Signed into law on November 3, 2020 by Gov. Tom Wolf, Act 110 amended the Pennsylvania Public School Code to create a new section addressing the removal, transfer or reassignment of students who are adjudicated delinquent or convicted of sexual assault where the victim remains in the public school entity. Titled “Students Convicted or Adjudicated Delinquent of Sexual Assault,” Section §1318.1 applies to all public school entities, which includes school districts, independent schools, area career and technical schools, intermediate units, charter schools, regional charter schools or cyber charter schools.

Key components of Act 110 are:

• If a student enrolled in a public school entity is convicted or adjudicated delinquent of committing a sexual assault upon another student enrolled in the same public school entity, the public school entity shall, pursuant to applicable laws and regulations, take one of the following actions: (i) Expel the convicted or adjudicated student; (ii) Transfer the convicted or adjudicated student to an alternative education program; (iii) Reassign the convicted or adjudicated student to another school or educational program within the public school entity.
• A public school entity shall ensure that the convicted or adjudicated student is not educated in the same school building, transported on the same school vehicle or allowed to participate in the same school-sponsored activities at the same time as the victim.
• A student convicted of sexual assault upon another student enrolled in the same public school entity shall notify the public school entity of the conviction no later than 72 hours after the conviction.
• Prior to admission to a public school entity, the parent, guardian or other person having control or charge of a student shall, upon registration, provide a sworn statement or affirmation stating whether the student was previously or is presently expelled under the provisions of this section [1318.1].
• A public school entity shall, in the case of students with disabilities, take all steps necessary to comply with the Individuals with Disabilities Education Act (Public Law 91-230, 20 U.S.C. § 1400 et seq.).

School entities should inform all members of the school community — parents, students, teachers and administrators — of the changes to school policies to ensure awareness and compliance. Additionally, schools should review what notification they expect to receive from the juvenile probation department under 42 PA CS § 6341 following an adjudication. This communication is key to schools knowing of what charges the enrolled student was found guilty, determining if the offense or offenses fall under the definition of sexual assault as defined in Act 110 and taking the appropriate steps under their revised policies. Fortunately, these measures are not expected to be costly. The Pennsylvania Legislature considered and commented on the fiscal impact of the legislation before it became law, concluding that the impact would not be adverse and minimal at most.

Special Education/IDEA Considerations

While the Pennsylvania Legislature was clear that in complying with Act 110, school entities must also comply with the IDEA, the law is silent with respect to its implementation within the context of Section 504. This raises serious concerns when a student who is adjudicated or convicted is eligible for the protections of the IDEA and/or Section 504. First, if the student in question has a disability, the IDEA and Section 504 would require a manifestation determination prior to changing their placement or moving them. If the school finds that that the behavior in question was a manifestation of the student’s disability, it should not move the student. Second, under the Family Educational Rights and Privacy Act (FERPA) and the IDEA, the school should not share with the victim the fact that the perpetrator has a disability. This may present a challenge, as a victim’s family is likely to raise objections to the student staying in the same building. Third, even if the student can be moved, the school will still have an obligation to ensure that the student receives a Free and Appropriate Public Education (FAPE) in their new placement. Issues such as the placement, services available at the new building and transportation time are all among the issues that would be appropriate to review as part of determining if the new school placement provides a FAPE. The decision on a new placement should be made in discussion with the IEP team or 504 plan team.