Current through Register Vol. 35, No. 18, September 24, 2024
A. Enforcing attendance requirements. Local
school districts and public schools shall establish, maintain, and enforce
attendance policies and requirements set forth in Section
22-12A-1
et seq. NMSA 1978, the Attendance for Success Act, and Section
32A-3A-1 et
seq. NMSA 1978, the Family Services Act.
B. Search and seizure. School property
assigned to a student and a student's person or property while under the
authority of a public school are subject to search, and items found are subject
to seizure, in accordance with the following requirements:
(1) Notice of search policy. Students shall
be given reasonable notice, through distribution of written policies or
otherwise, of each school's policy on searches at the beginning of each school
year or upon admission for students entering during the school year.
(2) Who may search. Certified school
personnel, school security personnel and school bus drivers are "authorized
persons" to conduct searches when a search is permissible as set forth in
Subsection B of 6.11.2.10 NMAC. An authorized person who is conducting a search
may request the assistance of one or more people, who upon consent become
authorized to search for the purpose of that search only.
(3) When a search is permissible. Unless
local school board policy provides otherwise, an authorized person may conduct
a search when the authorized person has a reasonable suspicion that a crime or
other breach of disciplinary rules is occurring or has occurred. An
administrative authority may direct or conduct a search under the same
conditions and also when the administrative authority has reasonable cause to
believe that a search is necessary to help maintain school
discipline.
(4) Conduct of searches
and witnesses. The following requirements govern the conduct of permissible
searches by authorized persons.
(a) School
property, including lockers and school buses, may be searched with or without
students present unless a local school board or administrative authority
provides otherwise. When students are not present for locker searches, another
authorized person shall serve as a witness whenever possible. Locks furnished
by students should not be destroyed unless a student refuses to open one or
circumstances otherwise render such action necessary in the judgment of the
administrative authority.
(b)
Student vehicles when on campus or otherwise under school control and students'
personal effects, which are not within their immediate physical possession, may
be searched in accordance with the requirements for locker searches in
Subparagraph (a) of Paragraph (4) of Subsection B of 6.11.2.10 NMAC.
(c) Physical searches of a student's person
may be conducted only by an authorized person of the same sex as the student
and, except when circumstances render it impossible, may be conducted only in
the presence of another authorized person of the same sex. The extent of the
search must be reasonably related to the infraction, and the search shall not
be excessively intrusive in light of the student's age and sex, and the nature
of the infraction.
(5)
Seizure of items. Illegal items, legal items which threaten the safety or
security of others and items which are used to disrupt or interfere with the
educational process may be seized by authorized persons. Seized items shall be
released to appropriate authorities or a student's parent or returned to the
student when and if the administrative authority deems appropriate.
(6) Notification of law enforcement
authorities. Unless a local school board policy provides otherwise, an
administrative authority shall have discretion to notify the local children's
court attorney, district attorney, or other law enforcement officers when a
search discloses illegally possessed contraband material or evidence of some
other crime or delinquent act.
C. Basis for disciplinary action. A student
may appropriately be disciplined by administrative authorities in the following
circumstances:
(1) for committing any act that
endangers the health or safety of students, school personnel, or others for
whose safety the public school is responsible, or for conduct that reasonably
appears to threaten such dangers if not stopped, regardless of whether an
established rule of conduct has been violated;
(2) for violating valid rules of student
conduct established by the local school board or by an administrative authority
to whom the local school board has delegated rulemaking authority, when the
student knew or should have known of the rule in question or that the conduct
was prohibited; or
(3) for
committing acts prohibited by this rule, when the student knew or should have
known that the conduct was prohibited.
D. Selection of disciplinary sanctions.
Within legal limits as defined in Subsection L of
6.11.2.7 NMAC, local
school boards have discretion to determine the appropriate sanction(s) to be
imposed for violations of rules of student conduct or to authorize appropriate
administrative authorities to make such determinations.
