ENGROSSED
COMMITTEE SUBSTITUTE
FOR
H. B. 4065
(By Mr. Speaker, Mr. Chambers, and Delegate Ashley)
[By Request of the Executive]
(Originating in the House Committee on Education)
[February 16, 1996]
A BILL to amend and reenact section six, article two, chapter
eighteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to further amend said
article by adding thereto a new section, designated section
thirteen-h; to amend and reenact section nineteen, article
five of said chapter; to amend article nine-a of said
chapter by adding thereto a new section, designated section
twenty-one; and to amend and reenact section one-a, article
five, chapter eighteen-a of said code, all relating to
the
state board of education's rule-making authority for the
accreditation, classification and standardization of the
state's schools; the state board of education's policy-
making authority for the approval of alternative education
programs for disruptive students; the state board of
education's and the department of health and human
resources' responsibility for the provision of educational
services for school-age juveniles who have been placed in
residential facilities; the county boards of education's authority to expand school activities or to use school
property for public meetings or other purposes; the state
board of education's authority to distribute money to county
boards of education to provide for alternative education
programs; and students' expulsion or suspension from the
school or school bus.
Be it enacted by the Legislature of West Virginia:
That section six, article two, chapter eighteen of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that said article be further
amended by adding thereto a new section, designated section
thirteen-h; that section nineteen, article five of said chapter
be amended and reenacted; that article nine-a of said chapter be
amended by adding thereto a new section, designated section
twenty-one; and that section one-a, article five, chapter
eighteen-a of said code be amended and reenacted, all to read as
follows:
CHAPTER 18. EDUCATION.
ARTICLE 2. STATE BOARD OF EDUCATION.
§18-2-6. Classification and standardization of schools;
standards for degrees and diploma.
The state board shall make rules for the accreditation,
classification and standardization of all schools in the state,
except institutions of higher education, and shall determine the
minimum standards for the granting of diplomas and certificates
of proficiency by those schools. Not later than the school year
one thousand nine hundred ninety--ninety-one, certificates of
proficiency including specific information regarding the graduate's skills, competence and readiness for employment or
honors and advanced education shall be granted, along with the
diploma, to every eligible high school graduate. No institution
of less than collegiate or university status may grant any
diploma or certificate of proficiency on any basis of work or
merit below the minimum standards prescribed by the state board.
No charter or other instrument containing the right to issue
diplomas or certificates of proficiency shall be granted by the
state of West Virginia to any institution or other associations
or organizations of less than collegiate or university status
within the state until the condition of granting or issuing such
diplomas or other certificates of proficiency has first been
approved in writing by the state board.
The state board of education may also establish policies and
procedures for the approval of alternative education programs for
disruptive students who are at risk of not succeeding in the
traditional school structure. These policies and procedures may
provide for the waiver of other policies of the state board of
education, the establishment and delivery of a nontraditional
curriculum, establishment of licensure requirements for
alternative education program teachers, and the establishment of
performance measures for school accreditation.
§18-2-13h. Provision of educational services for school-age
juveniles placed in residential facilities for
custody and treatment.
(a) The state board of education and the department of
health and human resources shall have the authority to provide
for adequate and appropriate educational opportunities for school-age juveniles placed in the following residential
facilities as a result of proceedings commenced under the
provisions of chapters twenty-seven and forty-nine of this code:
Davis-Stuart, Inc., located in Lewisburg, West Virginia; the
Elkins Mountain School, located in Elkins, West Virginia; the
Abraxas Foundation of West Virginia, located in Waverly, West
Virginia; and the Barboursville School, located in Barboursville,
West Virginia.
(b) As used in this section, "residential facilities" mean
state, county or privately-owned facilities or institutions
licensed by the department of health and human resources and used
for the lawful custody and treatment of juveniles.
(c) As used in this section, "school-age juveniles" includes
any individual who is entitled to attend or who, if not placed in
a residential facility, would be entitled to attend the public
schools in accordance with: (1) Section five, article two of
this chapter; (2) sections fifteen and eighteen, article five of
this chapter; or (3) section one, article twenty of this chapter.
