteer information in matters relating to the health, safety and welfare of the school community and the protection of school property.

   (3)  Dress and groom to meet standards of safety and health, and not to cause substantial disruption to the educational processes.

   (4)  Assist the school staff in operating a safe school for the students enrolled therein.

   (5)  Comply with Commonwealth and local laws.

   (6)  Exercise proper care when using public facilities and equipment.

   (7)  Attend school daily and be on time at all classes and other school functions.

   (8)  Make up work when absent from school.

   (9)  Pursue and attempt to complete satisfactorily the courses of study prescribed by local school authorities.

   (10)  Report accurately in student media.

   (11)  Not use obscene language in student media or on school premises.

§ 12.3. School rules.

   (a)  The governing board has the authority to make reasonable and necessary rules governing the conduct of students in school. The rulemaking power, however, is not unlimited; it must operate within statutory and constitutional restraints. A governing board has only those powers that are enumerated in the statutes of the Commonwealth, or that may reasonably be implied or necessary for the orderly operation of the school.

   (b)  Governing boards may not make rules that are arbitrary, capricious, discriminatory or outside their grant of authority from the General Assembly. A rule is generally considered reasonable if it uses a rational means of accomplishing some legitimate school purpose.

   (c)  Each governing board shall adopt a code of student conduct that includes policies governing student discipline and a listing of students' rights and responsibilities as outlined in this chapter. This conduct code shall be published and distributed to students and parents or guardians. Copies of the code shall also be available in each school library.

§ 12.4. Discrimination.

   Consistent with the Pennsylvania Human Relations Act (43 P. S. §§ 951--963), a student may not be denied access to a free and full public education, nor may a student be subject to disciplinary action on account of race, sex, color, religion, sexual orientation, national origin or disability.

§ 12.5. Corporal punishment.

   (a)  Corporal punishment is defined as physically punishing a student for an infraction of the discipline policy. Use of corporal punishment is prohibited.

   (b)  Teachers and school authorities may use reasonable force under the following circumstances:

   (1)  To quell a disturbance.

   (2)  To obtain possession of weapons or other dangerous objects.

   (3)  For the purpose of self-defense.

   (4)  For the protection of persons or property.

§ 12.6. Exclusions from school.

   (a)  The governing board shall define and publish the types of offenses that would lead to exclusion from school. Exclusions affecting certain students with disabilities shall be governed by § 14.143 (relating to disciplinary placements) and 34 CFR 300.519--300.529 (relating to discipline procedures).

   (b)  Exclusion from school may take the form of suspension or expulsion.

   (1)  Suspension is exclusion from school for a period of from 1 to 10 consecutive school days.

   (i)  Suspensions may be given by the principal or person in charge of the public school.

   (ii)  A student may not be suspended until the student has been informed of the reasons for the suspension and given an opportunity to respond. Prior notice of the intended suspension need not be given when it is clear that the health, safety or welfare of the school community is threatened.

   (iii)  The parents or guardians and the superintendent of the district shall be notified immediately in writing when the student is suspended.

   (iv)  When the suspension exceeds 3 school days, the student and parent shall be given the opportunity for an informal hearing consistent with the requirements in § 12.8(c) (relating to hearings).

   (v)  Suspensions may not be made to run consecutively beyond the 10 school day period.

   (vi)  Students shall have the responsibility to make up exams and work missed while being disciplined by suspension and shall be permitted to complete these assignments within guidelines established by the governing board.

   (2)  Expulsion is exclusion from school by the governing board for a period exceeding 10 school days and may be permanent expulsion from the school rolls. Expulsions require a prior formal hearing under § 12.8.

   (c)  During the period prior to the hearing and decision of the governing board in an expulsion case, the student shall be placed in his normal class except as set forth in subsection (d).

   (d)  If it is determined after an informal hearing that a student's presence in his normal class would constitute a threat to the health, safety or welfare of others and it is not possible to hold a formal hearing within the period of a suspension, the student may be excluded from school for more than 10 school days. A student may not be excluded from school for longer than 15 school days without a formal hearing unless mutually agreed upon by both parties. Any student so excluded shall be provided with alternative education, which may include home study.

   (e)  Students who are under 17 years of age are still subject to the compulsory school attendance law even though expelled and shall be provided an education.

   (1)  The initial responsibility for providing the required education rests with the student's parents or guardian, through placement in another school, tutorial or correspondence study, or another educational program approved by the district's superintendent.

