H. B. 2302
(By Delegates Fragale, Compton, Dempsey, Beach,
Anderson, G. Martin and Hubbard)
[Introduced January 31, 1995; referred to the
Committee on Education then the Judiciary.]
A BILL to amend article five, chapter eighteen of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
forty-two; to amend and reenact section five, article five-a
of said chapter; to further amend said article by adding
thereto a new section, designated section seven; and to
amend and reenact sections one and one-a, article five,
chapter eighteen-a of said code; to further amend article
five of said chapter by adding thereto a new section,
designated section one-b, all relating to authority of
school employees to discipline pupils; admission of students
to schools who are expelled from other schools; county disciplinary policy committee; faculty senate adoption of
school discipline plans; the creation of school disciplinary
teams; and criminal penalties for threatening to kill or
injure school employees.
Be it enacted by the Legislature of West Virginia:
That article five, chapter eighteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section
forty-two; that section five, article five-a of said chapter be
amended and reenacted; that said article be further amended by
adding thereto a new section, designated section seven; and that
sections one and one-a, article five, chapter eighteen-a of said
code be amended and reenacted; and that article five of said
chapter be amended by adding thereto a new section, designated
section one-b, all to read as follows:
CHAPTER 18. EDUCATION.
ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-42. Disciplinary policy review committee.
(a) No later than the first day of January, one thousand
nine hundred ninety-six, each county board of education shall
establish a disciplinary policy review committee composed of thirteen members as follows:
(1) Three classroom teachers to be elected at large by the
classroom teachers with one teacher each representing elementary,
middle or junior high and high schools;
(2) One special education teacher elected by the special
education teachers;
(3) One guidance counselor elected by the guidance
counselors;
(4) One bus operator elected by the bus operators;
(5) Three principals to be elected at large by the
principals with one each representing the elementary, middle or
junior high and high schools;
(6) The superintendent or his or her designee; and
(7) Three parents or legal guardians elected by parental
members of the local school improvement councils as provided in
subdivision (4), subsection (a), section two, article five-a,
chapter eighteen of this code.
(b) The discipline policy review committee shall review all
school board discipline policies and make recommendations to the
board of education for appropriate revisions of such policies.
(c) Each school board shall review its discipline policies
prior to the end of the one thousand nine hundred ninety-five--
ninety-six school year and may review such policies annually
thereafter. Following a public hearing on the recommendations of
the discipline policy review committee, each school board shall
revise its discipline policies to delineate the specific
consistent actions to be taken by teachers and other designated
school employees to maintain order in the schools and on the
school grounds. In addition, such policies shall contain
specific consistent penalties which shall be imposed when pupils
violate school discipline policies or state laws on school
discipline. Copies of school board discipline policies shall be
distributed to each school within its jurisdiction prior to the
beginning of the one thousand nine hundred
ninety-five--ninety-six school session. Each pupil and his or
her parent, tutor or legal guardian shall be provided a copy of
the discipline policy. In addition, each school shall plan
meetings to fully inform all employees and pupils of all such
policies within the first week of school for the one thousand
nine hundred ninety-five--ninety-six school session. A meeting shall be held every year to inform new employees and new pupils
of such policy.
ARTICLE 5A. LOCAL SCHOOL INVOLVEMENT.
§18-5A-5. Public school faculty senates established; election
of officers; powers and duties.
(a) There is established at every public school in this
state a faculty senate which shall be comprised of all permanent,
full-time professional educators employed at the school who shall
all be voting members. Professional educators as used in this
section means professional educators as defined in chapter
eighteen-a of this code. A quorum of more than one half of the
voting members of the faculty shall be present at any meeting of
the faculty senate at which official business is conducted.
Prior to the beginning of the instructional term each year, but
within the employment term, the principal shall convene a meeting
of the faculty senate to elect a chair, vice chair and secretary
and discuss matters relevant to the beginning of the school year.
