Senate Bill No. 221
(By Senators Hunter, Boley, Mitchell,
Rowe, Caldwell and Minard)
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[Introduced January 16, 2002; referred to the Committee
on Education; and then to the Committee on Finance.]
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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;
and 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; and 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 areas 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 the next grade;
(5) Graduation rate;
(6) Average class size;
(7) Pupil-teacher ratio and number of exceptions to ratio
requested by county boards and the 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; and
(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
(e) 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.
(f) 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.
(g) 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 shall 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 the information, subject to the provisions of any act or
rule 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.
(h) 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 of this
article;
(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.
(i) 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 may determine 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.
The state board shall reimburse a county board 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.
(j) 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 of this code, 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.
(A) These circumstances shall include, but are not limited to: (i) 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; (ii) the failure of a school on conditional
accreditation status to meet the objectives and time line of its
revised unified school improvement plan; or (iii) the failure to
achieve full accreditation by the date specified in the revised
plan.
(B) 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 any other improvements that are
necessary to correct the impairment.
(C) If the impairment is not corrected by a date certain set
by the state board the state board shall appoint a monitor who
shall be paid at county expense to cause improvements to be made
at the school to bring it to full accreditation status within a
reasonable time period as determined by the state board. The
monitor's work location shall be at the school and the monitor
shall work collaboratively with the principal. The monitor
shall, at a minimum, report monthly to the state board on the
measures being taken to improve the school's performance and the
progress being made. The reports may include requests for
additional assistance and recommendations required in the
judgment of the monitor to improve the school's performance,
including, but not limited to, the need for targeting resources
strategically to eliminate deficiencies. If the state board
determines that the improvements necessary to provide a thorough
and efficient education to the students at the school cannot be
made without additional targeted resources, it shall establish
a plan in consultation with the county board that includes
targeted resources from sources under the control of the state
board and the county board to accomplish the needed
improvements. Nothing in this section shall may be construed to
allow a change in personnel at the school to improve school
performance, except as provided by law.
(k) 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 the
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.
(l) 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 designated by the state board by
rule; (ii) taking any direct action necessary to correct the
emergency; and (iii) declaring that the office of the county
superintendent is vacant.
(m) 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 (l) 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.
(n) 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.
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 to this chapter 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 is 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 stands in the place of the
parent(s), guardian(s) or custodian(s) in exercising authority
over the school and shall have has 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 that 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 may 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 that 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) The Legislature finds that suspension from school is not
appropriate solely for a pupil's failure to attend class.
Therefore, no pupil may be suspended from school solely for not attending class. Other methods of discipline may be used for
the pupil which may include, but are not limited to, detention,
extra class time or alternative class settings.
(e) Corporal punishment of any pupil by a school employee
is prohibited.
(f) 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
these 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
decisionmaking for students and any other program related to
preventive discipline.
(g) For the purpose of this section: (1) "Pupil or student"
shall include includes 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; and (2) "teacher" shall mean means all
professional educators as defined in section one, article one of
this chapter and shall include includes the driver of a school
bus or other mode of transportation.
(h) 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.
(i) 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.
(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 that request by a principal,
the county superintendent shall recommend to the county board
that the student be expelled. Upon such that 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 that 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 that
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 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 at this hearing, 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. The student may be represented by
counsel at any hearing to reexamine the dangerousness of a
student, 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 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
may 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.
NOTE:
The purpose of this bill is to require school safety
plans to be included within a school's unified school
improvement plan. It requires that guidance counselors spend at
least 75% of their time in a direct counseling relationship with
pupils in the accreditation process. It allows disciplinary
measures for certain acts outside of the school. It requires
pupils to undergo psychiatric evaluations and sets forth
procedures for expelling a dangerous student without providing
alternative education. The bill authorizes county
superintendents to request authority from a circuit judge or
magistrate to subpoena witnesses and documents for expulsion
hearings. And, it sets forth guidelines a superintendent may
use in determining whether or not to reduce a mandatory
twelve-month suspension.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.