H. B. 2020
(By Delegate Paxton)
[Introduced February 11, 2009; referred to the
Committee on Education.]
A BILL to amend and reenact §18-8-1 of the Code of West Virginia,
1931, as amended; and to amend and reenact §18-28-3 of said
code, all relating to exempting children receiving an
exemption from compulsory school attendance in favor of church
school from the standardized testing requirement.
Be it enacted by the Legislature of West Virginia:
That §18-8-1 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §18-28-3 of said code 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 begins 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 16th 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 is subject to confirmation by the attendance
authority of the county.
(b) A child shall be is 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 is the duty of the principal or other person in control,
upon the request of the county superintendent, to furnish to the
county board such the information and records as may be required
with respect to attendance, instruction and progress of pupils
enrolled between the entrance age and 16 years.
(c) A child shall be is 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 16 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 is 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:
Provided, however, That in accordance with the United States
Supreme Court's holding in Wisconsin v. Yoder, 406 U.S. 205 (1972)
a child receiving instruction from certain church schools may be
exempted from the requirement of standardized testing by the county
superintendent: And Provided further, That in lieu of standardized
testing, the church school shall administer an established test
used within the particular religious community, substantially
equivalent to the standardized test, which is designed to test for
achievement and proficiency in the subjects of English, grammar,
reading, social studies, science and mathematics.
The publication
date of the chosen test shall may not be more than 10 years from
the date of the administration of the test. The child shall be is
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 50th percentile or, if below the 50th
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 is
considered to have made acceptable progress. This narrative shall
be prepared by a certified teacher whose certification number shall
be is 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 does 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 is 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 is 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 is 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 is 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 is 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 16 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 is 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 these absences about
which information is inadequate and report the facts to the county
superintendent.
(i) A child shall be is 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 may not be allowed when
the destitution is relieved through public or private means.
(j) A child shall be is 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 is
subject to the rules prescribed by the county superintendent and
approved by the county board.
(k) A child shall be is 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 is 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 does not exempt
any child under 16 years of age from the compulsory attendance
provision of this article.
ARTICLE 28. PRIVATE, PAROCHIAL OR CHURCH SCHOOLS, OR SCHOOLS OF A
RELIGIOUS ORDER.
§18-28-3. Standardized testing requirements.
(a) With the exception of a church school receiving an
exemption under subsection (b) , section one, article eight of this
chapter, 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 16 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 16 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 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 40th 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 40th
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 authorize an exemption
from standardized testing for children receiving an exemption from
compulsory school attendance who attend church school.
The actual
intent of the bill is to provide an exemption for Amish children,
but due to Constitutional concerns, Amish children are not
specifically singled out for the exemption, and other religious
groups could also theoretically apply for and be granted the
exemption. The draft cites the United States Supreme Court
decision of Wisconsin v. Yoder as precedent for the exemption.
This court case involved a successful Amish challenge to Wisconsin
law providing for compulsory school attendance.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.