The vice chair shall preside at meetings when the chair is
absent. Meetings of the faculty senate shall be held on a
regular basis as determined by a schedule approved by the faculty
senate and amended from time to time if needed. Emergency meetings may be held at the call of the chair or a majority of
the voting members by petition submitted to the chair and vice
chair. An agenda of matters to be considered at a scheduled
meeting of the faculty senate shall be available to the members
at least two employment days prior to the meeting, and in the
case of emergency meetings, as soon as possible prior to the
meeting. The chair of the faculty senate may appoint such
committees as may be desirable to study and submit
recommendations to the full faculty senate, but the acts of the
faculty senate shall be voted upon by the full body.
(b) In addition to any other powers and duties conferred by
law, or authorized by policies adopted by the state or county
board of education or bylaws which may be adopted by the faculty
senate not inconsistent with law, the powers and duties listed in
this subsection are specifically reserved for the faculty senate.
The intent of these provisions is neither to restrict nor to
require the activities of every faculty senate to the enumerated
items except as otherwise stated. Each faculty senate shall
organize its activities as it deems most effective and efficient
based on school size, departmental structure and other relevant factors.
(1) Each faculty senate shall control funds allocated to the
school from legislative appropriations pursuant to section nine,
article nine-a of this chapter. From such funds, each classroom
teacher and librarian shall be allotted fifty dollars for
expenditure during the instructional year for academic materials,
supplies or equipment which in the judgment of the teacher or
librarian will assist him or her in providing instruction in his
or her assigned academic subjects, or shall be returned to the
faculty senate:
Provided, That nothing contained herein shall
prohibit such funds from being used for programs and materials
that, in the opinion of the teacher, enhance student behavior,
increase academic achievement, improve self-esteem and address
the problems of students at-risk. The remainder of funds shall
be expended for academic materials, supplies or equipment in
accordance with a budget approved by the faculty senate.
Notwithstanding any other provisions of the law to the contrary,
funds not expended in one school year shall be available for
expenditure in the next school year:
Provided, however, That the
amount of county funds budgeted in a fiscal year, shall not be reduced throughout the year as a result of the faculty
appropriations in the same fiscal year for such materials,
supplies and equipment. Accounts shall be maintained of the
allocations and expenditures of such funds for the purpose of
financial audit. Academic materials, supplies or equipment shall
be interpreted broadly, but shall not include materials, supplies
or equipment which will be used in or connected with
interscholastic athletic events.
(2) A faculty senate may establish a process for faculty
members to interview new prospective professional educators and
paraprofessional employees at the school and submit
recommendations regarding employment to the principal, who may
also make independent recommendations, for submission to the
county superintendent:
Provided, That such process must permit
the timely employment of persons to perform necessary duties.
(3) A faculty senate may nominate teachers for recognition
as outstanding teachers under state and local teacher recognition
programs and other personnel at the school, including parents,
for recognition under other appropriate recognition programs and
may establish such programs for operation at the school.
(4) A faculty senate may submit recommendations to the
principal regarding the assignment scheduling of secretaries,
clerks, aides and paraprofessionals at the school.
(5) A faculty senate may submit recommendations to the
principal regarding establishment of the master curriculum
schedule for the next ensuing school year.
(6) A faculty senate may establish a process for the review
and comment on sabbatical leave requests submitted by employees
at the school pursuant to section eleven, article two of this
chapter.
(7) Each faculty senate shall elect three faculty
representatives to the local school improvement council
established pursuant to section two of this article.
(8) Each faculty senate may nominate a member for election
to the county staff development council pursuant to section
eight, article three, chapter eighteen-a of this code.
(9) Each faculty senate shall have an opportunity to make
recommendations on the selection of faculty to serve as mentors
for beginning teachers under beginning teacher internship
programs at the school.
(10) A faculty senate may solicit, accept and expend any
grants, gifts, bequests, donations and any other funds made
available to the faculty senate:
Provided, That the faculty
senate shall select a member who shall have the duty of
maintaining a record of all funds received and expended by the
faculty senate, which record shall be kept in the school office
and shall be subject to normal auditing procedures.
