COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 515
(By Senators Hunter, Boley, Mitchell, Oliverio, Redd, Rowe,
Caldwell, Unger, Minard, Snyder and Kessler)
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[Originating in the Committee on Education;
reported April 2, 2001.]
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A BILL to amend and reenact section five, article two-e, chapter
eighteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact section
one, article one, chapter eighteen-a of said code; to amend
and reenact sections one and one-a, article five of said
chapter, all relating to requiring school safety plans;
incorporating the time guidance counselors spend in a direct
counseling relationship with pupils in the accreditation
process; allowing disciplinary measures for certain acts
outside of the school; requiring pupils to undergo psychiatric evaluations; setting forth procedures for expelling a
dangerous student without providing alternative education;
authorizing county superintendents to request authority from
a circuit judge or magistrate to subpoena witnesses and
documents for expulsion hearings; and setting forth guidelines
a superintendent may use in determining whether or not to
reduce a mandatory twelve-month suspension.
Be it enacted by the Legislature of West Virginia:
That section five, article two-e, chapter eighteen of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted; that section one, article one, chapter
eighteen-a be amended and reenacted; that sections one and one-a,
article five of said chapter be amended and reenacted, all to read
as follows:
CHAPTER 18. EDUCATION.
ARTICLE 2E. HIGH QUALITY EDUCATIONAL PROGRAMS.
§18-2E-5. Process for improving education; office of education
performance audits; education standards; school
accreditation and school system approval;
intervention to correct impairments.
(a) Legislative intent. -- The purpose of this section is to
establish a process for improving education that includes standards, assessment, accountability and capacity building to
provide assurances that a thorough and efficient system of schools
is being provided for all West Virginia public school students on
an equal education opportunity basis and that the high quality
standards are, at a minimum, being met.
(b) State board rules. -- The state board shall promulgate
rules in accordance with article three-b, chapter twenty-nine-a of
this code establishing a unified county improvement plan for each
county board and a unified school improvement plan for each public
school in this state. The state board is not required to
promulgate new rules if legislative rules meeting the requirements
of article three-b, chapter twenty-nine-a of this code have been
filed with the office of the secretary of state before the
effective date of this section. In addition to the other
requirements, the rules shall require that each school include a
school safety plan within its unified school improvement plan.
Furthermore, the rules shall specify that the individual school
plans shall include strategies for crisis prevention, intervention
and response.
(c) High quality education standards and efficiency standards.
-- The state board shall, in accordance with the provisions of article three-b, chapter twenty-nine-a of this code, adopt and
periodically review and update high quality education standards for
student, school and school system performance and processes in the
following areas:
(1) Curriculum;
(2) Workplace readiness skills;
(3) Finance;
(4) Transportation;
(5) Special education;
(6) Facilities;
(7) Administrative practices;
(8) Training of county board members and administrators;
(9) Personnel qualifications;
(10) Professional development and evaluation;
(11) Student and school performance;
(12) A code of conduct for students and employees;
(13) Indicators of efficiency; and
(14) Any other such areas as determined by the state board.
(d) Performance measures. -- The standards shall assure that
all graduates are prepared for gainful employment or for continuing
postsecondary education and training and that schools and school
districts are making progress in achieving the education goals of the state.
