H. B. 4065
(By Mr. Speaker, Mr. Chambers, and Delegate Ashley)
[By Request of the Executive]
[Introduced January 16, 1996; referred to the
Committee on Education then the Judiciary.]
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; to amend and reenact section two, article three;
section seven-a, article four; and section one-a, article
five, all of 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; teachers' requirement of certification;
professional personnel's employment, promotion and transfer;
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; that section two, article three; section seven-a,
article four; and section one-a, article five, all of 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, flexibility in assignment of staff, 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 of two million dollars shall 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 one million eight hundred thousand dollars of this
appropriation shall be distributed to county school districts on
the basis of net enrollment and two hundred thousand dollars 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 3. TRAINING, CERTIFICATION, LICENSING, PROFESSIONAL
DEVELOPMENT.
§18A-3-2. Teacher certification; required; expiration;
qualifications; certification of aliens.
Any professional educator, as defined in article one of this
chapter, who is employed within the public school system of the
state shall hold a valid teaching certificate licensing him or
her to teach in the specializations and grade levels as shown on
the certificate for the period of his or her employment:
Provided, That any teacher, as defined in section one, article
one, chapter eighteen of this code, who is employed in an
alternative education program shall only be required to meet the
licensure requirements for such programs that are established by
the state board of education. If a teacher is employed in good
faith on the anticipation that he or she is eligible for a
certificate and it is later determined that the teacher was not
eligible, the state superintendent of schools may authorize
payment by the county board of education to the teacher for a
time not exceeding three school months or the date of
notification of his or her ineligibility, whichever shall occur
first. All certificates shall expire on the thirtieth day of
June of the last year of their validity irrespective of the date
of issuance.
ARTICLE 4. SALARIES, WAGES AND OTHER BENEFITS.
§18A-4-7a. Employment, promotion and transfer of professional
personnel; seniority.
A county board of education shall make decisions affecting
the hiring of professional personnel other than classroom teachers on the basis of the applicant with the highest
qualifications. Further, the county board shall make decisions
affecting the hiring of new classroom teachers on the basis of
the applicant with the highest qualifications. In judging
qualifications, consideration shall be given to each of the
following: Appropriate certification and/or licensure; amount
of experience relevant to the position or, in the case of a
classroom teaching position, the amount of teaching experience
in the subject area; the amount of course work and/or degree
level in the relevant field and degree level generally; academic
achievement; relevant specialized training; past performance
evaluations conducted pursuant to section twelve, article two of
this chapter; and other measures or indicators upon which the
relative qualifications of the applicant may fairly be judged.
If one or more permanently employed instructional personnel apply
for a classroom teaching position and meet the standards set
forth in the job posting, the county board of education shall
make decisions affecting the filling of such positions on the
basis of the following criteria: Appropriate certification
and/or licensure; total amount of teaching experience; the
existence of teaching experience in the required certification
area; degree level in the required certification area;
specialized training directly related to the performance of the
job as stated in the job description; receiving an overall rating of satisfactory in evaluations over the previous two years; and
seniority. Consideration shall be given to each criterion with
each criterion being given equal weight. If the applicant with
the most seniority is not selected for the position, upon the
request of the applicant a written statement of reasons shall be
given to the applicant with suggestions for improving the
applicant's qualifications.
Notwithstanding the foregoing provisions, whenever a county
board of education makes decisions affecting the hiring of
professional personnel for alternative education programs,
additional weight may be given to the following criteria which
are deemed to be necessary to the selection of the best personnel
for alternative education programs: (a) Successful experience in
providing education to troubled or disruptive youth; (b)
demonstrated leadership or mentoring skills in working with
youth; (c) specialized training in nontraditional instruction or
management of student behavior; and (d) other criteria which are
reasonably related to the goal of providing effective instruction
and discipline to troubled or disruptive youth.
The seniority of classroom teachers as defined in section
one, article one of this chapter with the exception of guidance
counselors shall be determined on the basis of the length of time
the employee has been employed as a regular full-time certified
and/or licensed professional educator by the county board of education and shall be granted in all areas that the employee is
certified and/or licensed.
