CHAPTER 218

FORMERLY

HOUSE SUBSTITUTE NO. 1

FOR

HOUSE BILL NO. 322

AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATION.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each house thereof concurring therein):

Section 1. Amend Chapter 41, Title 14 of the Delaware Code, by adding thereto a new section to read:

"§ 4122. Parent's failure to attend school conference with superintendent; subpoena to compel attendance.

(a) 'Parent' as used in this section means natural parent, adoptive parent, any person legally charged with the care or custody of a student under 18 years of age, or any person who has assumed responsibility for the care of a student under 18 years of age.

(b) When a parent fails to attend, participate or respond to a public school or charter school superintendent's request for a conference to discuss matters involving alleged violations of school rules or regulations by the parent's child, the public school or charter school superintendent or the superintendent's designee may request that the Justice of the Peace Court issue a subpoena to compel the presence of the parent at a conference with the superintendent.

(c) Prior to the issuance of a subpoena to compel the presence of a parent, the superintendent or a designee must provide evidence that he or she has:

1. made a reasonable attempt to schedule the conference at a time that does not conflict with the employment hours of the parent; and

0. sent written notice of the conference by regular United States mail to the address of record of the parent, which notice shall include the reason for the conference and a statement that failure to schedule or attend the conference may result in the issuance of a subpoena.

(d) After verifying that the superintendent or a designee has sent the required notice, the Justice of the Peace Court may, in its discretion, issue a subpoena pursuant to Justice of the Peace Civil Rule 18 which shall compel the presence of the parent at a conference with the superintendent.

(e) If a parent fails to obey a subpoena properly served under this section, the superintendent may file a motion for an order holding the parent in contempt of court. The Justice of the Peace Court shall have jurisdiction over this matter. A parent found guilty of contempt for failure to appear at a conference after receiving a subpoena may be ordered by the Court to attend school with the student, attend family counseling, and/or comply with such other conditions as the Court may order.

(f) Proceedings against a parent of a suspended or expelled child may also be filed pursuant to 14 Del.C. § 2709 for each day that the child is absent beyond the period of suspension or expulsion without a valid excuse as a result of the parent's failure to attend or schedule a conference after having received notification of the suspension or expulsion."

Section 2. Amend § 4112, Title 14 of the Delaware Code, by striking § 4112 in its entirety and by substituting in lieu thereof the following:

"§ 4112. Reporting school crimes.

(a) Definitions The following words, terms, and phrases when used in this section shall have the meaning ascribed to them except where the context clearly indicates a different meaning:

1. 'Crime' includes a felony, misdemeanor, or violation defined in the Delaware Code, as well as behavior by a person under 18 years of age which would be considered a felony, misdemeanor or violation if it had been committed by an adult.

2. 'Non-instructional designee' means a school employee whose primary job duty does not include teaching students.

3. 'Notification' means direct contact by telephone, in person, or by certified mail, unless otherwise designated.

0. 'Parent' includes natural parent, adoptive parent, or any person, agency, or institution that has temporary or permanent custody or guardianship over a student under 18 years of age.

1. 'Parent conference' includes a meeting by telephone or in person, unless otherwise designated.

2. 'Principal' means the building principal of any public school or charter school, or the building principal's designee.

3. 'School employee' includes all persons 18 years of age or older hired by a school district, attendance zone, or charter school; subcontractors such as bus drivers or security guards; substitute employees; and persons hired by or
subcontracted by other State agencies to work on school property.

4. 'School function' includes any field trip or any officially sponsored public or charter school event in the State of Delaware.

5. 'School property' means any building, structure, athletic field, sports stadium, or real property that is owned, operated, leased, or rented by any public school district or charter school including, but not limited to, any kindergarten, elementary, secondary, or vocational-technical school or charter school, or any motor vehicle owned, operated, leased, rented, or subcontracted by any public school or charter school.

