
ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 206
(Senators Caldwell and Rowe, original sponsors)
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[Passed March 8, 2003; in effect ninety days from passage.]











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AN ACT to amend and reenact sections one and eleven, article eight,
chapter eighteen of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; and to amend and reenact
section eight, article five, chapter eighteen-a of said code,
all relating to compulsory school attendance; technical
amendments; home school exemption; amending requirements to
qualify for home school exemption; amending assessment
requirements of home school exemption; eliminating exemption
relating to residence more than two miles from school or
school bus route; driver's license privilege; conditions for
obtaining license; denial and revocation; limitation on
reinstatement; and
authorizing aides to supervise students who
are undergoing in-school suspension.
Be it enacted by the Legislature of West Virginia:
That sections one and eleven, article eight, chapter eighteen
of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that section eight,
article five, chapter eighteen-a of said code be amended and
reenacted, all to read as follows:
CHAPTER 18. EDUCATION.
ARTICLE 8. COMPULSORY SCHOOL ATTENDANCE.
§18-8-1. Commencement and termination of compulsory school
attendance; exemptions.
(a) Compulsory school attendance shall begin with the school
year in which the sixth birthday is reached prior to the first day
of September or upon enrolling in a publicly supported kindergarten
program and continue to the sixteenth birthday. Exemption from the
foregoing requirements of compulsory public school attendance shall
be made on behalf of any child for the causes or conditions set
forth in this section. Each cause or condition set forth in this
section shall be subject to confirmation by the attendance
authority of the county.
(b) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
if the requirements of this subsection, relating to instruction in
a private, parochial or other approved school, are met. The
instruction shall be in a school approved by the county board and
for a time equal to the instructional term set forth in section
forty-five, article five of this chapter. In all private,
parochial or other schools approved pursuant to this subsection it
shall be the duty of the principal or other person in control, upon the request of the county superintendent, to furnish to the county
board such information and records as may be required with respect
to attendance, instruction and progress of pupils enrolled between
the entrance age and sixteen years.
(c) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
if the requirements of either subdivision (1) of this subsection or
the requirements of subdivision (2) of this subsection, both
relating to home instruction, are met.
(1) The instruction shall be in the home of the child or
children or at some other place approved by the county board and
for a time equal to the instructional term set forth in section
forty-five, article five of this chapter. If the request for home
instruction is denied by the county board, good and reasonable
justification for the denial shall be furnished in writing to the
applicant by the county board. The instruction shall be conducted
by a person or persons who, in the judgment of the county
superintendent and county board, are qualified to give instruction
in subjects required to be taught in public elementary schools in
the state. The person or persons providing the instruction, upon
request of the county superintendent, shall furnish to the county
board information and records as may be required, from time to
time, with respect to attendance, instruction and progress of
pupils enrolled between the entrance age and sixteen years
receiving the instruction. The state board shall develop
guidelines for the home schooling of special education students including alternative assessment measures to assure that
satisfactory academic progress is achieved.
(2) The child meets the requirements set forth in this
subdivision: Provided, That the county superintendent may seek from
the circuit court of the county an order denying home instruction
of the child. The order may be granted upon a showing of clear and
convincing evidence that the child will suffer neglect in the
child's education or that there are other compelling reasons to
deny home instruction.
(A) Annually, the person or persons providing home instruction
present to the county superintendent or county board a notice of
intent to provide home instruction and the name, address, age and
grade level of any child of compulsory school age to be instructed:
Provided, That if a child is enrolled in a public school, notice of
intent to provide home instruction shall be given at least two
weeks prior to withdrawing such child from public school;
(B) The person or persons providing home instruction submit
satisfactory evidence of a high school diploma or equivalent;
(C) The person or persons providing home instruction outline
a plan of instruction for the ensuing school year; and
(D) On or before the thirtieth day of June of each year the
person or persons providing home instruction shall obtain an
academic assessment of the child for the previous school year and
submit the results to the county superintendent. When the academic
assessment takes place outside of a public school, the parent or
legal guardian shall pay the cost. The requirement of an academic assessment shall be satisfied in one of the following ways:
(i) The child receiving home instruction takes a nationally
normed standardized achievement test to be administered under
standardized conditions as set forth by the published instructions
of the selected test in the subjects of reading, language,
mathematics, science and social studies: Provided, That in no event
may the child's parent or legal guardian administer the test. The
publication date of the chosen test shall not be more than ten
years from the date of the administration of the test. The child
shall be considered to have made acceptable progress when the mean
of the child's test results in the required subject areas for any
single year meets or exceeds the fiftieth percentile or, if below
the fiftieth percentile, shows improvement from the previous year's
results;
(ii) The child participates in the testing program currently
in use in the state's public schools. The test shall be
administered to the child at a public school in the county of
residence. Determination of acceptable progress will be based on
current guidelines of the state testing program;
(iii) The county superintendent is provided with a written
narrative indicating that a portfolio of samples of the child's
work has been reviewed and that the child's academic progress for
the year is in accordance with the child's abilities. If the
narrative indicates that the child's academic progress for the year
is in accordance with the child's abilities, the child shall be
considered to have made acceptable progress. This narrative shall be prepared by a certified teacher whose certification number shall
be provided. The narrative shall include a statement about the
child's progress in the areas of reading, language, mathematics,
science and social studies and shall note any areas which, in the
professional opinion of the reviewer, show need for improvement or
remediation; or
(iv) The child completes an alternative academic assessment of
proficiency that is mutually agreed upon by the parent or legal
guardian and the county superintendent. Criteria for acceptable
progress shall be mutually agreed upon by the same parties; and
(E) When the annual assessment fails to show acceptable
progress as defined under the appropriate assessment option set
forth in paragraph (D) of this subdivision, the person or persons
providing home instruction shall initiate a remedial program to
foster acceptable progress and the county board shall notify the
parents or legal guardian of the child, in writing, of the services
available to assist in the assessment of the child's eligibility
for special education services: Provided, That the identification
of a disability shall not preclude the continuation of home
schooling. In the event that the child does not achieve acceptable
progress as defined under the appropriate assessment option set
forth in paragraph (D) of this subdivision for a second consecutive
year, the person or persons providing instruction shall submit to
the county superintendent additional evidence that appropriate
instruction is being provided.
