Senate Bill No. 485
(By Senators Deem and Whitlow)
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[Introduced February 19, 1996; referred to the Committee
on Education; and then to the Committee on the Judiciary
.]
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A BILL to amend and reenact section one, article five, chapter
eighteen-a of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
section seventeen, article five, chapter forty-nine of said
code, all relating to authority of teachers and other school
personnel; exclusion of pupils having infectious diseases;
suspension or expulsion of disorderly pupils; abolishing
corporal punishment; providing records of pupil discipline
to principal at school to which pupil transfers; expungement
of juvenile records; and release of information of juvenile
criminal conviction to school principal.
Be it enacted by the Legislature of West Virginia:
That section one, article five, chapter eighteen-a of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that section seventeen,
article five, chapter forty-nine of said code be amended and
reenacted, all to read as follows:
CHAPTER 18A. SCHOOL PERSONNEL.
ARTICLE 5. AUTHORITY; RIGHTS; RESPONSIBILITY.
§18A-5-1. Authority of teachers and other school personnel;
exclusion of pupils having infectious diseases;
suspension or expulsion of disorderly pupils;
corporal punishment abolished.
(a) The teacher shall stand in the place of the parent(s),
guardian(s) or custodian(s) in exercising authority over the
school, and shall have control of all pupils enrolled in the
school from the time they reach the school until they have
returned to their respective homes, except that where
transportation of pupils is provided, the driver in charge of the
school bus or other mode of transportation shall exercise such
authority and control over the children while they are in transit
to and from the school.
(b) Subject to the rules of the state board of education,
the teacher shall exclude from the school any pupil or pupils known to have or suspected of having any infectious disease, or
any pupil or pupils who have been exposed to such disease, and
shall immediately notify the proper health officer, or medical
inspector, of such the exclusion. Any pupil so excluded shall
may not be readmitted to the school until such pupil he or she
has complied with all the requirements of the rules governing
such cases, or has presented a certificate of health signed by
the medical inspector or other proper health officer.
(c) The teacher shall have authority to exclude from his or
her classroom or school bus, any pupil who is guilty of
disorderly conduct; who in any manner interferes with an orderly
educational process; who threatens, abuses, or otherwise
intimidates or attempts to intimidate a school employee or a
pupil; or who willfully disobeys a school employee; or who uses
abusive or profane language directed at a school employee. Any
pupil excluded shall be placed under the control of the principal
of the school or a designee. The excluded pupil may be admitted
to the classroom or school bus only when the principal, or a
designee, provides written certification to the teacher that the
pupil may be readmitted and specifies the specific type of
disciplinary action, if any, which was taken. If the principal finds that disciplinary action is warranted, he or she shall
provide written and, if possible, telephonic notice of such the
action to the parent(s), guardian(s) or custodian(s): Provided,
That upon transfer of the pupil to another school, the written
record of the disciplinary action shall be provided to the
principal of the school to which the pupil transfers. When a
teacher excludes the same pupil from his or her classroom or from
a school bus three times in one school year, and after exhausting
all reasonable methods of classroom discipline provided in the
school discipline plan, the pupil may be readmitted to the
teacher's classroom only after the principal, teacher and, if
possible, the parent(s), guardian(s) or custodian(s) of the pupil
have held a conference to discuss the pupil's disruptive behavior
patterns, and the teacher and the principal agree on a course of
discipline for the pupil and inform the parent(s), guardian(s) or
custodian(s) of the course of action. Thereafter, if the pupil's
disruptive behavior persists, upon the teacher's request, the
principal may, to the extent feasible, transfer the pupil to
another setting.
(d) Corporal punishment of any pupil by a school employee is
prohibited.
(e) The West Virginia board of education and county boards
of education shall adopt policies consistent with the provisions
of this section encouraging the use of alternatives to corporal
punishment, providing for the training of school personnel in
alternatives to corporal punishment and for the involvement of
parent(s), guardian(s) or custodian(s) in the maintenance of
school discipline. The county boards of education shall provide
for the immediate incorporation and implementation in the schools
of a preventive discipline program, which may include the
responsible student program, and a student involvement program,
which may include the peer mediation program, devised by the West
Virginia board of education. Each board may modify such programs
to meet the particular needs of the county. The county boards
shall provide in-service training for teachers and principals
relating to assertive discipline procedures and conflict
resolution. The county boards of education may also establish
cooperatives with private entities to provide middle educational
programs, which may include programs focusing on developing
individual coping skills, conflict resolution, anger control,
self-esteem issues, stress management, and decision making for
students and any other program related to preventive discipline.
