CHAPTER 12. EDUCATION

Read Article XII.

A. The Right to an Education

PAULEY V. KELLY,162 W.Va. 672, 255 S.E.2d 859 (1979).

HARSHBARGER, Justice:

Appellants are parents of five children who attend the public schools of Lincoln County. Theyfiled this action for declaratory judgment in the Circuit Court of Kanawha County on behalf ofthemselves and as a class action on behalf of the other students in the Lincoln County school system.Defendants are the State Treasurer and State Auditor, the members of the West Virginia State Boardof Education and the State Superintendent of Schools.

The Pauleys allege that our system for financing public schools violates West Virginia'sConstitution by denying plaintiffs the "thorough and efficient" education required by Article XII,Section 1, and by denying them equal protection of the law. They particularly direct us to inequalitiesthat exist in secondary education opportunity and achievement, created by markedly out-of-balanceannual funding, facilities, curriculum and personnel of schools in property-poor counties, such asLincoln, compared with those in more wealthy counties in the State. . . .

The [circuit court] made factual findings to the effect that the Lincoln County school system isinadequate, apparently by comparison with four other counties: Kanawha, Marshall, Brooke andHancock. Its legal conclusions were that State government has not created a thorough and efficient systemof public schools in Lincoln County, but has met "the constitutional mandate in some counties . . .." . . .

The case must be remanded for further evidentiary development and, because there are significantand far-reaching public issues involved, it is advisable that we propose certain guidelines to theCircuit Court. We shall analyze applicable constitutional standards and then review the State's rolein education and identify areas that require evidentiary development to allow judgment of the State'sperformance of its role.

THE CONSTITUTIONAL ISSUESEqual Protection

The trial court correctly recognized that federal Fourteenth Amendment equal protection rightsare not available to children seeking educational equality. San Antonio Independent School Districtv. Rodriguez, 411 U.S. 1 (1973). It properly concluded that a state is not constrained by the federalconstitutional standard, but must examine its own constitution to determine its educationresponsibilities. It relied upon similar analyses made by other state courts. Horton v. Meskill, 172Conn. 615, 376 A.2d 359 (1977); Robinson v. Cahill, 62 N.J. 473, 303 A.2d 273 (1973). We havestated that we may interpret our own Constitution to require higher standards of protection thanafforded by comparable federal constitutional standards. Adkins v. Leverette, W.Va., 239 S.E.2d496, 499 (1977).

Robinson affirmed a lower court judgment, holding the New Jersey school financing statute tobe unconstitutional. The case has considerable relevance to our jurisdiction, because New Jersey'sconstitution contains a thorough and efficient clause and an equal protection section. We willmention the former later.

The court discussed equal protection and concluded that its legislature was required to providea thorough and efficient education system throughout the state; that this made education afundamental, constitutionally mandated right in New Jersey; and therefore the educational fundingsystem must be strictly scrutinized to see if there was a compelling state interest served by any

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statutorily created inequalities.6

However, the Robinson court refused to place entire reliance on its equal protection clause to testthe state's school financing formula, because it recognized there may be instances where the statemust spend unequal amounts among the various school districts or counties:

"We hesitate to turn this case upon the State equal protection clause.7 The reason is that theequal protection clause may be unmanageable if it is called upon to supply categorical answersin the vast area of human needs, choosing those which must be met and a single basis upon whichthe State must act. . . ." ...

"This is not to say that public education is not vital. Of course it is. Rather we stress howdifficult it would be to find an objective basis to say the equal protection clause selects educationand demands inflexible statewide uniformity in expenditure. . . ." ... We find merit in this approach that avoids narrow strictures upon education financing, a task that

is certainly multi-faceted and not easily categorized.California has used its equal protection clause on two occasions to strike down state financing

formulas which were based in part on a district property tax system that caused districts with lowproperty bases to receive less educational funds. Serrano v. Priest, 18 Cal.3d 728, 135 Cal.Rptr. 345,557 P.2d 929 (1976); Serrano v. Priest, 5 Cal.3d 584, 96 Cal.Rptr. 601, 487 P.2d 1241 (1971).

Thorough and EfficientEducation sections in state constitutions (there is, of course, no specific reference to public

education in the United States Constitution) can be classified according to whether they reasonablymay be considered to require legislatures to provide for public school systems of specified quality,or simply say that public school or uniform public school systems may or shall be established.

Constitutional mandates that legislatures provide thorough and efficient education systems whichis the traditional quality requirement we have found are in the Ohio, Minnesota, Maryland,Pennsylvania, New Jersey, Illinois (from 1870 until 1970), and West Virginia Constitutions.Colorado, Idaho and Montana require thorough systems; and Arkansas, Texas, Kentucky, Delaware,Virginia (until 1971), and Illinois (since 1970), efficient systems.

It has been instructive to us to examine all debates in the constitutional conventions that producedthorough and efficient education clauses, attempting to find definitions, explanations of intentions;to find whether the words were hyperbole or were meant to have legal significance (as one mightpresume every constitutional pronouncement to have).

Our research produced useful dialogues in the Ohio and West Virginia Conventions[.] . . . Wehave also examined all the cases applying "thorough and efficient," "thorough" or "efficient"constitutional standards (or refusing to apply them) decided in the fifteen states[.]...

Constitutional DebatesThe 1851 Ohio Constitution was the first to use the words "thorough and efficient" to describe

the education system mandated to be established by its legislature. . . . There was no explicit

6This is the traditional equal protection standard which we have recognized in Cimino v. Board ofEducation of County of Marion, W.Va., 210 S.E.2d 485, 490 (1974): "Whether a statute orgovernmental action violates the Equal Protection Clause is a determination made by the applicationof one of two constitutional tests. The more demanding test relates to statutes which impinge uponsensitive and fundamental rights and constitutional freedoms, such as religion and speech. In orderto uphold such a statute, a reviewing court must find that a compelling state interest is served by theclassification.["] ...

7But the court's hesitancy seems predicated on a presumption that equal protection equates with equalexpenditure, and of course this is not true. Equal protection, applied to education, must mean anequality in substantive educational offerings and results, no matter what the expenditure may be.

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definition of the words "thorough and efficient" that appeared in the final committee report whichthe 1851 Ohio Convention adopted. The tenor of the discussion, however, by those advocating theentire education section as it was finally adopted, leaves no doubt that excellence was the goal, ratherthan mediocrity; and that education of the public was intended to be a fundamental function of thestate government and a fundamental right of Ohioans. . . .

West Virginia was the third state to incorporate the thorough and efficient mandate in its basiclaw. Our "Convention to frame a Constitution for the proposed new State of Kanawha" convenedin Wheeling on November 26, 1861, and one week later received the first of several proposededucational articles referred to by its education committee.16

The committee's first report was presented on January 22, 1862, by Gordon Battelle, itschairman.17 Battelle prevailed on every crucial issue that would have diluted the State-unit plan; thatwould have limited general taxation and expenditures by the State government for schools; or evenwould have given the Legislature a specific period of grace in which to establish a system.18 Theresult was an article that included as its second section:

"The Legislature shall provide, as soon as practicable, for the establishment of a thorough andefficient system of free schools. They shall provide for the support of such schools byappropriating thereto the interest of the invested school fund; the net proceeds of all forfeitures,confiscations and fines accruing to this State under the laws thereof; and by general taxation onpersons and property or otherwise. They shall also provide for raising, in each township, by theauthority of the people thereof, such a proportion of the amount required for the support of freeschools therein as shall be prescribes by general laws." (Debates, Vol. III at 881)

16Debates and Proceedings of the First Constitutional Convention of West Virginia 1861-1863(hereinafter Debates ) is particularly interesting because it reveals wisdom, foresight and perceptionwhich has proved amazingly accurate. There were lengthy dialogues, for example, about the meritsof constitutionally requiring taxes on corporations to be devoted to schools – debates during whichout-of-State owner exploitation of the State's wealth was predicted by proponents, and the depressingeffect of such taxes on attracting out-of-State capital was prophesied by opponents. The currency ofthe problem is illustrated in the series of newspaper articles by Tom D. Miller and others, titled WhoOwns West Virginia?, reprinted in booklet form by the Huntington Publishing Company in 1975.

17. . . The genesis of this report, and the divisions in the Convention about public school financingthat surfaced in the arguments about Section 1, are discussed in some detail in Ambler, A Historyof Education in West Virginia (1951) . . ..

18To illustrate, note this repartee between Stuart of Doddridge County and Battelle: "MR. STUART OF DODDRIDGE. The gentleman should recollect that when he goes to tax

people in their townships that every man will insist at least that he shall have a school sufficientlyconvenient to him to accommodate his children; otherwise you will have a difficulty there. Noman will want to be taxed for a school entirely out of his reach. If you go into this general system,you must accommodate everybody; get it within reach of every man . . . . Now, we are notsituated as many of these states that have adopted this system, where their country is all smoothand cultivated and thickly settled . . . .

"BATTELLE: There is just one word I want to say and that is this; I beg the gentleman fromDoddridge and all the rest here to get out of their minds the idea that all the mountains in theworld are in West Virginia. That is not so. They have mountains elsewhere; and they have somemountains of the biggest and the highest where this school system has been and is in flourishingoperation . . . It is very clear, however, that complaining will never succeed in bringing it to everyman's door." (Debates, Vol. II at 1106-1107)

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On January 16, 1872, a second West Virginia Constitutional Convention met in Charleston. TheJournal of the Convention contains no debates, but recites all motions, committee reports,resolutions, and votes thereon. Every effort to dilute the mandate was defeated; and it was made evenmore prominent than in the 1863 Constitution.

Its article on education, Article XII, adopted when the Constitution was approved by theConvention on April 9, 1872, and that fall adopted by the people, remains essentially for ourpurposes unchanged to this day. The first section is the unequivocally and unencumbered statementthat:

"The legislature shall provide, by general law, for a thorough and efficient system of freeschools."

Thorough and Efficient CasesEach of the fifteen states' appellate courts, and some federal courts, have applied the thorough

and/or efficient clauses.In all of these states, the clauses have been held to be absolutely mandatory upon legislatures.They all have found the clause to make education a state, rather than local, responsibility.Broad legislative authority and discretion have been acknowledged, and courts have made for

themselves guidelines for testing legislation against the clause. [Several] jurisdictions have not hesitated to examine legislative performance of the mandate, andwe think properly so, even as they recite that courts are not concerned with the wisdom or policy ofthe legislation. ... Many courts have recognized the legislative duty to provide necessary funds orpower to raise funds to whatever bodies they have delegated education responsibility. ...

But equality of funding has not been required in the majority of states with mandated thoroughand efficient school systems. . . . Courts have often declared that legislatures have plenary authorityto determine the bounds of thorough, efficient education. This has been the common way forapproving acts deemed to have been intended to improve education systems, when attacked asviolating some other constitutional right.25

Many decisions we have reviewed reflect affirmation of judicial deference to legislative plenarypower over education, and then judicially approve legislation as being within that power.

We need not reflect upon the conundrum presented by these several cases that the judiciary,bowing to legislative branches' plenariness, hardly ever has refused to speak its approval or

25Our Court is one of the few we have found that on every occasion has not given extra weight to theeducation mandate, balanced against other constitutional rules. We have held that a constitutionalprohibition against the State extending credit to local governments applied also to State payment oflocal school districts' bonds. Berry v. Fox, 114 W.Va. 513, 172 S.E. 896 (1934). The decision, bya divided court, was unfortunate. No authority about payment by the State of local school debts wascited. Instead, the majority wrote: "The school houses, also, whether paid for from the proceeds ofbonds or not, remain permanently for the use of the communities which brought them into being."(Id. at 524, 172 S.E. at 901). Apparently the court was not apprised that local district debts wereState responsibilities because the districts themselves were agencies of the State, and doing theState's work when they incurred the debts. This case is now moot; but we disapprove and overruleit to the extent that it diminishes State responsibility for public schools. Compare Revell v.Annapolis, 81 Md. 1, 31 A. 695 (1895). We have also written that the education mandate "stands no higher than the mandate" in ArticleVI, Section 51, which prescribes how State appropriation may be made (this article has since beenamended). We affirmed that the procedure by which educational proceeds were to be appropriatedwas constitutionally controlled and a requisition based upon an unconstitutional appropriation billwas not cured by the thorough and efficient mandate. State ex rel. Trent v. Sims, 138 W.Va. 244, 77S.E.2d 122 (1953).

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disapproval of the legislatures' plenary acts.However, courts have not stopped there. Nearly every one has intervened when an act by a

legislature or a proceeding by a local school board, as agent of the legislature, is offensive to judicialnotions about what a thorough and efficient education system is....

