Introduced Version
Senate Bill 568 History
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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 568
(By Senators Palumbo, Cookman, Stollings, Unger, Yost, Plymale,
Fitzsimmons, McCabe and Miller)
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[Introduced March 19, 2013; referred to the Committee on
Education; and then to the Committee on the Judiciary .]
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A BILL to amend and reenact §18A-5-1a of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto a
new section, designated §18A-5-1d, all relating to expulsion
of students; providing school boards, school superintendents
and principals with the option to allow certain expelled
students to participate in Juvenile Drug Court; allowing the
court to determine if the individual is an appropriate
candidate; requiring those students to be subject to the
court's jurisdiction and all sanctions available to the
Juvenile Drug Court; and authorizing reinstatement to school
by a shortening of the expulsion term upon successful
completion of Juvenile Drug Court.
Be it enacted by the Legislature of West Virginia:
That §18A-5-1a of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding
thereto a new section, designated §18A-5-1d, all to read as
follows:
ARTICLE 5. AUTHORITY; RIGHTS; RESPONSIBILITY.
§18A-5-1a. Possessing deadly weapons on premises of educational
facilities; possessing a controlled substance on
premises of educational facilities; assaults and
batteries committed by pupils upon teachers or
other school personnel; temporary suspension,
hearing; procedure, notice and formal hearing;
extended suspension; sale of narcotic; expulsion;
exception; alternative education.
(a) A principal shall suspend a pupil from school or from
transportation to or from the school on any school bus if the
pupil, in the determination of the principal after an informal
hearing pursuant to subsection (d) of this section, has: (i)
Violated the provisions of subsection (b), section fifteen, article
two, chapter sixty-one of this code; (ii) violated the provisions
of subsection (b), section eleven-a, article seven of said chapter;
or (iii) sold a narcotic drug, as defined in section one hundred
one, article one, chapter sixty-a of this code, on the premises of an educational facility, at a school-sponsored function or on a
school bus. If a student has been suspended pursuant to this
subsection, the principal shall, within twenty-four hours, request
that the county superintendent recommend to the county board that
the student be expelled. Upon such a request by a principal, the
county superintendent shall recommend to the county board that the
student be expelled. Upon such recommendation, the county board
shall conduct a hearing in accordance with subsections (e), (f) and
(g) of this section to determine if the student committed the
alleged violation. If the county board finds that the student did
commit the alleged violation, the county board shall expel the
student.
(b) A principal shall suspend a pupil from school, or from
transportation to or from the school on any school bus, if the
pupil, in the determination of the principal after an informal
hearing pursuant to subsection (d) of this section, has: (i)
Committed an act or engaged in conduct that would constitute a
felony under the laws of this state if committed by an adult; or
(ii) unlawfully possessed on the premises of an educational
facility or at a school-sponsored function a controlled substance
governed by the uniform controlled substances act as described in
chapter sixty-a of this code. If a student has been suspended
pursuant to this subsection, the principal may request that the superintendent recommend to the county board that the student be
expelled. Upon such recommendation by the county superintendent,
the county board may hold a hearing in accordance with the
provisions of subsections (e), (f) and (g) of this section to
determine if the student committed the alleged violation. If the
county board finds that the student did commit the alleged
violation, the county board may expel the student.
(c) A principal may suspend a pupil from school, or
transportation to or from the school on any school bus, if the
pupil, in the determination of the principal after an informal
hearing pursuant to subsection (d) of this section: (i) Threatened
to injure, or in any manner injured, a pupil, teacher,
administrator or other school personnel; (ii) willfully disobeyed
a teacher; (iii) possessed alcohol in an educational facility, on
school grounds, a school bus or at any school-sponsored function;
(iv) used profane language directed at a school employee or pupil;
(v) intentionally defaced any school property; (vi) participated in
any physical altercation with another person while under the
authority of school personnel; or (vii) habitually violated school
rules or policies. If a student has been suspended pursuant to
this subsection, the principal may request that the superintendent
recommend to the county board that the student be expelled. Upon
such recommendation by the county superintendent, the county board may hold a hearing in accordance with the provisions of subsections
(e), (f) and (g) of this section to determine if the student
committed the alleged violation. If the county board finds that
the student did commit the alleged violation, the county board may
expel the student.
(d) The actions of any pupil which may be grounds for his or
her suspension or expulsion under the provisions of this section
shall be reported immediately to the principal of the school in
which the pupil is enrolled. If the principal determines that the
alleged actions of the pupil would be grounds for suspension, he or
she shall conduct an informal hearing for the pupil immediately
after the alleged actions have occurred. The hearing shall be held
before the pupil is suspended unless the principal believes that
the continued presence of the pupil in the school poses a
continuing danger to persons or property or an ongoing threat of
disrupting the academic process, in which case the pupil shall be
suspended immediately and a hearing held as soon as practicable
after the suspension.