(3) This subdivision applies to both home instruction exemptions set forth in subdivisions (1) and (2) of this
subsection. The county superintendent or a designee shall offer
such assistance, including textbooks, other teaching materials and
available resources, as may assist the person or persons providing
home instruction subject to their availability. Any child
receiving home instruction may upon approval of the county board
exercise the option to attend any class offered by the county board
as the person or persons providing home instruction may consider
appropriate subject to normal registration and attendance
requirements.
(d) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
if the requirements of this subsection, relating to physical or
mental incapacity, are met. Physical or mental incapacity consists
of incapacity for school attendance and the performance of school
work. In all cases of prolonged absence from school due to
incapacity of the child to attend, the written statement of a
licensed physician or authorized school nurse shall be required
under the provisions of this article: Provided, That in all cases,
incapacity shall be narrowly defined and in no case shall the
provisions of this article allow for the exclusion of the mentally,
physically, emotionally or behaviorally handicapped child otherwise
entitled to a free appropriate education.
(e) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
if conditions rendering school attendance impossible or hazardous to the life, health or safety of the child exist.
(f) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
upon regular graduation from a standard senior high school.
(g) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
if the child is granted a work permit pursuant to this subsection.
The county superintendent may, after due investigation, grant work
permits to youths under sixteen years of age, subject to state and
federal labor laws and regulations: Provided, That a work permit
may not be granted on behalf of any youth who has not completed the
eighth grade of school.
(h) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
if a serious illness or death in the immediate family of the pupil
has occurred. It is expected that the county attendance director
will ascertain the facts in all cases of such absences about which
information is inadequate and report the facts to the county
superintendent.
(i) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
if the requirements of this subsection, relating to destitution in
the home, are met. Exemption based on a condition of extreme
destitution in the home may be granted only upon the written
recommendation of the county attendance director to the county
superintendent following careful investigation of the case. A copy of the report confirming the condition and school exemption shall
be placed with the county director of public assistance. This
enactment contemplates every reasonable effort that may properly be
taken on the part of both school and public assistance authorities
for the relief of home conditions officially recognized as being so
destitute as to deprive children of the privilege of school
attendance. Exemption for this cause shall not be allowed when the
destitution is relieved through public or private means.
(j) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
if the requirements of this subsection, relating to church
ordinances and observances of regular church ordinances, are met.
The county board may approve exemption for religious instruction
upon written request of the person having legal or actual charge of
a child or children: Provided, That the exemption shall be subject
to the rules prescribed by the county superintendent and approved
by the county board.
(k) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
if the requirements of this subsection, relating to alternative
private, parochial, church or religious school instruction, are
met. Exemption shall be made for any child attending any private
school, parochial school, church school, school operated by a
religious order or other nonpublic school which elects to comply
with the provisions of article twenty-eight of this chapter.
(l) The completion of the eighth grade shall not exempt any child under sixteen years of age from the compulsory attendance
provision of this article.
§18-8-11. School attendance as condition of licensing for
privilege of operation of motor vehicle.
(a) In accordance with the provisions of sections three and
five, article two, chapter seventeen-b of this code, the division
of motor vehicles shall deny a license or instruction permit for
the operation of a motor vehicle to any person under the age of
eighteen who does not at the time of application present a diploma
or other certificate of graduation issued to the person from a
secondary high school of this state or any other state or
documentation that the person: (1) Is enrolled and making
satisfactory progress in a course leading to a general educational
development certificate (GED) from a state-approved institution or
organization or has obtained the certificate; (2) is enrolled in a
secondary school of this state or any other state; (3) is excused
from the requirement due to circumstances beyond his or her
control; or (4) is enrolled in an institution of higher education
as a full-time student in this state or any other state.