0. 'School volunteer' means a person 18 years of age or older who, without compensation, renders service to a public or charter school. 'School volunteer' includes parents who assist in school activities or chaperone school functions.

1. 'Superintendent' means the superintendent of any public school district or charter school, or the superintendent's designee.

2. 'Suspension' means either an external or an internal removal of a student from the general school population.

3. 'Violent felony' means a crime designated in 11 Del C, 4201(c).

14. 'Written report' includes printed paper filings and electronic filings that can be printed.

(b) Criminal violation; mandatory reports

(1) Whenever a school employee has reliable information that would lead a reasonable person to believe that:

(a) a student or a school volunteer has been the victim of

(i) a violent felony,

() an Assault III, or

(iii) an Unlawful Sexual Contact III, as prohibited by Title 11 of the Delaware Code, which occurred on school property or at a school function; or

(b) a school employee has been the victim of

(i) a violent felony,

(ii) an Assault III,

() an Unlawful Sexual Contact III,

(i) an Offensive Touching, or

(v) a Terroristic Threatening, as prohibited by Title 11 of the Delaware Code, which occurred on school property or at a school function, the school employee who has reliable information that would lead a reasonable person to believe that a crime has been committed shall immediately report the incident to the principal, who shall immediately make reasonable efforts to notify the parents of any juvenile victim and shall conduct a thorough investigation to determine if good reason exists to believe that a crime has been committed. If investigation verifies that good reason exists, the principal must report the incident to the appropriate police agency:

(i) immediately, if the crime is a suspected violent felony; and

() within 3 working days, if the crime is a suspected misdemeanor required to be reported pursuant to subsection (b)(1) of this section.

If the police agency determines that probable cause exists to believe that a crime has been committed, or if the principal later learns that a suspect has been arrested for the offense, then the principal must file a written report of the incident with the superintendent. Thereafter, the superintendent shall, within 5 days, file a written report of the incident with the Department of Public Instruction.

Nothing in this section shall preclude school officials from reporting probable crimes that occur on school property or at a school function which are not required to be reported under this section. Nothing in this section shall abrogate the reporting requirements for child abuse or sexual abuse set forth in 16 Del. C. § 906 et Leg.

(2) Offenders under the age of 9. When a misdemeanor offense listed in subsection (b) of this section has allegedly been committed by a child under the age of 9, the principal is not required to notify the appropriate police agency or to follow the provisions of subsection (d) of this section, but must file a written report of the incident with the superintendent, who shall file the written report with the Department of Public Instruction within five working days of receiving the report from the principal. The mandatory court filing requirements set forth in subsection (b)(4) of this section do not apply when a misdemeanor offense has been committed by a child under the age of nine. When the alleged offense is a violent felony, the appropriate police agency must be notified of the incident even when the suspect is under the age of nine.

(3) Sexual Harassment. Whenever a school employee has reliable information that would lead a reasonable person to believe that a student under the age of 18 has been the victim of Sexual Harassment, as defined in Title 11 of the Delaware Code, which occurred on school property or at a school function, the harassment must be reported to the principal who, immediately after conducting a thorough investigation to determine if good reason exists to believe that harassment has occurred, must notify the victim's parent of that determination if the parent is not alleged to be the offender. The principal is not required to notify the appropriate police agency or to follow the provisions of subsection (d) of this section, but must file a written report with the Department of Public Instruction.

(0) Mandatory filing of misdemeanor charge with a court when victim is a school employee. In any instance where probable cause exists to believe that a school employee has been the victim of a misdemeanor set forth in subsection (b)(1)(b) of this section and the offender has been identified, the superintendent, the superintendent's non-instructional designee, or a building-level administrator must, within 3 working days of receiving a police report, file the appropriate misdemeanor criminal charge or charges with a court of proper jurisdiction unless:

(i) the police agency or the Attorney General's Office recommends against filing a criminal charge or charges;

() a criminal charge or charges have already been filed;

(i) the police have agreed to file a criminal charge or charges; or

(ii) the offender is under the age of nine.

