COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 343
(By Senators White, Kessler, Foster and Wells)
____________
[Originating in the Committee on Education;
reported February 10, 2010.]
____________
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.
(a) 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 that school 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 the
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 that person.
(b) Attendance at a state-approved or Montessori kindergarten,
as provided in section eighteen, article five of this chapter,
shall be
deemed considered 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 the 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 the 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 the county board for any child who has
demonstrated sufficient mental and physical competency for
such the
advanced entrance or placement. Nothing herein shall prevent a
student from another state from enrolling in a public school in
West Virginia in
such the same grade as the student was enrolled
in
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 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 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 the child, stating
the 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.
(e) 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.
(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.