December 1, 2004
Jane Reynolds, Superintendent
Taylor County Schools
1 Prospect Street
Grafton, West Virginia 26354-1230
Tom Long, Superintendent
Pleasants County Schools
202 Fairview Drive
St. Marys, West Virginia 26170-1216
James Phares, Superintendent
Marion County Schools
200 Gaston Avenue
Fairmont, West Virginia 26554-2778
This is to acknowledge the receipt of letters from you or on behalf of your county
requesting interpretations of school laws as they relate to student transfers. Since the issues in your requests overlap, they will all be addressed in this one interpretation.
Although I can find no school law defining the time limit imposed upon county boards
of education following receipt of intercounty transfer requests, instructive guidance may be found in West Virginia Code ?46-1-204(2) which states that ?What is a reasonable time for taking any action depends upon the nature, purpose and circumstances of such action.? In reviewing the nature, purpose and circumstances involved in intercounty transfer requests, we are dealing with a student?s request for permission to attend school outside his or her local school district. Traditionally these requests are made at the end of one school year or beginning of the next so that students may transition into new schools at the time instruction begins in the new school. In order to effectuate what is in the best interests of these students, timely decisions must be rendered at each stage of the process.
West Virginia Code ?18-5-13(a) permits the county boards of education ?To control and manage all of the schools and school interests for all school activities and upon all school property . . .? which is interpreted to include the authority to grant transfer requests to and from the county. Additionally, this authority is specifically set forth at West Virginia Code ? 18-5-16(b)(1), which provides, that:
[t]ransfers of students from one county to another may be made by the
county board of the county in which the student desiring to be transferred
resides. The transfer shall be subject to the approval of both the board
of the county in which the student resides and the board to which the
student wishes to be transferred.
The State Board, pursuant to Code ?18-5-16, has establish a process whereby a parent or guardian of a student may appeal the refusal of a county board to enter into an agreement to transfer or accept the transfer of the student. West Virginia Board of Education Policy 7212, ?3.1. which discusses the appeal process, further provides that aggrieved students must file an appeal with the State Superintendent thirty days from the date of the county board?s denial in which to file the appeal. It also grants the State Superintendent thirty days in which to render a decision on the appeal. In considering the nature, purpose and circumstances involved, thirty days also appears to be a reasonable amount of time, from the county board?s receipt of a transfer request of a student, in which to render a decision on the same. Failure of the county board to act within that period of time may be grounds for the State Superintendent to deem the request denied and permit the appeal to proceed.
Once the case is appealed, ?The decision of the State Superintendent shall be final.?
?3.6., Policy 7212. As the case is decided based upon a set series of facts, the final decision applies to that factual scenario. Should the transfer appeal be denied and the circumstances of the student change, giving rise to additional or different facts, a new request for transfer should be entertained. Similarly, when a transfer is granted by the State Superintendent, the student should remain in the district to which the transfer was granted unless or until an application to revoke the transfer is filed. See Policy 7212, ? 3.7.
The decisions of county boards of education permitting transfers should also be final.
To act otherwise would cause the student to litigate the same facts, year after year, causing uncertainty and emotional distress for the student and his or her family as well as increased costs to the parties. Neither West Virginia Code ?18-5-16 nor West Virginia Board of Education Policy 7212 grant authority to county boards to place restrictions on out of county transfers, by order or otherwise. As a result, the decision of the county board of education should be final and should not require students to reapply year after year.
West Virginia Code ?18-5-13(f)(1) indicates that county boards of education have the
authority to ?provide at public expense adequate means of transportation, including
transportation across county lines for students whose transfer from one district to another is agreed to by both county boards . . .? Although this authority exists, it does not create a duty on the part of the county boards to, in fact, provide transportation to every out of county student that transfers into the district. Policy 7212 further provides, in section 3.8, that ?[a] county board of education is not responsible for transportation costs for students who attend school in a county other than that of their residence, even though the county board has approved the attendance in another county . . .? Thus, though counties have the authority to provide transportation across county lines for students who have received transfer approval from both county boards of education, there is no requirement for a county to provide transportation to non-resident students, or for a county to provide transportation for resident students to attend school in another county. However, once transportation of some is undertaken, the county should not act in an arbitrary, capricious or discriminatory manner in establishing bus stops to
accommodate some or all of the out of county transfer students.
West Virginia Code ?18-5-13 does not grant to county boards of education the authority to regulate the activities of students attending schools in other districts. As a result, approval of student transfer requests may not be conditioned upon a requirement or agreement for a guardian to provide transportation to the new district.
This response shall serve as a response to all requests for Superintendent
interpretations dealing with student transfers received from each of you. Hoping that I have been of service, I am,
State Superintendent of Schools
cc: Office of Transportation