In Spring 2023, the West Virginia Board of Education released data on the disparity of disciplinary action in the state's public schools. This follows revisions to the West Virginia code regarding student discipline.
The 2023 report indicates that, in West Virginia, students with disabilities, black students, students in foster care, and students who come from low-income families were more likely to face discipline. Students who underperform on standardized tests were also more likely to be suspended.
The state is addressing these issues, but implementation of such programs can take years. Proposed changes may be optional for school districts or fail due to lack of funding. If your child is facing disciplinary issues, you need assistance and support now. The sooner you can resolve an issue, the smaller the impact the situation may have on your student's education.
Moreover, the changes to the law may create confusion in schools or how a school may discipline students. Disciplinary actions can have long-term implications not only for students' education but also for their careers. By addressing potential issues and advocating for your student, you can help protect their future.
As a parent or guardian, you may feel overwhelmed by the disciplinary process or unsure of how to proceed. What you think is best for your student may differ from what a school recommends. This is why you should hire attorney advisors to help you navigate the process. The Lento Law Firm Team can help you assist your child through the process and find the best outcome for them.
What is the Law in West Virginia Regarding Student Discipline?
While corporal punishment is banned, the state gives school staff and administrators multiple avenues for addressing student discipline. Some of these include:
- Exclusion
- In-school suspension
- Out-of-school suspension
- Expulsion
- Placement in an alternative learning center
Another option to traditional disciplinary techniques is Positive Behavioral Interventions and Support, which focuses on reward over punishment.
What is House Bill 2890?
In Spring 2023, West Virginia passed a law revising student discipline in the state. Known as House Bill 2890, it amends §18A-5-1 of the Code of West Virginia.
The bill changes the authority of teachers and other school staff in disciplining students. This includes any drivers of any school-owned vehicles, such as buses. School staff may now:
- Exclude any student known to have or suspected of having any infectious diseases
- Exclude any student guilty of misconduct
When May a School Staff Member Exclude a Student?
The 2023 revisions allow teachers and other staff to exclude a student for the following behavior:
- Interfering with the educational process
- Obstructing others' learning in the classroom
- Threatening, abusing, intimidating, or attempting any of these behaviors against another member of the school community
- Willfully disobeying a school staff member
- Directing abusive or profane language at a school employee
A student believed to have acted in such a way will be put under the control of the principal or another school official.
Depending on which subsection is the basis for an exclusion, different outcomes may occur. In some cases, a student will not be able to re-enter a classroom for the rest of the school day. In others, a student will be readmitted to the classroom only after the school official provides written certification that includes listing any disciplinary action taken against the student.
If a school official believes disciplinary action is necessary, they must provide written notice to the parents or guardians.
What if a Student is Excluded More than Once?
Under the 2023 revisions, if a student is excluded more than twice in a semester and “reasonable methods of classroom discipline” have been exhausted, the principal, teacher, and parents or guardians will meet to discuss the student's behavior. The language of the law does not require the attendance of parents or guardians at these meetings, but parents or guardians, when possible, should attend.
The revisions state that school personnel will determine the disciplinary action and then inform the parents or guardians.
What if Recommended Disciplinary Action Doesn't End a Student's Behavioral Issues?
Under the 2023 changes, a teacher may request that a student transfer to a different setting. The new law states, “The Legislature finds that isolating students or placing them in alternative learning centers may be the best setting for chronically disruptive students.”
Counties will have the responsibility to create or expand alternative learning centers. The goal of these centers is to correct student behavior and enable students to return to regular classrooms.
What if My Student Is Removed from a Classroom Multiple Times?
If a student is removed from a classroom three times or more in one month, the principal will determine whether the student receives the following:
- In-school suspension
- Out-of-school suspension
- Placement in an alternative learning center, if available
Can a School Suspend My Student for Not Attending Class?
Students may not be suspended if their only issue is failure to attend class. The Legislature suggested the following disciplinary actions instead:
- Detention
- Extra class time
- Alternative class settings
What is an Informal Hearing?
A school will conduct an informal hearing when a principal determines that grounds exist to suspend a student for up to 10 days. The school will inform the students and parents or guardians by phone of the informal hearing and include the grounds for the disciplinary action.
An informal hearing will begin with the principal asking whether the student admits to or denies the charges. If the student denies the charges, school officials will present their evidence and allow the student to present their version of events.
If the student fails to appear or if the principal believes the evidence warrants disciplinary action, the principal will suspend the student for up to 10 days. This time period will include any days that the student was excluded from school for the incident and before the hearing.
The principal will give the students and their families written notice of the suspension by mail.
Who Decides If A Student is Dangerous?
All suspensions must be reported to both the local superintendent and the school board. At the next school board meeting, the board will consider whether the student might be dangerous. If a student is believed to pose a threat to the school community, the board will schedule a meeting within 10 days of the start of the suspension following the informal hearing.
If a County Board Believes a Student to Be Dangerous, What Will They Do?
The board will inform the student's family, in writing, of the recommended charges, the evidence, and the date and time of the hearing. The hearing will determine whether a student should be expelled or reinstated. Attorneys may represent students at these hearings.