(11) On or after the first day of January, one thousand nine
hundred ninety-two, any faculty senate may review the evaluation
procedure as conducted in their school to ascertain whether such
evaluations were conducted in accordance with the written system
required pursuant to section twelve, article two, chapter
eighteen-a of this code and the general intent of this
Legislature regarding meaningful performance evaluations of
school personnel. If a majority of members of the faculty senate
determine that such evaluations were not so conducted, they shall
submit a report in writing to the state board of education:
Provided, That nothing herein shall create any new right of
access to or review of any individual's evaluations.
(12) Each faculty senate shall be provided by its local board of education at least a two-hour per month block of
noninstructional time within the school day:
Provided, That any
such designated day shall constitute a full instructional day.
This time may be utilized and determined at the local school
level and shall include, but not be limited to, faculty senate
meetings.
(13) Each faculty senate shall develop a strategic plan to
manage the integration of special needs students into the regular
classroom at their respective schools and submit said strategic
plan to the superintendent of the county board of education by
the first day of March, one thousand nine hundred ninety-five,
and periodically thereafter pursuant to guidelines developed by
the state department of education. Each faculty senate shall
encourage the participation of local school improvement councils,
parents and the community at large in the development of the
strategic plan for each school.
Each strategic plan developed by the faculty senate shall
include at least: (A) A mission statement; (B) goals; (C) needs;
(D) objectives and activities to implement plans relating to each
goal; (E) work in progress to implement the strategic plan; (F) guidelines for the placement of additional staff into integrated
classrooms to meet the needs of exceptional needs students
without diminishing the services rendered to the other students
in integrated classrooms; (G) guidelines for implementation of
collaborative planning and instruction; and (H) training for all
regular classroom teachers who serve students with exceptional
needs in integrated classrooms.
(14) After receiving the report of the disciplinary review
team established pursuant to section seven of this article, each
faculty senate shall adopt by majority vote a school disciplinary
policy which shall be consistent with county and state
disciplinary policies as well as state and federal law. Each
year thereafter the faculty senate shall review the
recommendations of the disciplinary policy review team. The
faculty senate may make amendment to the disciplinary policy upon
a majority vote. Any proposed amendment to the disciplinary
policy must be presented at one meeting and cannot be voted upon
until at least the next meeting. For purposes of this section a
majority shall "mean" one more than half of the members present
at the meeting.
§18-5A-7. Disciplinary policy review team.
(a) There shall be established in every school no later than
the first day of January, one thousand nine hundred ninety-six,
a disciplinary policy review team consisting of the following:
(1) The principal, who shall serve as an ex officio member
of the team and be entitled to vote;
(2) Three teachers elected by the faculty senate of the
school;
(3) One service personnel elected by the school service
personnel employed at the school;
(4) One parent or legal guardian of a student enrolled at
the school elected by the parental and at-large members of the
local school improvement council for that school.
(b) The disciplinary policy review team shall review the
school discipline policy, explore traditional and innovative
methods for encouraging positive pupil behavior and make
recommendations to the school faculty senate for appropriate
revisions of the policy and to ensure that policy complies with
the policies of the county and state boards of education and
state law.
(c) The disciplinary policy review team shall report its
recommendation to the faculty senate at least once annually and
at such other times that the team finds it necessary or
beneficial to make further recommendations. The first such
report shall be made no later than the first day of December, one
thousand nine hundred ninety-six.
CHAPTER 18A. SCHOOL PERSONNEL.
ARTICLE 5. AUTHORITY; RIGHTS; RESPONSIBILITY.
§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 or
guardian 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.
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 exclusion. Any pupil so excluded shall not
be readmitted to the school until such pupil 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.
The teacher shall have authority
to suspend any pupil guilty of disorderly, refractory, indecent
or immoral conduct, and the district board of education may expel
or exclude any such pupil if, on investigation, the conduct of
such pupil is found to be detrimental to the progress and the
general conduct of the school.