   (2)  Within 30 days of action by the governing board, the parents or guardians shall submit to the school district written evidence that the required education is being provided as described in paragraph (1) or that they are unable to do so. If the parents or guardians are unable to provide the required education, the school entity shall, within 10 days of receipt of the notification, make provision for the student's education. A student with a disability shall be provided educational services as required by the Individuals With Disabilities Education Act (20 U.S.C.A. §§ 1400--1482).

   (3)  If the approved educational program is not complied with, the school entity may take action in accordance with 42 Pa.C.S. Chapter 63 (relating to the Juvenile Act) to ensure that the child will receive a proper education. See § 12.1(b) (relating to free education and attendance).

§ 12.7. Exclusion from classes--in-school suspension.

   (a)  A student may not receive an in-school suspension unless the student has been informed of the reasons for the suspension and has been given an opportunity to respond before the suspension becomes effective.

   (b)  Communication to the parents or guardian shall follow the suspension action taken by the school.

   (c)  When the in-school suspension exceeds 10 consecutive school days, an informal hearing with the principal shall be offered to the student and the student's parent or guardian prior to the 11th school day in accordance with the procedures in § 12.8 (relating to hearings).

   (d)  The student's school entity has the responsibility to make provision for the student's education during the period of the in-school suspension.

§ 12.8. Hearings.

   (a)  General. Education is a statutory right, and students shall be afforded due process if they are to be excluded from school. In a case involving a possible expulsion, the student is entitled to a formal hearing.

   (b)  Formal hearings. A formal hearing is required in all expulsion actions. This hearing may be held before the governing board or an authorized committee of the board, or a qualified hearing examiner appointed by the board. When a committee of the board or a hearing examiner conducts the hearing, a majority vote of the entire governing board is required to expel a student. The following due process requirements shall be observed with regard to the formal hearing:

   (1)  Notification of the charges shall be sent to the student's parents or guardians by certified mail.

   (2)  At least 3 days' notice of the time and place of the hearing shall be given. A copy of the expulsion policy, notice that legal counsel may represent the student and hearing procedures shall be included with the hearing notice. A student may request the rescheduling of the hearing when the student demonstrates good cause for an extension.

   (3)  The hearing shall be held in private unless the student or parent requests a public hearing.

   (4)  The student may be represented by counsel, at the expense of the parents or guardians, and may have a parent or guardian attend the hearing.

   (5)  The student has the right to be presented with the names of witnesses against the student, and copies of the statements and affidavits of those witnesses.

   (6)  The student has the right to request that the witnesses appear in person and answer questions or be cross-examined.

   (7)  The student has the right to testify and present witnesses on his own behalf.

   (8)  A written or audio record shall be kept of the hearing. The student is entitled, at the student's expense, to a copy. A copy shall be provided at no cost to a student who is indigent.

   (9)  The proceeding shall be held within 15 school days of the notification of charges, unless mutually agreed to by both parties. A hearing may be delayed for any of the following reasons, in which case the hearing shall be held as soon as reasonably possible:

   (i)  Laboratory reports are needed from law enforcement agencies.

   (ii)  Evaluations or other court or administrative proceedings are pending due to a student invoking his rights under the Individuals With Disabilities Education Act (20 U.S.C.A. §§ 1400--1482).

   (iii)  In cases in juvenile or criminal court involving sexual assault or serious bodily injury, delay is necessary due to the condition or best interests of the victim.

   (10)  Notice of a right to appeal the results of the hearing shall be provided to the student with the expulsion decision.

   (c)  Informal hearings. The purpose of the informal hearing is to enable the student to meet with the appropriate school official to explain the circumstances surrounding the event for which the student is being suspended or to show why the student should not be suspended.

   (1)  The informal hearing is held to bring forth all relevant information regarding the event for which the student may be suspended and for students, their parents or guardians and school officials to discuss ways by which future offenses might be avoided.

   (2)  The following due process requirements shall be observed in regard to the informal hearing:

   (i)  Notification of the reasons for the suspension shall be given in writing to the parents or guardians and to the student.

   (ii)  Sufficient notice of the time and place of the informal hearing shall be given.

   (iii)  A student has the right to question any witnesses present at the hearing.

   (iv)  A student has the right to speak and produce witnesses on his own behalf.

   (v)  The school entity shall offer to hold the informal hearing within the first 5 days of the suspension.

§ 12.9. Freedom of expression.

   (a)  The right of public school students to freedom of speech is guaranteed by the Constitution of the United states and the Constitution of the Commonwealth.

   (b)  Students shall have the right to express themselves unless the expression materially and substantially interferes with the educational process, threatens serious harm to the school or community, encourages unlawful activity or interferes with another individual's rights.

   (c)  Students may use publications, handbills, announcements, assemblies, group meetings, buttons, armbands and any other means of common communication, provided that the use of public school communications facilities shall be in accordance with the regulations of the authority in charge of those facilities.