The pupil and his or her parent(s), guardian(s) or
custodian(s), as the case may be, shall be given telephonic notice,
if possible, of this informal hearing, which notice shall briefly
state the grounds for suspension.
At the commencement of the informal hearing, the principal shall inquire of the pupil as to whether he or she admits or denies
the charges. If the pupil does not admit the charges, he or she
shall be given an explanation of the evidence possessed by the
principal and an opportunity to present his or her version of the
occurrence. At the conclusion of the hearing or upon the failure
of the noticed student to appear, the principal may suspend the
pupil for a maximum of ten school days, including the time prior to
the hearing, if any, for which the pupil has been excluded from
school.
The principal shall report any suspension the same day it has
been decided upon, in writing, to the parent(s), guardian(s) or
custodian(s) of the pupil by regular United States mail. The
suspension also shall be reported to the county superintendent and
to the faculty senate of the school at the next meeting after the
suspension.
(e) Prior to a hearing before the county board, the county
board shall cause a written notice which states the charges and the
recommended disposition to be served upon the pupil and his or her
parent(s), guardian(s) or custodian(s), as the case may be. The
notice shall state clearly whether the board will attempt at
hearing to establish the student as a dangerous student, as defined
by section one, article one of this chapter. The notice also shall
include any evidence upon which the board will rely in asserting its claim that the student is a dangerous student. The notice
shall set forth a date and time at which the hearing shall be held,
which date shall be within the ten-day period of suspension imposed
by the principal.
(f) The county board shall hold the scheduled hearing to
determine if the pupil should be reinstated or should or, under the
provisions of this section, must be expelled from school. If the
county board determines that the student should or must be expelled
from school, it also may determine whether the student is a
dangerous student pursuant to subsection (g) of this section. At
this, or any hearing before a county board conducted pursuant to
this section, the pupil may be represented by counsel, may call his
or her own witnesses to verify his or her version of the incident
and may confront and cross-examine witnesses supporting the charge
against him or her. The hearing shall be recorded by mechanical
means unless recorded by a certified court reporter. The hearing
may be postponed for good cause shown by the pupil but he or she
shall remain under suspension until after the hearing. The state
board may adopt other supplementary rules of procedure to be
followed in these hearings. At the conclusion of the hearing the
county board shall either: (1) Order the pupil reinstated
immediately at the end of his or her initial suspension; (2)
suspend the pupil for a further designated number of days; or (3) expel the pupil from the public schools of the county.
(g) A county board that did not intend prior to a hearing to
assert a dangerous student claim, that did not notify the student
prior to the hearing that a dangerous student determination would
be considered and that determines through the course of the hearing
that the student may be a dangerous student shall schedule a second
hearing within ten days to decide the issue. The hearing may be
postponed for good cause shown by the pupil, but he or she remains
under suspension until after the hearing.
A county board that expels a student, and finds that the
student is a dangerous student, may refuse to provide alternative
education. However, after a hearing conducted pursuant to this
section for determining whether a student is a dangerous student,
when the student is found to be a dangerous student, is expelled
and is denied alternative education, a hearing shall be conducted
within three months after the refusal by the board to provide
alternative education to reexamine whether or not the student
remains a dangerous student and whether the student shall be
provided alternative education. Thereafter, a hearing for the
purpose of reexamining whether or not the student remains a
dangerous student and whether the student shall be provided
alternative education shall be conducted every three months for so
long as the student remains a dangerous student and is denied alternative education. During the initial hearing, or in any
subsequent hearing, the board may consider the history of the
pupil's conduct as well as any improvements made subsequent to the
expulsion. If it is determined during any of the hearings that the
student is no longer a dangerous student or should be provided
alternative education, the student shall be provided alternative
education during the remainder of the expulsion period.
(h) The superintendent may apply to a circuit judge or
magistrate for authority to subpoena witnesses and documents, upon
his or her own initiative, in a proceeding related to a recommended
student expulsion or dangerous student determination, before a
county board conducted pursuant to the provisions of this section.
Upon the written request of any other party, the superintendent
shall apply to a circuit judge or magistrate for the authority to
subpoena witnesses, documents or both on behalf of the other party
in a proceeding related to a recommended student expulsion or
dangerous student determination before a county board. If the
authority to subpoena is granted, the superintendent shall subpoena
the witnesses, documents or both requested by the other party.
Furthermore, if the authority to subpoena is granted, it shall be
exercised in accordance with the provisions of section one, article
five, chapter twenty-nine-a of this code.
Any hearing conducted pursuant to this subsection may be postponed: (1) For good cause shown by the pupil; (2) when
proceedings to compel a subpoenaed witness to appear must be
instituted; or (3) when a delay in service of a subpoena hinders
either party's ability to provide sufficient notice to appear to a
witness. A pupil remains under suspension until after the hearing
in any case where a postponement occurs.
The county boards are directed to report the number of pupils
determined to be dangerous students to the state Board of
Education. The state board will compile the county boards'
statistics and shall report its findings to the Legislative
Oversight Commission on Education Accountability.
