Bill Summary – FastDemocracy

LEGISLATIVE GENERAL COUNSEL                                              H.B. 536
Approved for Filing: J.V. Hulten 6
         6 02-21-23 11:30 AM 6
                      STUDENT DRUG POSSESSION AMENDMENTS
                                       2023 GENERAL SESSION
                                           STATE OF UTAH
                               Chief Sponsor: Douglas R. Welton
                                 Senate Sponsor: ____________
 6
 LONG TITLE
 General Description:
        This bill addresses public education discipline policies related to the possession or use
 of tobacco, electronic cigarette, or nicotine products.
 Highlighted Provisions:
        This bill:
        < requires a local education agency (LEA) to amend the LEA's conduct and discipline
 policies to address the possession or use of certain tobacco or nicotine products;
        < allows a school to issue a citation to a student who possesses a tobacco product, an
 electronic cigarette product, or a nicotine product on school property; and
        < makes technical changes.
 Money Appropriated in this Bill:
        None
 Other Special Clauses:
        None
 Utah Code Sections Affected:
 AMENDS:
        53G-8-203, as last amended by Laws of Utah 2020, Chapter 161
        53G-8-211, as last amended by Laws of Utah 2021, Chapters 262, 359 and further
                                                                                                        H.B. 536
 amended by Revisor Instructions, Laws of Utah 2021, Chapter 359
        76-10-105, as last amended by Laws of Utah 2021, Chapter 262
     *HB0536*
       H.B. 536                                                                 02-21-23 11:30 AM
28
 Be it enacted by the Legislature of the state of Utah:
         Section 1. Section 53G-8-203 is amended to read:
         53G-8-203. Conduct and discipline policies and procedures.
         (1) The conduct and discipline policies required under Section 53G-8-202 shall
 include:
         (a) provisions governing student conduct, safety, and welfare;
         (b) standards and procedures for dealing with students who cause disruption in the
 classroom, on school grounds, on school vehicles, or in connection with school-related
 activities or events;
         (c) procedures for the development of remedial discipline plans for students who cause
 a disruption at any of the places referred to in Subsection (1)(b);
         (d) procedures for the use of reasonable and necessary physical restraint in dealing with
 students posing a danger to themselves or others, consistent with Section 53G-8-302;
         (e) standards and procedures for dealing with student conduct in locations other than
 those referred to in Subsection (1)(b), if the conduct threatens harm or does harm to:
         (i) the school;
         (ii) school property;
         (iii) a person associated with the school; or
         (iv) property associated with a person described in Subsection (1)(e)(iii);
         (f) procedures for the imposition of disciplinary sanctions, including suspension and
 expulsion;
         (g) specific provisions, consistent with Section 53E-3-509, for preventing and
 responding to gang-related activities in the school, on school grounds, on school vehicles, or in
 connection with school-related activities or events;
         (h) standards and procedures for dealing with habitual disruptive or unsafe student
 behavior in accordance with the provisions of this part; and
         (i) procedures for responding to reports received through the SafeUT Crisis Line under
 Subsection 53B-17-1202(3).
         (2) (a) Each local school board shall establish a policy on detaining students after
 regular school hours as a part of the district-wide discipline plan required under Section
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       02-21-23 11:30 AM                                                                       H.B. 536
 53G-8-202.
         (b) (i) The policy described in Subsection (2)(a) shall apply to elementary school
 students, grades kindergarten through 6.
         (ii) The local school board shall receive input from teachers, school administrators, and
 parents of the affected students before adopting the policy.
         (c) The policy described in Subsection (2)(a) shall provide for:
         (i) notice to the parent of a student prior to holding the student after school on a
 particular day; and
         (ii) exceptions to the notice provision if detention is necessary for the student's health
 or safety.
         (3) (a) Each LEA shall adopt a policy for responding to possession or use of [electronic
 cigarette products] a tobacco product, an electronic cigarette product, or a nicotine product by a
 student on school property.
         (b) The policy described in Subsection (3)(a) shall:
         (i) prohibit students from possessing or using [electronic cigarette products] a tobacco
 product, an electronic cigarette product, or a nicotine product on school property;
         (ii) include policies or procedures for the confiscation or surrender of [electronic
 cigarette products; and] a tobacco product, an electronic cigarette product, or a nicotine
 product;
         (iii) require a school administrator or school administrator's designee to dispose of or
 destroy a confiscated [electronic cigarette product.] tobacco product, an electronic cigarette
 product, or a nicotine product; and
         (iv) include policies and procedures for issuing a citation in accordance with Section
 53G-8-211.
