SUPERINTENDENT INTERPRETATION
 
Interpretation's Date: April 30, 2002
by superintendent David Stewart
Section: IV. Students
 
Interpretation

April 30, 2002

Bjorn R. Larsen
HC 78, Box 34-A
Shanks, West Virginia 26761

Dear Mr. Larsen:

The West Virginia Department of Education is in receipt of correspondence from you requesting interpretations of numerous applications of school law. In the responses, I have cited several provisions of a version of West Virginia Board of Education Policy 4110, Attendance, which has been placed on public comment by the Board until May 21, 2002. Although the Policy has not been formally adopted by the Board, it is my hope that the Policy will be adopted in its entirety at the end of the public comment period.

In a letter dated August 16, 2000, you requested legal interpretations for the following issues:

1. Can a school prohibit a student from making up academic work for credit which he/she misses during the tenure of a given suspension?

Pursuant to West Virginia Board of Education Policy 4110, Attendance, section 6.1.3(b), a county is required to develop procedures and reasonable time lines requiring students with excused absences to make up school work. Unexcused absences are not addressed.

2. Can a school fail a student who misses classes more than a given number of days in a semester or a year?

According to West Virginia Board of Education Policy 4110, section 6.1.2(c) county school districts are responsible for defining excused and unexcused absences in compliance with W.Va. Code ??18-8-1 and ??18-8-2 and the attendance provisions set forth in Policy 2510, Assuring the Quality of Education: Regulations for Education Programs. As indicated in the response to question number one, above, pursuant to West Virginia Board of Education Policy 4110, Attendance, section 6.1.3(b), a county is required to develop procedures and reasonable time lines requiring students with excused absences to make up school work. Unexcused absences are not addressed. If a student is absent from school without excuse, then that absence can certainly directly impact his or her ability to earn credit for the class and be promoted or advanced.

However, as per the direction given in a Superintendent?s Interpretation dated November 20, 2001, attached, a student need not attend a class for a full 8100 minutes of instructional time in order to obtain credit for the class if the student demonstrates mastery of the instructional goals and objectives of the class.

3. Does an administrator, county superintendent, or a local board of education have the authority under any circumstances to demand a student enter a drug and/or alcohol rehabilitation clinic before being allowed to return to school?

There is no West Virginia statute or West Virginia Board of Education Policy prohibiting such a requirement. Alternative educational placements may be necessary in such a situation.

Also, West Virginia Code ? 18-8-8 states that :

If a child be suspended from school because of improper conduct or refusal of such child to comply with the requirements of the school, the school shall immediately notify the county superintendent of such suspension, and specify the time or conditions of such suspension. Further admission of the child to school may be refused until such requirements and regulations be complied with. Any such child shall be treated by the school as being unlawfully absent from the school during the time he refuses to comply with such requirements and regulations, and any person having legal or actual control of such child shall be liable to prosecution under the provisions of this article for the absence of such child from school: Provided, That the county board of education does not exclude or expel the suspended child from school. (Emphasis added)

4. Does an administrator have the authority to refuse to allow a student back in school after misconduct until accompanied by a parent and a conference held with an administrator?

Policy 2510, Assuring Quality of Education: Regulations for Educational Programs, requires each school to implement a process to maintain a safe climate conducive to learning as well as a process to ensure parents are involved in their child?s education.

Policy 4373, Student Code of Conduct (effective June 13, 1991), gives principals the authority to temporarily suspend from school any student who consistently fails to abide by or commits a serious violation of the Student Code of Conduct. Local boards of education maintain appropriate policies and procedures to implement Policy 4373 and must make reasonable provision of appropriate educational services to students who have been excluded from school.