(b) The attendance director or chief administrator shall
provide documentation of enrollment status on a form approved by
the department of education to any student at least fifteen but
less than eighteen years of age upon request who is properly
enrolled in a school under the jurisdiction of the official for
presentation to the division of motor vehicles on application for or reinstatement of an instruction permit or license to operate a
motor vehicle. Whenever a student at least fifteen but less than
eighteen years of age withdraws from school, except as provided in
subsection (d) of this section, the attendance director or chief
administrator shall notify the division of motor vehicles of the
withdrawal not later than five days from the withdrawal date.
Within five days of receipt of the notice, the division of motor
vehicles shall send notice to the licensee that the license will be
suspended under the provisions of section three, article two,
chapter seventeen-b of this code on the thirtieth day following the
date the notice was sent unless documentation of compliance with
the provisions of this section is received by the division of motor
vehicles before that time. If suspended, the division may not
reinstate a license before the end of the semester following that
in which the withdrawal occurred.
(c) For the purposes of this section:
(1) Withdrawal is defined as more than ten consecutive or
fifteen total days unexcused absences during a school year;
(2) Suspension or expulsion from school or imprisonment in a
jail or a West Virginia correctional facility is not a circumstance
beyond the control of the person.
(d) Whenever the withdrawal from school of the student, or the
student's failure to enroll in a course leading to or to obtain a
GED or high school diploma, is beyond the control of the student,
or is for the purpose of transfer to another school as confirmed in
writing by the student's parent or guardian, no notice shall be sent to the division of motor vehicles to suspend the student's
motor vehicle operator's license and if the student is applying for
a license, the attendance director or chief administrator shall
provide the student with documentation to present to the division
of motor vehicles to excuse the student from the provisions of this
section. The school district superintendent (or the appropriate
school official of any private secondary school) with the
assistance of the county attendance director and any other staff or
school personnel shall be the sole judge of whether withdrawal is
due to circumstances beyond the control of the person.
CHAPTER 18A. SCHOOL PERSONNEL.
ARTICLE 5. AUTHORITY; RIGHTS; RESPONSIBILITY.
§18A-5-8. Authority of certain aides to exercise control over
pupils; compensation; transfers.
(a) Within the limitations provided in this section, any aide
who agrees to do so shall stand in the place of the parent or
guardian and shall exercise such authority and control over pupils
as is required of a teacher as provided in section one of this
article. The principal shall designate aides in the school who
agree to exercise that authority on the basis of seniority as an
aide and shall enumerate the instances in which the authority shall
be exercised by an aide when requested by the principal, assistant
principal or professional employee to whom the aide is assigned.
(b) The authority provided for in subsection (a) of this
section may not extend to suspending or expelling any pupil, participating in the administration of corporal punishment or
performing instructional duties as a teacher or substitute teacher.
However, the authority shall extend to supervising students
undergoing in-school suspension if the instructional duties
required by the supervision are limited solely to handing out class
work and collecting class work. The authority to supervise
students undergoing in-school suspension may not include actual
instruction.
(c) An aide designated by the principal under subsection (a)
of this section shall receive a salary not less than one pay grade
above the highest pay grade held by the employee under section
eight-a, article four of this chapter and any county salary
schedule in excess of the minimum requirements of this article.
(d) An aide may not be required by the operation of this
section to perform noninstructional duties for an amount of time
which exceeds that required under the aide's contract of employment
or that required of other aides in the same school unless the
assignment of the duties is mutually agreed upon by the aide and
the county superintendent, or the superintendent's designated
representative, subject to board approval. The terms and
conditions of the agreement shall be in writing, signed by both
parties, and may include additional benefits. The agreement shall
be uniform as to aides assigned similar duties for similar amounts
of time within the same school. Aides shall have the option of
agreeing to supervise students and of renewing related assignments
annually. If an aide elects not to renew the previous agreement to supervise students, the minimum salary of the aide shall revert to
the pay grade specified in section eight-a, article four of this
chapter for the classification title held by the aide and any
county salary schedule in excess of the minimum requirements of
this article.
(e) For the purposes of this section, aide means any aide
class title as defined in section eight, article four of this
chapter regardless of numeric classification.
(f) An aide may transfer to another position of employment one
time only during any one half of a school term, unless otherwise
mutually agreed upon by the aide and the county superintendent, or
the superintendent's designee, subject to board approval: Provided,
That during the first year of employment as an aide, an aide may
not transfer to another position of employment during the first
one-half school term of employment unless mutually agreed upon by
the aide and county superintendent, subject to board approval.
(g) Regular service personnel employed in a category of
employment other than aide who seek employment as an aide shall
hold a high school diploma or shall have received a general
educational development certificate and shall have the opportunity
to receive appropriate training pursuant to subsection (10),
section thirteen, article five, chapter eighteen of this code and
section two, article twenty of said chapter.