Interpretation's Date: January 28, 2007
by superintendent Steven L. Paine
Section: IV. Students

January 26, 2007

Dr. Marsha Carr-Lambert
Grant County Public Schools
205 Jefferson Avenue
Petersburg, West Virginia 26847

RE: Request for State Code Interpretations

Dear Dr. Carr-Lambert:

You have asked for an interpretation of West Virginia Code Sections 18-5-15 and 18-5-15f as it applies to the following situation: A student who is a current resident of Grant County has been expelled from a private school located in another county. Grant County Public Schools have refused to provide educational services to the student, who had an Individual Educational Plan when he last attended Grant County Schools some time ago. You have asked whether the above-cited statute "implies" that the student would not be eligible for enrollment in Grant County until he or she has served the expulsion period given by the private school administrator.

Any interpretation of West Virginia Code §18-5-15(a) and 18-5-15f must be consistent with the holding in Cathe A v. Doddridge County Bd. of Education, 200 W. Va. 521, 490 S.E.2d 340 (1997), that the State must provide reasonable basic educational opportunities and services to a student who has been suspended or expelled for a serious disciplinary problem unless the student poses a danger to teachers, students or other school personnel. The Court directed that such a determination be made on a case-by-case basis and predicted that such a denial of educational services would be justified only in "the most extreme cases."

The Cathe A decision pertained to a suspension and expulsion from regular school under the Safe Schools Act, W. Va. Code 18A-5-1a and involved a student removed for possession of a weapon. However, the Safe Schools Act covers a broad range of conduct from violent, felonious behavior and distribution of narcotics to intentionally defacing property or willfully disobeying a teacher.

Consistent with the Cathe A decision, the Safe Schools Act was amended to permit a public school to deny educational services to a student only when, following notice and a formal hearing, he or she is found to be a "dangerous student," defined as "a pupil who is substantially likely to cause serious bodily injury to himself, herself or another individual within that pupil's educational environment, which may include any alternative education environment, as evidenced by a pattern or series of violent behavior exhibited by the pupil, and documented in writing by the school, with the documentation provided to the student

Dr. Marsha Carr-Lambert
January 26, 2007
Page 2

and parent or guardian at the time of any offense." Even then, the county must hold another hearing after three months to determine whether the student still meets the definition of "dangerous."

In addition, Policy 2419 of the West Virginia Board of Education, the final adoption of which is pending before the Board, states that a district is required to ensure that a Free and Appropriate Public Education is available to students with disabilities whose suspension(s) or expulsion(s) results in a change of placement.

West Virginia Code 18-5-15 provides that "any student suspended or expelled from public or private school shall only be permitted to enroll in public school upon the approval of the superintendent of the county where the student seeks enrollment...." The student may petition the county board of education if the superintendent denies enrollment.

West Virginia Code 18-5-15f(d) provides that any student suspended or expelled from a public school in West Virginia under the Safe Schools Act or who has been suspended or expelled from a public or private school in another states due to actions described in the Safe Schools Act may not be admitted to any public school in West Virginia until the period of suspension or expulsion has expired. In light of the language of 18-5-15, it would appear that the Legislature intended to include students suspended or expelled from private schools in West Virginia, which are not subject to the Safe Schools Act.

However, to the extent that these two statutes purport to relieve a county where a student currently resides of its obligation to provide educational services to that student because he or she was suspended or expelled from a private school (or any other school), they are inconsistent with the Cathe A holding and the Safe Schools Act itself. Accordingly, a county cannot deny enrollment to a student who is a current resident of a county and seeks enrollment after being suspended or expelled from a private school or any other school, unless the student meets the statutory definition of a "dangerous student."

If, when enrolling a previously expelled student, the superintendent reasonably determines that the conduct resulting in the discipline is conduct described in the Safe Schools Act, the student may be offered alternative education for the period of the suspension or expulsion. Consistent with W. Va. Code 18-5-15, a student has the right to petition the county board of education to challenge a superintendent's decision to offer only alternative education instead of regular school attendance.

Dr. Marsha Carr-Lambert
January 26, 2007
Page 3

I would note, however, that the superintendent has some latitude in determining whether a student will be enrolled into the regular school setting or into an alternative setting when nonviolent behavior is involved, because the Safe Schools Act encompasses relatively minor misconduct, such as using profanity directed as school personnel, intentional defacement of school property and willful disobedience to a teacher. A private school in West Virginia may expel a student for behavior that, while technically described in the Safe Schools Act, would merit a detention or short suspension in West Virginia's public schools.

Only if the student seeking enrollment is a dangerous student, that is he or she is "substantially likely to cause serious bodily injury to himself, herself or another individual within that pupil's educational environment" may the county deny the student permission to enroll. In order for the county to make such a determination, it must follow the procedural rules set forth in W. Va. Code §18A-5-1a(e) to (h), which provide for notice and a hearing. In addition, a hearing must be held every three months to review the student's status.

Grant County Public Schools should also bear in mind that the individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., may afford this particular student with additional rights, such as a manifestation determination hearing to determine whether the student's conduct is a manifestation of his disability. Since the student has not been evaluated by Grant County for many years, a helpful starting point would be to conduct a current evaluation with the parents' consent. Such an evaluation should not, however, delay providing educational services to the student who has apparently been without them for two months.

I hope I have been of assistance.



Steven L. Paine
State Superintendent of Schools


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