COMMITTEE SUBSTITUTE
FOR
H. B. 4598

(By Delegates Hall, L. Smith, Paxton and Martin)
(Originating in the Committee on Education)
[February 27, 2002]

A BILL to amend and reenact section three, article twenty-eight, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to standardized testing requirements for private, parochial or church schools or schools of a religious order; assessment results; legislative recognition and findings; exemption; exemption criteria; and alternate assessment methods.

Be it enacted by the Legislature of West Virginia:
That section three, article twenty-eight, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:

ARTICLE 28. PRIVATE, PAROCHIAL OR CHURCH SCHOOLS, OR SCHOOLS OF A RELIGIOUS ORDER.

§18-28-3. Standardized testing requirements.
(a) Each private, parochial or church school or school of a religious order or other nonpublic school electing to operate under this statute in lieu of the approval requirements set forth as part of exemption A of section one, article eight, of this chapter eighteen, exemption A shall administer on an annual basis during each school year to every child enrolled therein between the ages of seven and sixteen years either the comprehensive test of basic skills, the California achievement test, the Stanford achievement test or the Iowa tests of basic skills tests of achievement and proficiency, which test will be selected by the chief administrative officer of each school in the subjects of English, grammar, reading, social studies, science and mathematics; and shall be administered under standardized conditions as set forth by the published instructions of the selected test: Provided, That any private, parochial, church school, school of a religious order or other nonpublic school that exclusively teaches special education students or children with learning disabilities shall is not be required to comply with this subsection or subsection (d) of this section, but shall academically assess every child enrolled therein between the ages of seven and sixteen years on an annual basis during each school year by one or more of the following methods: (1) A standardized group achievement test; (2) a standardized individual achievement test; (3) a written narrative of an evaluation of a portfolio of samples of a child's work; (4) an alternative academic assessment of the child's proficiency as mutually agreed by the county superintendent, parent(s) or legal guardian(s) and the school.
(b) Each child's testing results and the school composite test results shall be made available to such the child's parents or legal guardians. Upon request of a duly authorized representative of the West Virginia department of education, the school composite test results shall be furnished by the school or by a parents organization composed of the parents or guardians of children enrolled in said that school to the state superintendent of schools.
(c) Each school to which this article applies shall:
(1) Establish curriculum objectives, the attainment of which will enable students to develop the potential for becoming literate citizens.
(2) Provide an instructional program that will make possible the acquisition of competencies necessary to become a literate citizen.
(d) If such the school composite test results for any single year for English, grammar, reading, social studies, science and mathematics fall below the fortieth percentile on the selected tests, the school as herein described shall initiate a remedial program to foster achievement above that level. If after two consecutive calendar years school composite test results are not above the fortieth percentile level, attendance at the school may no longer satisfy no longer satisfies the compulsory school attendance requirement exemption of exemption K, section one, article eight, of this chapter eighteen until such time as the percentile standards herein set forth are met.

(e) The Legislature recognizes the United States Supreme Court case and its holding in Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, in which respondents were members of the Old Order Amish religion and the Conservative Amish Mennonite Church and had been convicted in Wisconsin of violating the state's compulsory school attendance law by declining to provide formal education for their children past the eighth grade, but instead continued with an alternative mode of informal vocational education beyond the age of fourteen consistent with their firmly grounded religious beliefs.
(1) The Court held that: "Aided by a history of three centuries as an identifiable religious sect and a long history as a successful and self-sufficient segment of American society, the Amish in this case have convincingly demonstrated the sincerity of their religious beliefs, the interrelationship of belief with their mode of life, the vital role that belief and daily conduct play in the continued survival of Old Order Amish communities and their religious organization, and the hazards presented by the State's enforcement of a statute generally valid as to others. Beyond this, they have carried the even more difficult burden of demonstrating the adequacy of their alternative mode of continuing informal vocational education in terms of precisely those overall interests that the State advances in support of its program of compulsory high school education." (p. 235) The Court further stated that in demonstrating the sincerity of their religious beliefs and the inseparability of lifestyle and culture from deep religious conviction, the Amish established a "convincing showing, one that probably few other religious groups or sects could make". (pp. 235 - 236)
(2) As such, the Legislature finds that compelling Amish students to participate in standardized testing to the age of sixteen as required by this section is contrary to the holding of the Court in Yoder, as it violates the Free Exercise of Religion Clause of the First Amendment of the United States Constitution.
(3) The Legislature recognizes the strong state interest in requiring formal education and competency assessment, and the importance and purpose of education in preparing individuals to be self sufficient, self reliant and law abiding participants in society. The Legislature further recognizes the distinction established in Yoder between the goal of education in preparing students to participate in modern society, and in preparing students "for life in the separated agrarian community that is the keystone of the Amish faith." (p. 222) The Legislature recognizes the Court's finding that while there is a duty of the states to protect children from "ignorance", the Amish do not foster ignorance in their mode of education and development, and "[w]hatever their idiosyncrasies as seen by the majority, . . . [they have] been a highly successful social unit within our society, . . . are productive and very law-abiding members of society, [and] reject public welfare in any of its usual modern forms." (p. 222)
(4) Any school of a religious faith or order is exempt from the provisions of subsections (a) and (d) of this section

, if the religious faith or order has:
(A) A history of at least two centuries as an identifiable religious sect;
(B) A history as a successful, self-reliant and self- sufficient segment of American society;
(C) An interrelationship and inseparability of religious belief with mode of life, demonstrated by a static approach toward life, life-style, family and home; and
(D) A vital role of combined daily conduct and religious belief in the continued survival of its community and organization, demonstrated by a static approach toward life, life-style, family and home.
(5) A school exempt from standardized testing under the provisions of subdivision (4) of this subsection shall assess its students

from the age of seven years until the student completes the eighth grade, on an annual basis during each school year by one of the following methods:
(A) A standardized group achievement test;
(B) A standard individual achievement test;
(C) A written narrative of an evaluation of a portfolio of samples of a student's work; or
(D) An alternative academic assessment of the student's proficiency as mutually agreed upon by the county superintendent, parents or legal guardians and the school

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Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.