ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 4065
(By Mr. Speaker, Mr. Chambers, and Delegate Ashley)
[By Request of the Executive]
[Passed March 9, 1996; in effect from passage.]
AN ACT to amend and reenact section one, article one, chapter
eighteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact section
six, article two of said chapter; to further amend said
article by adding thereto two new sections, designated
sections six-a and 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; to amend and reenact section
one-a, article five, chapter eighteen-a of said code; and to
further amend said article by adding thereto a new section,
designated section one-b, all relating to definitions of
"career clusters", "work-based learning", "school-age
juveniles", and "student with a disability"; the state board
of education's rule-making authority for the accreditation,
classification and standardization of the state's schools;
the establishment of an electronic portfolio system; the sale
of soft drinks in high schools, and allocation of profits; 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, the notification procedures for
certain pupil transfers; and alternative procedures for
expulsion hearings by county boards, and authority to employ
hearing examiners.
Be it enacted by the Legislature of West Virginia:
That section one, article one, chapter eighteen of the code of
West Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted; that section six, article two of said
chapter be amended and reenacted; that said article be further
amended by adding thereto two new sections, designated sections
six-a and 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; that section one-a, article five, chapter
eighteen-a of said code be amended and reenacted; and that said
article be further amended by adding thereto a new section,
designated section one-b, all to read as follows:
CHAPTER 18. EDUCATION.
ARTICLE 1. DEFINITIONS; LIMITATIONS OF CHAPTER; GOALS
FOR
EDUCATION.
§18-1-1. Definitions.
The following words used in this chapter and in any
proceedings pursuant thereto shall, unless the context clearly
indicates a different meaning, be construed as follows:
(a) "School" means the pupils and teacher or teachers
assembled in one or more buildings, organized as a unit;
(b) "District" means county school district;
(c) "State board" means the West Virginia board of education;
(d) "Board" means the county board of education;
(e) "State superintendent" means the state superintendent of
free schools;
(f) "Superintendent" means the county superintendent of
schools;
(g) "Teacher" means teacher, supervisor, principal,
superintendent, public school librarian; registered professional
nurse, licensed by the West Virginia board of examiners for
registered professional nurses and employed by a county board of
education, who has a baccalaureate degree; or any other person
regularly employed for instructional purposes in a public school in
this state;
(h) "Service personnel" means all nonteaching school employees
not included in the above definition of "teacher";
(i) "Regular full-time employee" means any person employed by
a county board of education who has a regular position or job
throughout his employment term, without regard to hours or method
of pay;
(j) "Career clusters" means broad groupings of related occupations;
(k) "Work-based learning" means a structured activity that
correlates with and is mutually supportive of the school-based
learning of the student and includes specific objectives to be
learned by the student as a result of the activity;
(l) "School-age juveniles" means any individual who is
entitled to attend or who, if not placed in a residential facility,
would be entitled to attend 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; and
(m) "Student with a disability" means an exceptional child,
other than gifted, pursuant to section one, article twenty of this
chapter.
ARTICLE 2. STATE BOARD OF EDUCATION.
§18-2-6. Classification and standardization of schools;
standards for degrees and diploma; establishment of
alternative education programs.
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.
Notwithstanding any other provisions of this section to the
contrary, the requirement for granting certificates of proficiency
shall be replaced by the requirement that information be provided
on an electronic portfolio system established by the state board
pursuant to section eight, article two-e of this chapter and issued
to every high school graduate by the appropriate county board:
Provided, That the requirements for granting certificates of
proficiency shall be continued until such time as the electronic
portfolio system has been made available to the county boards.
The state board also may 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, 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.
§18-2-6a. Sale of soft drinks.
In order to generate funding for necessary programs and
supplies, county boards may permit the sale of soft drinks in
county high schools except during breakfast and lunch periods. The
sale of such soft drinks shall be in compliance with the rules of
the national school lunch program and the school breakfast program
of the state board and the nutrition service of the United States
department of agriculture, which became effective on the
seventeenth day of June, one thousand nine hundred eighty-five:
Provided,
That, if under such rules, the sale of soft drinks shall
become prohibited, such rules shall not prohibit the sale of soft
drinks in high schools in the state of West Virginia. Seventy-five
percent of the profits from the sale of soft drinks shall be
allocated by a majority vote of the faculty senate of each school
and twenty-five percent of the profits from the sale of soft drinks
shall be allocated to the purchase of necessary supplies by the
principal of the school.
§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 are authorized to provide for adequate and
appropriate education 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) Subject to appropriations by the Legislature, the state
board shall have the following authority: (1) To provide education
programs and services for school-age juveniles on the grounds of
residential facilities, pursuant to agreements with the department
of health and human resources and the licensed child-care agencies
of such department; (2) to hire classroom teachers and other school
personnel necessary to provide adequate and appropriate education
opportunities to these juveniles; and (3) to provide education
services for school-age juveniles in residential facilities on a
twelve-month basis.
