H. B. 3179
(By Delegates Browning and Staton)
[Introduced February 21, 2003; referred to the
Committee on Education]
A BILL to amend and reenact sections one, four and seven, article
eight, chapter eighteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to amend and
reenact sections two and three, article twenty-eight of said
chapter, all relating to extending the compulsory period of
school attendance to age eighteen and authorizing alternative
required attendance.
Be it enacted by the Legislature of West Virginia:
That sections one, four and seven, article eight, chapter
eighteen of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted; and that sections
two and three, article twenty-eight of said chapter 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.
Compulsory school attendance shall begin with the school year
in which the sixth birthday is reached prior to the first day of
September of such the year or upon enrolling in a publicly
supported kindergarten program and continue to the sixteenth
eighteenth birthday.
Exemption from the foregoing requirements of compulsory public
school attendance shall be made on behalf of any child for the
following causes or conditions, each such cause or condition being
subject to confirmation by the attendance authority of the county:
Exemption A. Instruction in a private, parochial or other
approved school. -- Such instruction Instruction in a private,
parochial or other approved school
shall be in a school approved by
the county board of education and for a time equal to the school
term of the county for the year. In all such private, parachial or
other approved schools it shall be the duty of the principal or
other person in control, upon the request of the county
superintendent of schools, to furnish to the county board of
education such any information and records as may be required with
respect to attendance, instruction and progress of pupils enrolled
between the entrance age and sixteen years;
Exemption B. Instruction in home or other approved place. --
(a) Such instruction Instruction in home or other approved place
shall be in the home of such the child or children or at some other place approved by the county board of education and for a time
equal to the school term of the county. If such a request for home
instruction is denied by the county board of education, good and
reasonable justification for such the denial must be furnished in
writing to the applicant by the county board of education. The
instruction in such these cases shall be conducted by a person or
persons who, in the judgment of the county superintendent and
county board of education, are qualified to give instruction in
subjects required to be taught in the free elementary schools of
the state. It shall be the duty of the person or persons providing
the instruction, upon request of the county superintendent, to
furnish to the county board of education such 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 eighteen years receiving such instruction.
The state department of education shall develop guidelines for the
home schooling of special education students including alternative
assessment measures to assure that satisfactory academic progress
is achieved.
(b) Notwithstanding the provisions of subsection (a) of this
Exemption B, the person or persons providing home instruction meet
the requirements for Exemption B when the conditions of this
subsection are met: Provided, That the county superintendent shall
have the right to seek from the circuit court of the county an order denying the home instruction, which order may be granted upon
a showing of clear and convincing evidence that the child will
suffer educational neglect or that there are other compelling
reasons to deny home instruction.
(1) The person or persons providing home instruction present
to the county superintendent or county board of education a notice
of intent to provide home instruction and the name and address 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 thechild from public school;
(2) The person or persons providing home instruction submit
satisfactory evidence of: (i) A high school diploma or equivalent;
and (ii) formal education at least four years higher than the most
academically advanced child for whom the instruction will be
provided: Provided, That the requirement of a formal education at
least four years higher than the most academically advanced child
is waived until the first day of July, two thousand three;
(3) The person or persons providing home instruction outline
a plan of instruction for the ensuing school year; and
(4) The person or persons providing home instruction shall
annually obtain an academic assessment of the child for the
previous school year. This shall be satisfied in one of the
following ways:
(i) Any child receiving home instruction annually takes a
standardized test, to be administered at a public school in the
county where the child resides, or administered by a licensed
psychologist or other person authorized by the publisher of the
test, or administered by a person authorized by the county
superintendent or county board of education. The child shall be
administered a test which has been normed by the test publisher on
that child's age or grade group. In no event may the child's
parent or legal guardian administer the test. Where a test is
administered outside of a public school, the child's parent or
legal guardian shall pay the cost of administering the test. The
public school or other qualified person shall administer to
children of compulsory school age the comprehensive test of basic
skills, the California achievement test, the Stanford achievement
test or the Iowa tests of basic skills, achievement and
proficiency, or an individual standardized achievement test that is
nationally normed and provides statistical results which test will
be selected by the public school, or other person administering the
test, in the subjects of language, reading, social studies, science
and mathematics and shall be administered under standardized
conditions as set forth by the published instructions of the
selected test. No test shall be administered if the publication
date is more than ten years from the date of the administration of
the test. Each child's test results shall be reported as a national percentile for each of the five subjects tested. Each
child's test results shall be made available on or before the
thirtieth day of June of the school year in which the test is to be
administered to the person or persons providing home instruction,
the child's parent or legal guardian and the county superintendent.