Our Court has required free textbooks, and has required inclusion of "state aid to education" inthe budget. Vandevender v. Cassell, W.Va., 208 S.E.2d 436 (1974); State ex rel. Brotherton v.Blankenship, W.Va., 207 S.E.2d 421 (1973). . . .

[O]n the threshold question: no [state] court has been hesitant to affirm legislation; many haverequired specific actions by local boards to bring them to compliance with the constitutionalmandate; and legislation has been declared unconstitutional because it failed the mandate. There istherefore ample authority that courts will enforce constitutionally mandated education qualitystandards.

Next we must define terms that are basic to the case: "thorough;" "efficient;" "education." . . . Wemay synthesize a definition of education from the cases, encyclopedias (28 C.J.S. Education, forexample), and dictionaries: It is the development of mind, body and social morality (ethics) toprepare persons for useful and happy occupations, recreation and citizenship.

We may now define a thorough and efficient system of schools: It develops, as best the state ofeducation expertise allows, the minds, bodies and social morality of its charges to prepare them foruseful and happy occupations, recreation and citizenship, and does so economically.

Legally recognized elements in this definition are development in every child to his or hercapacity of (1) literacy; (2) ability to add, subtract, multiply and divide numbers; (3) knowledge ofgovernment to the extent that the child will be equipped as a citizen to make informed choicesamong persons and issues that affect his own governance; (4) self-knowledge and knowledge of hisor her total environment to allow the child to intelligently choose life work to know his or heroptions; (5) work-training and advanced academic training as the child may intelligently choose; (6)recreational pursuits; (7) interests in all creative arts, such as music, theatre, literature, and the visualarts; (8) social ethics, both behavioral and abstract, to facilitate compatibility with others in thissociety.

Implicit are supportive services: (1) good physical facilities, instructional materials andpersonnel; (2) careful state and local supervision to prevent waste and to monitor pupil, teacher andadministrative competency.

We recognize that many facets of public education are being examined by educators, economists,sociologists and other critics. However, there are undeniable legal bases for all our conclusions,including the elements specifically distilled from the debates and cases that are the specifications ofwhat a thorough and efficient school system should have, and should do.

Constitutional Issues ConclusionWe conceive that both our equal protection and thorough and efficient constitutional principles

can be applied harmoniously to the State school financing system. Certainly, the mandatoryrequirement of "a thorough and efficient system of free schools," found in Article XII, Section 1 ofour Constitution, demonstrates that education is a fundamental constitutional right in this State.

Because education is a fundamental constitutional right in this State, then, under our equalprotection guarantees any discriminatory classification found in the educational financing systemcannot stand unless the State can demonstrate some compelling State interest to justify the unequalclassification. State ex rel. Piccirillo v. City of Follansbee, W.Va., 233 S.E.2d 419 (1977); Ciminov. Board of Education of County of Marion, W.Va., 210 S.E.2d 485 (1974).

Here, the trial court was asked to decide whether the State financing system was so deficient thatin certain counties, such as Lincoln, it failed to provide a thorough and efficient system of education.On the record before us, we choose to make no definitive judgment on this point. The trial court wasunable to make any judgment either, because it lacked any suitable standards to set the core valuesof a thorough and efficient educational system.

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However, given the legally recognized components of thorough and efficient school systems, itis obvious from the circuit court's findings about Lincoln County schools that they are, to say theleast, woefully inadequate by those standards, and we would frankly be surprised if the school systemwill meet any thorough and efficient standard that may be developed on the remand.

Of course, when we talk of setting standards for a thorough and efficient education system, werecognize that expert testimony will be needed. Mere rote comparison with other more affluentcounties does not necessarily serve to define the values of such a system.

And we emphasize that great weight will be given to legislatively established standards, becausethe people have reposed in that department of government "plenary, if not absolute" authority andresponsibility for the school system.

In summary of the guiding legal principles which must shape the general contours of this case,we find under our State's Equal Protection Clause that because education is a constitutionally derivedright in this State, the more demanding strict scrutiny equal protection standard is thrust upon theState.

We also have determined that the Thorough and Efficient Clause requires the development ofcertain high quality educational standards, and that it is in part by these quality standards that theexisting educational system must be tested. Directly related to this is the further finding that if thesevalues are not currently being met, it must be ascertained that this failure is not a result ofinefficiency and failure to follow existing school statutes.

With these broad principles in mind, we proceed to a further analysis of the current Stateeducation statutes to develop specific lines of inquiry on remand.

DEVELOPMENT ON REMANDThe Financing System

Our State school aid formula is composed of four basic components: (1) an amount raised fromlocal levy on real and personal property; (2) the State foundation aid, which is money the State paysout of general revenue funds to the counties based on a formula composed of seven components; (3)State supplemental benefits; and (4) amounts raised locally by special levies by vote of the peoplein the county.33 [See W.Va. Code 18-9A-1, et seq.]

We note initially that no challenge is made to that part of financing for schools that arises fromlocal levies. This issue was raised unsuccessfully in other school financing cases. Robinson v. Cahill,supra; Serrano v. Priest, I & II, supra; Horton v. Meskill, supra. Article XII, Section 5 of ourConstitution expressly states that local taxation on property for school purposes is permitted to theextent that the Legislature may provide by general law:

"The legislature shall provide for the support of free schools by appropriating thereto theinterest of the invested 'school fund,' the net proceeds of all forfeitures and fines accruing to thisState under the laws thereof and by general taxation of persons and property or otherwise. It shallalso provide for raising in each county or district, by the authority of the people thereof, such aproportion of the amount required for the support of free schools therein as shall be prescribedby general laws."34

We do not consider, at least facially, that the State's foundation aid statute violates concepts ofequal protection, because the gross foundation aid has subtracted from it amounts raised by the

33Under the West Virginia Constitution, Article X, Section 1, maximum levy rates are set for eachclass of property, but by a 60 percent vote of the people an express levy may be made, but this toois limited to 50 percent of the maximum regular levy rates.

34Further acknowledgment of local levies on property is found in Article XII, Section 7[.] . . .

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county from the regular local property levy.35 Thus, a county which generates a small amount fromthe local property tax receives a larger amount of State foundation aid than does a county with a largelocal property tax. . . .

It is argued on appeal, however, that there are basic inequities in the seven-factor computationby which the foundation aid is computed.36 These factual contentions were not developed below andshould be explored before the trial court can determine if the State foundation aid meets equalprotection standards.

Supplemental State AidFrom the record we are unable to make any determination about this part of the State financing

formula. It was not discussed by the trial court nor the parties. That it exists is [manifest]. . . . Weare not advised of its source or how it flows to the counties. This is obviously a critical area fordevelopment below. If supplemental aid can be made available to those counties whose educationalsystems are below the standards of a thorough and efficient system and this raises them to thestandards, which seems unlikely considering the sorry conditions in Lincoln County schools, thenthe claim of unconstitutionality under the Thorough and Efficient Clause may be dissipated.

Tax Revenues from Special or Excess Levy on PropertyWhile it is not clear from the record what role the trial court assigned to revenues generated from

excess levies voted by citizens in a given county, we believe these revenues are not subject to attackunder our Equal Protection Clause.

The United States Supreme Court has specifically upheld the 60 percent majority voterequirement contained in Article X, Section 1 of our Constitution, as against an equal protectionattack on the right to set such requirement in Gordon v. Lance, 403 U.S. 1 (1971). Consequently, thevoluntary exercise of such right does not violate equal protection standards of either our State orFederal Constitutions. The reason is that the excess taxes arise by the free will of the citizens in thecounties, who must, by a 60 percent vote, agree to impose this excess tax on themselves.

The violation of the equal protection standard usually arises from state action; that is, the act ofa legislative body in setting, by some statute or ordinance, an arbitrary classification. . . . Here, these

35See W.Va.Code, 18-9A-12. There may be some problem if, on remand, it is determined thatLincoln County is not utilizing the State Tax Commissioner's appraisement figures and the countycourt has not allocated to the county board of education, under W.Va.Code, 18-9A-11, thedifferential between the revenues that it would have received based on the Tax Commissioner'sappraisal and the amount actually received on the lower appraisal. W.Va.Code, 18-9A-11, requiresthe State Board of Education to compute the county's property tax revenues for school purposesbased on appraisement made by the State Tax Commissioner. It is this amount which is subtractedfrom the county's gross State foundation aid. Obviously, if the counties are not following the StateTax Commissioner's appraisal figures and the county court is not supplementing the difference,disparities arise between the actual tax revenues received for school purposes and the hypotheticalfigure used in the State foundation aid formula. We discuss the appraisal problem at some length ina subsequent portion of the opinion.

36Appellants in their Brief at p. 22 state: "The major factors causing these disparities are as follows.First, the hypothetical 'local share', which is deducted from the seven-factor computation of expensesused in determining state foundation aid is 17 percent less than the amount actually raised locallyfor education. This 17 percent is thus not considered in the state aid calculation. Second, the primaryexpense category for the state aid formula is the 'allowance for professional educators,' whichcategory also determines to a large extent the expense allowances in categories 2, 3, 5 and 6. Inproperty-poor counties the number of professional educators is less proportionately than inproperty-rich counties because of lack of classroom facilities and other physical resources. . . ."

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excess levies are determined by the vote of the people.37

The exemption of excess levy funds from equal protection standards may not prevent them frombeing counted as available for the thorough and efficient standard.

But certainly there are limits to the amount of reliance that can be placed on this source of funds,considering the State government's constitutional responsibility to assure a thorough and efficientsystem of schools.

The Property Appraisement SystemThe trial court acknowledges that one source of disparity between the amounts raised through

property taxes in the various counties is that some are poor in property wealth. There is noevidentiary development of this issue, and it should be examined to develop whether the "poor"counties are assessing their properties adequately, and whether, per W.Va.Code, 18-9A-11, the StateTax Commissioner reappraises all real property in the counties and to make certain that localassessors are using the Tax Commissioner's values. This same statute places certain mandatoryduties on county courts to allocate out of its levies sufficient funds to produce for county boards ofeducation amounts they would have received had the Tax Commissioner's appraisals been followed.

Upon remand, evidence must be developed to prove whether Lincoln County's low property taxrevenue results from faulty appraisements below those set by the Tax Commissioner. It will also benecessary to calculate the amount of deficiency, if any, to determine the true impact of the Statefinancing formula in Lincoln County. Moreover, inquiry must be directed in other low propertyrevenue counties to determine if the [state law is] being followed.

It is obvious that W.Va.Code, 18-9A-11, reflects legislative perception that equality in propertytaxes could not occur until uniform property appraisements were set in the various counties. TheLegislature's intent to have this section complied with is demonstrated by . . . broad enforcement andpenalty provisions[. W.Va. Code 18-9A-11.] . . . To the extent that State ex rel. Raese v. Battle, 149W.Va. 761, 143 S.E.2d 328 (1965), states that the Tax Commissioner is without power to proceedto enforce the provisions of W.Va.Code, 18-9A-11, it is overruled.

The State School Building FundAnother concern is apportionment of the State School Building Fund under W.Va.Code, 18-9C-1,

et seq., and particularly the entitlements set out in Section 5. The basic question is whether thesefunds are allocated in a manner that will provide essential physical facilities to meet the thoroughand efficient standard. Again, expert testimony will be needed to develop the appropriate standard.Lincoln County school facilities must be tested by this standard, with some regard to an overallefficient plan.

The State's Administrative Role –State Board of School Finance

The Legislature almost forty years ago recognized that: "Because of the adoption of the 'TaxLimitation Amendment,' it has become necessary for the State to participate to an increasing degreein the financing of the free public schools." W.Va.Code, 18-9B-1. It passed what is now W.Va.Code,18-9B-1, Et seq., creating the State Board of School Finance and giving it a variety of administrativeand budgetary powers over county boards of education.

While there is no need at this time to review each of the provisions of this Article, the trial courton remand should ascertain if the State Board of School Finance has carried out its responsibilitiesunder this Article, and whether Lincoln County has complied with this Article.

State Superintendent of Schools and State Board of EducationW.Va.Code, 18-9A-17, expressly provides that performance of powers and duties given to the

37Courts, as well as educators, have recognized that in any well-devised educational system thereshould be some local initiative, such that if a group of citizens is willing to vote for additional taxesto provide additional educational advantages. [Rodriguez.]

