SB 343 Text

Introduced Version Senate Bill 343 History

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SB343 intr Senate Bill No. 343
(By Senators White, Kessler, Foster and Wells)
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[Introduced January 25, 2010; referred to the Committee on Education.]
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A BILL to amend and reenact §18-8-1, §18-8-1a and §18-8-4 of the Code of West Virginia, 1931, as amended, all relating to compulsory school attendance; increasing the minimum age for ending compulsory school attendance to age seventeen; and reducing to five the number of days of unexcused absences at which proceedings to enforce attendance begin.

Be it enacted by the Legislature of West Virginia:
That §18-8-1, §18-8-1a and §18-8-4 of the Code of West Virginia, 1931, as amended, be amended and reenacted; all to read as follows:

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 September 1, or upon enrolling in a publicly supported kindergarten program and continue to the ~~sixteenth~~ seventeenth 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 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 shall 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 shall submit satisfactory evidence of a high school diploma or equivalent;
(C) The person or persons providing home instruction shall outline a plan of instruction for the ensuing school year; and
(D) On or before June 30 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.

§18-8-1a. Compulsory school attendance; public school entrance requirements; exceptions thereto.

Notwithstanding the provisions of section one of this article, compulsory school attendance shall begin with the school year in which the sixth birthday is reached prior to September one of such year or upon enrolling in a publicly supported kindergarten program and continue to the ~~sixteenth~~ seventeenth birthday or for as long as the student shall continue to be enrolled in a school system after the ~~sixteenth~~ seventeenth birthday: Provided, That a child may be removed from such kindergarten program when the principal, teacher and parent or guardian concur that the best interest of the child would not be served by requiring further attendance: Provided, however, That the principal shall make the final determination with regard to compulsory school attendance in a publicly supported kindergarten program: Provided further, That the compulsory school attendance provision of this article shall be enforced against a person eighteen years of age or older for as long as the person continues to be enrolled in a school system, and shall not be enforced against the parent, guardian, or custodian of such person.
Attendance at a state-approved or Montessori kindergarten, as provided in section eighteen, article five of this chapter, shall be deemed school attendance for purposes of this section. Prior to entrance into the first grade in accordance with section five, article two of this chapter, each child must have either: (1) Successfully completed such publicly or privately supported, state- approved kindergarten program or Montessori kindergarten program; or (2) successfully completed an entrance test of basic readiness skills approved by the county in which the school is located: Provided, That such test be administered in lieu of kindergarten attendance only under extraordinary circumstances to be determined by the board. Notwithstanding the provisions of this section and of section five, article two of this chapter and section eighteen, article five of this chapter, a county board may provide for advanced entrance or placement under policies adopted by said board for any child who has demonstrated sufficient mental and physical competency for such entrance or placement. Nothing herein shall prevent a student from another state from enrolling in a public school in West Virginia in such grade as the student was enrolled at the school from which the student transferred.

§18-8-4. Duties of attendance director and assistant directors; complaints, warrants and hearings.

(a) The county attendance director and the assistants shall diligently promote regular school attendance. They shall ascertain reasons for inexcusable absences from school of pupils of compulsory school age and students who remain enrolled beyond the sixteenth birthday as defined under this article and shall take such steps as are, in their discretion, best calculated to correct attitudes of parents and pupils which result in absences from school even though not clearly in violation of law.
(b) In the case of five ~~consecutive or ten~~ total unexcused absences of a child during a school year, the attendance director or assistant shall serve written notice to the parent, guardian or custodian of such child that the attendance of such child at school is required and that within ten days of receipt of the notice the parent, guardian or custodian, accompanied by the child, shall report in person to the school the child attends for a conference with the principal or other designated representative of the school in order to discuss and correct the circumstances causing the inexcusable absences of the child; and if the parent, guardian or custodian does not comply with the provisions of this article, then the attendance director or assistant shall make complaint against the parent, guardian or custodian before a magistrate of the county. If it appears from the complaint that there is probable cause to believe that an offense has been committed and that the accused has committed it, a summons or a warrant for the arrest of the accused shall issue to any officer authorized by law to serve the summons or to arrest persons charged with offenses against the state. More than one parent, guardian or custodian may be charged in a complaint. Initial service of a summons or warrant issued pursuant to the provisions of this section shall be attempted within ten calendar days of receipt of the summons or warrant and subsequent attempts at service shall continue until the summons or warrant is executed or until the end of the school term during which the complaint is made, whichever is later.
(c) The magistrate court clerk, or the clerk of the circuit court performing the duties of the magistrate court as authorized in section eight, article one, chapter fifty of this code, shall assign the case to a magistrate within ten days of execution of the summons or warrant. The hearing shall be held within twenty days of the assignment to the magistrate, subject to lawful continuance. The magistrate shall provide to the accused at least ten days' advance notice of the date, time and place of the hearing.
(d) When any doubt exists as to the age of a child absent from school, the attendance director shall have authority to require a properly attested birth certificate or an affidavit from the parent, guardian or custodian of such child, stating age of the child. The county attendance director or assistant shall, in the performance of his or her duties, have authority to take without warrant any child absent from school in violation of the provisions of this article and to place such child in the school in which such child is or should be enrolled.
(e) The county attendance director shall devote such time as is required by section three of this article to the duties of attendance director in accordance with this section during the instructional term and at such other times as the duties of an attendance director are required. All attendance directors hired for more than two hundred days may be assigned other duties determined by the superintendent during the period in excess of two hundred days. The county attendance director shall be responsible under direction of the county superintendent for the efficient administration of school attendance in the county.
(f) In addition to those duties directly relating to the administration of attendance, the county attendance director and assistant directors shall also perform the following duties:
(1) Assist in directing the taking of the school census to see that it is taken at the time and in the manner provided by law;
(2) Confer with principals and teachers on the comparison of school census and enrollment for the detection of possible nonenrollees;
(3) Cooperate with existing state and federal agencies charged with enforcement of child labor laws;
(4) Prepare a report for submission by the county superintendent to the State Superintendent of Schools on school attendance, at such times and in such detail as may be required. The state board shall promulgate a legislative rule pursuant to article three-b, chapter twenty-nine-a of this code that sets forth student absences that shall be excluded for accountability purposes. The absences that shall be excluded by the rule shall include, but not be limited to, excused student absences, students not in attendance due to disciplinary measures and absent students for whom the attendance director has pursued judicial remedies to compel attendance to the extent of his or her authority. The attendance director shall file with the county superintendent and county board of education at the close of each month a report showing activities of the school attendance office and the status of attendance in the county at the time;
(5) Promote attendance in the county by the compilation of data for schools and by furnishing suggestions and recommendations for publication through school bulletins and the press, or in such manner as the county superintendent may direct;
(6) Participate in school teachers' conferences with parents and students;
(7) Assist in such other ways as the county superintendent may direct for improving school attendance;
(8) Make home visits of students who have excessive unexcused absences, as provided above, or if requested by the chief administrator, principal or assistant principal; and
(9) Serve as the liaison for homeless children and youth.

NOTE: The purpose of this bill is to increase the minimum age for ending compulsory school attendance from age sixteen to age seventeen and to reduce from ten to five the number of days of unexcused absences at which proceeding to enforce attendance begin. This is an interim bill recommended by Education Subcommittee C.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.