(1) School discipline and criminal charges.
Appropriate disciplinary actions may be taken against students regardless of
whether criminal charges are also filed in connection with an
incident.
(2) Nondiscriminatory
enforcement. Local school boards and administrative authorities shall not
enforce school rules or impose disciplinary punishments in a manner which
discriminates against any student on the basis of race, religion, color,
national origin, ancestry, sex (including sexual orientation and transgender
status), or disability, except to the extent otherwise permitted or required by
law or regulation. This statement shall not be construed as requiring identical
treatment of students for violation of the same rule; it shall be read as
prohibiting differential treatment which is based on race, religion, color,
national origin, ancestry, sex (including sexual orientation and transgender
status), or disability rather than on other differences in individual cases or
students.
E. Restraint
or seclusion. In accordance with Section
22-5-4.12
NMSA 1978, each school shall establish requirements for the use of restraint
and seclusion techniques.
(1) Schools shall
establish policies and procedures, as approved by the local school board or
governing body, for the use of restraint and seclusion techniques. Schools
shall review such policies and procedures on a triennial basis, before
submitting the school safety plan.
(a) A
school may permit the use of restraint or seclusion techniques on any student
only if the student's behavior presents an imminent danger of serious physical
harm to the student or others and only if less restrictive interventions appear
insufficient to mitigate the imminent danger of serious physical harm. Less
restrictive interventions include de-escalation strategies, positive behavioral
intervention supports, or other comparable behavior management
techniques.
(b) The restraint or
seclusion techniques shall be used only by school employees who are trained in
de-escalation strategies, positive behavioral intervention supports, and the
safe and effective use of restraint and seclusion techniques, unless an
emergency does not allow sufficient time to summon those trained school
employees.
(c) The restraint or
seclusion techniques shall not impede the student's ability to breathe or
speak, shall be in proportion to a student's age and physical condition, and
shall end when the student's behavior no longer presents an imminent danger of
serious physical harm to the student or others.
(d) If a restraint or seclusion technique is
used on a student, trained and authorized school employees shall maintain
continuous visual observation and monitoring of the student while the restraint
or seclusion technique is in use.
(2) In accordance with Section
22-5-4.12
NMSA 1978, schools shall establish policies and procedures for the use of
restraint and seclusion techniques in a school safety plan.
(a) A school safety plan, pursuant to
requirements of Paragraph (7) of Subsection D of
6.12.6.8 NMAC, shall
include the following minimum requirements:
(i) The school safety plan shall not be
specific to any individual student; and
(ii) The school safety planning team shall
include at least one administrator, one educator, and one special education
expert and may include a counselor or social worker, nurse, and school resource
officer or security staff. The school safety planning team shall include
personnel who are trained as designated school personnel restraint and
seclusion.
(b) A school
safety plan, pursuant to requirements of Paragraph (7) of Subsection D of
6.12.6.8 NMAC, shall
be submitted to the department on a triennial basis, on a schedule determined
by the department. The department will provide local education agencies notice
of a deadline to submit a school safety plan 90 days prior to the due
date.
(3) Policies and
procedures for the use of restraint and seclusion techniques shall require and
describe appropriate training for designated school personnel.
(a) School districts and charter schools
shall provide training for designated school personnel regarding de-escalation
strategies, positive behavioral intervention supports, or other comparable
behavior management techniques and the use of restraint or seclusion
techniques. Designated school personnel shall attend training at least every
two years or complete a certification course, exam, or other comparable
demonstration of competency that provides evidence that the individual has
up-to-date knowledge of proper restraint and seclusion techniques.
(b) In the event that new designated school
personnel are identified within the school after the provision of the training,
certification course, exam, or other comparable demonstration of competency,
the school district or charter school shall ensure that a training or other
competency demonstration is provided to new designated school personnel within
60 days of being designated.