(i) Pupils may be expelled pursuant to the provisions of this
section for a period not to exceed one school year, except that if
a pupil is determined to have violated the provisions of subsection
(a) of this section the pupil shall be expelled for a period of not
less than twelve consecutive months: Provided, That the county
superintendent may lessen the mandatory period of twelve
consecutive months for the expulsion of the pupil if the
circumstances of the pupil's case demonstrably warrant or if the
pupil meets the requirements of section one-d of this article.
Upon the reduction of the period of expulsion, the county
superintendent shall prepare a written statement setting forth the
circumstances of the pupil's case which warrant the reduction of the period of expulsion. The county superintendent shall submit
the statement to the county board, the principal, the faculty
Senate and the local school improvement council for the school from
which the pupil was expelled. The county superintendent may use
the following factors as guidelines in determining whether or not
to reduce a mandatory twelve-month expulsion:
(1) The extent of the pupil's malicious intent;
(2) The outcome of the pupil's misconduct;
(3) The pupil's past behavior history; and
(4) The likelihood of the pupil's repeated misconduct.
(j) In all hearings under this section, facts shall be found
by a preponderance of the evidence.
(k) For purposes of this section, nothing herein may be
construed to be in conflict with the federal provisions of the
Individuals with Disabilities Education Act, 20 U.S.C. §1400 et
seq.
(l) Each suspension or expulsion imposed upon a pupil under
the authority of this section shall be recorded in the uniform
integrated regional computer information system (commonly known as
the West Virginia Education Information System) described in
subsection (f), section twenty-six, article two, chapter eighteen
of this code.
(1) The principal of the school at which the pupil is enrolled shall create an electronic record within twenty-four hours of the
imposition of the suspension or expulsion.
(2) Each record of a suspension or expulsion shall include the
pupil's name and identification number, the reason for the
suspension or expulsion, and the beginning and ending dates of the
suspension or expulsion.
(3) The State Board of Education shall collect and disseminate
data so that any principal of a public school in West Virginia can
review the complete history of disciplinary actions taken by West
Virginia public schools against any pupil enrolled or seeking to
enroll at that principal's school. The purposes of this provision
are to allow every principal to fulfill his or her duty under
subsection (b), section fifteen-f, article five, chapter eighteen
of this code to determine whether a pupil requesting to enroll at
a public school in West Virginia is currently serving a suspension
or expulsion from another public school in West Virginia and to
allow principals to obtain general information about pupils'
disciplinary histories.
(m) Principals may exercise any other authority and perform
any other duties to discipline pupils consistent with state and
federal law, including policies of the state Board of Education.
(n) Each county board is solely responsible for the
administration of proper discipline in the public schools of the county and shall adopt policies consistent with the provisions of
this section to govern disciplinary actions.
(o) For the purpose of this section, "principal" means the
principal, assistant principal, vice principal or the
administrative head of the school or a professional personnel
designee of the principal or the administrative head of the school.
§18A-5-1d. Return to school through Juvenile Drug Court for
certain juveniles.
(a) When a pupil is expelled from school for a period of not
less than twelve consecutive months pursuant to the provisions of
section one-a of this article, the school board for that county,
the county superintendent of schools or the principal of the school
from which the pupil was expelled, or the parent, guardian or
custodian may refer the pupil to a Juvenile Drug Court, operated
pursuant to section two-b, article five, chapter forty-nine of this
code. Upon a referral to Juvenile Drug Court under the provisions
of this section, the judge assigned to Juvenile Drug Court shall
determine if the pupil is an appropriate candidate for Juvenile
Drug Court.
(b) If the pupil is an appropriate candidate for Juvenile Drug
Court, then the court shall have jurisdiction over the pupil in the
same manner as it has jurisdiction over all other persons in
Juvenile Drug Court. The Juvenile Drug Court's jurisdiction over pupils pursuant to this section shall include the ability to issue
any of the various sanctions available to the Juvenile Drug Court
up to, and including, temporary detention.
(c) Successful completion of Juvenile Drug Court or
certification by the Juvenile Drug Court judge that the pupil is
making satisfactory progress toward completion of Juvenile Drug
Court, warrants reduction of the period of expulsion, pursuant to
subsection (i) of section one-a of this article. Upon successful
completion, the Juvenile Drug Court shall notify the county
superintendent of schools of completion or certification of
satisfactory progress and the superintendent shall promptly submit
the statement required by subsection (i) of section one-a of this
article. The pupil who successfully completes Juvenile Drug Court,
as provided in this section, shall be permitted to return to school
no later than the third regular school day following notice to the
superintendent of the successful completion of Juvenile Drug Court.
NOTE: The purpose of this bill is to allow school boards,
superintendents and principals to have the authority to allow
certain expelled students the opportunity to return to school
through the Juvenile Drug Court.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§18A-5-1d is new; therefore, strike-throughs and underscoring
have been omitted.