(b) (1) Each teacher may take disciplinary action to correct
a pupil who disrupts normal classroom activities, who is
disrespectful to a teacher, who willfully disobeys a teacher, who
uses abusive or foul language directed at a teacher or another
pupil, who violates school rules, or who interferes with an
orderly education process. Disciplinary action may include, but is not limited to:
(A) Oral or written reprimands;
(B) Referral for a counseling session which may include, but
shall not be limited to, conflict resolution, social
responsibility, family responsibility, peer mediation and stress
management;
(C) Written notification to parents, custodian or other
legal guardian of disruptive or unacceptable behavior;
(D) Other disciplinary measures approved by the principal
and/or school faculty senate and in compliance with school board
policy.
(2) When a pupil's behavior prevents the orderly instruction
of other pupils, or poses a threat to the safety or physical
well-being of any pupil or school employee, or when a pupil uses
foul or abusive language directed at a school employee or
threatening a school employee, the teacher may have the pupil
immediately removed from the classroom and placed in the custody
of the principal or the principal's designee. When a pupil's
behavior on a school bus poses a risk to the safety of other
students by hampering the safe operation of the vehicle or poses a threat to the safety or physical well-being of any pupil or
school employee, or when a pupil exhibits disrespectful behavior
as described herein, the bus operator may remove the student from
the bus at the school or the pupil's bus stop and place the
student in the custody of the principal or the principal's
designee.
(3) Upon the pupil being placed in the custody of the
principal pursuant to the provisions of this subsection, the
principal or his or her designee shall advise the pupil of the
particular misconduct of which he or she is accused as well as
the basis for such accusation, and the pupil shall be given an
opportunity at that time to explain his or her version of the
facts. Upon concluding that the pupil committed the misconduct,
the principal or his or her designee then shall conduct a
counseling session with the pupil as may be appropriate to
establish a course of action, consistent with school board policy
to identify and correct the behavior for which the pupil is being
disciplined.
(4) When a pupil is removed from a classroom or school bus
pursuant to this subsection, the pupil shall not be readmitted to the classroom or school bus until the principal has implemented
one or more of the following disciplinary measures:
(A) In-school suspension;
(B) Detention;
(C) Suspension;
(D) Initiation of expulsion hearings;
(E) Assignment to an alternative school;
(F) Any other disciplinary measure authorized by the
principal with the concurrence of the teacher or bus operator or
the building level committee pursuant to law and board policy.
The principal shall notify the teacher or bus operator of the
disciplinary measure taken within forty-eight hours of the
placement of the student in his or her custody pursuant to this
subsection.
(5) When a pupil is removed from a classroom or school bus
pursuant to this subsection, the teacher or bus operator may
require that the parent, custodian or other legal guardian of the
pupil attend a conference with the teacher or bus operator in the
presence of the principal or his or her designee before the pupil
is readmitted to the classroom.
(6) Upon the third removal from the same classroom or school
bus pursuant to this subsection, the teacher or bus operator and
the principal shall discuss the disruptive behavior patterns of
the pupil and the potentially appropriate disciplinary measure
before the principal implements a disciplinary measure. If
appropriate, a referral of the matter may be made to an
appropriate building level committee. In addition, a conference
between the principal, the teacher, the bus operator or other
appropriate school employee and the pupil's parent, custodian or
other legal guardian shall be required prior to the pupil being
readmitted to the classroom or school bus.
Thereafter, if disruptive behavior persists upon the
teacher's request, the principal shall transfer the pupil into
another setting.
(7) Notwithstanding any other provisions of the law to the
contrary, if a pupil intentionally strikes a school employee; or
threatens to cause bodily harm to a school employee thereby
placing the school employee in fear of his or her personal
safety; or is found to be in possession of a firearm or any other
deadly weapon on any school bus as defined in section one, article one, chapter seventeen-a of this code, or in any public
primary, or secondary education building, structure, facility or
grounds thereof, including any vocational education building,
structure, facility or grounds thereof where secondary vocational
programs are conducted unless authorized to be in possession of
said firearm or deadly weapon pursuant to the conditions set
forth in subdivision (2), subsection (b), section eleven-a,
article seven, chapter sixty-one of this code, the pupil shall be
referred to the principal of the school where the pupil is
assigned. The principal shall notify the superintendent of
schools and both the principal and the superintendent shall take
action to expel the pupil pursuant to the provisions of section
one-a of this article. If the pupil is found to have committed
one or more of the acts set out in this paragraph the pupil shall
be expelled from school for a period of not less than the
remainder of that school year nor more than one full school year:
Provided, That in the case of possession of a firearm or deadly
weapon the pupil shall be expelled from school for a full school
year.