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State Board of School Finance under W.Va.Code, 18-9A-1, Et seq., is ultimately the responsibilityof the West Virginia Board of Education and its chief executive officer, the State Superintendent ofSchools:

"Notwithstanding any and all references to the board of school finance as found in articlenine-B (§ 18-9B-1 et seq.) of this chapter, the West Virginia board of education, through its chiefexecutive officer, shall direct and carry out all provisions of said article nine-B." (W.Va.Code,18-9A-17)Consequently, the trial court should require development of the facts about performance of those

duties.It is also clear that under W.Va.Code, 18-9A-11, the State Board of Education is required to

calculate the county's property tax revenues which are subtracted from the State foundation aid.Inquiry should be made to determine if it is complying with this section. This would includedetermining what appraisement figures it obtains from the State Tax Commissioner.

According to W.Va.Code, 18-2-23, the West Virginia Board of Education, through the StateSuperintendent of Schools, has been required since 1965 to establish "a comprehensive educationalprogram or programs in county school systems." This section also provides for evaluation of existingcounty school systems on a continuing basis to detect deficiencies and to make recommendationsto correct deficiencies.

Certainly on remand the trial court should require a full production of the plans, studies andrecommendations made by the Board and the State Superintendent to Lincoln County andState-wide. These studies should be useful in development of standards for a thorough and efficientschool system.

We have previously pointed out that our thorough and efficient constitutional mandate requiressomething more than a mere equality of educational funding to the counties. Brotherton v.Blankenship, supra, holds:

"Article 12, Section 1 of the Constitution of West Virginia provides: 'The legislature shallprovide, by general law, for a thorough and efficient system of free schools'. It has been held thatthis section requiring the establishment and maintenance of free schools is an absolute andmandatory duty on the part of the Legislature. State ex rel. Trent v. Sims, 138 W.Va. 244, 77S.E.2d 122 (1953). . . . It is the view of this Court that the foregoing adequately reflects the willof the people, through the basic law enacted by them, that a Thorough and efficient system of freeschools is of paramount importance in a free society and that neither the legislature nor theexecutive branch of government may perform any act which would result in the elimination ofthis safeguard." (Emphasis supplied) (207 S.E.2d at 436)It is perhaps appropriate at this point to digress to one of the problems that we see in the record

before us. It contains a number of statistical tables and studies with little information about theirrelevance. Affidavits are admissible in this type of action which is heard without jury, but it will beuseful on remand to have evidence elicited about purposes, and explanations of the backgroundcompilations of data. Opposing parties may, of course, cross- examine affiants.

The Local RoleIt is essential that a determination be made on remand, that the Lincoln County Board of

Education is fulfilling its responsibilities imposed by the thorough and efficient mandate, inadministering its school system.

Certainly, the State Superintendent of Schools, as well as the Lincoln County Superintendent ofSchools, should have direct input in this area. These constitutional officers are trained professionalswho are required to implement the policies of the State Board of Education and the County Boardof Education. Their statutory duties are set out in W.Va.Code, 18-3-1, et seq., and 18-4-1, et seq.

Particular attention is directed to W.Va.Code, 18-5-11, permitting joint establishment of schoolsby the County Boards of Education of two or more adjoining counties as they operate in conjunctionwith the authority vested in County Boards under W.Va.Code, 18-5-13, to close and consolidate

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schools. Obviously, economy and efficiency may be affected by the number of duplicate schoolfacilities that are being operated in the same county.

On remand, some judgment must be made by educational experts as to whether, under theexisting statutes, the Lincoln County school system is being operated in reasonably efficient manner,before any ultimate decision can be made that the present statutory scheme fails to deliver a thoroughand efficient education.

PartiesThe Constitution mandates legislative responsibility for a State-wide thorough and efficient

school system. The trial court should, upon remand, require the suit to be amended to include theSpeaker of the House of Delegates and the President of the Senate of West Virginia as defendants.Undoubtedly, the expert studies made by various legislative committees will assist in the ultimateformulation of standards for the system. Legislative representatives should have an opportunity tofully explore any of the theories or statistics in the plaintiffs' case to demonstrate any possible errorsor deficiencies. As we have said, legislative determinations of standards would be very importantand persuasive to us. We have previously noted that other essential parties are the State Tax Commissioner, theLincoln County Superintendent, its School Board, its Assessor and County Court, all of whom arecharged with mandatory roles under this State's educational statutes.

CONCLUSIONA "Sketch of the Erection and Formation of the State of West Virginia from the Territory of

Virginia," a prefix to 1 W.Va., was included in our first Reporter, "in order that the events thereinrecorded may not pass from the memory, and at the same time to provide some accessiblememoranda, useful to the lawyer in his practice and convenient for reference by all." . . .

The "sketch" ..., during discussion about our 1863 Constitution, has these comments:"But the feature of the instrument that demonstrates most clearly the spirit of enlightenedpatriotism and enlarged sense of genuine interest in the cause of humanity, was the liberalprovision for the establishment of a system of free schools." Our basic law makes education's funding second in priority only to payment of the State debt, and

ahead of every other State function. Our Constitution manifests, throughout, the people's clearmandate to the Legislature, that public education is a Prime function of our State government. Wemust not allow that command to be unheeded. We reverse the judgment of the Circuit Court and remand this case for proceedings as directed.. . .

NEELY, Justice, dissenting:

When the average bright law student first encounters the doctrine that courts will not decide"political questions," it usually appears that such deference to other authorities is more cowardiceon the part of the judiciary than anything which passes for statesmanship. However, maturity bringsa recognition that all power has its inherent limitations and I dissent on the grounds that the majorityhas overstepped the limits of a court. State supported public education is an area where the otheragencies of government are actively working while taking cognizance of other compelling yetcompeting imperatives, among which are included an appropriate level of taxation, help for the aged,infirm, mentally ill, and destitute along with the more mundane demands upon the public treasurysuch as roads, sewers, fire protection and police protection. . . .

Where the other agencies of government totally neglect the needs of a constituency entirelydevoid of an effective political voice, as for example Black citizens in 1954, Brown v. Board ofEducation, 347 U.S. 483 (1954), mental health patients in 1974, State ex rel. Hawks v. Lazaro,W.Va., 202 S.E.2d 109 (1974) or juvenile status offenders in 1977, State ex rel. Harris v. Calendine,W.Va., 233 S.E.2d 318 (1977), it may be appropriate for a court to intervene in the political process

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under the authority of constitutional interpretation because there is no effective political alternative.These cases are distinguishable from the case at bar, however, by the fact that they presentedproblems susceptible to judicial management. In those cited instances there were structural obstaclesto effective political participation by the abused constituency which only the courts could overcomeon behalf of those to whom the political process was foreclosed. However, with regard to theparticular invitation to judicial activism before us now, the Legislature has committees meetingconstantly during its sessions on the subject of education; there is a huge bureaucracy dedicated tocarrying out the legislative program; and, there are numerous, powerful, active constituencies whoroutinely devote time and money to effective (as well as ineffective) lobbying for education. . . .

The case before us presents an attempt by parents and public interest lawyers to pry more moneyfrom the Legislature while at the same time avoiding the cumbersome legislative/political processwith all of the implications which that process entails that something more than the mereappropriation of money may be forthcoming. As originally brought, the suit did not challenge teacherincompetency, nor the existence of an enormous interlocking statutory scheme which guarantees thatsecurity of position for those within the educational establishment will take precedence over theeducation of children. That statutory scheme is the result of political bargaining and must becorrected through political bargaining if the result is to have any legitimacy.

Accordingly, as woeful as the West Virginia public education system is, I would affirm thejudgment of the lower court because the entire question comes within the classic definition of a"political question" set forth in Baker v. Carr, 369 U.S. 186 (1962), where Justice Brennan indicatedthat a question is not justiciable if it lacks "judicially discoverable and manageable standards forresolving it." ...

When the Thorough and Efficient Clause is considered, along with other aspects of the statutoryscheme of education, it should be apparent that political hiring, teacher tenure, irrational certificationrequirements, lack of school consolidation, and a host of other considerations, which would present"the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicialdiscretion," [Baker], make it impossible to decide these issues without "the potentiality ofembarrassment from multifarious pronouncements by various departments on one question." [Baker.]

The courts can act upon a question such as the one presented in this case only when it is possibleto remedy the situation by an order operating upon a discrete aspect of the problem. The lower courtswill not find any aspects of the problem of substandard schools which taken alone, under theThorough and Efficient Clause, can be acted upon by a court order without thereby implying that thecourts must, in order to carry out their mandate, run the schools. If they find the financing systemimproper they cannot properly order the Legislature to raise taxes. This latter difficulty involves "theinherent limitations of the judicial process, arising especially from its largely negative character andlimited resources for enforcement." Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549,571 (1947). Furthermore, where a facet of a given total problem is susceptible of court resolution,but such resolution aggravates, distorts, or intensifies the magnitude of other aspects of the totalproblem which must then be left for resolution by another branch of government, . . . there is adangerous possibility of "a court's undertaking independent resolution without expressing . . . therespect due coordinate branches of government." [Baker.]

The courts' inability to resolve many public issues such as the one before us is compounded bythe problem of interest representation. Public law litigation has wide impact and, therefore, seemsto necessitate representation of all who will be affected by its resolution; however, no reliable criteriahave yet been found for identifying the affected interest, "apart from the decibel of the protest." . .. It should be obvious that the traditional adverseness necessary to "(sharpen) the presentation of(the) issues" envisaged by Baker v. Carr is absent when the named defendant is either in reality notadverse or, at the very least, ambivalent. This is obviously the case before us; certainly the StateTreasurer, State Board of Education, and State Superintendent of Schools are all in favor of

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"thorough and efficient" education. The adverse party, if there be one, is the taxpayer who is not anamed defendant and cannot even be effectively represented by naming the President of the Senateand Speaker of the House of Delegates.

Consequently, it is with reluctance that I must dissent from the opinion of my learned colleagues,not because I am less outraged than they about the condition of West Virginia schools, but becauseI am neither Governor nor the entire Legislature. On remand I would hope that the lower court doesnot confine itself to an investigation of the problem of school financing alone; the children areentitled to a better inquiry than that if the courts are going to get into the question. The lower courtshould investigate, as suggested in the majority opinion, the relationship of tenure without need todemonstrate continuing competence, salaries which are not based on performance, lack ofconsolidation, inferior curricula, poor discipline, and a host of other ingredients which comprise thetotal problem. Only after adequate development of all those problems will the issue of finance becapable of being placed in proper perspective.

NOTES

1. Pauley returned to the Court in 1984, sub nom. Pauley v. Bailey, 174 W.Va. 167, 324 S.E.2d128 (1984), which required the State Board and Superintendent of Schools to implement “A MasterPlan for Public Education,” and in 1986, sub nom. Pauley v. Gainer, 177 W.Va. 464, 353 S.E.2d 318(1986), which dealt with a procedural issue, and again in 1988, sub nom. State ex rel. Boards ofEducation v. Chafin, 180 W.Va. 219, 376 S.E.2d 113 (1988), which reversed the trial court’sconclusion that the excess levy provision in Article X, § 1 violated equal protection principles.

In January, 1995, the Pauley plaintiffs filed a motion to enforce the court’s prior order and theMaster Plan. The case was once again assigned to the original trial judge (Judge Arthur Recht ofOhio County), who conducted another trial on the State’s compliance with the earlier decision. While the case was pending, the Legislature enacted a new strategy for public education in the WestVirginia, one emphasizing “outputs,” rather than the inputs focus of Pauley, and increased statesupervision. See W. Va. Code 18-2E-1, et seq., especially § 18-2E-5; cf. No Child Left Behind. Thecircuit court awarded (through a negotiated settlement) some interim relief but ultimately concludedthat the Legislature’s strategy should be given a chance to work and dismissed the case. Thelitigation had been re-captioned Tomblin v. West Virginia State Board of Education.

2. The West Virginia Court has consistently held that education is a fundamental right and thatclassifications affecting that right must be subjected to strict scrutiny, i.e., to be valid, suchclassifications must be necessary to the accomplishment of a compelling state interest. E.g., Boardof Education of the County of Kanawha v. West Virginia State Board of Education, 219 W.Va. 801,639 S.E.2d 893 (2006) (State Board’s failure to credit county board for funds that local board wasstatutorily required to contribute to county library operations in the calculation of county board’sshare of state funding failed to meet the strict scrutiny required of distinctions in educationalfunding); State ex rel. Board of Educ. for the County of Randolph v. Bailey, 192 W.Va. 534, 453S.E.2d 368 (1994) (statute that created state inequities in providing pay for teachers and servicepersonnel violated state constitution to extent that it discriminated against certain counties). Collinsv. Ritchie, 177 W.Va. 229, 351 S.E.2d 416 (1986).