(4) Policies regarding restraint or seclusion
shall consider school district support and strategies for school employees to
successfully reintegrate a student who has been restrained or secluded back
into the school or classroom environment.
(5) Schools shall implement the following
review procedures for incidents in which restraint or seclusion techniques are
used.
(a) If a student has been restrained or
secluded two or more times within 30 calendar days, the school shall review
strategies used to address the student's behavior and determine whether the
student needs a functional behavior assessment or referral to a student
assistance team, behavioral intervention plan team, or, if a student has an
individualized education program, a referral to the student's individualized
education program team.
(b) If a
student has been restrained or secluded two or more times within 30 calendar
days, the student's individualized education program team, behavioral
intervention plan team, or student assistance team shall meet within two weeks
of each subsequent use to provide recommendations for avoiding future incidents
requiring the use of restraint or seclusion.
(c) The review shall include whether school
personnel involved in the incidents were trained in the use of de-escalation
strategies, positive behavioral intervention supports, or restraint and
seclusion techniques. Additionally, the review shall consider whether the
individual who restrained or secluded a student needs additional
training.
(d) To improve internal
practices relative to incidents of restraint or seclusion, schools shall
conduct an annual review and analysis of all incidents in which restraint or
seclusion techniques were used, including the number of incidents, the type of
incident, personnel involved, the need for additional training, and student
demographics.
(6)
Schools shall establish documentation and reporting procedures pursuant to the
requirements listed in Section
22-5-4.12
NMSA 1978. In addition, schools shall provide written or oral assurance of
secure storage and access to written documentation in accordance with this
rule, 20 USC. Section 1232(g), 34 CFR Part 99, the Family Educational Rights
and Privacy Act, and any other applicable federal or state laws or rules
governing the privacy of such documents.
(a) A
school employee shall provide the student's parent with written or oral notice
on the same day the incident occurred, unless circumstances prevent same-day
notification. If notice is not provided on the same day of the incident, notice
shall be given within 24 hours after the incident.
(b) Within a reasonable time following the
incident, no longer than two school days, a school employee shall provide the
student's parent with written documentation that includes information about any
persons, locations, or activities that may have triggered the behavior, if
known, and specific information about the behavior and its precursors, the type
of restraint or seclusion technique used, and the duration of its
use.
(c) Schools shall report to
the department, through the department's data collection and reporting system,
the following information on a timeline and reporting frequency established by
the department:
(i) all instances in which a
restraint or seclusion technique is used;
(ii) all instances in which law enforcement
is summoned instead of using a restraint or seclusion technique;
(iii) the names of the students and school
personnel involved in an incident in which restraint or seclusion was used;
and
(iv) if a student was
restrained, the type of restraint, including mechanical restraint or physical
restraint, that was used.
(d) If a school summons law enforcement
instead of using a restraint or seclusion technique on a student, the school
shall comply with the reporting, documentation, and review procedures
established pursuant to this rule and Section
22-5-4.12
NMSA 1978.
F.
Corporal punishment. Corporal punishment shall be prohibited by each local
school board pursuant to Subsection B of Section
22-5-4.3
NMSA 1978. Restraint or seclusion techniques used in compliance with Subsection
E of 6.11.2.10 NMAC shall not be deemed to be corporal punishment.
G. Detention, suspension and expulsion. Where
detention, suspension, or expulsion is determined to be the appropriate
penalty, it may be imposed only in accordance with procedures that provide at
least the minimum safeguards prescribed in
6.11.2.12
NMAC. Suspensions or expulsions of students with disabilities shall be subject
to the further requirements of Subsection I of 6.11.2.10 NMAC and
6.11.2.11
NMAC.
H. Discipline of students
experiencing homelessness. Removing students experiencing homelessness from
school shall be used only as a last resort, pursuant to the requirements in 42
USC Sec. 11431 et seq., the McKinney-Vento Homelessness Assistance Act.