The standards shall include measures of student performance to
indicate when a thorough and efficient system of schools is being
provided and of school and school system performance and processes
that enable student performance. The measures of student
performance and school and school system performance and processes
shall include, but are not limited to, the following:
(1) The acquisition of student proficiencies as indicated by
student performance by grade level measured, where possible, by a
uniform statewide assessment program;
(2) School attendance rates;
(3) Student dropout rate;
(4) Percent of students promoted to next grade;
(5) Graduation rate;
(6) Average class size;
(7) Pupil-teacher ratio and number of exceptions to ratio
requested by county boards and number granted;
(8) Number of split-grade classrooms;
(9) Percentage of graduates who enrolled in college; the
percentage of graduates who enrolled in other postsecondary
education; and the percentage of graduates who become fully
employed within one year of high school graduation all as reported by the graduates on the assessment form attached to their
individualized student transition plan, pursuant to section eight
of this article and the percentage of graduates reporting;
(10) Pupil-administrator ratio;
(11) Parent involvement;
(12) Parent, teacher and student satisfaction;
(13) Operating expenditures per pupil;
(14) Percentage of graduates who attain the minimum level of
performance in the basic skills recognized by the state board as
laying the foundation for further learning and skill development
for success in college, other postsecondary education and gainful
employment and the grade level distribution in which the minimum
level of performance was met;
(15) Percentage of graduates who received additional
certification of their skills, competence and readiness for
college, other postsecondary education or employment above the
minimum foundation level of basic skills;
(16) Percentage of students in secondary and middle schools
who are enrolled in advanced placement or honors classes,
respectively; and
(17) A requirement that school counselors spend at least
seventy-five percent of their time in a direct counseling relationship with pupils as required in section eighteen-b, article
five of this chapter; and
(17) (18) Indicators of efficiency. -- The state board shall,
in accordance with the provisions of article three-b, chapter
twenty-nine-a of this code, adopt and periodically review and
update indicators of efficiency for student and school system
performance and processes in the following areas:
(A) Curriculum delivery including, but not limited to, the use
of distance learning;
(B) Transportation;
(C) Facilities;
(D) Administrative practices;
(E) Personnel;
(F) Utilization of regional educational service agency
programs and services, including programs and services that may be
established by their assigned regional educational service agency,
or other regional services that may be initiated between and among
participating county boards; and
(G) Any other indicators as determined by the state board.
(e) Assessment and accountability of school and school system
performance and processes. -- The state board shall establish by rule in accordance with the provisions of article three-b, chapter
twenty-nine-a of this code, a system of education performance
audits which measures the quality of education and the preparation
of students based on the standards and measures of student, school
and school system performance and processes, including, but not
limited to, the standards and measures set forth in subsections (c)
and (d) of this section. The system of education performance
audits shall assist the state board in ensuring that the standards
and measures established pursuant to this section are, at a
minimum, being met and that a thorough and efficient system of
schools is being provided. The system of education performance
audits shall include: (1) The assessment of student, school and
school system performance and the processes in place in schools and
school systems which enable student performance; (2) the review of
school and school system unified improvement plans; and (3) the
periodic, random unannounced on-site review of school and school
system performance and compliance with the standards.
(f) Uses of school and school system assessment information.
-- The state board shall use information from the system of
education performance audits to assist it in ensuring that a
thorough and efficient system of schools is being provided and to
improve student, school and school system performance, including, but not limited to, the following: (1) Determining school
accreditation and school system approval status; (2) holding
schools and school systems accountable for the efficient use of
existing resources to meet or exceed the standards; and (3)
targeting additional resources when necessary to improve
performance. Primary emphasis in determining school accreditation
and school system approval status will be based on student, school
and school system performance on measures selected by the state
board. The state board shall make accreditation information
available to the Legislature; the governor; and to the general
public and any individuals who request such information, subject to
the provisions of any act, rule or regulation restricting the
release of information. Based on the assessment of student, school
and school system performance, the state board shall establish
early detection and intervention programs to assist underachieving
schools and school systems in improving performance before
conditions become so grave as to warrant more substantive state
intervention, including, but not limited to, making additional
technical assistance, programmatic, monetary and staffing resources
available where appropriate.