(d) In accord with the authority set forth in this section:
(1) The state board of education and the state superintendent of
schools are authorized to provide education programs and services
for school-age juveniles directly to these juveniles on the
grounds of residential facilities pursuant to agreements with the
department of health and human resources and the department's
licensed child-care agencies; (2) the state board is authorized
to hire classroom teachers and other school personnel to the
extent necessary to provide adequate and appropriate educational
opportunities to these juveniles; and (3) the state board is authorized to provide educational services for school-age
juveniles in these residential facilities on a twelve-month
basis.
(e) The department of health and human resources shall
cooperate with the state board of education and state
superintendent of schools in the establishment and maintenance of
education programs authorized under this section and shall
provide, or cause to be provided, adequate space and facilities
for such education programs such that the state board shall not
be required to construct, improve or maintain any building, other
improvement to real estate or fixtures attached thereto at any
residential facility for the purpose of establishing and
maintaining an education program.
(f) The state board of education and the department of
health and human resources are also authorized to enter into
agreements to provide adequate and appropriate educational
opportunities for school-age juveniles in the manner set forth in
this section when these juveniles are placed in residential
facilities other than the facilities identified in this section.
ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-19. Night schools and other school extension activities;
use of school property for public meetings, etc.
The board of education of any district or independent
district shall have authority to establish and maintain evening
classes or night schools, continuation or part-time day schools,
and vocational schools, wherever practicable to do so, and shall
admit thereto adult persons and all other persons, including
persons of foreign birth. but excepting children and youths who are required by law to attend day schools The county school
district may admit school-age children and youth to these classes
or schools under the circumstances prescribed by a state board of
education policy governing alternative education programs.
Boards of education shall have authority to use school funds for
the financial support of such schools and to use the schoolhouses
and their equipment for such purposes. Any such classes of
schools shall be conducted in accordance with the rules and
regulations of the state board of education.
The board of education of any district or independent
district shall have authority also to provide for the free,
comfortable and convenient use of any school property to promote
and facilitate frequent meetings and associations of the people
for discussion, study, recreation and other community activities,
and may secure, assemble and house material for use in the study
of farm, home and community problems, and may provide facilities
for the dissemination of information useful on the farm, in the
home or in the community.
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
§18-9A-21. Funding for alternative education programs.
For the fiscal year beginning the first day of July, one
thousand nine hundred ninety-six, an appropriation may be made to
the department of education to be distributed to county school
districts for the operation of alternative education programs
that are established in accordance with policies and procedures
adopted by the state board of education under section six,
article two of this chapter: Provided, That nothing in this
section shall be construed to require any specific level of funding by the Legislature: Provided, however, That ninety
percent of any appropriation which may be made for the purposes
set forth in this section shall be distributed to county school
districts on the basis of net enrollment and ten percent of this
appropriation shall be distributed on a competitive basis to
county school districts for the operation of pilot or innovative
alternative education programs. Each county school district
shall apply to the state superintendent of schools for receipt of
that district's distribution in the manner set forth by the state
superintendent of schools and on such conditions as the state
superintendent of schools may set forth consistent with the
policies and procedures adopted by the state board of education
for the establishment and maintenance of alternative education
programs.
CHAPTER 18A. SCHOOL PERSONNEL.
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.
(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,
chapter sixty-one of this code; 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 of education that the student be
expelled. Upon such a request by a principal, the county
superintendent shall recommend to the county board of education
that the student be expelled. Upon such recommendation, the
county board of education shall conduct a hearing in accordance
with subsections (e) and (f) of this section to determine if the
student committed the alleged violation. If the county board of
education finds that the student did commit the alleged
violation, the county board of education 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 of education that
the student be expelled. Upon such recommendation by the county
superintendent, the county school board may hold a hearing in
accordance with the provisions of subsections (e) and (f) of this
section to determine if the student committed the alleged
violation. If the county board of education finds that the
student did commit the alleged violation, the county board of
education 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 of
education that the student be expelled. Upon such recommendation
by the county superintendent, the county school board may hold a
hearing in accordance with the provisions of subsections (e) and
(f) of this section to determine if the student committed the alleged violation. If the county board of education finds that
the student did commit the alleged violation, the county board of
education 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 certified mail, return receipt
requested: Provided, That certified mail is not required if the
parent(s), guardian(s) or custodian(s) of the pupil are present
at the time the suspension is decided upon, and they acknowledge
receipt of the report at that time by signing and dating a copy
of the report. The suspension shall also 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 of education,
the county board of education 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. Such notice shall set forth a
date and time at which such hearing shall be held, which date
shall be within the ten-day period of suspension imposed by the
principal.
