West Virginia - Disciplinary Due Process: Program Requirement

Area: 
Program Requirement
Policy Type: 
regulation; statute
Summary: 

State law provides comprehensive assurances of due process for students facing disciplinary action.

West Virginia Administrative Code 126-99. EXPECTED BEHAVIOR IN SAFE AND SUPPORTIVE SCHOOLS (4373)

Chapter 6: PROCEDURES FOR TAKING ACTION ON SUBSTANTIATED INAPPROPRIATE BEHAVIORS

Section 2. Guidelines for Specific Responses to Inappropriate Behavior

  • Out-of-School Suspension: Instances in which a student is temporarily removed from his/her school for disciplinary purposes to another setting pursuant to W. Va. Code § 18A-5-1a (e.g., home, community setting). This includes both removals in which no IEP services are provided because the removal is 10 days or less as well as removals in which the student continues to receive services according to his/her IEP. The student is not under direct supervision of school personnel as defined under in-school suspension.

A student is entitled to an informal hearing when faced with an out-of-school suspension of 10 days or less. At this hearing, the principal must explain why the student is being suspended, and the student must be given the opportunity to present reasons why s/he should not be suspended. However, a student whose conduct is detrimental to the safety of the school may be suspended immediately and a hearing held as soon as practical after the suspension. Other procedures the school must follow when dealing with out-of-school suspensions are outlined in W. Va. Code §§ 18A-5-1 and 18A-5-1a and include:

a. Parent(s)/guardian(s) must be notified promptly in all cases of suspension.
b. The county superintendent of schools or designee must be notified and preferably in writing of the time and conditions pertaining to the suspension.
c. A student that is suspended from school may not participate in any school-sponsored activities, and is not permitted on school grounds during the period of suspension.
d. A student may not be suspended from school solely for not attending class.


West Virginia Administrative Code 126-99. EXPECTED BEHAVIOR IN SAFE AND SUPPORTIVE SCHOOLS (4373)

Chapter 6: PROCEDURES FOR TAKING ACTION ON SUBSTANTIATED INAPPROPRIATE BEHAVIORS

Section 2. Guidelines for Specific Responses to Inappropriate Behavior

An out-of-school suspension of more than ten (ten) days requires a formal hearing before the county board of education. Procedures the school and county must follow when dealing with suspensions of more than 10 days are outlined in W. Va. Code §§ 18A-5-1 and 18A-5-1a and include:
a. Parent(s)/guardian(s) must be informed in writing of the charges against their child, including a summary of the evidence upon which the charges are based.
b. Upon the student's/parent/guardian's request, a formal hearing must be scheduled before the county board of education.
c. Students are entitled to be represented or advised during the proceedings by a person or persons of their choosing, including legal counsel.
d. Students are entitled to be given reasonable time to prepare for the hearing.


West Virginia Code 18A-5-1a. Possessing deadly weapons on premises of educational facilities; possessing a controlled substance on premises of educational facilities; assaults and batteries committed by students upon teachers or other school personnel; temporary suspension, hearing; procedure, notice and formal hearing; extended suspension; sale of narcotic; expulsion; exception; alternative education.

  • (d) ...The principal shall report any suspension the same day it has been decided upon, in writing, to the parent(s), guardian(s) or custodian(s) of the student by regular United States mail. The suspension also shall be reported to the county superintendent and to the faculty senate of the school at the next meeting after the suspension.
  • (e)  Prior to a hearing before the county board, the county board shall cause a written notice which states the charges and the recommended disposition to be served upon the student and his or her parent(s), guardian(s) or custodian(s), as the case may be. The notice shall state clearly whether the board will attempt at hearing to establish the student as a dangerous student, as defined by section one [§18A-1-1], article one of this chapter. The notice also shall include any evidence upon which the board will rely in asserting its claim that the student is a dangerous student. The notice shall set forth a date and time at which the hearing shall be held, which date shall be within the ten-day period of suspension imposed by the principal.
  • (f)  The county board shall hold the scheduled hearing to determine if the student should be reinstated or should, under the provisions of this section, must be expelled from school. If the county board determines that the student should or must be expelled from school, it also may determine whether the student is a dangerous student pursuant to subsection (g) of this section. At this, or any hearing before a county board conducted pursuant to this section, the student 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 shall be recorded by mechanical means unless recorded by a certified court reporter. The hearing may be postponed for good cause shown by the student but he or she shall remain under suspension until after the hearing. The state board may adopt other supplementary rules of procedure to be followed in these hearings. At the conclusion of the hearing the county board shall either: (1) Order the student reinstated immediately at the end of his or her initial suspension; (2) suspend the student for a further designated number of days; or (3) expel the student from the public schools of the county.
  • (g)  A county board that did not intend prior to a hearing to assert a dangerous student claim, that did not notify the student prior to the hearing that a dangerous student determination would be considered and that determines through the course of the hearing that the student may be a dangerous student shall schedule a second hearing within ten days to decide the issue. The hearing may be postponed for good cause shown by the student, but he or she remains under suspension until after the hearing.
  • A county board that expels a student, and finds that the student is a dangerous student, may refuse to provide alternative education. However, after a hearing conducted pursuant to this section for determining whether a student is a dangerous student, when the student is found to be a dangerous student, is expelled and is denied alternative education, a hearing shall be conducted within three months after the refusal by the board to provide alternative education to reexamine whether or not the student remains a dangerous student and whether the student shall be provided alternative education. Thereafter, a hearing for the purpose of reexamining whether or not the student remains a dangerous student and whether the student shall be provided alternative education shall be conducted every three months for so long as the student remains a dangerous student and is denied alternative education. During the initial hearing, or in any subsequent hearing, the board may consider the history of the student’s conduct as well as any improvements made subsequent to the expulsion. If it is determined during any of the hearings that the student is no longer a dangerous student or should be provided alternative education, the student shall be provided alternative education during the remainder of the expulsion period.
    West Virginia Legislature
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