(g) Office of education performance audits. -- To assist the
state board in the operation of the system of education performance audits and in making determinations regarding the accreditation
status of schools and the approval status of school systems, the
state board shall establish an office of education performance
audits which shall be operated under the direction of the state
board independently of the functions and supervision of the state
department of education and state superintendent. The office of
education performance audits shall report directly to and be
responsible to the state board in carrying out its duties under the
provisions of this section. The office shall be headed by a
director who shall be appointed by the state board and shall serve
at the will and pleasure of the state board. The salary of the
director shall not exceed the salary of the state superintendent of
schools. The state board shall organize and sufficiently staff the
office to fulfill the duties assigned to it by this section and the
state board. Employees of the state department of education who
are transferred to the office of education performance audits shall
retain their benefit and seniority status with the department of
education. Under the direction of the state board, the office of
education performance audits shall receive from the West Virginia
education information system staff research and analysis data on
the performance of students, schools and school systems, and shall
receive assistance from staff at the state department of education and the state school building authority to carry out the duties
assigned to the office. In addition to other duties which may be
assigned to it by the state board or by statute, the office of
education performance audits also shall:
(1) Assure that all statewide assessments of student
performance are secure as required in section one-a, article two-e
of this chapter;
(2) Administer all accountability measures as assigned by the
state board, including, but not limited to, processes for the
accreditation of schools and the approval of school systems, and
recommend to the state board appropriate action, including, but not
limited to, accreditation and approval action;
(3) Determine, in conjunction with the assessment and
accountability processes, what capacity may be needed by schools
and school systems to meet the standards established by the
Legislature and the state board, and recommend to the school,
school system and state board, plans to establish those needed
capacities;
(4) Determine, in conjunction with the assessment and
accountability processes, whether statewide system deficiencies
exist in the capacity to establish and maintain a thorough and
efficient system of schools, including the identification of trends and the need for continuing improvements in education, and
report those deficiencies and trends to the state board;
(5) Determine, in conjunction with the assessment and
accountability processes, staff development needs of schools and
school systems to meet the standards established by the Legislature
and the state board, and make recommendations to the state board,
the center for professional development, regional educational
service agencies, higher education governing boards and county
boards; and
(6) Identify, in conjunction with the assessment and
accountability processes, exemplary schools and school systems and
best practices that improve student, school and school system
performance, and make recommendations to the state board for
recognizing and rewarding exemplary schools and school systems and
promoting the use of best practices. The state board shall provide
information on best practices to county school systems and shall
use information identified through the assessment and
accountability processes to select schools of excellence.
(h) On-site reviews. -- At the direction of the state board or
by weighted, random selection by the office of education
performance audits, an unannounced on-site review shall be
conducted by the office of education performance audits of any school or school system for purposes, including, but not limited
to, the following: (1) Verifying data reported by the school or
county board; (2) documenting compliance with policies and laws;
(3) evaluating the effectiveness and implementation status of
school and school system unified improvement plans; (4)
investigating official complaints submitted to the state board that
allege serious impairments in the quality of education in schools
or school systems; and (5) investigating official complaints
submitted to the state board that allege that a school or county
board is in violation of policies or laws under which schools and
county boards operate. The random selection of schools and school
systems for an on-site review shall use a weighted random sample so
that those with lower performance indicators and those that have
not had a recent on-site review have a greater likelihood of being
selected. Under the direction of the state board, the office of
education performance audits shall appoint an education standards
compliance review team to assist it in conducting on-site reviews.
The teams shall be composed of an adequate number of persons who
possess the necessary knowledge, skills and experience to make an
accurate assessment of education programs and who are drawn from a
trained cadre established by the office of education performance
audits. The state board shall have discretion in determining the number of persons to serve on a standards compliance review team
based on the size of the school or school system as applicable.
The teams shall be led by a member of the office of education
performance audits. County boards shall be reimbursed for the
costs of substitutes required to replace county board employees
while they are serving on an education standards compliance review
team. The office of education performance audits shall report the
findings of the on-site reviews to the state board for inclusion in
the evaluation and determination of a school's or county board's
accreditation or approval status as applicable.
(i) School accreditation. -- The state board annually shall
review the information from the system of education performance
audits submitted for each school and shall issue to every school:
Exemplary accreditation status, full accreditation status,
temporary accreditation status, conditional accreditation status,
or shall declare the education programs at the school to be
seriously impaired.
(1) Full accreditation status shall be given to a school when
the school's performance on the standards adopted by the state
board pursuant to subsections (c) and (d) of this section is at a
level which would be expected when all of the high quality
education standards are being met.
(2) Temporary accreditation status shall be given to a school
when the measure of the school's performance is below the level
required for full accreditation status. Whenever a school is given
temporary accreditation status, the county board shall ensure
that the school's unified improvement plan is revised to increase
the performance of the school to a full accreditation status
level. The revised unified school improvement plan shall include
objectives, a time line, a plan for evaluation of the success of
the improvements, cost estimates, and a date certain for achieving
full accreditation. The revised plan shall be submitted to the
state board for approval.