Further, West Virginia Code ? 18-8-8 states that :

If a child be suspended from school because of improper conduct or refusal of such child to comply with the requirements of the school, the school shall immediately notify the county superintendent of such suspension, and specify the time or conditions of such suspension. Further admission of the child to school may be refused until such requirements and regulations be complied with. Any such child shall be treated by the school as being unlawfully absent from the school during the time he refuses to comply with such requirements and regulations, and any person having legal or actual control of such child shall be liable to prosecution under the provisions of this article for the absence of such child from school: Provided, That the county board of education does not exclude or expel the suspended child from school. (Emphasis added)


5. Does the answer to Question 4 change if the student has an IEP for Behavior Disorders?

No. School personnel have the authority to remove students with disabilities for as many as 10 school days during a school year using the same procedures as those for their nondisabled peers. However, after 10 consecutive days of removal or a pattern of removals, specific actions must be taken by school personnel to ensure the rights of students with disabilities are protected. Policy 2419, Regulations for the Education of Exceptional Students, specifies how discipline procedures must be implemented when students with disabilities violate the Student Code of Conduct or the Safe Schools Act (West Virginia Code ??18A-5-1 and 18A-5-1a).

6. Can a school refuse to readmit a student (who has previously dropped out) on the day he/she wants to return if the student meets all eligibility requirements?

If the principal feels that it might interfere with the instruction of the student returning to school in the middle of the semester or at the end of the semester, the principal can recommend that the student be readmitted to school at the beginning of a semester. West Virginia Code ?18-5-15(b) states, ?The public schools shall be open for the full instructional term to all persons who have attained the entrance age as stated in section five [?18- 2-5], ....?

7. Can a school refuse to admit a student who is otherwise qualified because he has already passed a GED test and either possesses or will receive his Graduate Equivalency Diploma?
No, see the Superintendent Interpretation dated March 29, 1979 and West Virginia Code ?18-5-15, last paragraph. The Superintendent Interpretation mentioned is attached for your information.

In a letter dated August 17, 2000, you requested answers to the following questions:

1. Can an administrator put a student into in-school-suspension for an indefinite period of time beyond 10 consecutive days?

Alternative educational settings are appropriate for disruptive students. However, a child cannot be denied the constitutional right to a free appropriate public education. Content standards and objectives must be taught whether the child is in a classroom or in an in-school-suspension setting.

2. Can an administrator put a special education student with an IEP for behavior disorders into in-school-suspension for more than 10 consecutive days for those behaviors that were part of his/her handicapping condition?

West Virginia Code ? 18A-5-1a states that:

(h) Notwithstanding the preceding provisions of this section, if a pupil has been classified as a student with a disability, prior to performing the actions giving rise to this section, special consideration shall be given to such pupil as hereinafter provided: (1) Regardless of whether or not the misconduct is the proximate result of the disability of a student, a student with a disability may be suspended immediately for up to ten consecutive days for each occurrence of misconduct or when it is necessary for the protection of the student, the protection of school personnel, or the protection of other students; (2) If the misconduct is found to be the proximate result of the disability of the student, then, subject to the provisions of subsection (3) of this section, the student may not be suspended or expelled for more than ten consecutive days for each occurrence of misconduct or for each occurrence when it is necessary for the protection of the student, the protection of school personnel, or the protection of other students . . . (Emphasis added)

3. Can an administrator put a special education student with an IEP for behavior disorder into in-school-suspension for more than an accumulation of 10 days for those behaviors that were part of his/her handicapping condition without triggering a new IEP?

School personnel should follow the procedures outlined in West Virginia Board of Education Policy 2419, Regulations for the Education of Exceptional Students, particularly focusing on section 7.1.1(c) and (d), in making these determinations. The answer to this question will vary depending on whether the IEP is being fully implemented in accordance with the requirements of Policy 2419.

Finally, in a letter dated July 2, 1998, you asked:

Would you please send me a complete copy of the Safe Schools Act and copies of the Circuit Court Decision [sic] in Greenbrier and Dodderage [sic] Counties where an expelled student was determined to be still entitled to an alternative education at county expense.

A copy of the statutes comprising the Safe Schools Act is enclosed. As to your request for circuit court decisions, please be advised that this agency does not maintain copies of decisions rendered by West Virginia circuit judges. Please contact the Circuit Clerks of Greenbrier and Doddridge Counties for copies of these decisions.

Hoping that I have been of service, I am,


Sincerely,

/s/

David Stewart,
State Superintendent of Schools