H. B. 4625
(By Delegates Campbell, Williams and Spencer)
[Introduced February 17, 2006; referred to the
Committee on the Education.]
A BILL to amend and reenact §18A-5-1 and §18A-5-1a of the Code of
West Virginia, 1931, as amended, all relating to authority
over pupils; and extending certain authority to professional
personnel designee of school principal.
Be it enacted by the Legislature of West Virginia:
That §18A-5-1 and §18A-5-1a of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
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
parents, guardians or custodians 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 exercises authority and
control over the children while they are in transit to and from the
school.
(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 cases or has presented a
certificate of health signed by the medical inspector or other
proper health officer.
(c) The teacher shall have has 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 or she shall provide written and, if possible,
telephonic notice of such the action to the parents, guardians or
custodians. 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 parents, guardians or custodians 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 parents, guardians or
custodians 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) Each county board is solely responsible for the
administration of proper discipline in the public schools of the
county and shall adopt policies consistent with the provisions of
this section to govern disciplinary actions. These policies shall
encourage the use of alternatives to corporal punishment, providing
for the training of school personnel in alternatives to corporal
punishment and for the involvement of parents, guardians or
custodians 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 the 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.
(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;
and
(3) "Principal" means the principal of the school or a
professional personnel designee of the principal of the school.
(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.
§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 of said chapter;
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 the a request by a principal,
the county superintendent shall recommend to the county board that
the student be expelled. Upon such the recommendation, the county
board shall conduct a hearing in accordance with subsections (e),
(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 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), (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 recommendation by the county superintendent, the county board
may hold a hearing in accordance with the provisions of subsections
(e), (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 parents, guardians or custodians, 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 parents, guardians or
custodians of the pupil by regular United States mail. 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
parents, guardians or custodians, as the case may be. The notice
shall state clearly whether the board will attempt at hearing to
establish the student as a dangerous student, as defined by section
one, article one of this chapter. The notice also shall include
any evidence upon which the board will rely in asserting its claim
that the student is a dangerous student. The notice shall set
forth a date and time at which 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, or any hearing before a county board conducted pursuant to
this section, 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. Such The a hearing shall be recorded by
mechanical means unless recorded by a certified court reporter.
Any such 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 shall either: (1) Order the pupil
reinstated immediately at the end of his or her initial suspension;
(2) suspend the pupil for a further designated number of days; or
(3) expel the pupil from the public schools of the county.
(g) A county board that did not intend prior to a hearing to
assert a dangerous student claim, that did not notify the student
prior to the hearing that such a determination would be considered
and that determines through the course of the hearing that the
student may be a dangerous student shall schedule a second hearing
within ten days to decide the issue. The hearing may be postponed
for good cause shown by the pupil, but he or she remains under
suspension until after the hearing.
A county board that expels a student, and finds that the
student is a dangerous student, may refuse to provide alternative
education. However, after a hearing conducted pursuant to this
section for determining whether a student is a dangerous student,
when the student is found to be a dangerous student, is expelled
and is denied alternative education, a hearing shall be conducted within three months after the refusal by the board to provide
alternative education to reexamine whether or not the student
remains a dangerous student and whether the student shall be
provided alternative education. Thereafter, a hearing for the
purpose of reexamining whether or not the student remains a
dangerous student and whether the student shall be provided
alternative education shall be conducted every three months for so
long as the student remains a dangerous student and is denied
alternative education. During the initial hearing, or in any
subsequent hearing, the board may consider the history of the
pupil's conduct as well as any improvements made subsequent to the
expulsion. 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 shall be provided alternative
education during the remainder of the expulsion period.
(h) 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 or dangerous student determination, 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 or dangerous student determination 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.
Any hearing conducted pursuant to this subsection may be
postponed: (1) For good cause shown by the pupil; (2) when
proceedings to compel a subpoenaed witness to appear must be
instituted; or (3) when a delay in service of a subpoena hinders
either party's ability to provide sufficient notice to appear to a
witness. A pupil remains under suspension until after the hearing
in any case where a postponement occurs.
The county boards are directed to report the number of pupils
determined to be dangerous students to the State Board of
Education. The State Board will shall compile the county boards'
statistics and shall report its findings to the Legislative
Oversight Commission on Education Accountability.
(i) 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.
(j) In all hearings under this section, facts shall be found
by a preponderance of the evidence.
(k) For purposes of this section, nothing herein in this
section may be construed to be in conflict with the federal
provisions of the Individuals with Disabilities Education Act of
1990 (PL 101-476).
(l) Each suspension or expulsion imposed upon a pupil under
the authority of this section shall be recorded in the Uniform
Integrated Regional Computer Information System (commonly known as the West Virginia Education Information System) described in
subsection (f), section twenty-six, article two, chapter eighteen
of this code.
(1) The principal of the school at which the pupil is enrolled
shall create an electronic record within twenty-four hours of the
imposition of the suspension or expulsion.
(2) Each record of a suspension or expulsion shall include the
pupil's name and identification number, the reason for the
suspension or expulsion, and the beginning and ending dates of the
suspension or expulsion.
(3) The State Board of Education shall collect and disseminate
data so that any principal of a public school in West Virginia can
review the complete history of disciplinary actions taken by West
Virginia public schools against any pupil enrolled or seeking to
enroll at that principal's school. The purposes of this provision
are to allow every principal to fulfill his or her duty under
subsection (b), section fifteen-f, article five, chapter eighteen
of this code to determine whether a pupil requesting to enroll at
a public school in West Virginia is currently serving a suspension
or expulsion from another public school in West Virginia and to
allow principals to obtain general information about pupils'
disciplinary histories.
(m) 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.
(n) Each county board is solely responsible for the
administration of proper discipline in the public schools of the
county and shall adopt policies consistent with the provisions of
this section to govern disciplinary actions.
(o) For the purpose of this section, "principal" means the
principal of the school or a professional personnel designee of the
principal of the school.
Note: The purpose of this bill is to provide authority for a
professional personnel designated by the principal of the school to
exercise disciplinary authority over pupils.
Strike-throughs indicate existing language that would be
removed, and underscoring indicates new language that would be
added.