(3) Conditional accreditation status shall be given to a
school when the school's performance on the standards adopted by
the state board is below the level required for full accreditation,
but the school's unified improvement plan has been revised to
achieve full accreditation status by a date certain, the plan has
been approved by the state board and the school is meeting the
objectives and time line specified in the revised plan.
(4) Exemplary accreditation status shall be given to a school
when the school's performance on the standards adopted by the state
board pursuant to subsections (c) and (d) of this section
substantially exceeds the minimal level which would be expected when all of the high quality education standards are being met.
The state board shall propose legislative rules in accordance with
the provisions of article three-b, chapter twenty-nine-a,
designated to establish standards of performance to identify
exemplary schools.
(5) The state board shall establish and adopt standards of
performance to identify seriously impaired schools and the state
board may declare a school seriously impaired whenever
extraordinary circumstances exist as defined by the state board.
These circumstances shall include, but are not limited to, the
failure of a school on temporary accreditation status to obtain
approval of its revised unified school improvement plan within a
reasonable time period as defined by the state board and the
failure of a school on conditional accreditation status to meet the
objectives and time line of its revised unified school improvement
plan or to achieve full accreditation by the date specified in the
revised plan. Whenever the state board determines that the quality
of education in a school is seriously impaired, the state board
shall appoint a team of improvement consultants to make
recommendations within sixty days of appointment for correction of
the impairment. Upon approval of the recommendations by the state
board, the recommendations shall be made to the county board. If progress in correcting the impairment as determined by the state
board is not made within six months from the time the county board
receives the recommendations, the state board shall place the
county board on temporary approval status and provide consultation
and assistance to the county board to: (i) Improve personnel
management; (ii) establish more efficient financial management
practices; (iii) improve instructional programs and rules; or (iv)
make such other improvements as may be necessary to correct the
impairment. If the impairment is not corrected by a date certain
set by the state board, the county board shall be given nonapproval
status.
(j) Transfers from seriously impaired schools. -- Whenever a
school is determined to be seriously impaired and fails to improve
its status within one year, any student attending such school may
transfer once to the nearest fully accredited school, subject to
approval of the fully accredited school and at the expense of the
school from which the student transferred.
(k) School system approval. -- The state board annually shall
review the information submitted for each school system from the
system of education performance audits and issue one of the
following approval levels to each county board: Full approval, temporary approval, conditional approval, or nonapproval.
(1) Full approval shall be given to a county board whose
education system meets or exceeds all of the high quality standards
for student, school and school system performance and processes
adopted by the state board and whose schools have all been given
full, temporary or conditional accreditation status.
(2) Temporary approval shall be given to a county board whose
education system is below the level required for full approval.
Whenever a county board is given temporary approval status, the
county board shall revise its unified county improvement plan to
increase the performance of the school system to a full approval
status level. The revised plan shall include objectives, a time
line, a plan for evaluation of the success of the improvements, a
cost estimate, and a date certain for achieving full approval. The
revised plan shall be submitted to the state board for approval.
(3) Conditional approval shall be given to a county board
whose education system is below the level required for full
approval, but whose unified county improvement plan meets the
following criteria: (i) The plan has been revised to achieve full
approval status by a date certain; (ii) the plan has been approved
by the state board; and (iii) the county board is meeting the
objectives and time line specified in the revised plan.