During the initial hearing and any subsequent hearings, the board may consider the following:
- The student's previous conduct
- The student's previous behavior
- Any improvements to the student's behavior or conduct
Once a student is no longer considered dangerous, the student must be provided with an alternative education until the end of their expulsion.
Can I Appeal a Disciplinary Decision?
Yes. In West Virginia, each school district sets its own appeals process. Parents and guardians should consult their school district's handbook and policies to learn how to appeal.
Does a School District Have to Provide an Alternative Education if They Expel a Student Considered Dangerous?
No. Three months after the initial hearing, another hearing will be scheduled to reconsider whether the student is still dangerous. If the student is no longer considered dangerous, the district should provide an alternative education option. These hearings will be conducted at three-month intervals as long as the student is considered dangerous.
Does West Virginia Allow Schools to Use Corporal Punishment?
No. Corporal punishment is banned in all public schools.
Does West Virginia Allow Schools to Restrain Students?
Yes. The Code of West Virginia states that school staff may use restraint when it's necessary to protect the health and safety of members of the school community, including the student in question.
When a school uses restraint on a student, the school must follow certain guidelines. When used, restraint:
- Should be limited to what is reasonable to address the issue
- Must not cause physical harm, restrict breathing, or place pressure or weight on the chest, back, or neck
- Must be discontinued as soon the emergency no longer exists
- Should protect the health and safety of both the student and the larger school community
- Must not deprive a student of basic human necessities
West Virginia bans the use of mechanical restraint as a punishment for inappropriate behavior.
What is an Alternative Education Program?
The goal of alternative education programs, including alternative learning centers, is to provide an educational option for students who are struggling in the traditional school environment.
These programs may offer nontraditional curriculums. Depending on the type of program and instruction, this option could benefit a student. Some placements in alternative education programs are involuntary. In other cases, students and their families have a choice. For voluntary placements, parents and guardians should ask questions about the type of program and how it would benefit the student before changing their student's placement.
If parents or guardians believe an alternative education program would benefit their student, they should work with the school district to find a placement. Placements can be made on a short-term basis.
Even when a student is involuntarily placed in a program, parents and guardians should advocate for their student. They can make sure their student receives the support and help they need to succeed in school.
What is the Mountaineer Challenge Academy?
The Mountaineer Challenge Academy is a voluntary alternative education program. Considered a National Guard Youth Challenge Program, this residential program is intended for students who are considered “educationally at risk.” The program is free to those who are accepted. Jointly funded by West Virginia and the United States Department of Defense, this program can grant high school diplomas.
This program has a physical component as well as classroom study and may not be a good fit for all students. The program has an intense schedule and routine. For students who are struggling in school and have the mental capacity to handle the stress of the program and its regimented schedule, this is one example of an alternative for students struggling in a traditional educational setting.
Can a School District Discipline a Student with Disabilities?
Yes, but the student's behavior or actions cannot be the result of their disability. If a student is protected under the Individuals with Disabilities Education Act (IDEA) and their conduct relates to their disability, one question to ask is if their misconduct was the result of a district's failure to implement the student's Individual Education Plan (IEP).
If the conduct is not related to the student's disability, a school district may apply the same rules and procedures as a student without a disability. In this case, the student's IEP team will need to meet to determine how the student's IEP may need to be adjusted and how to meet the requirements for FAPE services.
If the conduct is related to the student's disability and can be traced to issues with the IEP, the IEP team must meet to address the behavior. The student must be returned to their placement unless:
- The parents or guardians AND school district to change the student's placement
or
- A hearing office orders a new placement
In both cases, the school district should consider whether the student would benefit from behavioral intervention support.
My Student Does Not Have a Diagnosed Disability But Is Having Issues in School. Can I Request the School Assess Them for a Disability?
Yes. Students with disabilities, especially those who are undiagnosed or not receiving necessary services, are more likely to have behavioral or other issues in school. If you believe your student's behavioral or academic issues are due to an undiagnosed disability, you should talk with school officials about any testing or assessments to determine if your student has a disability.
My Student Has a Disability and Was Excluded from School for a Week. Does the School Have to Provide Special Support?
Whether the school has additional obligations depends on the length of the student's suspension.
For a misconduct removal of less than 10 consecutive days or less than 10 total days for the school year, a district may exclude a student without any obligation to provide services. The exception is that students with disabilities must receive at least the same services as students without disabilities who are similarly disciplined.
For example, if a school district provides e-learning options for excluded students, all students must have access to e-learning. If the school district does not provide that service, the district has no obligation to provide that service to a student with disabilities.
My Student Has Disabilities and Has Been Excluded Over 10 School Days This Year. Does a School District Have to Provide Special Services?
It depends. If a student with disabilities has been removed from class for more than 10 school days during the current school year, the district must determine if the student needs a change of placement (COP).
If the school feels the student's current COP does not need adjustment, school personnel and at least one of the student's teachers should meet. They must determine what services the student requires to continue to participate in the general education curriculum while removed from class and to meet the student's IEP goals.