(1) Public schools shall develop discipline
policies and procedures that are reviewed at least annually and align with
local school board policies. Policies and procedures shall:
(a) through professional development
activities, create an awareness among educators and administrators of the types
of behaviors that students experiencing homelessness may exhibit due to
homelessness and provide strategies and supports to address the behaviors
through the student assistance team process in accordance with Subsection D of
6.29.1.9
NMAC;
(b) take into account the
issues related to a student's homelessness by talking with the student and
applicable staff and families prior to taking disciplinary action;
(c) consult with school behavior response
teams or other applicable personnel to assign appropriate discipline related to
the behavior;
(d) implement
discipline alternatives to temporary or long-term suspensions or expulsions or
classroom removals, if possible; and
(e) connect students with mental health
services as needed.
(2)
Public schools shall review school discipline records and data of students
experiencing homelessness in order to identify any patterns in disciplinary
actions that indicate an unfair bias against the students. The collection and
review of such records shall be in compliance with the Family Educational
Rights and Privacy Act, as well as any other applicable federal or state laws
or rules governing the privacy of such documents.
I. Discipline of students with disabilities.
Students with disabilities are not immune from school disciplinary processes,
nor are they entitled to remain in a particular educational program when their
behavior substantially impairs the education of other children in the program.
However, public schools are required by state law and rule to meet the
individual educational needs of students with disabilities to the extent that
current educational expertise permits. Public school personnel may consider any
unique circumstances on a case-by-case basis when determining whether a change
of placement, consistent with the other requirements of
6.11.2.11
NMAC, is appropriate for a student with a disability who violates a code of
conduct as provided in 34 CFR Sec. 300.530.
(1) Long-term suspensions or expulsions of
students with disabilities shall be governed by the procedures set forth in
6.11.2.11
NMAC.
(2) Temporary suspensions of
students with disabilities may be imposed in accordance with the normal
procedures prescribed in Subsection D of
6.11.2.12
NMAC, provided that the student is returned to the same educational placement
after the temporary suspension and unless a temporary suspension is prohibited
under the provisions of Paragraph (3) of Subsection I of 6.11.2.10
NMAC.
(3) Program prescriptions. A
student with a disability's individualized education program (IEP), under the
Individuals with Disabilities Education Improvement Act (IDEA), need not
affirmatively authorize disciplinary actions which are not otherwise in
conflict with this rule. However, the IEP team may prescribe or prohibit
specified disciplinary measures for an individual student with a disability by
including appropriate provisions in the student's IEP. Administrative
authorities shall adhere to any such provisions contained in a student with a
disability's IEP, except that an IEP team may not prohibit the initiation of
proceedings for long-term suspension or expulsion which are conducted in
accordance with this rule.
(4)
Immediate removal. Immediate removal of students with disabilities may be done
in accordance with the procedures of Subsection C of
6.11.2.12
NMAC.
(5) A student who has not
been determined to be eligible for special education and related services under
6.31.2 NMAC and who has engaged in behavior that violated a code of student
conduct may assert any of the protections provided for in this subsection if
the conditions set forth in 34 CFR Sec. 300.534 have been met.
(6) Referral to and action by law enforcement
and judicial authorities.
(a) Nothing in
these rules of conduct prohibits an administrative authority from reporting a
crime committed by a student with a disability to appropriate authorities or
prevents state law enforcement and judicial authorities from exercising their
responsibilities with regard to the application of federal and state law to
crimes committed by a student with a disability.
(b) Transmittal of records.
(i) An administrative authority reporting a
crime committed by a student with a disability must ensure that copies of the
special education and disciplinary records of the student are transmitted, for
consideration by the appropriate authorities, to whom the administrative
authority reports the crime.
(ii)
An administrative authority reporting a crime under this section may transmit
copies of the student's special education and disciplinary records only to the
extent that the transmission is permitted by the Family Educational Rights and
Privacy Act.