(4) Nonapproval status shall be given to a county board which
fails to submit and gain approval for its unified county
improvement plan or revised unified county improvement plan within
a reasonable time period as defined by the state board or fails to
meet the objectives and time line of its revised unified county
improvement plan or fails to achieve full approval by the date
specified in the revised plan. The state board shall establish and
adopt additional standards to identify school systems in which the
program may be nonapproved and the state board may issue
nonapproval status whenever extraordinary circumstances exist as
defined by the state board. Furthermore, whenever a county board
has more than a casual deficit, as defined in section one, article
one of this chapter, the county board shall submit a plan to the
state board specifying the county board's strategy for eliminating
the casual deficit. The state board either shall approve or reject
the plan. If the plan is rejected, the state board shall
communicate to the county board the reason or reasons for the
rejection of the plan. The county board may resubmit the plan any
number of times. However, any county board that fails to submit a
plan and gain approval for the plan from the state board before the
end of the fiscal year after a deficit greater than a casual
deficit occurred or any county board which, in the opinion of the state board, fails to comply with an approved plan may be
designated as having nonapproval status. Whenever nonapproval
status is given to a school system, the state board shall declare
a state of emergency in the school system and shall appoint a team
of improvement consultants to make recommendations within sixty
days of appointment for correcting the emergency. Upon approval of
the recommendations by the state board, the recommendations shall
be made to the county board. If progress in correcting the
emergency, as determined by the state board, is not made within six
months from the time the county board receives the recommendations,
the state board shall intervene in the operation of the school
system to cause improvements to be made that will provide
assurances that a thorough and efficient system of schools will be
provided. This intervention may include, but is not limited to,
the following: (i) Limiting the authority of the county
superintendent and county board as to the expenditure of funds, the
employment and dismissal of personnel, the establishment and
operation of the school calendar, the establishment of
instructional programs and rules and any other areas as may be
designated by the state board by rule; (ii) taking such direct
action as may be necessary to correct the emergency; and (iii)
declaring that the office of the county superintendent is vacant.
(l) Notwithstanding any other provision of this section, the
state board may intervene immediately in the operation of the
county school system with all the powers, duties and
responsibilities contained in subsection (k) of this section, if
the state board finds the following:
(1) That the conditions precedent to intervention exist as
provided in this section; and
(2) That delaying intervention for any period of time would
not be in the best interests of the students of the county school
system.
(m) Capacity. -- The process for improving education includes
a process for targeting resources strategically to improve the
teaching and learning process. Development of unified school and
school system improvement plans, pursuant to subsection (b) of this
section, is intended, in part, to provide mechanisms to target
resources strategically to the teaching and learning process to
improve student, school and school system performance. When
deficiencies are detected through the assessment and accountability
processes, the revision and approval of school and school system
unified improvement plans shall ensure that schools and school
systems are efficiently using existing resources to correct the
deficiencies. When the state board determines that schools and school systems do not have the capacity to correct deficiencies,
the state board shall work with the county board to develop or
secure the resources necessary to increase the capacity of schools
and school systems to meet the standards and, when necessary, seek
additional resources in consultation with the Legislature and the
governor.
The state board shall recommend to the appropriate body
including, but not limited to, the Legislature, county boards,
schools and communities, methods for targeting resources
strategically to eliminate deficiencies identified in the
assessment and accountability processes by:
(1) Examining reports and unified improvement plans regarding
the performance of students, schools and school systems relative to
the standards and identifying the areas in which improvement is
needed;
(2) Determining the areas of weakness and of ineffectiveness
that appear to have contributed to the substandard performance of
students or the deficiencies of the school or school system;
(3) Determining the areas of strength that appear to have
contributed to exceptional student, school and school system
performance and promoting their emulation throughout the system;
(4) Requesting technical assistance from the school building authority in assessing or designing comprehensive educational
facilities plans;
(5) Recommending priority funding from the school building
authority based on identified needs;
(6) Requesting special staff development programs from the
center for professional development, higher education, regional
educational service agencies and county boards based on identified
needs;
(7) Submitting requests to the Legislature for appropriations
to meet the identified needs for improving education;
(8) Directing county boards to target their funds
strategically toward alleviating deficiencies;
(9) Ensuring that the need for facilities in counties with
increased enrollment are appropriately reflected and recommended
for funding;
(10) Ensuring that the appropriate person or entity is held
accountable for eliminating deficiencies; and
(11) Ensuring that the needed capacity is available from the
state and local level to assist the school or school system in
achieving the standards and alleviating the deficiencies.
(n) Review of accountability system. -
(1) The Legislature finds that the effective implementation of a standards based accountability system is an important issue for
the state's public education system. In order for the state to
make improvements in its standards based accountability system, it
is essential to review the standards based accountability system
currently in place to identify areas of possible improvements that
may exist. It is the intent of the Legislature that each area of
the standards based accountability system be reviewed in accordance
with nationally recognized standards.