(8) Corporal punishment of any pupil by a school employee is prohibited.
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
parents and guardians in the maintenance of school discipline.
(9) For the purpose of this section:
(1) (A) "Pupil" 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) (B) "Teacher" shall mean 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.
(C) "School employee" shall mean a person employed by a county board of education whether employed on a regular full-time
basis, an hourly basis or otherwise if, at the time of the
commission of any act provided in this section, such person is
engaged in the performance of his or her duties or is commuting
to or from his or her place of employment. For the purpose of
this section a "school employee" shall include a student teacher.
(D) "In-school suspension" shall mean removing a pupil from
his or her normal classroom setting but maintaining him or her
under supervision within the school. Pupils participating in
in-school suspension may receive credit for work performed during
the in-school suspension. However, any pupil who fails to comply
fully with the rules for in-school suspension shall be subject to
immediate suspension.
(E) "Detention" means activities, assignments or work held
before the normal school day, after the normal school day, during
recesses or breaks in the normal school day or on weekends.
Assignments, activities or work which may be assigned during
detention include, but are not limited to, counseling, homework
assignments, behavior modification programs or other activities
aimed at improving the behavior of the pupil. Unexcused failure or refusal by a pupil to participate in assigned detention shall
subject the pupil to immediate suspension.
(10) 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.
§18A-5-1a. Principal authority and grounds for suspension of
pupils; temporary suspension, hearing; procedure,
notice and formal hearing; extended suspension;
expulsion; exception.
(a)
Any pupil who threatens to cause, attempts to cause, or
causes a bodily injury to a school employee may be suspended or
expelled from school in accordance with the provisions of this
section. Any school principal may suspend from school or suspend
from transportation on any school bus any pupil who:
(1) Threatens to cause, attempts to cause or causes a bodily
injury to a school employee;
(2) Is guilty of willful disobedience;
(3) Knowingly and intentionally makes an unfounded charge
against a school employee;
(4) Uses foul or profane language;
(5) Is guilty of immoral or vicious practices, or of conduct
or habits injurious to the pupil or others;
(6) Possesses or uses tobacco or alcoholic beverages or
unlawfully possesses a controlled substance governed by chapter
sixty-a of this code, in school buildings, on school grounds or
on school buses;
(7) Habitually disrupts the school and habitually violates
any rule;
(8) Intentionally defaces or injures any part of public
school buildings or any school buses;
(9) Writes any profane or obscene language or draws obscene
pictures in or on any school material or on any public school
premises, or on any fence, pole, sidewalk or building on the way
to or from school, or any school bus;
(10) Is found to be carrying or in possession of any firearm
or other deadly weapon unless authorized to be in possession of
said firearm or deadly weapon pursuant to the conditions set out in subdivision (2), subsection (b), section eleven-a, article
seven, chapter sixty-one of this code;
(11) Throws any object liable to cause injury to other
persons or property while in a school building or on any school
bus;
(12) Instigates or participates in fights while under the
authority and supervision of school personnel; and
(13) Commits any other serious offense.
(b) The actions of any pupil which may be grounds for his
or
her suspension or expulsion under the provisions of this section
or section one of this article shall be reported immediately to
the principal of the school in which such pupil is enrolled. If
the principal determines that the alleged actions of the pupil
would be grounds for suspension
and intends to impose a
suspension, he
or she shall conduct an informal hearing for the
pupil as soon as practicable after the alleged actions have
occurred. The hearing shall be held before the pupil is
suspended unless the principal believes that the continued presence of the pupil in the school poses a
continuing danger to
persons or property or an ongoing threat of disrupting the
academic process
or the student is alleged to have committed an
act provided for in subdivision (7), subsection (b), section one
of this article, in which case the pupil may be suspended
immediately and a hearing held as soon as practicable after the
suspension.