Accordingly, the Court “has concluded that the ‘right is meaningful only if school children areable to get to school.’ [Id.] In consequence of that, the court has ordered a school board to providetransportation to students on a poorly maintained road and, if necessary, purchase a vehicle smallerthan a school bus to transport the children on the road[, Shrewsbury v. Board of Education, WyomingCounty, 164 W.Va. 698, 265 S.E.2d 767 (1980)]; ordered another school board to provide busservice to children who lived on a private road[, Kennedy v. Board of Education, McDowell County;175 W.Va. 668, 337 S.E.2d 905 (1985); and ordered the Department of Highways to increase the

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level of maintenance on a road to permit a board to meet its transportation duties. [Collins, supra.]” Robert M. Bastress, The Impact of Litigation on Rural Students: From Free Textbooks to SchoolConsolidation, 82 NEB. L. REV. 9, 20 (2003).

As noted in Pauley, Vandevender v. Cassell, 158 W.Va. 87, 208 S.E.2d 436 (1974), held thattextbooks, workbooks, and materials necessary for use in the required curriculum must be providedwithout charge to needy students. The Court expanded on that in Randolph County Board ofEducation v. Adams, 196 W.Va. 9, 467 S.E.2d 150 (1995), and held that local school boards maynot assess fees for books and materials even on families that are financially capable of paying thefees.

3. From Robert M. Bastress, The Impact of Litigation on Rural Students: From Free Textbooksto School Consolidation, 82 NEB. L. REV. 9, 10-12 (2003):

Every state constitution mandates state-provided schooling. To varying degrees, the courts havefound that these provisions confer on their state's children a "right to an education." To what extent,though, does this mean a right to a "free education?" . . .

There is so little case law on the issue of tuition for public schooling that it is probably safe toconclude that each state constitution establishes a right to a free public education, leaving only thequestion as to what is encompassed by the term "education." The United States Supreme Court hassuggested that a tuition-based educational system might even violate the federal equal protectionguarantee, at least as applied to indigent children. While rejecting the argument that Texas' propertytax-based finance system discriminated against the poor in violation of the Fourteenth Amendment,the Court in San Antonio Independent School District v. Rodriguez4 noted that it "would present afar more compelling set of circumstances for judicial assistance" if a state made "elementary andsecondary education ... available ... only to those able to pay a tuition assessed against each pupil[.]"

Subsequently, the Court did invalidate a Texas program that conditioned public education forchildren of illegal aliens upon the payment of tuition, which few of those children could afford.6 TheCourt reasoned that education is essential for participation in modern society and in a democracy,and that the Texas tuition plan would create a permanent underclass whose members were identifiedby the wrongs of their parents, a virtual caste system that was anathema to our concept of equalprotection. On the other hand, the Court has upheld, against a federal challenge, a bona fideresidency requirement - which conditioned free attendance on district residency - and theassessments that a school district imposed on nonresident students.8

Because the states do not charge tuition to resident students, there has been little or no need tolitigate the validity under state constitutions for such assessments. There have been cases, however,in which courts have addressed whether the state owes any duty to provide alternative educationalservices to a student under a long term suspension from school. This issue has taken on greatersignificance since Congress' enactment of the Gun-Free Schools Act, which conditioned a state'sreceipt of federal education dollars on its enactment of a law requiring local school boards to expelfrom school for at least one year any student who possessed a firearm at a school, subject to anadministrative discretion to modify the requirement on a case-by-case basis. Within a short periodof time after the Act's passage in 1994, all fifty states met the requirement, and a great many of themextended the Act's zero tolerance policy to include possession of not only firearms, but also of otherweapons, drugs, alcohol, and tobacco. As a consequence, the country has experienced, since 1995,

4411 U.S. 1 (1973).

6Plyler v. Doe, 457 U.S. 202 (1982).

8Martinez v. Bynum, 461 U.S. 321 (1983).

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a dramatic increase in the number of suspensions and expulsions, and many, if not most, have beenfor nonviolent behavior.

The following case provides the West Virginia’s Supreme Court’s response.

CATHE A. v. DODDRIDGE COUNTYBOARD OF EDUCATION,

200 W. Va. 521, 490 S.E.2d 340 (1997).

Starcher, Justice:

The first issue which we address in this appeal by the Doddridge County Board of Education iswhether the Productive and Safe Schools Act of 1995, which requires that children who bringdangerous weapons to school be removed from school for up to twelve months, violates theprovisions of the West Virginia Constitution which make education a fundamental, constitutionalright. Because the Act is narrowly tailored to serve a compelling state interest in safe and secureschools, we hold that the Safe Schools Act is facially constitutional.

The second issue presented in this appeal arises out of the Doddridge County Board ofEducation's decision to condition its providing four hours per week of educational instruction to achild who had been removed from school under the Safe Schools Act upon the child's parents payingthe Board for the cost of the instruction. We affirm the judgment of the circuit court which held thatthe Board's action violated the provisions of the West Virginia Constitution which make educationa fundamental, constitutional right.

I. Facts and Background During the 1994-95 school year, C.E.A. attended Doddridge High School. Because of his

disruptive conduct, he received discipline on nine occasions, ranging from warnings to suspensionfrom school. On April 15, 1995, C.E.A. was found on school property with a heavy lock blade knifewith a blade approximately three and one-half inches in length.

Although no discipline was administered for his possession of this formidable weapon, C.E.A.and his mother were warned that bringing the knife to school again would result in expulsionbecause the knife was considered a deadly weapon. Less than one month later, on May 9, 1995,while riding a school bus, C.E.A. was found with not one but two knives, both with blades three andone-half inches long.

Following C.E.A.'s immediate suspension, the Doddridge County Board of Education conducteda hearing on June 1, 1995. By a letter dated June 8, 1995, the Doddridge County Superintendent ofSchools informed C.E.A. that as a result of the application of the Productive and Safe Schools Act,W.Va. Code, 18A-5-1a(g) [1995] ("the Safe Schools Act " or "the Act"),2 the Board of Education

2W. Va. Code, 18A-5-1a [1995] provides in relevant part: (a) A principal shall suspend a pupil from school or from transportation to or from the school on any school bus if

the pupil, in the determination of the principal, after an informal hearing pursuant to subsection (d) of this section has:. . . (ii) violated the provisions of subsection (b), section eleven-a, article seven, chapter sixty-one of this code; [ §§ 61-7-11a(b)] [felony to possess firearm or deadly weapon on school buses and school properties];

* * * (g) Pupils may be expelled pursuant to the provisions of this section for a period not to exceed one school year,

except that if a pupil is determined to have violated the provisions of subsection (a) of this section the pupil shall beexpelled for a period of not less than twelve consecutive months: Provided, That the county superintendent may lessenthe mandatory period of twelve consecutive months for the expulsion of the pupil if the circumstances of the pupil's casedemonstrably warrant . . . .

The Act also mandates a twelve-month suspension for assault and battery upon a school employee, and for the saleof narcotic drugs. W.Va. Code, 18A-5-1a (i) and (iii) [1995].

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was expelling C.E.A. for a period of twelve consecutive months, ending May 8, 1996. On October 10, 1995, C.E.A. (by his mother Cathe A.) filed a petition for writ of mandamus in

the Circuit Court of Doddridge County seeking to compel the Board of Education either to readmitC.E.A. to regular school classes or alternatively to provide him with other state-funded educationalservices.

On October 23, 1995, a hearing on C.E.A.'s petition was held before the circuit court. The Boardof Education stipulated that the Board was willing and able to provide a home instruction teacherfor C.E.A. for four hours a week, but only if C.E.A.'s parents would agree to reimburse the Boardfor the cost of the teacher's time (including travel) at $ 14.00 per hour. The Board agreed to providebooks and materials at no cost. The estimated cost to the Board was $ 45.00 per week.

On November 1, 1995, the circuit court issued a written order . . . [and] concluded that the Boardof Education's constitutional responsibility was not fulfilled either by merely providing C.E.A. withtextbooks, or by providing educational services contingent upon reimbursement for their cost byC.E.A.'s family. The circuit court also ruled that C.E.A.'s parents had to provide any necessarytransportation for C.E.A. . . .

After the circuit court issued its ruling, the Board stated that it would provide C.E.A. four hoursper week of state-funded instruction at a school building, after school hours. The Board reported thisplan to the circuit court, which apparently found that the Board's plan was acceptable compliancewith the court's directive. The Board then appealed the circuit court's order to this court. The appelleeCathe A. did not dispute the adequacy of the plan. ...

II. Discussion. . .

C. The Safe Schools Act– Facial Constitutional Analysis

[Pauley v. Kelly] states:The mandatory requirements of "a thorough and efficient system of free schools" found in ArticleXII, Section 1 of the West Virginia Constitution, make education a fundamental, constitutionalright in this State.

[Accord, Randolph County Bd. of Educ. v. Adams;] State ex rel. Board of Education for County ofGrant v. Manchin, 179 W.Va. 235, 366 S.E.2d 743 (1988).

"If the state takes some action which denies or infringes upon a person's fundamental right to aneducation, then strict scrutiny will apply and the State must prove that its action is necessary to servesome compelling State interest. Furthermore, any denial or infringement of the fundamental rightto an education for a compelling State interest must be narrowly tailored." Phillip Leon M. v.Greenbrier County Board of Education, 199 W.Va. 400, 409, 484 S.E.2d 909, 918 (1996) (McHugh,J., concurring, in part, and dissenting, in part) (citations omitted). For example, in Syllabus Point 4of Pauley v. Kelly, supra we determined that any discriminatory classification in the school financingsystem must serve a compelling state interest.

In Phillip Leon M., supra, we held that providing a safe and secure environment wherein ourchildren can learn is implicit in the constitutional guarantee of a "thorough and efficient schoolsystem" under W.Va. Const. art XII sec. 1. Syllabus Point 4 of Phillip Leon M. states, in pertinentpart:

Implicit within the West Virginia constitutional guarantee of "a thorough and efficient systemof free schools" is the need for a safe and secure school environment. Without a safe and secureenvironment, a school is unable to fulfill its basic purpose of providing an education. Well before the passage of the Safe Schools Act, this Court recognized that a child may be

constitutionally removed from the classroom environment when he or she engages in disruptiveconduct. In Keith D. v. Ball, 177 W.Va. 93, 350 S.E.2d 720 (1986), four pupils were expelled fora period of one calendar year based on their conduct of falsely reporting over two dozen bombthreats. We held in Keith D. that the pupils were not entitled to reinstatement because the pupils'

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behavior involved substantial disorder and invasion of the rights of others.4 We stated: Conduct by a student, whether in class or out, whether it stems from the time, place, or type ofbehavior, which materially disrupts classwork or involves substantial disorder or invasion of therights of others, is not constitutionally immunized. See, e.g., Tinker v. Des Moines Indep.Community School Dist., 393 U.S. 503, 513, 89 S. Ct. 733, 740, 21 L. Ed. 2d 731(1969) (Firstamendment); see generally Annot., 32 A.L.R.3d 864, 868 (1970). An individual does not havethe right to exercise his fundamental constitutional rights at all times, under all circumstances,and by all methods.

177 W.Va. at 95, 350 S.E.2d at 722-23 (1986) (footnote omitted). The United States Supreme Court has recognized that if forbidden conduct would materially and

substantially interfere with the requirements of appropriate discipline in the operation of the school,the discipline may be sustained. [Tinker]; Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966). Thesame reasoning would apply to consideration of the Safe Schools Act.

The twelve-month expulsion period which the Safe Schools Act sets forth may seem to be asevere penalty. But the Legislature is entitled to believe that only such a penalty would serve as aneffective deterrent to further the important goal of a strict weapons-free environment in our schools,and would remove those children who defied a "no weapons" policy from school for a substantialperiod of time.5

If West Virginians cannot have a reasonable degree of confidence that the schools that theirchildren, grandchildren, nieces, nephews, friends and neighbors attend and work in are safe andsecure, the survival of the "thorough and efficient" public school system which our Constitutionitself mandates is in question. Indeed, a school system that did not take rigorous steps to eliminateviolence and weapons could find itself in serious liability problems if a child or teacher were injuredby the presence of conditions that the school could have detected and prevented. We conclude thatthe Safe Schools Act's twelve-month expulsion period sends a strong message that we think theLegislature was entitled to believe needs to be sent to further a compelling state interest.