(2) The state board shall conduct a comprehensive review of
the current standards based accountability system and report the
findings to the legislative oversight commission on education
accountability with recommendations for improvements on or before
the first day of January, two thousand one. The review shall
include, but not be limited to, the following:
(A) The extent to which accountability goals and strategies
focus on academic performance, and the extent that other purposes
are clarified in terms of coherent, specific goals to be achieved;
(B) The extent to which designated authorities are charged
with the efficient governance of the accountability system;
(C) The extent to which specific responsibilities for student
learning and performance are assigned to designated agents;
(D) The extent to which accountability is based on accurate measures of performance as informed by assessments that are
administered equitably to all students;
(E) The extent to which those responsible for governing
accountability regularly report student and school performance
information in useful terms and on a timely basis to school staff,
students and their families, and local policymakers, and the news
media;
(F) The extent to which incentives are established that
effectively motivate agents to improve student learning, and the
extent that consequences, which could include rewards,
interventions or sanctions, are predictably applied in response to
performance results;
(G) The extent to which agents are provided sufficient support
and assistance to ensure they have the capacity necessary to help
students achieve high performance standards;
(H) The extent to which policy makers work to ensure that
education policies, mandated programs, financial resources, and the
accountability system are well aligned so that consistent messages
are communicated about education goals and priorities;
(I) The extent to which the accountability system has
widespread support; and
(J) The extent to which various established partnerships work together to support districts, schools and teachers in their
efforts to improve student achievement.
CHAPTER 18A. SCHOOL PERSONNEL.
ARTICLE 1. GENERAL PROVISIONS.
§18A-1-1. Definitions.
The definitions contained in section one, article one, chapter
eighteen of this code apply to this chapter. In addition, 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 personnel" means all personnel employed by a
county board of education whether employed on a regular full-time
basis, an hourly basis or otherwise. School personnel shall be
comprised of two categories: Professional personnel and service
personnel.
(b) "Professional personnel" means persons who meet the
certification and /or licensing requirements of the state, and
includes the professional educator and other professional
employees.
(c) "Professional educator" is synonymous with and has the
same meaning as "teacher" as defined in section one, article one,
chapter eighteen of this code. Professional educators shall be classified as:
(1) "Classroom teacher". -- The professional educator who has
direct instructional or counseling relationship with pupils,
spending the majority of his or her time in this capacity.
(2) "Principal". -- The professional educator who as agent of
the board has responsibility for the supervision, management and
control of a school or schools within the guidelines established by
said board. The major area of such responsibility shall be the
general supervision of all the schools and all school activities
involving pupils, teachers and other school personnel.
(3) "Supervisor". -- The professional educator who, whether by
this or other appropriate title, is responsible for working
primarily in the field with professional and/or other personnel in
instructional and other school improvement.
(4) "Central office administrator". -- The superintendent,
associate superintendent, assistant superintendent and other
professional educators, whether by these or other appropriate
titles, who are charged with the administering and supervising of
the whole or some assigned part of the total program of the
county-wide school system.
(d) "Other professional employee" means that person from another profession who is properly licensed and is employed to
serve the public schools and includes a 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 completed either a two-year (sixty-four semester
hours) or a three-year (ninety-six semester hours) nursing program.
(e) "Service personnel" means those who serve the school or
schools as a whole, in a nonprofessional capacity, including such
areas as secretarial, custodial, maintenance, transportation,
school lunch and as aides.
(f) "Principals academy" or "academy" means the academy
created pursuant to section two-b, article three-a of this chapter.
(g) "Center for professional development" means the center
created pursuant to section one, article three-a of this chapter.
(h) "Job-sharing arrangement" means a formal, written
agreement voluntarily entered into by a county board with two or
more of its professional employees who wish to divide between them
the duties and responsibilities of one authorized full-time
position.
(i) "Prospective employable professional personnel" means
certified professional educators who:
(1) Have been recruited on a reserve list of a county board;
(2) Have been recruited at a job fair or as a result of
contact made at a job fair;
(3) Have not obtained regular employee status through the job
posting process provided for in section seven-a, article four of
this chapter; and
(4) Have obtained a baccalaureate degree from an accredited
institution of higher education within the past year.