The pupil and his
or her parent or parents or custodial
guardian, as the case may be, shall be given written notice by
certified mail, return receipt requested, of this informal
hearing, which notice shall briefly state the grounds for
suspension.
At the commencement of the informal hearing, the principal
shall inquire of the pupil as to whether he
or she admits or
denies the charges. If the pupil does not admit the charges, he
or she shall be given an explanation of the evidence possessed by
the principal and an opportunity to present his
or her version of
the occurrence. At the conclusion of the hearing or upon the failure of the noticed persons to appear, the principal may
suspend the pupil for a maximum of ten school days, including the
time prior to such hearing, if any, for which the pupil has been
excluded from school. If the principal believes a longer
suspension or expulsion of the pupil is warranted in addition to
a ten-day suspension, he
or she shall so advise the parents and
pupil, if present, and recommend such action to the
superintendent of schools of the county in which the school where
the pupil is enrolled is located.
(c) Any suspension shall be reported by the principal the
same day it has been decided upon, in writing, to the county
superintendent of schools of the county in which the school where
the pupil is enrolled is located.
(d) If the principal recommends and the superintendent
agrees that the suspension should be extended for beyond ten
school days or that the pupil should be expelled from school, the
superintendent shall immediately notify the county board of
education of this recommendation. Upon receipt of such recommendation, the county board of education shall cause a
written notice, which states the charges and the recommended
disposition, to be served upon the pupil and his
or her parent or
parents or custodial guardian, as the case may be, advising such
persons that unless a timely request is made for hearing, the
recommended disposition shall become final. Such notice shall
set forth a date and time at which such hearing, if requested,
shall be held, which date shall be within the ten-day period of
suspension imposed by the principal. The notice shall further
advise the persons to be noticed thereby that a request for
hearing will not be granted unless received by the board more
than twenty-four hours before the time proposed for hearing in
the notice.
Upon timely receipt of a hearing request, the board of
education shall hold the scheduled hearing to determine if the
pupil should be reinstated or should have his
or her suspension
extended or should be expelled from school. At this hearing, the
pupil may be represented by counsel, may call his
or her own witnesses to verify his
or her version of the incident and may
confront and cross-examine witnesses supporting the charge
against him
or her. The hearing may be postponed for good cause
shown by the pupil but he
or she shall remain under suspension
until after the hearing. The state board of education may adopt
other supplementary rules of procedure to be followed in these
hearings. At the conclusion of the hearing the county board of
education either shall order the pupil reinstated immediately or
at the end of his
or her initial suspension or shall suspend the
pupil for a further designated number of days or shall expel the
pupil from the public schools of such county for a period of time
not to exceed one school year.
(e) When a pupil is suspended for a second time within a
single school year, the principal may require that a conference
be held with the parent or parents or custodial guardians, as the
case may be, the pupil, the principal and a school counselor or
the pupil's teacher.
(e) (f) Notwithstanding the preceding provisions of this section, if a pupil has prior to the actions complained of being
classified as or is eligible to be classified as an exceptional
child, other than gifted, under the provisions of section one,
article twenty, chapter eighteen of this code, special
consideration shall be given to such pupil as hereinafter
provided.
In any hearing held pursuant to this section, a pupil, his
or her parent or custodial guardian may show an explanation of
the actions complained of that such actions were the proximate
result of a condition which has qualified or would qualify the
pupil for a special educational program other than gifted. If
the principal or board finds that such actions were the proximate
result of such a condition, the pupil shall not be suspended or
expelled pursuant to this section but the pupil shall be
forthwith referred to the appropriate personnel within the county
school system for development of an individual learning program:
Provided, That such pupil may be temporarily removed from school
according to procedures employed by the school system for special education pupils if, in the opinion of the principal, such
removal is necessary for his or her own protection or the
protection of other pupils, teachers, school personnel or school
property during all or some part of the time required to prepare
such individual learning program.