If the school changes the student's COP, they must inform the parents or guardians that day. The IEP team will determine what services the student needs.
What if a School Removes My Student with Disabilities from School for More Than 10 Consecutive Days?
For any disciplinary action that will last more than 10 consecutive school days, students with disabilities will have a change of placement (COP). The school district will inform parents or guardians on the day the district makes the decision. Within 10 days, the district, parents, and members of the IEP Team must meet to conduct a manifestation determination.
What is Manifestation Determination?
In certain situations, a school may move a student with disabilities to an Interim Alternative Educational Setting (IAES) for a maximum of 45 days without regard to whether the student's disability influenced the student's behavior or actions. Known as Manifestation Determination, it is mandatory when a student faces a removal of more than 10 consecutive school days.
Are There Any Special Circumstances Regarding Students with Disabilities and Discipline?
Yes. The following situations are exceptions to the above rules:
- If a student possesses a firearm at school, on school grounds, or at a school function
- If a student possesses, uses, sells, or solicits illegal drugs or controlled substances at school, on school grounds, or at a school function
- If a student inflicts serious bodily injury upon another person at school, on school grounds, or at a school function
In these situations, the student's disability will not factor into determining disciplinary action.
Will My Student Be Expelled for Bringing a Gun or Other Type of Firearm to School?
Yes. West Virginia complies with the Gun-Free Schools Act, which bans students from bringing a weapon to school, on a school bus, or to a school-sponsored activity. This includes school-sanctioned events that occur off school property.
Any student who brings a firearm to school faces a mandatory one-year expulsion. A superintendent may lessen the mandatory period if circumstances warrant such an action. If a superintendent does choose to reduce how long a student will be expelled, they must prepare a written statement that outlines the reasons for the reduced action.
The following factors may be used to determine whether to reduce the mandatory expulsion period:
- What is the scope of a student's malicious intent?
- What happened as a result of the student's misconduct?
- What is the student's history, including any behavior issues?
- How likely is the student to repeat their misconduct?
What is Positive Behavioral Interventions and Support?
Positive Behavioral Interventions and Support (PBIS) is a data-based framework that encourages positive reinforcement over punishment and decreases aggressive behavior and bullying. The goal is to create a collaborative, safe environment that makes learning accessible to all students.
The West Virginia Department of Education operates the state's PBIS program in conjunction with Marshall University. Schools can choose to join the program.
Schools that have adopted PBIS with positive results are considered model schools. Wheeling Park High School is one example, with its focus on rewarding good behavior. Since the implementation of the PBIS framework, Wheeling Park has reported a decrease in behavioral issues and an increase in school attendance.
For students with disciplinary or behavioral problems, PBIS can be beneficial. The framework addresses underlying issues and focuses on a student's strengths rather than punishment.
If a school does not offer PBIS, parents or guardians should inquire as to why. They may also want to find out if their area has any educational options that use the PBIS framework. This is one way an experienced legal team can help families navigate the disciplinary system.
What are the 2023 Proposed Changes?
In May 2023, the West Virginia Board of Education released a Discipline Data Response presentation. This report addresses proposed changes to the state's disciplinary system.
This type of information can be useful to families even if a school district has not yet implemented the recommendations. Parents and guardians can point to these proposed changes as guidance for finding ways to help a child with behavioral, academic, or other issues.
The proposed changes:
- Increase training and support for school staff and teachers
- Increase accountability, including the eventual use of a public dashboard
- Revise policy
- Find ways to better measure and implement responsibility at the state, county, and local levels.
Which of these Proposals Are Most Likely to Affect My Student?
For parents and students, suggested policy changes and county-level proposals are likely to be the most relevant when working with school districts.
For school districts, recommendations include the following:
- Ensure the needs of all students are being met
- Assess the current school environment
- Consider alternatives to suspension
Proposed revisions to state law include:
- Expand Positive Behavioral Interventions and Support (PBIS)
- Reinforce support for the individual student
- End zero-tolerance policies
- Revisit current definitions of discipline
- Focus on alternatives to exclusions
- Look at the whole school and how instruction, discipline, and student behavior interact
Knowing these proposed changes can allow families to introduce other options for a student who is facing disciplinary action. Acting out in school may be the result of underlying issues such as an undiagnosed disability. Punishing a student may not address the actual cause of their behavior or may unfairly label a student as a problem.
Help Your Student Navigate the Disciplinary Process in West Virginia
Understanding school discipline and your student's options can be overwhelming. With West Virginia's 2023 changes to its laws and its plans to reform current processes, parents, and guardians may find it more difficult to determine the best course of action.
You want your child to receive the best possible education. When your student faces disciplinary action, you may worry about how it will affect their future. Sometimes schools may unfairly single out or punish a student, or a school may be basing decisions on wrong or incomplete information.
Even when your child has erred, you don't have to simply accept a school's decision. You should encourage options that will enable your student to correct their behavior and keep their education on track.
The Lento Law Firm can provide the support and guidance you need to help your student. We stay up-to-date on the law and help parents and students nationwide navigate educational issues. Contact us online or by phone.