Because we conclude in Part II.D. of this opinion that in all but the most extreme cases a childwho is on the receiving end of the Act's penalty will still have reasonable state-funded basiceducational opportunities and services available, it is our judgment that the Safe Schools Act's

4In Syllabus Point 4 of Phillip Leon M., we modified the holding of Keith D., by clarifying that the opinion in Keith D.was limited to the issue of whether the constitutional right to an education required reinstatement to regular school classesfor disorderly and disruptive students -- and not the issue of what degree and type of obligation the constitutional rightto an education placed upon the state, in the case of students who had been permissibly removed from the regular schoolsetting. Phillip Leon, 199 W.Va. at 407, 484 S.E.2d at 916.

5In considering the objectives of the Safe Schools Act, we recognize that the Legislature was properly concerned withproviding our State's children and educational employees with a safe and secure environment in which to learn and work.

Additionally, we understand the context from which our state act arose. To encourage the various states to alignthemselves with the national campaign to establish a learning environment in our public schools free from violence andthreats of violence, Congress used a "carrot and stick" approach. 20 U.S.C. §§ 5961 to 5968 [1994] ("Safe Schools Actof 1994").

The "carrot" is the continuation of federal funding for various State projects. The "stick" is the threat to withholdthose funds if legislation on the state level does not address violence in our public schools. The Productive and SafeSchools Act of 1995 was West Virginia's response to the congressional encouragement.

Among the goals of the federal act are the achievement of violence-free schools by the year 2000 and the creationof a disciplined environment conducive to learning, thereby ensuring that all schools are safe and free of violence. 20U.S.C. §§ 5961(b). Congress, aware of the alarming increase in crime in our nation's schools, desired to create violence-free schools and this desire culminated in the passage of the "Gun Free Schools Act" in 1994. 20 U.S.C. §§ 8921(b)(1)[1994]. The Gun-Free Schools Act requires school districts to expel any pupil found possessing a gun at school, or risklosing federal funding under the Elementary and Secondary Education Act. The Gun-Free Schools Act encourages statesto pass "zero-tolerance" statutes that mandate expulsion for pupils possessing guns at school.

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requirement of removing children who commit certain offenses from a regular school setting for upto twelve months is narrowly tailored to serve a compelling state interest.

Because the State has a compelling interest in providing a safe and secure environment to theschool children of this State pursuant to W.Va. Const. art. XII, section 1, and because expulsion fromschool for as much as twelve months pursuant to the provisions of the Productive and Safe SchoolsAct, W.Va. Code, 18A-5-1a(g)[1995] is a reasonably necessary and narrowly tailored method tofurther that interest, the mandatory suspension period of the Act is not facially unconstitutional

D. The Safe Schools Act -- as Applied to C.E.A.

The question now arises, if a child may constitutionally be removed from a regular school settingfor twelve months, what then? Is the child to be left alone by the State with no obligation to engagein any sort of educational enterprise? What will be done to maximize the likelihood that the childkeeps current with academic basics so that he or she can return to regular school not irreparablybehind his or her peers?

These are difficult questions. The practical answers to these questions and the dilemmas theypresent will require experience, expertise, and experimentation. It is not the business of this Courtto make detailed policy or prescriptions. However, in reviewing the circuit court's decision in thecase of C.E.A., we can address the question of implementing the Safe Schools Act in a fashion thatfully complies with the State's constitutional responsibility to provide safe and secure educationalopportunities and services to all of the children of our State. Conscious of our limited butconstitutionally necessary role, we proceed.

We begin by reiterating the narrow issue which was actually decided by the circuit court. Thecircuit judge held that the Board's proposal to provide C.E.A. with four hours a week of state-fundedinstruction at a school building after regular school hours would satisfy the Board's constitutionalobligation to provide basic educational opportunities and services to C.E.A. Moreover, C.E.A.'sparents had to provide transportation, and if C.E.A. did not take advantage of the Board's proposal,the Board's responsibility to C.E.A. was ended. The appellee Cathe A. has not challenged the circuitcourt's ruling as to the constitutional adequacy of the opportunities and services contained in theBoard's proposal, so this Court need not and does not address that issue.

However, the Board contends that the circuit court was wrong in requiring the Board to provideany state-funded educational opportunity to C.E.A.

We emphasize that at no time has the Board contended that the safety of a home instruction orother after-school teacher for C.E.A. is or was an issue. The sole issue presented to the circuit judgewas whether the Board could constitutionally make providing an instructional program for C.E.A.contingent upon the child's parents reimbursing the Board for the cost of the program.

The circuit court concluded that the ability or willingness of C.E.A.'s parents to reimburse theState for the cost of state-provided educational opportunities and services for a child who is removedfrom school pursuant to the Safe Schools Act was an impermissible factor in determining whethersuch a child is provided educational opportunities and services.

We do not discern that a compelling state interest is furthered in a narrowly tailored fashion bya policy of providing educational opportunities and services to children who are removed fromschool because of the Safe Schools Act only if their parents will reimburse the cost of theeducational opportunity. Where the State is able to safely provide reasonable basic educationalopportunities and services to a child who has been removed from regular school under the provisionsof the [Safe Schools Act], there is no compelling state interest in a policy of providing theopportunities and services only if the child's parents are able and willing to reimburse the state forthe cost.

A child's constitutional, fundamental right to an education includes the right to be provided witheducational opportunities and services (which may be restricted or limited by narrowly tailoredrestrictions necessary to achieve a compelling state interest) at public expense, without regard to the

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child or parents' ability or willingness to reimburse the state for the cost of the educationalopportunities and services. We agree with the circuit judge that equal protection concerns underminethe constitutional legitimacy of the State's making such a distinction in providing educationalopportunities and services.

The crafting of detailed procedures and standards for implementing the State's compelling interestin ensuring safe schools, while providing educational opportunities and services for all of our State'schildren as required by our Constitution, is a matter properly left to the legislative and executiveprocesses. However, such procedures and standards must pass the strict scrutiny and narrow tailoringthat is required by our constitutional provisions governing the right to education.

In applying the mandate of the Safe Schools Act, the State Superintendent of Schools issued amemorandum on May 24, 1995, articulating a policy that a child who is removed from the classroomsetting pursuant to the Safe Schools Act is not entitled to any form of state-funded instruction duringthe pendency of their expulsion. (The memorandum also stated that local educational agencies mayin their discretion provide state-funded educational opportunities and services to these children.)

We are not unmindful of the enormous demands upon our State's educational system. We admireand praise the thousands of dedicated teachers, administrators, and service personnel who meet thosedemands with energy and creativity every day. Recognizing that our decision today will do nothingto reduce those demands, we must nevertheless conclude that the broad and sweeping policy set forthin the memorandum promulgated by the State Superintendent of Schools is incompatible with theplace of education as a fundamental, constitutional right in this State.

A policy to the effect that the State has no responsibility to provide any state-funded educationalopportunities and services to any children who are expelled under the [Safe Schools Act], isconstitutionally infirm because the State has not shown that applying such a limitation to all suchchildren under all circumstances is reasonably necessary and narrowly tailored to further thecompelling state interest in safe and secure schools.

For the foregoing reasons, the circuit court's judgment that under the facts presented by this case,the provision of basic educational opportunities and services to a child expelled pursuant to the SafeSchools Act could constitutionally not be made dependent upon the parent's ability or willingnessto reimburse the State is affirmed.

For a child who is not permitted to attend normal school pursuant to the provisions of the SafeSchools Act, the extent and details of the State's constitutional responsibility to provide other state-funded educational opportunities and services to the child must be determined on a case-by-casebasis, based on the unique circumstances of the individual child. A primary consideration in makingsuch a determination must be the protection of students, teachers and other school personnel; anotherlegitimate concern is the need to effectively deter other students from engaging in prohibitedconduct.

We recognize that in extreme circumstances and under a strong showing of necessity in aparticular case, strict scrutiny and narrow tailoring could permit the effective temporary denial of allState-funded educational opportunities and services to a child removed from regular school underthe [Safe Schools Act], particularly when the safety of others is threatened by the dangerous actionsof a child, and where the child is unwilling or unable to utilize educational opportunities and servicesthat are consistent with protecting the safety of others. See [Phillip Leon M.] (McHugh, J.,concurring, in part, and dissenting, in part).10

10In Phillip Leon M., Justice McHugh in his concurring and dissenting opinion (in which Chief Justice Workman joined)quoted from the thoughtful dissent by Chief Justice Liacos in Doe v. Superintendent of Sch. of Worcester, 421 Mass.117, 144-146, 653 N.E.2d 1088, 1103-1104 (1995).

In his dissent, Justice Liacos differed with the majority and concluded that Massachusetts children do have aconstitutional, fundamental right to education. He further concluded that in light of this constitutional right, when a childis removed from a school for violation of a "no weapons" policy, school officials who wish to deny all educational

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Thus, to the extent that the opinion in Phillip Leon M. implies that "in every case in which astudent is expelled from school for one year for possessing a firearm or other deadly weapon onschool property, the State must provide an alternative education[,]"11 [Id.] (McHugh, J., concurring,in part, and dissenting in part), that opinion is hereby modified.

We recognize that there may "be a point when a student's actions are so egregious, that in orderto protect teachers and other school personnel [and, we add, other students], the State may determinethat there is a compelling state interest not to provide an alternative to that particular expelledstudent." [Id.] (McHugh, J., concurring, in part, and dissenting, in part). However, the facts in theinstant case and common sense suggest that in all but the most extreme cases the State will be ableto provide reasonable state-funded educational opportunities and services to children who have beenremoved from the classroom by the provisions of the Safe Schools Act in a safe and reasonablefashion. Under such circumstances, providing educational opportunities and services to such childrenis constitutionally mandated. . . .

For the above stated reasons, the decision of the Circuit Court of Doddridge County is affirmedin part, reversed in part, and remanded for further proceedings consistent with this opinion.

Davis, Justice, concurring, in part, and dissenting, in part:

While I concur with the ultimate resolution under the circumstances of this particular case, it iswith the almost certain impact that this holding will have on the education of the young people ofour State that I simply cannot agree. In concluding that C.E.A. had a constitutional right to analternative education during the period of his expulsion, the Court has determined, in Syllabus Point4, that:

For a child who is not permitted to attend regular school pursuant to the provisions of the[Safe Schools Act], the extent and details of the State's constitutional responsibility to provideother state-funded educational opportunities and services to the child must be determined on acase-by-case basis, based on the unique circumstances of the individual child. A primaryconsideration in making such a determination must be the protection of school children, teachersand other school personnel; another legitimate concern is the need to effectively deter otherchildren from engaging in prohibited conduct. W. Va. Const. art. XII, section 1. . . . This Court would permit a local board of education to withhold educational services from a

student based solely upon a determination that the particular pupil is "too dangerous" to educatethrough alternative schooling. Nevertheless, the law of this State, with regard to education, indicatesotherwise. Article XII, Section 1, of the West Virginia Constitution specifically grants, to each youngperson of this State, a fundamental constitutional right to a public education: "The legislature shallprovide, by general law, for a thorough and efficient system of free schools." Furthermore, wepreviously, frequently, and explicitly have recognized this educational entitlement in ourjurisprudence. . . .

services to a child have the burden of making a "particularized showing" that "a procedure could not be established whichwould protect the safety of staff and students while permitting the education of [the child] . . . in some setting." Id. . . .

11We recognize that terms such as "alternative education" and "homebound instruction" which were generically used inPhillip Leon M. may be terms of art used to refer to specific programs in a school system. Such programs may, forexample, be designed for children who are principally at academic risk or whose physical or other specific conditionsprohibit attendance at a regular classroom setting. The constitutional requirement to provide reasonable educationalopportunities and services at public expense to students who have been expelled for possessing weapons pursuant to theSafe Schools Act is not the same thing as requiring that the child be enrolled in the school system's existing "alternativeeducation" or "homebound instruction," programs which have been developed for educational purposes other thanresponding to serious disciplinary problems.

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With specific regard to disciplinary matters, we recognized in Keith D. v. Ball that a studentcould, by reason of his/her behavior, temporarily forfeit his/her right to attend school. 177 W. Va.93, 350 S.E.2d 720 (1986). However, in Keith D. we did not decide whether a student would, uponsuspension or expulsion from regular school, be entitled to receive alternative education infurtherance of his/her constitutional right to an education. Ruling upon this precise issue leftunresolved by Keith D., most recently we concluded in the companion opinion to the case sub judice,Phillip Leon M. v. Greenbrier County Board of Education:

Implicit within the West Virginia constitutional guarantee of "a thorough and efficient systemof free schools" is the need for a safe and secure school environment. Without a safe and secureenvironment, a school is unable to fulfill its basic purpose of providing an education. However,the State, by refusing to provide any form of alternative education, has failed to tailor narrowlythe measures needed to provide a safe and secure school environment. Therefore, we find thatthe "thorough and efficient" clause of Article XII, Section 1 of the West Virginia Constitution,requires the creation of an alternative program for pupils suspended or expelled from their regulareducational program for a continuous period of one year for the sole reason of possessing afirearm or other deadly weapon at an educational facility. To the extent that Keith D. v. Ball, 177W. Va. 93, 350 S.E.2d 720 (1986), is inconsistent with this opinion, it is modified.

