H. B. 2807
(By Delegate Clements, Leggett, Anderson, Manuel, Miller,
Capito and Mezzatesta)
[Introduced March 28, 1997; referred to the
Committee on Education then the Judiciary.]
A BILL to amend and reenact section one-a, article five, chapter
eighteen-a of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to violations
involving the possession of other deadly weapons in addition
to firearms as a basis for placement of a student with a
disability in an alternative educations setting for a period
of not more than forty-five calendar days.
Be it enacted by the Legislature of West Virginia:
That section one-a, article five, chapter eighteen-a of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 5. AUTHORITY; RIGHTS; RESPONSIBILITY.
§18A-5-1a. Possessing deadly weapons on premises of educational facilities; possessing a controlled substance on premises of educational facilities; assaults and batteries committed by pupils upon teachers or other school personnel; temporary suspension, hearing; procedure, notice and formal hearing; extended suspension; sale of narcotic; expulsion; exception.
(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 or other
dangerous weapon, 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 or other dangerous weapon 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.
NOTE: The purpose of this bill is to provide that violations
involving the possession of other deadly weapons in addition to
firearms is a basis for placement of a student with a disability
in an alternative education setting for a period of not more than
forty-five calendar days.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.