         (c) Notwithstanding Subsection (3)(b)(iii), an LEA may release a confiscated electronic
 cigarette product to local law enforcement if:
         (i) a school official has a reasonable suspicion that a confiscated electronic cigarette
 product contains an illegal substance; and
         (ii) local law enforcement requests that the LEA release the confiscated electronic
 cigarette product to local law enforcement as part of an investigation or action.
         Section 2. Section 53G-8-211 is amended to read:
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        H.B. 536                                                                     02-21-23 11:30 AM
           53G-8-211. Responses to school-based behavior.
           (1) As used in this section:
           (a) "Evidence-based" means a program or practice that has:
           (i) had multiple randomized control studies or a meta-analysis demonstrating that the
 program or practice is effective for a specific population;
           (ii) been rated as effective by a standardized program evaluation tool; or
           (iii) been approved by the state board.
           (b) "Habitual truant" means a school-age child who:
           (i) is in grade 7 or above, unless the school-age child is less than 12 years old;
           (ii) is subject to the requirements of Section 53G-6-202; and
           (iii) (A) is truant at least 10 times during one school year; or
           (B) fails to cooperate with efforts on the part of school authorities to resolve the
 school-age child's attendance problem as required under Section 53G-6-206.
           (c) "Minor" means the same as that term is defined in Section 80-1-102.
           (d) "Mobile crisis outreach team" means the same as that term is defined in Section
 62A-15-102.
           (e) "Prosecuting attorney" means the same as that term is defined in Subsections
 80-1-102(58)(b) and (c).
           (f) "Restorative justice program" means a school-based program or a program used or
 adopted by a local education agency that is designed:
           (i) to enhance school safety, reduce school suspensions, and limit referrals to law
 enforcement agencies and courts; and
           (ii) to help minors take responsibility for and repair harmful behavior that occurs in
 school.
           (g) "School administrator" means a principal of a school.
           (h) "School is in session" means a day during which the school conducts instruction for
 which student attendance is counted toward calculating average daily membership.
           (i) "School resource officer" means a law enforcement officer, as defined in Section
 53-13-103, who contracts with, is employed by, or whose law enforcement agency contracts
 with a local education agency to provide law enforcement services for the local education
 agency.
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        02-21-23 11:30 AM                                                                           H.B. 536
           (j) "School-age child" means the same as that term is defined in Section 53G-6-201.
           (k) (i) "School-sponsored activity" means an activity, fundraising event, club, camp,
 clinic, or other event or activity that is authorized by a specific local education agency or public
 school, according to LEA governing board policy, and satisfies at least one of the following
 conditions:
           (A) the activity is managed or supervised by a local education agency or public school,
 or local education agency or public school employee;
           (B) the activity uses the local education agency's or public school's facilities,
 equipment, or other school resources; or
           (C) the activity is supported or subsidized, more than inconsequentially, by public
 funds, including the public school's activity funds or Minimum School Program dollars.
           (ii) "School-sponsored activity" includes preparation for and involvement in a public
 performance, contest, athletic competition, demonstration, display, or club activity.
           (l) (i) "Status offense" means an offense that would not be an offense but for the age of
 the offender.
           (ii) "Status offense" does not mean an offense that by statute is a misdemeanor or
 felony.
           (2) This section applies to a minor enrolled in school who is alleged to have committed
 an offense at the school where the student is enrolled:
           (a) on school property where the student is enrolled:
           (i) when school is in session; or
           (ii) during a school-sponsored activity; or
           (b) [except during the period between March 17, 2021 and June 1, 2022,] that is
 truancy.
           (3) (a) Except as provided in Subsections (3)(e) and (5), if a minor is alleged to have
 committed an offense that is a class C misdemeanor, an infraction, a status offense on school
 property, or an offense that is truancy:
           (i) [a school district] an LEA or school may not refer the minor to a law enforcement
 officer or agency or a court; and
           (ii) a law enforcement officer or agency may not refer the minor to a prosecuting
 attorney or a court.
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        H.B. 536                                                                      02-21-23 11:30 AM
            (b) Except as provided in Subsection (3)(e), if a minor is alleged to have committed an
 offense that is a class C misdemeanor, an infraction, a status offense on school property, or an
 offense that is truancy, [a school district] an LEA, school, or law enforcement officer or agency
 may refer the minor to evidence-based alternative interventions, including:
            (i) a mobile crisis outreach team;
            (ii) a youth services center as defined in Section 80-5-102;
            (iii) a youth court or comparable restorative justice program;
            (iv) evidence-based interventions created and developed by the school or [school
 district] an LEA; and
            (v) other evidence-based interventions that may be jointly created and developed by a
 local education agency, the state board, the juvenile court, local counties and municipalities,
 the Department of Health, or the Department of Human Services.