   (1)  Students have the responsibility to obey laws governing libel and obscenity and to be aware of the full meaning of their expression.

   (2)  Students have the responsibility to be aware of the feelings and opinions of others and to give others a fair opportunity to express their views.

   (d)  Identification of the individual student or at least one responsible person in a student group may be required on posted or distributed materials.

   (e)  School officials may require students to submit for prior approval a copy of materials to be displayed, posted or distributed on school property.

   (f)  Bulletin boards must conform to the following:

   (1)  School authorities may restrict the use of certain bulletin boards.

   (2)  Bulletin board space should be provided for the use of students and student organizations.

   (3)  School officials may require that notices or other communications be officially dated before posting, and that the materials be removed after a prescribed reasonable time to assure full access to the bulletin boards.

   (g)  School newspapers and publications must conform to the following:

   (1)  Students have a right and are as free as editors of other newspapers to report the news and to editorialize within the provisions in paragraphs (4) and (5).

   (2)  School officials shall supervise student newspapers published with school equipment, remove obscene or libelous material and edit other material that would cause a substantial disruption or interference with school activities.

   (3)  School officials may not censor or restrict material simply because it is critical of the school or its administration.

   (4)  Prior approval procedures regarding copy for school newspapers must identify the individual to whom the material is to be submitted and establish a limitation on the time required to make a decision. If the prescribed time for approval elapses without a decision, the material shall be considered authorized for distribution.

   (5)  Students who are not members of the newspaper staff shall have access to its pages. Written criteria for submission of material by nonstaff members shall be developed and distributed to all students.

   (h)  The wearing of buttons, badges or armbands shall be permitted as another form of expression within the restrictions listed in subsection (c).

   (i)  School officials may set forth the time and place of distribution of materials so that distribution would not materially or substantially interfere with the requirements of appropriate discipline in the operation of the school.

   (1)  A proper time and place set for distribution is one that would give the students the opportunity to reach fellow students.

   (2)  The place of the activity may be restricted to permit the normal flow of traffic within the school and at exterior doors.

§ 12.11. Hair and dress.

   (a)  The governing board may establish dress codes or require that students wear school uniforms. Policies may apply to individual school buildings or to all school buildings.

   (b)  Students have the right to govern the length or style of their hair, including facial hair. Any limitation of this right must include evidence that length or style of hair causes disruption of the educational process or constitutes a health or safety hazard. When length or style of the hair presents a health or safety hazard, some types of covering shall be used.

   (c)  Students may be required to wear certain types of clothing while participating in physical education classes, shops, extracurricular activities or other situations when special attire may be required to insure the health or safety of the student.

   (d)  Students have the responsibility to keep themselves, their clothes and their hair clean. School officials may impose limitations on student participation in the regular instructional program when there is evidence that the lack of cleanliness constitutes a health hazard.

§ 12.12. Confidential communications.

   (a)  Use of a student's confidential communications to school personnel in legal proceedings is governed by statutes and regulations appropriate to the proceeding. See, for example, 42 Pa.C.S. § 5945 (relating to confidential communications to school personnel).

   (b)  Information received in confidence from a student may be revealed to the student's parents or guardians, the principal or other appropriate authority when the health, welfare or safety of the student or other persons is clearly in jeopardy.

§ 12.14. Searches.

   (a)  The governing board of every school entity shall adopt reasonable policies and procedures regarding student searches. The local education agency shall notify students and their parents or guardians of the policies and procedures regarding student searches.

   (b)  Illegal or prohibited materials seized during a student search may be used as evidence against the student in a school disciplinary proceeding.

   (c)  Prior to a locker search, students shall be notified and given an opportunity to be present. When school authorities have a reasonable suspicion that the locker contains materials that pose a threat to the health, welfare or safety of students in the school, student lockers may be searched without prior warning.

§ 12.16. Definitions.

   The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

   Corporal punishment--A form of physical discipline that is intended to cause pain and fear and in which a student is spanked, paddled or hit on any part of the body with a hand or instrument.

   Governing board--The board of school directors of a school district, joint school committee of a joint school or joint vocational school, intermediate unit board of directors, or the board of trustees of a charter school or cyber-charter school.

   School entity--A local public education provider (for example--public school, charter school, cyber-charter school, area vocational-technical school or intermediate unit).

   Student assistance program--A systematic process designed to assist school personnel to identify issues, including alcohol, drugs and others, which pose a barrier to a student's learning and school success. Student assistance is a systematic process using effective and accountable professional techniques to mobilize school resources to remove the barriers to learning, and, when the problem is beyond the scope of the school, to assist the parent and the student with information so they may access services within the community.