(f) (g) In all hearings under this section, facts shall be
found by a preponderance of the evidence.
(g) (h) For the purpose of this section, "school employee"
means a person employed by a county board of education whether
employed on a regular full-time basis, an hourly basis or
otherwise if, at the time of the commission of an act which would
be grounds for suspension or expulsion under this section, such
person is engaged in the performance of his
or her duties or is
commuting to or from his
or her place of employment. For the
purposes of this section, a "school employee" shall be deemed to
include a student teacher.
(h) (i) The remedies provided for in this section are
cumulative.
§18A-5-1b. Admission of expelled pupils; authority to exclude
from attendance under other circumstances.
(a) A pupil, who has been expelled from attendance at school
by a board of education or private school in West Virginia or in
another state, for an offense in violation of school board
policies or state law related to: (1) The destruction of school
property or properly-owned property while located on school
property; (2) weapons; (3) alcohol or drugs; (4) the willful
infliction of injury to another person; or (5) any act set out in
subdivision (7), subsection (b), section one of this article, may
be excluded from attendance by a county board of education in
West Virginia for the remainder of the length of the original
expulsion but in no case for more than one school year upon a
finding that the pupil presents a danger to the other pupils or
school employees at the school after a review of the case has
been conducted by the superintendent of schools who recommends
exclusion and written notice has been provided to the pupil and
his or her parent or other legal guardian that the student may be
subject to exclusion, the reasons therefor, and in the event of such exclusion, of the right to appeal the decision at a hearing
before the county board of education.
Within ten days of receipt of the notice of exclusion the
pupil or parents or other legal guardian may make a written
request for a hearing before the county board of education to
appeal the superintendent's decision. Upon timely receipt of a
hearing request, the board of education shall hold a scheduled
hearing to determine if the pupil presents a danger to the other
pupils or school employees at the school and should therefor be
excluded. At this hearing, the pupil may be represented by
counsel, may call witnesses and may confront and cross-examine
witnesses. The hearing may be postponed for good cause shown by
the pupil but he or she shall remain excluded from school until
the hearing is concluded. The state board of education may adopt
other supplementary rules of procedure to be followed in such
hearings. At the conclusion of the hearing the county board of
education either shall order the student be admitted to school or
uphold the decision of the superintendent of schools to exclude the student for the remainder of the length of his or her
expulsion not to exceed one school year.
For purposes of this section "one school year" means the
instructional term adopted by the county board of education
pursuant to section fifteen, article five, chapter eighteen of
this code but in no case shall it exceed one hundred eighty-five
instructional days.
(b) Prior to the admission of a pupil to any public school in
West Virginia a board of education shall require the parent or
other legal guardian of the pupil to provide, upon registration,
a sworn statement or affirmation indicating whether the student
is at that time under expulsion from attendance at a private
school or a public school in West Virginia or another state for
any offense set forth in subsection (a) of this section. Any
person willfully making a materially false statement or
affirmation is guilty of a misdemeanor, and, upon conviction
thereof, the penalty shall be the same as provided for "false
swearing" pursuant to section three, article five, chapter sixty-one of this code.
NOTE: The purpose of this bill is to clarify and establish
authority of school employees related to discipline of pupils in
West Virginia public schools; to provide for suspension and/or
expulsion of students for specific acts which tend to pose
threats to the health and safety of pupils or school employees;
to provide for the exclusion of students from public schools who
are expelled from other schools; to provide for county and school
disciplinary committees so that each county board of education
and school has a specific plan for a disciplinary plan; and to
provide for safety of pupils and school employees within the
schools all of which is intended to create a positive safe school
environment where learning can occur free of violence and serious
disruptions.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that
would be added.
§§18-5-7 and 18A-5-1b are new; therefore, strike-throughs and
underscoring have been omitted.