            (c) Notwithstanding Subsection (3)(a), a school resource officer may:
            (i) investigate possible criminal offenses and conduct, including conducting probable
 cause searches;
            (ii) consult with school administration about the conduct of a minor enrolled in a
 school;
            (iii) transport a minor enrolled in a school to a location if the location is permitted by
 law;
            (iv) take temporary custody of a minor in accordance with Section 80-6-201; or
            (v) protect the safety of students and the school community, including the use of
 reasonable and necessary physical force when appropriate based on the totality of the
 circumstances.
            (d) Notwithstanding other provisions of this section, if a law enforcement officer has
 cause to believe a minor has committed an offense on school property when school is not in
 session and not during a school-sponsored activity, the law enforcement officer may refer the
 minor to:
            (i) a prosecuting attorney or a court; or
            (ii) evidence-based alternative interventions at the discretion of the law enforcement
 officer.
            (e) If a minor is alleged to have committed a traffic offense that is an infraction, [a
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        02-21-23 11:30 AM                                                                      H.B. 536
 school district] an LEA, a school, or a law enforcement officer or agency may refer the minor
 to a prosecuting attorney or a court for the traffic offense.
        (4) [A school district] An LEA or school shall refer a minor for prevention and early
 intervention youth services, as described in Section 80-5-201, by the Division of Juvenile
 Justice Services for a class C misdemeanor committed on school property or for being a
 habitual truant if the minor refuses to participate in an evidence-based alternative intervention
 described in Subsection (3)(b).
        (5) [A school district] An LEA or school may refer a minor to a court or a law
 enforcement officer or agency for an alleged class C misdemeanor committed on school
 property or for allegedly being a habitual truant if the minor:
        (a) refuses to participate in an evidence-based alternative intervention under Subsection
 (3)(b); and
        (b) fails to participate in prevention and early intervention youth services provided by
 the Division of Juvenile Justice Services under Subsection (4).
        (6) (a) If a minor is referred to a court or a law enforcement officer or agency under
 Subsection (5), the school shall appoint a school representative to continue to engage with the
 minor and the minor's family through the court process.
        (b) A school representative appointed under Subsection (6)(a) may not be a school
 resource officer.
        (c) [A school district] An LEA or school shall include the following in the school
 district's or school's referral to the court or the law enforcement officer or agency:
        (i) attendance records for the minor;
        (ii) a report of evidence-based alternative interventions used by the school before the
 referral, including outcomes;
        (iii) the name and contact information of the school representative assigned to actively
 participate in the court process with the minor and the minor's family;
        (iv) a report from the Division of Juvenile Justice Services that demonstrates the
 minor's failure to complete or participate in prevention and early intervention youth services
 under Subsection (4); and
        (v) any other information that the [school district] LEA or school considers relevant.
        (d) A minor referred to a court under Subsection (5) may not be ordered to or placed in
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        H.B. 536                                                                  02-21-23 11:30 AM
 secure detention, including for a contempt charge or violation of a valid court order under
 Section 78A-6-353, when the underlying offense is a class C misdemeanor occurring on school
 property or habitual truancy.
        (e) If a minor is referred to a court under Subsection (5), the court may use, when
 available, the resources of the Division of Juvenile Justice Services or the Division of
 Substance Abuse and Mental Health to address the minor.
        (7) If the alleged offense is a class B misdemeanor or a class A misdemeanor, the
 school administrator, the school administrator's designee, or a school resource officer may refer
 the minor directly to a juvenile court or to the evidence-based alternative interventions in
 Subsection (3)(b).
        (8) (a) If a minor violates Subsection 76-10-105(2) while on school property, an LEA
 or school may issue a warning to the minor that provides:
        (i) notice of the potential consequences for subsequent violations; and
        (ii) information about available resources for quitting the use of tobacco, nicotine, or
 electronic cigarette products.
        (b) For each warning an LEA or school issues under this subsection, an LEA or school
 shall provide notice to the minor's parent and a copy of the warning.
        (c) After a minor receives three warnings under this subsection, if the minor is alleged
 to have violated Subsection 76-10-105(2), an LEA or school shall:
        (i) issue a citation to the minor in accordance with Section 80-6-302;
        (ii) refer the minor to a