Upon completion of one hundred thirty-three days of
employment in any one school year, substitute teachers shall
accrue seniority exclusively for the purpose of applying for
employment as a permanent, full-time professional employee. One
hundred thirty-three days or more of said employment shall be
prorated and shall vest as a fraction of the school year worked
by the permanent, full-time teacher.
Guidance counselors and all other professional employees, as
defined in section one, article one of this chapter, except
classroom teachers, shall gain seniority in their nonteaching
area of professional employment on the basis of the length of
time the employee has been employed by the county board of
education in that area: Provided, That if an employee is
certified as a classroom teacher, the employee accrues classroom
teaching seniority for the time that employee is employed in
another professional area. For the purposes of accruing
seniority under this paragraph, employment as principal,
supervisor or central office administrator, as defined in section
one, article one of this chapter, shall be considered one area of
employment.
Employment for a full employment term shall equal one year
of seniority, but no employee may accrue more than one year of seniority during any given fiscal year. Employment for less than
the full employment term shall be prorated. A random selection
system established by the employees and approved by the board
shall be used to determine the priority if two or more employees
accumulate identical seniority: Provided, That when two or more
principals have accumulated identical seniority, decisions on
reductions in force shall be based on qualifications.
Whenever a county board is required to reduce the number of
professional personnel in its employment, the employee with the
least amount of seniority shall be properly notified and released
from employment pursuant to the provisions of section two,
article two of this chapter: Provided, That all persons employed
in a certification area to be reduced who are employed under a
temporary permit shall be properly notified and released before
a fully certified employee in such a position is subject to
release: Provided, however, That an employee subject to release
shall be employed in any other professional position where such
employee is certified and was previously employed or to any
lateral area for which such employee is certified and/or
licensed, if such employee's seniority is greater than the
seniority of any other employee in that area of certification
and/or licensure: Provided further, That, if an employee subject
to release holds certification and/or licensure in more than one
lateral area and if such employee's seniority is greater than the seniority of any other employee in one or more of those areas of
certification and/or licensure, the employee subject to release
shall be employed in the professional position held by the
employee with the least seniority in any of those areas of
certification and/or licensure.
Professional personnel who are employed full-time in
alternative education programs shall not be affected by a
reduction-in-force unless the reduction is within the alternative
education program.
For the purpose of this article, all positions which meet
the definition of classroom teacher as defined in section one,
article one of this chapter, shall be lateral positions. For all
other professional positions the county board of education shall
adopt a policy by the thirty-first day of October, one thousand
nine hundred ninety-three, and may modify said policy thereafter
as necessary, which defines which positions shall be lateral
positions. The board shall submit a copy of its policy to the
state board within thirty days of adoption or any modification,
and the state board shall compile a report and submit same to the
legislative oversight commission on education accountability by
the thirty-first day of December, one thousand nine hundred
ninety-three, and by such date in any succeeding year in which
any county board submits a modification of its policy relating to
lateral positions. In adopting such a policy, the board shall give consideration to the rank of each position in terms of
title, nature of responsibilities, salary level, certification
and/or licensure, and days in the period of employment.
After the fifth day prior to the beginning of the
instructional term, or after the first day of the second half of
the instructional term, no person employed and assigned to a
professional position may transfer to another professional
position in the county during that half of the instructional
term: Provided, That such person may apply for any posted,
vacant positions with the successful applicant assuming the
position at the beginning of the next half of the instructional
term: Provided, however, That professional personnel who have
been on an approved leave of absence may fill these vacancies
prior to the next semester. The superintendent may fill a
position before the next instructional term when it is determined
to be in the best interest of the students.