(c) The department of health and human resources shall
cooperate with the state board and the state superintendent in the
establishment and maintenance of education programs authorized
under this section. Subject to appropriations by the Legislature,
the department of health and human resources shall provide, or
cause to be provided, adequate space and facilities for such
education programs. 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.
(d) The state board of education and the department of health
and human resources are authorized to enter into agreements to
provide adequate and appropriate education opportunities for
school-age juveniles who 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.
County boards shall have authority to establish and maintain
evening classes or night schools, continuation or part-time day
schools, alternative schools, and vocational schools, wherever
practicable to do so, and shall admit thereto adult persons and all
other persons, including persons of foreign birth. County boards
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. County boards
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 of the state board.
County boards shall have authority 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 state department to be distributed to county boards for the
operation of alternative education programs established in
accordance with policies and procedures adopted by the state board
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
boards on the basis of net enrollment and ten percent of this
appropriation shall be distributed on a competitive basis to county
boards for the operation of pilot or innovative alternative
education programs. Each county board shall apply to the state
superintendent for receipt of its share of the distribution in the
manner set forth by the state superintendent which is consistent
with the policies and procedures adopted by the state board 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 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) 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 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) and (f) 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) and (f) 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 certified mail, return receipt
requested: Provided, That certified mail is not required if one or
both of the parents, guardians, or custodians of the pupil are
present at the time the suspension is decided upon, or if any one
of them acknowledges receipt of the report by signing and dating a
copy of the report. 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.
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 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. 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 may adopt other supplementary rules of procedure to be
followed in these hearings. At the conclusion of the hearing the
county board 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, 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 been classified as a student with a disability,
prior to performing the actions giving rise to this section,
special consideration shall be given to such pupil as hereinafter
provided:
(1) Regardless of whether or not the misconduct is the proximate result of the disability of a student, a student with a
disability may be suspended immediately for up to ten consecutive
days for each occurrence of misconduct or when it is necessary for
the protection of the student, the protection of school personnel,
or the protection of other students;
(2) If the misconduct is found to be the proximate result of
the disability of the student, then, subject to the provisions of
subsection (3) of this section, the student may not be suspended or
expelled for more than ten consecutive days for each occurrence of
misconduct or for each occurrence when it is necessary for the
protection of the student, the protection of school personnel, or
the protection of other students;
(3) A student with a disability who has committed 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 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, if a parent, guardian, or
custodian requests a due process hearing to contest placement of
the student, the student shall remain in the alternative education
setting during the pendency of any proceeding, unless the parents
and the county board agree otherwise. At the conclusion of the
proceeding, if 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 disability of the
student, the student with a disability shall be expelled from school for the period set forth in the applicable provisions of
this section: Provided, That special education and related
services must be provided during this additional period of
expulsion;
(4) If the behavior giving rise to the violation or activity
is not the proximate result of the disability of the student, 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 in the manner described in this section. In
addition, special education and related services must be provided
during the period of a suspension or expulsion exceeding ten days;
and
(5) If the student with a disability has been suspended, and
it is determined that the misconduct is the proximate result of the
disability of the student, 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: (i) Conflict
management and behavior management strategies which are not
inconsistent with the individualized education program of the
student; (ii) student and teacher training initiatives which are
not inconsistent with the individualized education program of the
student; (iii) an initiation by professional educators, at any time, of a change in the placement of the student through an
individualized education program meeting to be held within twenty-
one days, subject to the applicable procedural safeguards; and (iv)
an initiation of 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.
(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) If a pupil transfers to another school in West Virginia,
the principal of the school from which the pupil transfers shall
provide a written record of any disciplinary action taken against
the pupil to the principal of the school to which the pupil
transfers.
(l) 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.
§18A-5-1b. Alternative procedures for expulsion hearings by county
boards.
The county boards may employ a hearing examiner to conduct the
expulsion hearings required by this article. The hearing examiner
shall be an attorney, duly licensed to practice law in the state of
West Virginia and shall not be employed by the state or county
boards for any other reason.
The hearing examiner shall conduct hearings in compliance with the guidelines of section one-a of this article. All hearings
shall be recorded by mechanical means, unless recorded by a
certified court reporter. The hearing examiner shall issue a
decision and written findings of fact and conclusions of law within
five days of the conclusion of the hearing. Hearings by a hearing
examiner shall have the same force and effect as a decision made by
a county board. Upon the written request of a parent, guardian, or
custodian of the student, or the county superintendent, the county
board shall review the decision of the hearing examiner. Within
ten calendar days from the date of the request of the review, the
county board shall enter an order affirming, reversing, or
modifying the decision of the hearing examiner. A county board
may, in its own discretion, hold a hearing to determine any issues
in question.
The authority of the county superintendent shall be the same
as contained in section one-a of this article.