May 11, 2022

Mr. James P. Gray, President

Fayette County Board of Education

111 Fayette Avenue

Fayetteville, WV 25840

Dear President Gray:

You have requested an interpretation of school law pursuant to W. Va. Code §18-3-6, and clarification of the meaning of a certain provision of W. Va. Code §18-5-16 and related W. Va. 126CSR189, Policy 7212, Intercounty Transfer Appeal, effective November 15, 2021. Additionally, you have requested an interpretation of how these provisions should be read with or against a certain provision of W. Va. Code §18-5-15(a).

Specifically, you have requested an interpretation of the following scenarios as they relate to intercountry transfers. W. Va. Code §18-5-16(c)(4), states, “An application may only be denied by a county board of education due to lack of grade level capacity or if the nonresident student failed to fill out or submit the application correctly,” and that Policy 7212 mirrors the statute at §3.3.c.1., “There is a lack of grade level capacity in the receiving county,” and at §3.3.c.2., “The nonresident student failed to submit the transfer application correctly.”

W. Va. Code §18-5-15(a), states, “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: Provided, however, that in making such decision, the principal of the school in which the student may enroll shall be consulted by the superintendent and the principal may make a recommendation to the superintendent concerning the student’s enrollment in his or her new school. Provided further, that if enrollment to public school is denied by the superintendent, the student may petition the board of education where the student seeks enrollment.”

Referencing the above sections of code and policy, I will provide my interpretations on the scenarios below:

Mr. James P. Gray, President

May 11, 2022

Page 2

1.    Student A is expelled from County A for 365 days.  During the period of expulsion, Student A applies for an intercountry transfer to County B.  County B’s alternative instruction for expelled students is virtual, which comes with a cost. Student A correctly filled out and completed the application.  In this scenario, the student has not been determined a “dangerous student.”

In the case of Student A, County B would have the right to deny the intercounty transfer until the period of expulsion has been completed. If a family physically moves into another county then enrollment would have to be completed.

2.    If Student A in scenario 1 must be accepted by County B, is County A or County B responsible for the costs of education (e.g. virtual school)?

Since Student A does not have to be accepted by County B unless they become a physical resident of the county, this is not an issue that needs addressed.

3.    Other than in cases of expulsion, is there any autonomy afforded the receiving county to evaluate and deny an application on the basis of prior discipline of the student from the sending/resident county?

Based on the policy and code sections previously mentioned, the receiving county does not have the flexibility to look at prior discipline reports and use it as a basis for denial.

Sincerely,

/s/

W. Clayton Burch

State Superintendent of Schools