Upon request of a duly authorized representative of the West
Virginia department of education, each child's test results shall
be furnished by the person or persons providing home instruction,
or by the child's parent or legal guardian, to the state
superintendent of schools. Upon notification that the mean of the
child's test results for any single year has fallen below the
fortieth percentile, the county board of education shall notify the
parents or legal guardian of said 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.
If the mean of the child's test results for any single year
for language, reading, social studies, science and mathematics fall
below the fortieth percentile on the selected tests, then the
person or persons providing home instruction shall initiate a
remedial program to foster achievement above that level and the
student shall show improvement. If, after two calendar years, the
mean of the child's test results fall below the fortieth percentile level, home instruction shall no longer satisfy the compulsory
school attendance requirement exemption; or
(ii) 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. This
narrative shall be prepared by a certified teacher or other person
mutually agreed upon by the parent or legal guardian and the county
superintendent. It shall be submitted on or before the thirtieth
day of June of the school year covered by the portfolio. The
parent or legal guardian shall be responsible for payment of fees
charged for the narrative; or
(iii) Evidence of an alternative academic assessment of the
child's proficiency mutually agreed upon by the parent or legal
guardian and the county superintendent is submitted to the county
superintendent by the thirtieth day of June of the school year
being assessed. The parent or legal guardian shall be responsible
for payment of fees charged for the assessment.
(c) The 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
of education, exercise the option to attend any class offered by the county board of education as the person or persons providing
home instruction may deem appropriate subject to normal
registration and attendance requirements.
Exemption C. Physical or mental incapacity. -- Physical or
mental incapacity shall consist 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;
Exemption D. Residence more than two miles from school or
school bus route. -- The distance of residence from a school, or
school bus route providing free transportation, shall be reckoned
by the shortest practicable road or path, which contemplates travel
through fields by right of permission from the landholders or their
agents. It shall be the duty of the county board of education,
subject to written consent of landholders, or their agents, to
provide and maintain safe foot bridges across streams off the
public highways where such they are required for the safety and
welfare of pupils whose mode of travel from home to school or to school bus route must necessarily be other than along the public
highway in order for said road or path to be not over two miles
from home to school or to school bus providing free transportation;
Exemption E. Hazardous conditions. -- Conditions rendering
school attendance impossible or hazardous to the life, health or
safety of the child;
Exemption F. High school graduation. -- Such This exemption
shall consist of regular graduation from a standard senior high
school;
Exemption G. Granting work permits. -- 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;
Exemption H. Serious illness or death in the immediate family
of the pupil. -- 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 same to the county
superintendent of schools;
Exemption I. Destitution in the home. -- 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 such 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 such destitution is relieved through public or
private means;
Exemption J. Church ordinances; observances of regular church
ordinances. -- The county board of education may approve exemption
for religious instruction upon written request of the person having
legal or actual charge of a child or children: Provided, That such
this exemption shall be subject to the rules prescribed by the
county superintendent and approved by the county board of
education;
Exemption K. Alternative private, parochial, church or
religious school instruction. -- In lieu of the provisions of
Exemption A herein above, 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,
chapter eighteen of the code of West Virginia.