(j) "Dangerous student" means a pupil whose history of
misconduct shows there is a substantial likelihood that he or she
would cause serious bodily injury to another individual. A
dangerous student may include, but is not limited to:
(1) A student in violation of sections nine-b, fifteen and
fifteen-a, article two, chapter sixty-one of this code;
(2) A student in violation of sections one and nine, article
two, chapter sixty-one of this code;
(3) A student in violation of sections three, four, five,
seven, eight and nine, article eight-b, chapter sixty-one of this
code; and
(4) A student who repeatedly engages in dangerous misconduct.
(k) "Alternative education" means an authorized departure from
the regular school program designed to provide educational and
social development for students whose disruptive behavior places them at risk of not succeeding in the traditional school structures
and in adult life without positive interventions.
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.
Additionally, disciplinary or other appropriate measures may be
taken by a teacher for violence or a threat of violence that occurs
off school property if the violence or threat of violence is an
extension of a threat made or an extension of an occurrence on
school property.
(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 the pupil has complied with all the
requirements of the rules governing such these 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 shall provide written and, if possible, telephonic notice of such the action to the parent(s), guardian(s) or
custodian(s). 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 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 any 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.
(h) Any county superintendent may petition a circuit judge to
require that a pupil undergo a psychological evaluation if the
pupil has:
(1) Committed a violent act against another person;
(2) Attempted to commit a violent act against another person;
(3) Plans to commit a violent act against another person;
(4) Vandalized property on school property; or
(5) Vandalized property within reasonable proximity of school
property.
§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;
alternative education.
(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 the request by a principal, the county superintendent shall
recommend to the county board that the student be expelled. Upon
such a recommendation, the county board shall conduct a hearing in
accordance with subsections (e), and (f) and (g) 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 the recommendation by the county
superintendent, the county board may hold a hearing in accordance
with the provisions of subsections (e), and (f) and (g) 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 the recommendation by the county superintendent, the county
board may hold a hearing in accordance with the provisions of
subsections (e), and (f) and (g) 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 The notice shall set forth a date and time at which such the
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. If the county board determines that the student should or must be expelled
from school, it may also determine whether the student is a
dangerous student pursuant to subsection (g) of this section. 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 the county.
(g) If the county board expels the student, it may determine
whether the student is a dangerous student as defined in section
one, article one of this chapter. If the county board finds that
the student is a dangerous student, the county board may refuse to
provide alternative education. However, when a student is found to
be a dangerous student, is expelled and is denied alternative education, a hearing shall be conducted within two months after the
refusal by the board to provide alternative education to reexamine
whether or not the student is a dangerous student and whether the
student shall be provided alternative education. At any hearing to
reexamine the dangerousness of a student, the student may be
represented by counsel, may call witnesses, and may present
psychiatric or psychological evidence. If it is determined during
any of the hearings that the student is no longer a dangerous
student or should be provided alternative education, the student
may be provided alternative education during the remainder of the
period of time that the student is expelled.
(h) Any student denied alternative education by a school board
may petition the appropriate circuit court for review of the county
board's finding that the student is a dangerous student.
(i) The superintendent may apply to a circuit judge or
magistrate for authority to subpoena witnesses and documents, upon
his or her own initiative, in a proceeding related to a recommended
student expulsion before a county board, conducted pursuant to the
provisions of this section. Upon the written request of any other
party, the superintendent shall apply to a circuit judge or
magistrate for the authority to subpoena witnesses, documents or
both on behalf of the other party, in a proceeding related to a recommended student expulsion before a county board. If the
authority to subpoena is granted, the superintendent shall subpoena
the witnesses, documents or both requested by the other party.
Furthermore, if the authority to subpoena is granted, it shall be
exercised in accordance with the provisions of section one, article
five, chapter twenty-nine-a of this code.
(g) (j) 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. The county superintendent may use the following factors
as guidelines in determining whether or not to reduce a mandatory twelve-month expulsion:
(1) The extent of the pupil's malicious intent;
(2) The outcome of the pupil's misconduct;
(3) The pupil's past behavior history; and
(4) The likelihood of the pupil's repeated misconduct.
(h) (k) 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 the 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) (l) In all hearings under this section, facts shall be
found by a preponderance of the evidence.
(j) (m) 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) (n) 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) (o) 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.