All professional personnel whose seniority with the county
board is insufficient to allow their retention by the county
board during a reduction in work force shall be placed upon a
preferred recall list. As to any professional position opening
within the area where they had previously been employed or to any
lateral area for which they have certification and/or licensure,
such employee shall be recalled on the basis of seniority if no
regular, full-time professional personnel, or those returning from leaves of absence with greater seniority, are qualified,
apply for and accept such position. Before position openings
that are known or expected to extend for twenty consecutive
employment days or longer for professional personnel may be
filled by the board, the board shall be required to notify all
qualified professional personnel on the preferred list and give
them an opportunity to apply, but failure to apply shall not
cause such employee to forfeit any right to recall. The notice
shall be sent by certified mail to the last known address of the
employee, and it shall be the duty of each professional personnel
to notify the board of continued availability annually of any
change in address or of any change in certification and/or
licensure.
Boards shall be required to post and date notices of all
openings in established, existing or newly created positions in
conspicuous working places for all professional personnel to
observe for at least five working days. The notice shall be
posted within twenty working days of such position openings and
shall include the job description. Any special criteria or
skills that are required by the position shall be specifically
stated in the job description and directly related to the
performance of the job. No vacancy shall be filled until after
the five-day minimum posting period. If one or more applicants
meets the qualifications listed in the job posting, the successful applicant to fill the vacancy shall be selected by
the board within thirty working days of the end of the posting
period: Provided, That a position held by a certified and/or
licensed teacher who has been issued a permit for full-time
employment and is working toward certification in the permit area
shall not be subject to posting if the certificate is awarded
within five years. Nothing provided herein shall prevent the
county board of education from eliminating a position due to lack
of need.
Notwithstanding any other provision of the code to the
contrary, where the total number of classroom teaching positions
in an elementary school does not increase from one school year
to the next, but there exists in that school a need to realign
the number of teachers in one or more grade levels, kindergarten
through six, teachers at the school may be reassigned to grade
levels for which they are certified without that position being
posted: Provided, That the employee and the county board of
education mutually agree to the reassignment.
When the total number of classroom teaching positions in an
elementary school needs to be reduced, such reduction shall be
made on the basis of seniority with the least senior classroom
teacher being recommended for transfer: Provided, That a
specified grade level needs to be reduced and the least senior
employee in the school is not in that grade level, the least senior classroom teacher in the grade level that needs to be
reduced shall be reassigned to the position made vacant by the
transfer of the least senior classroom teacher in the school
without that position being posted: Provided, however, That the
employee is certified and/or licensed and agrees to the
reassignment.
Any board failing to comply with the provisions of this
article may be compelled to do so by mandamus and shall be liable
to any party prevailing against the board for court costs and
reasonable attorney fees as determined and established by the
court. Further, employees denied promotion or employment in
violation of this section shall be awarded the job, pay and any
applicable benefits retroactive to the date of the violation and
payable entirely from local funds. Further, the board shall be
liable to any party prevailing against the board for any court
reporter costs including copies of transcripts.
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, 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 disabled student may be suspended for
up to ten consecutive school days for misconduct: Provided, That
a disabled student may not be suspended or expelled for more than
ten consecutive school days for conduct that is the proximate
result of the child's student's disability. Provided, That an
exceptional child A disabled student may be temporarily removed
from school for his own protection, the protection of school
personnel, or the protection of other pupils students.
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 student has
committed an act involving the possession of a firearm, as
defined in section two, article seven, chapter sixty-one of this
code. A disabled student 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 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 proceedings, unless the parents and the local educational
agency agree otherwise. If after the conclusion of the
proceedings, it is determined that the disabled student committed
a violation involving the possession of a firearm and the
violation is not attributable to the student's disability, then
the disabled student shall be expelled from school for the period
set forth in the applicable provisions of subsection (a) through
(g). Special education and related services must be provided
during this additional period of expulsion.
A disabled student 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. 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 student does
not include gifted children students unless they are disabled.
(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.
NOTE: The purpose of the bill is to establish an effective
alternative education program throughout the state by affording
county boards of education the funding and flexibility needed to
do so.
The bill also makes technical corrections to the provisions
of the code governing the suspension and expulsion of disabled
students in order to clarify that students with disabilities are
treated no differently than other students if they behave in a
disruptive manner that is not attributable to the disability.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§§18-2-13h; 18-9A-21 are new; therefore strike-throughs and
underscoring have been omitted.