After making inquiries into the source of the complainant's information and the grounds of the complainant's belief, the court of proper jurisdiction shall have the authority to issue a warrant based on information and belief when the complaint has been signed by a superintendent or by a superintendent's non- instructional designee or by a building-level administrator pursuant to this section.

(c) Student possession of weapons and unlawful drugs: mandatory complaints.

Whenever a school employee has reliable information that would lead a reasonable person to believe that a person on school property or at a school function has on his or her person, concealed in his or her possessions, or placed elsewhere on school property:

(1) any controlled substance prohibited by Title 16 of the Delaware Code, or

(2) any deadly weapon, destructive weapon, dangerous instrument, or incendiary or explosive device as prohibited by Title 11 of the Delaware Code, the school employee shall immediately report the incident to the principal who shall conduct a thorough investigation. If the investigation verifies that good reason exists to believe that a crime has been committed, the principal shall immediately notify the appropriate police agency of the incident. If the police agency determines that probable cause exists to believe that a crime has been committed, then the principal shall file a written report of the incident with the superintendent. Thereafter, the superintendent shall file a written report of the incident with the Department of Public Instruction within 5 working days.

(d) Suspensions.

(1) Whenever a police agency has determined that probable cause exists to believe that a student has committed a crime which must be reported to the police pursuant to this section, the student shall:

(i) be referred immediately to the internal or external alternative services of the district or school for intervention of an appropriate nature and duration prior to being returned to the general student body, and

(ii) be given an immediate internal or external suspension by the district or school until a parent conference is held to review the student's educational placement.

(2) A student who is placed in an alternative program pursuant to this subsection, and who is determined by a superintendent to be in immediate need of a program to prevent seriously violent or habitual criminal behavior, shall be separated in the alternative program from students for which such a determination has not been made. The superintendent's determination shall include a statement of the recommended degree of separation, keeping in mind the available resources.

(3) Before a student suspended under this subsection may be returned to the general student body, a parent of the suspended student is required to attend a parent conference with the superintendent to discuss the offense and to review the student's educational placement. A telephone conference shall be sufficient only if the superintendent so determines and so notifies the parent. If the parent does not attend the parent conference, a subpoena compelling the parent's attendance may be issued pursuant to 14 Del. C.§ 4122.

(4) When a student who has been given an external suspension or who has been sent to an alternative program pursuant to this subsection returns to the general student body at a school where the victim is required to be present, the principal of the school must attempt to notify the adult victim or, if the victim is a juvenile, a parent of the juvenile victim.

(5) Nothing in this subsection shall preclude a school district from imposing a suspension or expulsion beyond the date of a parent conference where otherwise appropriate. Any change of placement of students with qualifying disabilities must comply with applicable federal laws.

(e) Penalties.

Any school employee who fails to report an incident as required by subsection (b) or (c) of this section shall be guilty of a violation and shall be fined not more than $250 for a first offense and not more than $500 for a subsequent offense. Justices of the Peace Courts shall have jurisdiction over violations of this section.

(f) Immunity from civil liability review of criminal complaint.

Any school employee who in good faith provides information to a police agency, a principal, a superintendent, or to the Department of Public Instruction under subsection (b) or (c) of this section shall not be held civilly liable for providing such information.

Prior to lodging any criminal charge against a school employee for providing information pursuant to subsection (b) or (c) of this section to a police agency, a principal, a superintendent, or to the Department of Public Instruction, the Attorney General's Office shall be consulted to determine the appropriateness of the charge.

(g) Confidential list of young student offenders.

Following to the start of each school year, the Department of Public Instruction shall, upon request, provide to the principal of any school a list of the students enrolled in that school for the coming year who committed offenses during the previous year which were reported to the Department of Public Instruction pursuant to this section. The list shall remain confidential and shall be used by the principal only for the purpose of identifying students who may be in need of beneficial programs such as mentoring."

Section 3. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable.

Approved July 23, 1997