Syl. pt. 4, [Phillip Leon].In addition to our longstanding recognition of a young person's fundamental constitutional right

to an education, the West Virginia Legislature has determined that, while the particularcircumstances of a certain school-age juvenile may not be amenable to his/her participation in aprogram of regular education, he/she still is entitled to receive educational opportunities. . . . Given[numerous] examples of other students who are entitled to receive educational services despite theirparticular circumstances and, in the case of juveniles who have been adjudicated delinquent, evenin spite of their previously illegal behavior, I am hard-pressed to determine how a pupil in theposition of C.E.A. or J.P.M. could ever be denied an education when these are precisely the studentswho most require, and who would most benefit from, academic intervention. Particularly in light ofthe overarching fundamental constitutional right to an education and the fact that delinquentjuveniles are afforded educational opportunities, I have difficulty understanding how a student suchas C.E.A., who has been expelled, but not adjudicated to be delinquent, could be denied suchservices based upon a perceived danger to the alternative education instructors or students. In thisvein, counsel for the Attorney General of West Virginia best expressed this inconsistent irony:"Surely, it was not intended that a child who has ended up in the criminal justice system, who hasbeen adjudicated a juvenile delinquent [sic] has greater constitutional rights than a child who hasengaged in conduct that does not rise to the level of delinquency."

If more violent juveniles residing in correctional facilities are not perceived as too dangerous toeducate, then students committing far lesser transgressions resulting solely in expulsion should notbe denied their constitutional right to learn. In fact, it is precisely these students, who have not yetdeviated from lawful behavior, to whom we should turn our greatest attention in assuring theirconstitutional right to an education in hopes of preventing their criminal demise. Unfortunately, thedecision rendered by this Court will do nothing but give educators a license to refuse such servicesbased upon a discretionary assessment that a particular young person "threatens the safety of others."In the companion case to the one presently before us, which this Court has seen fit to modify, seeSyllabus Point 6 (modifying Phillip Leon), Judge Recht most eloquently prophesied the inherentinequities certain to result from this Court's decision:

Without alternative education, children similar to J.P.M. become orphans, abandoned by theeducational system, without anyone to educate them and give them the opportunities inherent inbeing an educated person. Children with more disruptive behavior are educated within thecriminal justice system. Children with financially able parents are educated privately. Childrenwith disabilities that may create disruptions are educated within the public system. Children with

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similar disruptive behavior in other counties are educated through alternative schools or otherprograms. If the West Virginia Constitution makes education a fundamental right, then childrensimilar to J.P.M. must be afforded an education and services.

[Phillip Leon.] (footnote omitted). Let us hope that the discretion authorized by this Court will beclosely guarded.

Accordingly, for the foregoing reasons, I respectfully concur, in part, and dissent, in part, fromthe decision of the Court.

Workman, C. J., concurring, in part, and dissenting, in part:

The majority's opinion is very disingenuous. While purporting to find the Safe Schools [Act]constitutional, it actually finds the statute to be unconstitutional in its application, based on itspremise that this State's Constitution requires the provision of an alternative education in all but themost extreme factual circumstances. In an ideal world it surely would be preferable to provide analternative education to students who are expelled; and even in our own imperfect world, it is stilla better idea to do so (at least in my opinion). However, we are judges, not legislators; and unlessthe legislation is determined to be unconstitutional, it is really properly a legislative decision as towhat is a good idea. Thus, the only proper inquiry for this Court is whether our state constitutionrequires the provision of such educational services. And the answer to this question is quite clearlythat the constitution does not require it.

Despite this State's recognition of a constitutional right to a free public education, . . . this right,like other constitutional rights, may be forfeited temporarily. . . . Thus, because the right to educationis not absolute, but contingent upon appropriate conduct in conformity with state law and schoolrules, a student may temporarily forfeit his or her right to an education as a result of disruptiveconduct. . . .

The Doddridge County Board of Education ("Board") convincingly argues that the strict scrutinyanalysis typically reserved for denial or infringement of fundamental rights, Lewis v. Canaan ValleyResorts, Inc., 185 W. Va. 684, 408 S.E.2d 634 (1991), is not invoked by a temporary suspension orexpulsion from the public schools. The Board suggests that the strict scrutiny analysis--the highestlevel of constitutional analysis--should only be applied where the right to education is totally denied,such as in a case of permanent expulsion from school. But the right to a public education exists untila child reaches the age of twenty-one; thus, even in the face of a twelve-month expulsion under theSafe Schools Act, an education is not denied, but only temporarily forfeited because of the validlegislative recognition that our schools must be made safe for both the students and the teachers.Because the student is clearly entitled to continue his education upon the expiration of the expulsionperiod, it is not necessary or legally correct to view the temporary suspension of the right to aneducation in the same analytical manner (i.e. strict scrutiny) as a permanent denial of a student's rightto a public education. See Ball, 177 W. Va. at 95, 350 S.E.2d at 723 n.3 (stating that "fact that theforfeiture is temporary is important" and that "temporary deprivation of constitutional rights doesnot require the protection that a permanent deprivation would") (citing Syl. Pt. 2, North v. WestVirginia Bd. of Regents, 160 W. Va. 248, 233 S.E.2d 411 (1977)). . . . .

The majority mistakenly takes the view that the State has sanctioned a denial of alternativeeducation to all expelled students. If the Legislature had precluded counties from providingalternative educational services to expelled students, then we would be dealing with aconstitutionally-elevated issue properly entitled to strict scrutiny analysis. In this case, however, whatthe Legislature (and the Superintendent in the policy) has done is to leave to the discretion of thecounties the decision of whether to provide alternative educational services in such instances. It mayhave been the Legislature's conclusion that any funds diverted to alternative education for kidsbringing weaponry to school would be funds taken away from the education of kids who come toschool and follow the rules. Many schools have already had to obliterate music and art from their

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curricula. Special education has endured substantial cutbacks. Now it appears that the majoritywould siphon more money away from the general student population by their requirement of analternative education to kids who won't follow the rules.

Furthermore, while the majority recognizes this need to determine on a case-by-case basis theservices for a given expelled child, it then fails to identify who is to make this determination. Themajority also suggests that the extent of the State's constitutional responsibility to provide alternativeeducational services is similarly to be determined on a case-by-case basis, but it does not identifywho is to make this determination. Thus, the majority cloaks the obligation that they have placedupon the State as to who is to make these case-by-case determinations in a cloud of confusion andirresoluteness.

I am authorized to state that Justice Maynard joins in this separate Opinion.

PENDLETON CITIZENS FOR COMMUNITY SCHOOLS v. MAROCKIE,203 W. Va. 310, 507 S.E.2d 673 (1998).

Starcher, Justice:

In the instant case, the Circuit Court of Kanawha County ruled that the closing of a high schoolin Circleville, in Pendleton County, violates both statutory law and our state constitutional right toeducation. We conclude that the circuit court erred in both conclusions. Consequently, we reversethe circuit's court's decision.

I. Facts and Background This case arises out of the closing of a small (130 students in grades 7 - 12) high school program1

in Circleville, Pendleton County, West Virginia. In 1995, the Pendleton County Board of Educationdecided to require that Pendleton County students in grades 7 - 12 who would have attended schoolin Circleville would instead attend a new, county-wide consolidated high school being built inFranklin, about 17 miles from Circleville. Franklin is the county seat, and has an existing highschool, with about 500 students in grades 7 - 12. The new consolidated high school would haveabout 650 students.

The plaintiffs below and appellees before this Court are high school students from CirclevilleSchool, their parents, and Pendleton Citizens for Community Schools, an organization whosemembers want to preserve Circleville High.

The defendants below and appellants before this Court are the West Virginia Superintendent ofSchools, the West Virginia Board of Education ("State Board"), the West Virginia School BuildingAuthority ("SBA") and its director, and the Pendleton County Board of Education ("County Board").

The appellees made two general contentions in the circuit court. First, appellees contended that

1The Circleville School contains kindergarten through grade 12. The Pendleton County Board of Education, with fundingfrom the West Virginia School Building Authority, plans to close the Circleville School, send grades 7-12 to a newconsolidated high school in Franklin, and build a new regional elementary school in Circleville. Appellees did not contestthe elementary school aspect of the County Board's plans, nor the building of a new high school in Franklin.

Circleville School is 62 years old. It was built by the Works Progress Administration, authorized by PresidentFranklin Roosevelt, and is listed on the National Register of Historic Places. . . .

In order to renovate the Circleville School building to current health and safety codes for student occupation, theevidence was that one would essentially have to gut the building, leaving the outside walls standing, and start over. Theappellants estimated that full repairs would cost more than $ 2,000,000; the appellees estimated a lesser figure. Thecircuit court made no specific findings on this issue other than to state that rehabilitation was feasible.

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the SBA, which provides money to counties for school construction,2 ordinarily awards such moneyonly to fund construction at schools that meet minimum "economies of scale" size requirements --for high schools, 200 per grade level. This requirement may be waived only when a school will takeall of a county's students at a certain grade level, as is the case for the new consolidated high schoolin Pendleton County. Without such a "single county high school waiver," the new high school wouldhave to have 1,200 students -- 6 grades times 200 students per grade -- to achieve "economies ofscale." There are not 1,200 high school students in all of Pendleton County. The appellees contendthat this SBA funding practice effectively forces county school boards in sparsely populated ruralcounties to consolidate high schools, regardless of and to the overall educational detriment of thechildren who have been attending smaller schools. Appellees also contend that school boards,particularly in less prosperous, sparsely populated, rural counties, cannot themselves ordinarilyrefurbish or replace smaller, non-consolidated high schools like Circleville, without fundingassistance from the SBA.

Thus, say appellees, the SBA's use of "economies of scale" in evaluating requests for fundingeffectively forces the closure of smaller community high schools that are otherwise efficient andeffective in the ways that matter most to their students and communities.3

The appellees contend that the SBA's use of "economies of scale" is contrary to the SBA'sstatutory direction under W.Va. Code, 18-9D-16 [1993]. The appellees also contend that the SBA'spractices are unconstitutional, because they impair the appellees' state constitutional right toeducational services and opportunities, without a rational basis and without being narrowly andnecessarily tailored in the least restrictive fashion to serve a compelling state interest.

Additionally, the appellees make a like argument with respect to the State Board's policiespursuant to W.Va. Code, 18-9A-5a [1990] governing salaries for a county's teachers, administrators,and school service personnel. These salary policies require certain pupil-personnel ratios to obtainmaximum state funding for salaries. The appellees contend that these ratios, like the SBA's"economies of scale" school size preferences, discourage the continued existence of smallerunconsolidated high schools, with the same allegedly unconstitutional effects.

In response to the appellee's contentions, the appellants assert that the SBA and State Boardpolicies do not drive consolidation. Furthermore, the appellants say that -- assuming arguendo thatSBA and State Board policies do drive consolidation -- any such bias toward consolidation is notcontrary to any statute nor a violation of the appellees' constitutional right to education.

On November 7, 1997, after receiving testimonial and documentary evidence from all parties, thecircuit court issued a 33-page order, finding inter alia that:

a. In order to create large enough enrollments to meet the [SBA/State Board-mandated]economies of scale, school boards in sparsely populated counties must create extremely largecatchment areas, and in some cases consolidate county-wide, thus requiring students to spendinordinately long periods of time commuting. * * * c. The long commutes interfere with students' study time, their ability to participate in

2"The Legislature established the SBA, in part, in response to this Court's concern in Pauley v. Kelly, 162 W. Va. 672,255 S.E.2d 859 (1979), that the State of West Virginia had failed to meet the guarantee of the West Virginia Constitutionto provide 'a thorough and efficient system of free schools.' W. Va. Const. Art. XII, Sec. 1." State ex rel. School Bldg.Authority of West Virginia v. Marockie, 198 W. Va. 424, 427 n. 2, 481 S.E.2d 730, 733 n. 2 (1996).