(f) For the purpose of this section: (1) "Pupil or student"
shall include any child, youth or adult who is enrolled in any
instructional program or activity conducted under board
authorization and within the facilities of or in connection with
any program under public school direction: Provided, That in the
case of adults the pupil-teacher relationship shall terminate
when the pupil leaves the school or other place of instruction or
activity; (2) "teacher" shall mean means all professional
educators as defined in section one, article one of this chapter
and shall include the driver of a school bus or other mode of
transportation.
(g) Teachers shall exercise such other authority and perform
such other duties as may be prescribed for them by law or by the
rules of the state board of education not inconsistent with the
provisions of this chapter and chapter eighteen of this code.
CHAPTER 49. CHILD WELFARE.
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-17. Expungement of records; exceptions; no discrimination.
(a) One year after the child's eighteenth birthday, or one
year after personal or juvenile jurisdiction shall have has
terminated, whichever is later, the records of a juvenile proceeding conducted under this chapter, including law-
enforcement files and records, fingerprints, physical evidence
and all other records pertaining to said the proceeding shall be
expunged by operation of law. When records are expunged, they
shall be returned to the court in which the case was pending and
kept in a separate confidential file and not opened except upon
order of the court.
(b) Expungement shall be accomplished by physically marking
the records to show that such the records have been expunged and
by the secure sealing and filing of said the records in such a
manner that no one can determine the identity of said the
juvenile except as provided in subsection (d) of this section.
Expungement shall have has the legal effect as if the offense
never occurred.
(c) The child's juvenile's counsel, parent, guardian or
custodian, the court, law-enforcement agencies and other public
and private agencies, in response to a request for record
information, shall reply that juvenile records are not public
records and are available only by order of the circuit court in
which the case was pending.
(d) Notwithstanding this or any other provision of this code to the contrary, after the effective date of the reenactment of
this section juvenile records and law-enforcement records shall
may not be disclosed or made available for inspection except as
follows:
(1) If a juvenile case is transferred to the criminal
jurisdiction of the court, and upon the happening of any of the
following:
(A) The failure of the juvenile transferred to timely file
an appeal of the order of transfer; or
(B) The refusal of the supreme court of appeals to hear the
petition of the juvenile appealing the order of transfer; or
(C) The affirming of the order of transfer by the supreme
court of appeals, then all records of the case generated
thereafter shall be open to public inspection, under all of the
same structures and guidelines and requirements of law as exist
regarding records for the prosecution of adults.
(2) The court may also, by written order pursuant to a
written petition, permit disclosure when:
(A) A court having juvenile jurisdiction has the child
juvenile before it in a juvenile proceeding;
(B) A court exercising criminal jurisdiction over the child juvenile requests such the records for the purpose of a
presentence report or other dispositional proceeding;
(C) The child juvenile or counsel for the child juvenile
requests disclosure or inspection of such the records;
(D) The officials of public institutions to which a child
the juvenile is committed require such the records for transfer,
parole or discharge considerations; or
(E) A person doing research requests disclosure, on the
condition that information which would identify the child
juvenile or family involved in the proceeding shall may not be
divulged; or
(F) The principal of the school in which the juvenile is
enrolled requests, if the juvenile has committed and been
convicted of a criminal offense.
(e) No individual, firm, corporation or other entity shall
may, on account of a person's prior involvement in a proceeding
under this article, discriminate against any person in access to,
terms of, or conditions of employment, housing, education,
credit, contractual rights or otherwise.
(f) No records of a child juvenile convicted under the
criminal jurisdiction of the court pursuant to subdivision (1), subsection (d), section ten of this article shall may be
expunged.
(g) Any person who willfully violates this section shall be
is guilty of a misdemeanor, and, upon conviction thereof, shall
be fined not more than one thousand dollars, or confined in jail
not more than six months, or both such fine and imprisonment
fined and confined, and shall be is liable for damages in the
amount of three hundred dollars or actual damages, whichever is
greater.
NOTE: The purpose of this bill is to allow disclosure of
criminal prosecution and school disruption to the principal of
the school to which a juvenile transfers.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.