Senate Bill No. 485

(By Senators Deem and Whitlow)


[Introduced February 19, 1996; referred to the Committee on Education; and then to the Committee on the Judiciary .]

A BILL to amend and reenact section one, article five, chapter eighteen-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section seventeen, article five, chapter forty-nine of said code, all relating to authority of teachers and other school personnel; exclusion of pupils having infectious diseases; suspension or expulsion of disorderly pupils; abolishing corporal punishment; providing records of pupil discipline to principal at school to which pupil transfers; expungement of juvenile records; and release of information of juvenile criminal conviction to school principal.

Be it enacted by the Legislature of West Virginia:
That section one, article five, chapter eighteen-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that section seventeen, article five, chapter forty-nine of said code be amended and reenacted, all to read as follows:


§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 in the place of the parent(s), guardian(s) or custodian(s) in exercising authority over the school, and shall have 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 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 pupil he or she 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 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 parent(s), guardian(s) or custodian(s): Provided, That upon transfer of the pupil to another school, the written record of the disciplinary action shall be provided to the principal of the school to which the pupil transfers. 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 parent(s), guardian(s) or custodian(s) 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 parent(s), guardian(s) or custodian(s) 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) Corporal punishment of any pupil by a school employee is prohibited.
(e) The West Virginia board of education and county boards of education shall adopt policies consistent with the provisions of this section encouraging the use of alternatives to corporal punishment, providing for the training of school personnel in alternatives to corporal punishment and for the involvement of parent(s), guardian(s) or custodian(s) 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 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.
(f) For the purpose of this section: (1) "Pupil or student" shall include 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; (2) "teacher" shall mean means all professional educators as defined in section one, article one of this chapter and shall include the driver of a school bus or other mode of transportation.
(g) 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.


§49-5-17. Expungement of records; exceptions; no discrimination.

(a) One year after the child's eighteenth birthday, or one year after personal or juvenile jurisdiction shall have has terminated, whichever is later, the records of a juvenile proceeding conducted under this chapter, including law- enforcement files and records, fingerprints, physical evidence and all other records pertaining to said the proceeding shall be expunged by operation of law. When records are expunged, they shall be returned to the court in which the case was pending and kept in a separate confidential file and not opened except upon order of the court.
(b) Expungement shall be accomplished by physically marking the records to show that such the records have been expunged and by the secure sealing and filing of said the records in such a manner that no one can determine the identity of said the juvenile except as provided in subsection (d) of this section. Expungement shall have has the legal effect as if the offense never occurred.
(c) The child's juvenile's counsel, parent, guardian or custodian, the court, law-enforcement agencies and other public and private agencies, in response to a request for record information, shall reply that juvenile records are not public records and are available only by order of the circuit court in which the case was pending.
(d) Notwithstanding this or any other provision of this code to the contrary, after the effective date of the reenactment of this section juvenile records and law-enforcement records shall may not be disclosed or made available for inspection except as follows:
(1) If a juvenile case is transferred to the criminal jurisdiction of the court, and upon the happening of any of the following:
(A) The failure of the juvenile transferred to timely file an appeal of the order of transfer; or
(B) The refusal of the supreme court of appeals to hear the petition of the juvenile appealing the order of transfer; or
(C) The affirming of the order of transfer by the supreme court of appeals, then all records of the case generated thereafter shall be open to public inspection, under all of the same structures and guidelines and requirements of law as exist regarding records for the prosecution of adults.
(2) The court may also, by written order pursuant to a written petition, permit disclosure when:
(A) A court having juvenile jurisdiction has the child juvenile before it in a juvenile proceeding;
(B) A court exercising criminal jurisdiction over the child juvenile requests such the records for the purpose of a presentence report or other dispositional proceeding;
(C) The child juvenile or counsel for the child juvenile requests disclosure or inspection of such the records;
(D) The officials of public institutions to which a child the juvenile is committed require such the records for transfer, parole or discharge considerations; or
(E) A person doing research requests disclosure, on the condition that information which would identify the child juvenile or family involved in the proceeding shall may not be divulged; or
(F) The principal of the school in which the juvenile is enrolled requests, if the juvenile has committed and been convicted of a criminal offense.
(e) No individual, firm, corporation or other entity shall may, on account of a person's prior involvement in a proceeding under this article, discriminate against any person in access to, terms of, or conditions of employment, housing, education, credit, contractual rights or otherwise.
(f) No records of a child juvenile convicted under the criminal jurisdiction of the court pursuant to subdivision (1), subsection (d), section ten of this article shall may be expunged.
(g) Any person who willfully violates this section shall be is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one thousand dollars, or confined in jail not more than six months, or both such fine and imprisonment fined and confined, and shall be is liable for damages in the amount of three hundred dollars or actual damages, whichever is greater.

NOTE: The purpose of this bill is to allow disclosure of criminal prosecution and school disruption to the principal of the school to which a juvenile transfers.

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