   Student services--Services designed by a school entity to support the instructional program and to help students attain their educational and career goals.

   (i)  Services may include school guidance counseling, health services (under Article XIV of the Public School Code of 1949 (24 P. S. §§ 14-1401--14-1423) and 28 Pa. Code Chapter 23 (relating to school health)), psychological services, social work and home and school visitor services.

   (ii)  School entities may supplement, but may not supplant, these services through school-based, school-linked, or coordinated services provided by locally available social and human services agencies.

STUDENT RECORDS

§ 12.31. General requirements.

   (a)  The governing board of every school entity shall adopt a plan for the collection, maintenance and dissemination of student records

   (b)  Copies of the adopted plan shall be maintained by the school entity and updated as required by changes in State or Federal law.

   (c)  Copies of the plan shall be submitted to the Department only upon request of the Secretary.

§ 12.32. Elements of the plan.

   The plan for student records must conform with applicable State and Federal laws, regulations and directives identified in guidelines issued by the Department.

§ 12.33. (Reserved).

EXHIBIT A. (Reserved)
Sample Forms
A--E (Reserved)

SERVICES TO STUDENTS

§ 12.41. Student services.

   (a)  Each school entity shall prepare a written plan for the implementation of a comprehensive and integrated K--12 program of the student services based on the needs of its students. The plan shall be prepared and revised in accordance with the time frames and procedures described in § 4.13(a), (b), (d), (e) and (f) (relating to strategic plans). Services offered by community agencies in public schools shall be coordinated by and under the general direction of the school entity. The plan must include policies and procedures for emergency care and administration of medication and treatment under The Controlled Substance, Drug, Device and Cosmetic Act (35 P. S. §§ 780-101--780-144) and guidelines issued by the Department of Health. The Department of Health guidelines are available from the Division of School Health, Department of Health, P. O. Box 90, Harrisburg, Pennsylvania 17108.

   (b)  Though the variety of student services offered will differ from school to school depending upon its size and the needs of its students, the following categories of services shall be provided by each school entity in planning its student services:

   (1)  Developmental services for students that address their developmental needs throughout their enrollment in school. Developmental services include guidance counseling, psychological services, health services, home and school visitor services and social work services that support students in addressing their academic, behavioral, health, personal and social development issues.

   (2)  Diagnostic, intervention and referral services for students who are experiencing problems attaining educational achievement appropriate to their learning potential.

   (i)  Student services staff use diagnostic services to identify barriers that limit a student's success in school. Intervention services actively engage student services staff in activities planned to reduce or eliminate specific barriers to student success.

   (ii)  Student services staff may arrange for referrals to other school-based or school-linked professionals or may refer parents and guardians to appropriate community-based services for assistance.

   (3)  Consultation and coordination services for students who are experiencing chronic problems that require multiple services by teams or specialists.

   (i)  Consultation services are used by student services staff, in partnership with parents or guardians, to obtain assistance to address barriers and issues that are outside the scope of the student services professional.

   (ii)  Consultation and coordination services may be used to assist in the diagnosis, intervention or referral of students who face barriers to success.

   (iii)  Coordination services connect school resources with other available resources to assist students in meeting their educational objectives.

   (c)  Student services must:

   (1)  Be an integral part of the instructional program at all levels of the school system.

   (2)  Provide information to students and parents or guardians about educational opportunities of the school's instructional program and how to access these opportunities.

   (3)  Provide career information and assessments so that students and parents or guardians might become aware of the world of work and of a variety of career options available to individual students.

   (4)  Provide basic health services outlined in Article XIV of the Public School Code of 1949 (24 P. S. §§ 14-1401--14-1423) for students and information to parents or guardians about the health needs of their children.

   (d)  When student assessments using individual surveys are administered, parents or guardians shall be informed of the nature and scope of the surveys and of their relationship to the educational program of their child, consistent with section 445 of the General Education Provisions Act (20 U.S.C.A. § 1232h) regarding protection of pupil rights. Parents or guardians, or the student if the student is 18 years of age or older, shall have the right to refuse to participate in the survey by means of procedures established by the school entity.

   (e)  Persons delivering student services shall be specifically licensed or certified as required by statute or regulation.

   (f)  The Department will provide guidelines and technical assistance to local education agencies in planning student services.

§ 12.42. Student assistance program.

   School entities shall plan and provide for a student assistance program under the Early Intervention Services System Act (11 P. S. §§ 875-101--875-503).

[Pa.B. Doc. No. 05-2198. Filed for public inspection December 2, 2005, 9:00 a.m.]



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