3Although there was a substantial history of contention in the Pendleton County School Board about closing CirclevilleSchool, we omit that factual recital. We have recognized the substantial deference that must be given to local schoolboards in their decisions to close schools. See McComas v. Board of Educ. of Fayette Co., 197 W. Va. 188, 475 S.E.2d280 (1996). In the instant case, the appellees argue and the circuit court found that in order to obtain SBA and StateBoard funding, a local school board has little choice in whether or not to consolidate.

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extracurricular activities, and their educational achievement. d. Larger schools mean lower participation rates for students in extracurricular activities in thelife of the school. e. Students who are bused the longest distances generally live in the most rural areas of thecounty and generally come from families with a lower socio-economic status than those who livenearer to the consolidated school. f. The level of parental involvement, an important barometer of students' educationalachievement, diminishes when schools become larger and more distant. g. Small community schools are more effective in blunting the effects of low socio-economicstatus on students' educational achievement. h. Busing students from families and communities with a relatively low socio-economic status(SES) into consolidated schools in communities and with students from a higher socio-economicstatus has a significant negative impact on the educational achievement of the lower SESstudents. I. [sic] Closing community schools and busing rural students to consolidated schools, especiallywhen the bused children from lower socio-economic backgrounds, create a significant risk ofsubstantially increasing the dropout rate among students. j. Consolidation often creates deep and long lasting divisions between the consolidatedcommunities and adversely affects parental involvement in the schools, dropout rates, studentachievement levels, and generally the quality of the educational experience. k. Large schools are not just dysfunctional for poor children; such schools dramaticallycompound the disadvantages that poor children inevitably confront. l. Despite the negative correlation between school size and student achievement for students fromlow socio-economic backgrounds, the SBA's school building program has disproportionately, ata significant rate, closed schools in communities serving low income populations. The circuit court ruled as follows:

Based on the foregoing findings and conclusions, the plaintiffs are entitled to a declaratoryjudgment stating as follows:

A. The decisions by the Pendleton County and West Virginia State Boards of Education toclose Circleville High School were arbitrary and were in violation of Article XII, § 1 and ArticleIII, § 10 of the West Virginia Constitution and are therefore null and void.

B. The SBA's emphasis that county boards' funding proposals either meet a minimum schoolsize or maximize school size to qualify for school construction funds and the SBA'sadministration of the economies of scale criterion violate Article XII, § 1 and Article III, § 10 ofthe West Virginia Constitution and West Virginia Code 18-9D-15 and 18-9D-16.

C. To the extent that W. Va. Code 18-9A-5a fails to account for the need of sparselypopulated counties to retain professional educators and service personnel in excess of the ratiosfunded by that section in order to maintain community schools, the section fails to meet theobligations imposed on the State by Article XII, § 1 and Article III, § 10 of the West VirginiaConstitution to provide a thorough and efficient education and to avoid discrimination in theprovision of such education. Further, based on the foregoing findings and conclusions, plaintiffs are entitled to the following

[injunction]:A. The West Virginia State Board of Education is hereby ordered to withdraw its approval of

the closure of Circleville High School (grades 7-12) and that school's consolidation with FranklinHigh School.

B. The West Virginia School Building Authority and its director are hereby enjoined fromcontinuing to use and rely upon a minimum school size or the maximization of school size withina county as a criterion for funding and from using any set of criteria that fails to recognize theeducational value of community schools;

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C. The West Virginia Board of Education and the Superintendent of Schools are herebyenjoined from applying the limits on the funding of professional educators and service personnelwhen such limits would force a school closure that is educationally disadvantageous. . . .

III. Discussion Under any standard of review, to undertake a point-by-point review of the circuit court's lengthy

and sweeping factual findings in the instant case would be a daunting task. The dense and lengthyarguments of the parties and amici curiae are tangled with numerous references to contendingnumbers, percentages, studies, tables, etc., etc., -- all attacking and defending the circuit court'sfindings. This numbing thicket of figures contrasts oddly with the real issues in this case – issues thatare truly matters of the heart and soul.

Rather than taking up the major task of dissecting these disputes about the circuit court's findings,we take the simpler approach of accepting the circuit court's findings, for argument's sake only --insofar as the court found: (1) that SBA and State Board funding policies for school construction andsalaries promote and substantially contribute to the closing of smaller high school programs likeCircleville High, and drive the establishment of larger, consolidated high schools; and (2) that suchhigh school consolidations, including the Pendleton County high school consolidation at issue in theinstant case, have more of an adverse effect on the children whose former school is being closed thanon the other children closer to the community where the consolidated school is located -- theseeffects being lengthy travel, difficulties in full participation, etc. -- in short, all of the negative effectslisted in the circuit court's factual findings that are quoted supra.

We emphasize that we are not stating our agreement with these findings of the circuit court. Wesimply adopt them as a platform for our further analysis.

Given these assumed facts, two legal questions are posed for our review by the circuit court'sdecision: (1) Is the alleged SBA/State Board "bias" in favor of consolidation, as exemplified in theCircleville case, a violation of any statute? (2) Is the alleged SBA/State Board "bias" in favor ofconsolidation, as exemplified in the Circleville case, unconstitutional?

A. Statutory Claim Appellees claim and the circuit court found that SBA/State Board "bias" in favor of consolidation

violates the mandates of W.Va. Code, 18-9D-16 [1993]. [That section], in part, calls for the SBAto evaluate requests for school construction funds in terms of how they meet the following goals:

(1) Student health and safety; (2) Economies of scale, including compatibility with similar schools that have achieved the

most economical organization, facility utilization and pupil-teacher ratios; (3) Reasonable travel time and practical means of addressing other demographic

considerations; (4) Multicounty and regional planning to achieve the most effective and efficient instructional

delivery system; (5) Curriculum improvement and diversification, including computerization and technology

and advanced senior courses in science, mathematics, language arts and social studies; (6) Innovations in education; (7) Adequate space for projected student enrollments; and (8) To the extent constitutionally permissible, each facilities plan shall address the history of

efforts taken by the county board to propose or adopt local school bond issues or special levies. Appellees' argument that the SBA is violating these statutory provisions is based on the SBA's

alleged policy of only funding projects that either meet "economies of scale" or consolidate all of acounty's students. Appellees also complain that the SBA uses a numerical evaluation and rankingsystem for evaluating requests for school construction funding, using assigned scores for the abovefactors, that gives greater weight (a 1.5 multiplier) to the "economies of scale" factor than to someother factors.

The appellees suggest that a prohibition against giving such an emphasis to "economies of scale"

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may be inferred from the lack of specific legislative authorization for such an emphasis. Theappellees also argue that the requirement in W.Va. Code, 18-9D-16(d)(2) [1993] that the SBAconsider "similar schools that have achieved the most economical organization, faculty organizationand pupil-teacher ratios . . .," requires the SBA to not prefer, on the basis of "economies of scale,"any "ideal" school size -- if this size is contrary to a student-specific optimal educational size,established on a case-by-case basis. . . .

We conclude that W.Va. Code, 18-9D-16 [1993] does not prohibit the School Building Authorityfrom exercising discretion in weighing and applying the factors listed in W.Va. Code, 18-9D-16[1993], in order to prioritize requests for funding. Therefore, appellees' statutorily-based attack onthe SBA's weighing of the "economies of scale" factor must fail.

B. Constitutional Claim We held in Syllabus Points 3 and 4 of Pauley v. Kelly, 162 W. Va. 672, 255 S.E.2d 859 (1979),

that: 3. The mandatory requirements of "a thorough and efficient system of free schools" found in

Article XII, Section 1 of the West Virginia Constitution, make education a fundamental,constitutional right in this State.

4. Because education is a fundamental, constitutional right in this State, under our EqualProtection Clause any discriminatory classification found in the State's educational financingsystem cannot stand unless the State can demonstrate some compelling State interest to justifythe unequal classification.

Additionally, we have stated: "[I]f the State takes some action which denies or infringes upon a person's fundamental right

to an education, then strict scrutiny will apply and the State must prove that its action is necessaryto serve some compelling State interest. Furthermore, any denial or infringement of thefundamental right to an education for a compelling State interest must be narrowly tailored."Phillip Leon M. v. Greenbrier County Board of Education, 199 W. Va. 400, 409, 484 S.E.2d 909,918 (1996) (McHugh, J., concurring, in part, and dissenting, in part) (citations omitted). W.Va.Const. art. XII, section 1.

Syllabus Point 2, Cathe A. v. Doddridge County Bd. of Educ., 200 W. Va. 521, 490 S.E.2d 340(1997).

Assuming (arguendo) that, as the circuit court found, children who have or would have attendedsmaller, more local community high schools like Circleville do not do as well in or are not as wellserved by larger consolidated high schools, and that this disparity is associated with a child'sresidence or wealth, the question then is whether such a disparity implicates and violates our stateconstitutional guarantee of the right of education?

This Court has not shied from finding that distinctions and disparities based on wealth orresidence may lead to finding a violation of the constitutional right to education. See Pauley v. Kelly,162 W. Va. 672, 255 S.E.2d 859 (1979) (disparities between richer and poorer counties). See alsoRandolph County Board of Education v. Adams, 196 W. Va. 9, 467 S.E.2d 150 (1995) (freetextbooks); State ex rel. Board of Educ. for the County of Randolph v. Bailey, 192 W. Va. 534, 453S.E.2d 368 (1994) (pay equalization); Collins v. Ritchie, 177 W. Va. 229, 351 S.E.2d 416 (1986)(per curiam) (bus transportation).

In the instant case, appellees base their argument not on disparities in buildings, books, curricula,or teacher salaries, but on the allegedly inherently harmful effects of taking children on long dailybus rides to a school where they and their families are less able to be involved in a wide range ofeducational and extra-curricular learning activities. Appellees say that modern facilities andequipment do not and cannot make up for the loss of the more fundamental, human-scale educationalvirtues of the smaller school that is closed as part of consolidation. In sum, appellees asserted andthe circuit court found that the closing of Circleville High would on balance be educationally

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injurious to the appellees, in a disparate and discriminatory fashion associated with their residenceand wealth.

. . . [We] assume arguendo that the appellees sufficiently proved that the SBA/State Boardpolicies generally and in the instant case create or contribute to adverse educational effects anddisparities, based on wealth and residence, that are of constitutional significance -- then the issue thatimmediately follows is whether the challenged actions that create or contribute to such allegedeffects and disparities are -- under a strict scrutiny review -- necessary, reasonable, least restrictiveand narrowly tailored to advance a compelling state interest. [Cathe A.].

In Cathe A., this Court upheld a circuit court that found that there was a specific, reasonable, safe,feasible, more narrowly tailored and less restrictive state-funded alternative (a tutoring program) toa school board's decision to entirely deny state-funded educational services and opportunities to achild who had been suspended under the Safe Schools Act.

We ratified the circuit court's requiring the local school board to provide the less restrictivealternative; and we found that a blanket statewide policy that school boards had no responsibilitywith respect to offering alternative state-funded educational services and opportunities to suchsuspended students was not the least restrictive narrowly tailored feasible alternative necessary toadvance a compelling state interest.

As to what state interests are served by a policy of promoting or favoring "economies of scale" --that is, high schools of a certain size (or as close thereto as may be achieved in a county) -- theappellants advanced several reasons for such a policy, including: (1) the need to spend limited stateeducational funds economically; (2) the need to see that all students have access to enhancedcurricular offerings; (3) the need [to] have modern, safe physical facilities; and (4) the need tobalance competing local and regional needs, interests and resources to achieve greater statewideequality and adequacy of educational opportunity. No one disputes that these are compelling stateinterests.

In the instant case, the circuit court concluded that none of these (or any other) compelling stateinterests were served in a necessary, feasible, least restrictive and narrowly tailored fashion, generallyor in the Circleville case, by the appellants' allegedly pro-consolidation bias in the distribution ofstate funds for school building and personnel salaries. The circuit court concluded generally that thestate's interests could and should be advanced in a less restrictive and more narrowly tailored fashion.

Based on these conclusions, the circuit court ordered that the County Board's decision to closeCircleville High be set aside and that the State Board void its approval of the closing of theCircleville School. The circuit court also ordered the SBA and State Board to modify their policiesgoverning salaries and economies of scale to eliminate any pro-consolidation bias.

Following such actions pursuant to the circuit court's order, appellees apparently believe thatupon evaluating the Circleville situation -- using a case-by-case, child-centered basis, unaffected bythe alleged bias toward consolidation -- the SBA would and should fund the physical rehabilitationof the Circleville School, and presumably the County Board would choose to keep it open as a highschool, unconstrained by State Board salary limitations.