(f) The board of education 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. At this hearing 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 of education may adopt
other supplementary rules of procedure to be followed in these
hearings. At the conclusion of the hearing the county board of
education either shall order the pupil reinstated immediately or
at the end of his or her initial suspension or shall suspend the
pupil for a further designated number of days or shall expel the
pupil from the public schools of such county.
(g) 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. 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 of education, the principal, the faculty
senate and the local school improvement council for the school
from which the pupil was expelled.
(h) Notwithstanding the preceding provisions of this
section, if a pupil has, prior to the actions complained of being
actions giving rise to proceedings under the provisions of this
section, has been classified as or is eligible to be classified as an exceptional child as a student with a disability, other
than gifted, under the provisions of section one, article twenty,
chapter eighteen of this code special consideration shall be
given to such pupil as hereinafter provided.
An exceptional child A student with a disability may be
immediately suspended for up to ten consecutive days for each
occurrence of misconduct or when it is necessary for the
student's own protection, the protection of school personnel or
the protection of other students, whether or not the misconduct
is the proximate result of the student's disability: Provided,
That a student with a disability may not be suspended or
expelled for more than ten consecutive days for each occurrence
of for conduct misconduct that is the proximate result of the
child's student's disability: Provided, That an exceptional
child may be temporarily removed from school for his own
protection, the protection of school personnel, or the protection
of other pupils: Provided, however, That if the student with a
disability has been immediately suspended, and it is determined
that the misconduct is the proximate result of the student's
disability, it is recommended that school officials determine
whether the student is receiving appropriate instructional and
related services in the current placement. In addition, the
violations may be addressed through strategies, including, but
not limited to, the following: Conflict management and behavior
management strategies, student and teacher training initiatives,
so long as they are not inconsistent with a students
individualized education program: Provided further, That
professional educators have the option at any time to either initiate a change in the student's placement through an
individualized education program meeting to be held within
twenty-one days of the request, subject to the applicable
procedural safeguards, or to seek a court order to remove the
student from school, if there is belief that maintaining the
student in the current educational placement is substantially
likely to cause injury to the student or others.
An exceptional child may be temporarily removed, suspended
or expelled for a period in excess of three consecutive school
days or ten cumulative school days only when such an act a violation involving the
possession of a firearm, as defined in section two, article
seven, chapter sixty-one of this code, on the school premises or
at a school-sponsored function Such child may be placed in an
alternative educational setting by the individualized education
program committee, as described in section one, article twenty,
chapter eighteen of this code, for a period of not more than
forty-five calendar days. During this time, the if a parent(s),
or guardian(s) or custodian(s) may request requests a due process
hearing to contest such placement of the child. Said child
student, the student shall remain in the alternative placement
until the hearing is held notwithstanding any provisions of the
code to the contrary. educational setting during the pendency of
any proceeding, unless the parents and the local educational
agency agree otherwise. If after the conclusion of the
proceeding, it is determined that the student with a disability
committed a violation involving the possession of a firearm and
the violation is not the proximate result of the student's disability, the student with a disability shall be expelled from
school for the period set forth in the applicable provisions of
subsections (a) through (g)of this section: Provided, That
special education and related services must be provided during
this additional period of expulsion.
A student with a disability who has committed a violation
involving the possession of a deadly weapon, as defined in
section two, article seven, chapter sixty-one of this code, other
than a firearm, or who has committed a violation or has engaged
in any other activity for which suspension or expulsion is a
punishment under the provisions of this article, shall be
suspended or expelled from school as described in subsections (a)
through (g): Provided, That the behavior giving rise to the
violation or activity is not the proximate result of the
student's disability. In addition, special education and related
services must be provided during the period of a suspension or
expulsion exceeding ten days.
For purposes of this section, exceptional child does not
include gifted children.
(i) In all hearings under this section, facts shall be found
by a preponderance of the evidence.
(j) For purposes of this section, nothing herein shall be
construed to be in conflict with the federal provisions of the
Individuals with Disabilities Education Act of 1990 (PL 101-476).
(k) 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.