On October 10, 2023, the New York State Department of Education’s Office of Counsel issued a new Formal Opinion regarding alternative instruction for public and approved nonpublic school students serving out of school suspensions. In its Formal Opinion, the Office of Counsel emphasized that racial disparities in student discipline rates in New York State remain and that LGBTQIA+ students are also more likely to experience suspensions than their peers. Because suspensions can lead to lower student academic achievement, higher truancy rates, higher dropout rates, and higher rates of contact with juvenile and adult justice systems, it is essential that suspended students continue to make progress in their educational program to ensure they are able progress academically at similar rates to their peers. To this end, while caselaw has previously established that elementary school students should receive at least one hour of alternative instruction per day and secondary students should receive at least two hours of alternative instruction, the Office of Counsel has now determined that going forward elementary school students must receive a minimum of two hours of alternative instruction and secondary school students must receive at least three hours of alternative instruction per day. Schools retain their discretion to offer students more alternative instruction if they wish and should take into account the unique needs of each student in making decisions regarding alternative instruction. 

 This change in policy is effective immediately. Schools should review their existing disciplinary policies and procedures to make sure that their policies surrounding alternative instruction meet the minimum standards for alternative instruction. If you require assistance to do so or have any questions regarding alternative instruction or student discipline generally, please do not hesitate to contact our office.   

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