April 7, 2014 - Volume 34 Issue 18



By Rebecca M. Tinder, Partner, Bowles Rice LLP, Charleston

It is well‑understood that student violations of the Safe Schools Act, W. Va. Code §18A‑5‑1a, may result in expulsion.    When the county board finds that the student committed one of the big three offenses, the principal “shall suspend” and, “within twenty‑four hours, request that the county superintendent…” recommend expulsion; the superintendent “shall recommend” expulsion ; and the county board “shall expel” the student.  W. Va. Code §18A‑5‑1a(a) (emphasis added). Those big three offenses are: battery of a school employee (§61‑2‑15(b)), possession of a deadly weapon (§61‑7‑11a(b)) and sale of narcotics (§60A‑1‑101).  The Board’s finding of such violations result in a mandatory expulsion period of twelve consecutive months, or a full calendar year.  No discretion is permitted. W. Va. Code §18A‑5‑1a(i).

More permissive language is found in the next provision of the Safe Schools Act, W. Va. Code §18A‑5‑1a(b), wherein certain offenses still mandate that the principal suspend the offending student, but there is discretion permitted the principal in determining whether to request that the superintendent recommend expulsion.   In such circumstance, “[i]f the county board finds that the student did commit the alleged violation, the county board may expel the student.”  W. Va. Code §18A‑5‑1a(b).  Thus, the county board determines whether or not to expel the offending student and, if expulsion is meted out, it is limited to “a period not to exceed one school year”.  W. Va. Code §18A‑5‑1a(i).

Presumably, since the Board already had the opportunity to weigh the factors before meting out the discipline in the offense found in the second provision, W. Va. Code §18A‑5‑1a(b), no further examination is warranted.  However, since there are no options, but expulsion for twelve consecutive months, for a finding that a student committed one of the big three offenses, the legislature permitted the superintendent  to reduce the discipline of a board‑expelled student, if the circumstances warrant that action. 

The county superintendent may use the following factors as guidelines in determining whether or not to reduce a mandatory twelve‑month expulsion:

  1. The extent of the pupil's malicious intent;
  2. The outcome of the pupil's misconduct;
  3. The pupil's past behavior history; and
  4. The likelihood of the pupil's repeated misconduct.
    W. Va. Code §18A‑5‑1a(i).

    The superintendent is required to provide notice of the actions taken in the form of:  

    a written statement setting forth the circumstances of the pupil's case which warrant the reduction of the period of expulsion. The county superintendent shall submit the statement to the county board, the principal, the faculty senate and the local school improvement council for the school from which the pupil was expelled.

Thus, the superintendent may reduce the discipline of a student that has been expelled by the Board only when the student expulsion was as a result of one of the big three offenses: : battery of a school employee (§ 61‑2‑15(b)), possession of a deadly weapon (§ 61‑7‑11a(b)) and sale of narcotics (§ 60A‑1‑101).