The completion of the eighth grade shall not exempt any child under sixteen eighteen years of age from the compulsory attendance
provision of this article: Provided, That there is a public high
school or other public school of advanced grades or a school bus
providing free transportation to any such of these school, the
route of which is within two miles of the child's home by the
shortest practicable route or path as hereinbefore specified under
Exemption D of this section.
§18-8-4. Duties of attendance director and assistant directors;
complaints, warrants and hearings.
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 eighteenth birthday as defined under this article and
shall take such all steps as are, in their discretion, best
calculated to correct attitudes of parents and pupils which results
in absences from school even though not clearly in violation of
law. In order to promote regular school attendance, the county
attendance director may require students to attend evening or
Saturday classes and in those cases may also require parents to
provide transportation to and from school. Credit for completion of
the class may be withheld because of student failure to attend
mandated evening or Saturday classes.
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 the child that the attendance of such the 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 summons or warrant
may be issued on the same complaint. The summons or warrant shall
be executed within ten days of its issuance.
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.
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 the 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 the child in the school in which
such the child is or should be enrolled.
The county attendance director shall devote such the 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.
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:
(a) 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;
(b) Confer with principals and teachers on the comparison of
school census and enrollment for the detection of possible
nonenrollees;
(c) Cooperate with existing state and federal agencies charged
with enforcement of child labor laws;
(d) Prepare a report for submission by the county
superintendent to the state superintendent of schools on school
attendance, at such the times and in such as much detail as may be
required; also, 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;
(e) 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
a manner as the county superintendent may direct;
(f) Participate in school teachers' conferences with parents
and students;
(g) Assist in such other ways as the county superintendent may
direct for improving school attendance;
(h) Make home visits of students who have excessive unexcused
absences, as provided above, or if requested by the chief
administrator, principal or assistant principal.
(i) The attendance director shall serve as the liaison for
homeless children and youth.
§18-8-7. Aiding or abetting violations of compulsory attendance;
penalty.
Any person who induces or attempts to induce any child or
student unlawfully to absent himself or herself from school, or who
harbors or employs any child or student of compulsory school age or
any student over sixteen eighteen years of age who is enrolled in
a school while the school to which he or she belongs and which he
or she is required to attend is in session, or who employs such any
child or student within the term of such school on any day such
school is in session without the written permission of the county
superintendent of schools, or for a longer period than such the
work permit may specify shall be guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than twenty-five nor
more than fifty dollars and may be confined in jail not less than
ten nor more than thirty days.
ARTICLE 28. PRIVATE, PAROCHIAL OR CHURCH SCHOOLS, OR SCHOOLS OF A
RELIGIOUS ORDER.
§18-28-2. Attendance; health and safety regulations.
Each private, parochial or church school or school of a religious order shall observe a minimum instructional term of one
hundred eighty days with an average of five hours of instruction
per day, and shall make and maintain annual attendance and disease
immunization records for each pupil enrolled and regularly
attending classes. Such attendance Attendance records shall be
made available to the parents or legal guardians. Upon the request
of the county superintendent of schools, any school to which this
applies (or a parents organization composed of the parents or
guardians of children enrolled in said school) shall furnish to the
county board of education a list of the names and addresses of all
children enrolled in such school between the ages of seven and
sixteen eighteen years. Attendance by a child at any school to
which this article relates and which complies with this article
shall satisfy the requirements of compulsory school attendance.
Each such school shall be subject to reasonable fire, health and
safety inspections by state, county and municipal authorities as
required by law, and shall further be required to comply with the
West Virginia school bus safety regulations.
§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 section one, article eight, 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
eighteen 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 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 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 the compulsory school attendance requirement
exemption of exemption K, section one, article eight, chapter
eighteen, until such time as the percentile standards herein set
forth are met.
NOTE: The purpose of this bill is to extend the compulsory
period of school attendance to eighteen and to authorize evening
and Saturday classes for students with inexcusable absences.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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