However, the circuit court's order did not with any degree of specificity identify or evaluate thenature or costs (financial and otherwise) of statewide policies by the SBA and State Board that wouldnot give preference to "economies of scale" -- or more particularly, of policies that would if appliedfund the continued existence of Circleville High. On a statewide basis or in the Circleville case, therewas no meaningful comparison by the court of any alternatives with the policies and plans used andapproved by the appellants SBA and State Board.7 The circuit court's pronouncements as to the

7The appellants presented substantial evidence as to the history of the SBA's statewide funding of new schoolconstruction and school rehabilitation, demonstrating a facially coherent and balanced program, with objective andreasoned criteria. In the case of Franklin County, the appellants provided substantial evidence of a comprehensive

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existence, nature, restrictiveness, tailoring, effects and feasibility of such alternative(s) were brief,conclusory, and/or speculative.

Thus, the circuit court did not evaluate in a meaningfully reviewable fashion any purportedly lessinjurious, less discriminatory, less restrictive, more narrowly tailored and feasible alternative(s) tothe challenged SBA/State Board policies, or to the closing of Circleville High.

We do not suggest that in all cases a court assessing the constitutionality of an allegedlydiscriminatory impairment of the constitutional right to education must identify and evaluate in areviewable fashion the nature, effects and costs of feasible, less discriminatory, more narrowlytailored and less restrictive alternatives to the approach allegedly causing the impairment, that wouldalso advance the relevant compelling state interests -- because such a requirement might not bepossible, practical and/or necessary in all cases.

But if a court does not -- to a meaningfully reviewable degree -- identify, evaluate and comparethe apparent costs, effects, feasibility, restrictiveness and narrowness of tailoring of alternatives tothe approach that is complained of, then in the absence of other clear evidence of viable lessrestrictive and more narrowly tailored alternatives, a reviewing court may be more likely to concludethat the lower court did not have a sufficient factual or legal basis to fairly determine whether thecomplained-of approach is too restrictive, or not as narrowly tailored as reasonably possible. "[Acourt] cannot shirk its responsibility to articulate the alternatives forming a basis for its decisions,for well reasoned and fully articulated opinions are a major safeguard against judicial abuse ofpower." Note, The Less Restrictive Alternative in Constitutional Adjudication: An Analysis, AJustification, and Some Criteria, 27 Vand.L.Rev. 971, 1035 (1974).

In the instant case, there is no reasonably detailed identification, evaluation or comparison by thecircuit court, reviewable by this Court, of alternatives to the policies complained of by the appellees.It is not otherwise clear from the record that there are less discriminatory, feasible, more narrowlytailored and less restrictive alternatives to those policies -- that are themselves not educationallyinjurious and discriminatory in other ways of arguably equal importance.

Therefore, we will not sustain the circuit court's conclusion that the SBA/State Board approachto funding school construction and salaries -- and the allegedly resulting closing of Circleville High-- is not a narrowly tailored, least restrictive method necessary to advance a compelling state interest.The circuit court's conclusion that the appellants' policies and actions are unconstitutional wastherefore erroneous and must be set aside.

Because the appellants' policies and actions did not violate a statutory or constitutional mandate,we hold that the circuit court erred in issuing the declaratory judgment and injunction order appealedfrom in the instant case. . . .

For the foregoing reasons, the order of the circuit court is reversed.

NOTE

In Jones v. West Virginia State Board of Education, 218 W.Va. 52, 622 S.E.2d 289 (2005),parents of home-schooled children challenged a rule promulgated by the West Virginia SecondarySchools Activities Commission that excluded home-schooled children from participating in highschool athletics. The Court held that the exclusion did not unduly burden parental rights and thatit did not violate equal protection principles. Parents voluntarily opted to take their children out ofthe public school system and thereby forewent privileges incidental to public education. The rule,said the Court, rationally furthered the State’s interest in promoting academics over athletics becauseenrolled students had to satisfy a minimum GPA requirement to be eligible to play while home-

political and policy debate, an exploring and weighing of alternatives, and a lengthy planning process -- all addressinga spectrum of diverse educational needs, including the replacing of the Franklin High facilities.

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schooled children might have a completely different curriculum and grading pattern. Moreover,county boards received funding for athletics based, in part, on average daily attendance andenrollment numbers.

Justice Starcher dissented and would have found that the exclusion unconstitutionally burdenedparental rights. Justice Benjamin also dissented. He thought the Commission’s distinction betweenprivate school students and home-schooled children violated equal protection.

B. The Primacy of Educational Funding

WEST VIRGINIA EDUCATION ASSOCIATION v. THE LEGISLATURE OF THE STATEOF WEST VIRGINIA,

179 W.Va. 381, 369 S.E.2d 454 (1988).

McGRAW, Justice:

In this mandamus proceeding, the West Virginia Education Association (WVEA) challenges asunconstitutional the cuts in state expenditures for education made in the fiscal year 1987-88 statebudget. The WVEA seeks writs of mandamus requiring the Governor to call a special session of theLegislature and requiring the Legislature to supplement the budgetary appropriation for education,or such other relief as this Court deems appropriate. Having considered the arguments of the parties,we conclude that the fiscal year 1987-88 state budget is unconstitutional. As an act of comity, wepresume the Governor and Legislature will do their duties. Therefore, the writ prayed for is deferred.

The petitioners are correct in their representation that the provisions of Article XII, Section 1 etseq. and Article X, Section 5 of the West Virginia Constitution, give a constitutionally preferredstatus to public education in this State. Syl.Pt. 1, State ex rel. Board of Education v. Rockefeller,167 W.Va. 72, 281 S.E.2d 131 (1981). We have also held that the mandate of article twelve, sectionone that the Legislature provide for a thorough and efficient public school system requires that bodyto develop high standards for educational quality statewide. Pauley v. Kelly, 162 W.Va. 672, 255S.E.2d 859 (1979). Further, we have disapproved of reducing state expenditures for public educationas part of a pro rata reduction in the overall budget due to an anticipated revenue shortfall. Boardv. Rockefeller, 167 W.Va. 72, 281 S.E.2d 131. Indeed, in this commonwealth, education is anessential constitutional right. The financing of education is, among mandated public services, thefirst constitutional priority. Cooper v. Gwinn, --- W.Va. ---, 298 S.E.2d 781 (1981); see Board v.Rockefeller, 167 W.Va. 72, 281 S.E.2d 131.

This case vividly illustrates the concept of "rule of law". Rule of law implies subordination ofthe three branches of government (legislative, executive, and judicial) to principles of law enunciatedin the constitution. The thorough and efficient system of free schools required by our constitutionallaw is to be provided for through enactment of general law by the Legislature. W.Va. Const. art. XII,§ 1. Article nine A of chapter eighteen of the West Virginia Code sets forth a comprehensive planfor financial support of public schools. State ex rel. Raese v. Battle, 149 W.Va. 761, 143 S.E.2d 328(1965), overruled on other grounds, Pauley v. Kelly, 162 W.Va. 672, 255 S.E.2d 859. As such, Code§ 18-9A-1 to -22 is an integral part of the fundamental constitutional command that the Legislatureprovide for a thorough and efficient system of public education.1 The Legislature, in enacting and

1The legislative respondents are correct in citing State ex rel. Trent v. Sims, 138 W.Va. 244, 77S.E.2d 122 (1953) for the proposition that the "thorough and efficient" clause contained in articletwelve, section one of the West Virginia Constitution is not a self-executing appropriationsprovision. The respondents, however, are wrong when they argue that article nine A of Chaptereighteen of the Code does not mandate a specific level of support for free schools in our state.

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specifying the basic foundation program contained in article nine A has established public policywhich is presumed to vindicate the constitution. That body has made a determination that presumesthis basic foundation program is a necessary part of fulfilling the constitutional obligation.

Consistent with the assertion of the petitioners, the respondent Governor admits "that theappropriations made by the Legislature for public education are incorrect." The Legislativerespondents verify that the current budget, as approved by two-thirds of the members of each houseof the Legislature, fails to appropriate sufficient dollars to fund the basic foundation program.

Thus, the petitioners are correct in their premise that the fiscal year 1987-88 budget does notcomport with the legislatively established public policy, which is presumed to vindicate theconstitutional mandate for a thorough and efficient public school system.2

The Governor, by answer, claims and avers, "The Legislature by appropriating$1,490,215,893.00, an amount which exceeds the ... revenue estimate by $25,815,893.00, has createdan unconstitutional budget." He further avers, "The Budget Bill enacted by the Legislature createsa deficit and is seriously out-of-balance." The respondent Speaker and President do not controvertthe Governor's verification.

It is clear that the Governor and the Legislature have the responsibility for preparing and enactinga proper budget bill in accordance with Article VI, § 51 of the West Virginia Constitution. Seegenerally, State ex rel. Moore v. Blankenship, 158 W.Va. 939, 217 S.E.2d 232 (1975); State ex rel.Brotherton v. Blankenship, 158 W.Va. 390, 214 S.E.2d 467 (1975); State ex rel. Brotherton v.Blankenship, 157 W.Va. 100, 207 S.E.2d 421 (1973). Provisions contained in article six, sectionfifty-one of the Constitution of West Virginia require that the estimate of revenues and the budgetedappropriations be in balance so as not to create a deficit.

Thus, we hold the budget for fiscal 1987-88 to be unconstitutional under Article VI, § 51 of theWest Virginia Constitution.

While we have determined that the budget is unconstitutional, as an act of comity, we declinetoday to issue extraordinary writs prayed for by WVEA. Comity is "mutual consideration between... equals." Webster's Third New International Dictionary 455 (1970). Comity, as a principle of law,is a courtesy extended in deference from equals who are mindful of their duty to equals who aremindful of their duty. See W. Anderson, A Dictionary of Law 197 (1890). Because the concept ofcomity is based in mutual deference accorded to equals, it is applicable among co-equal departments(branches) of a single sovereign government.

We do not today order the Governor to do any act. We do not today order the Legislature to doany act. The law presumes the Governor to know his duty when faced with an unconstitutionalbudget. The law presumes the Legislature to know its duty too.

[A dissenting opinion by Justice Brotherton, which was joined by Justice Neely, is omitted.]

Indeed, "[t]he intent of this article is to provide a plan of financial support to the public schools ...and to fix statutorily both state and county responsibility for financing of the same." W.Va.Code s18-9A-1 (1984 Replacement Vol.). Although article twelve, section one is not a self-executingappropriations provision, the enabling legislation enacted pursuant to the constitutional mandate doesspecify the method of providing funding support for the public schools.

2This is not to say that the Legislature must forever fully fund the public school support plan as itnow stands on the statute books. That body is free to amend the plan, or to replace it with anotherprovision, so long as any new statute meets constitutional muster as set out in article twelve, sectionone, article ten, section five, and our cases interpreting these provisions. What the Legislature is notfree to do, however, is cut education funding pro rata along with constitutionally nonpreferredexpenditures in violation of its own previously determined constitutionally based public policy.

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C. The State Board of Education

WEST VIRGINIA BOARD OF EDUCATION V. HECHLER,180 W.Va. 451, 376 S.E.2d 839 (1988).

McHUGH, Chief Justice:

In this original proceeding, the petitioners, the West Virginia Board of Education (hereinafter the"Board") and Tom McNeel, State Superintendent of Schools, seek a writ of mandamus directing therespondent, Ken Hechler, Secretary of State, to file rules approved by the Board. This Court hasreviewed the petition, the response, and all arguments and exhibits attached thereto. We are of theopinion that the relief requested by the petitioners should be granted.

IIn June, 1988, the West Virginia legislature amended the State Administrative Procedures Act,

W.Va.Code, 29A-1-1 to 29A-7-4, as amended, by adding to it a new article, namely, article 3A. Thenew article, inter alia, establishes a "legislative oversight commission on education accountability." The oversight commission is to be comprised of eight members: three from the House of Delegates; three from the Senate; and the Speaker of the House and Senate President as ex officio, nonvotingmembers.

Pursuant to the provisions of this new article, the Board must submit its approved legislative rulesto the oversight commission for review. After review of a rule approved by the Board, the oversightcommission is required to recommend that the legislature either promulgate the rule in whole or inpart, or recommend that the rule be withdrawn. If the legislature fails to act on a rule submitted toit by the oversight commission, then the Board is prohibited from taking any action on the rule"unless and until otherwise authorized to do so." W.Va.Code, 29A-3A-13(b) [1988].

In August, 1988, the Board adopted a rule entitled "West Virginia Minimum Requirements forDesign and Equipment of School Buses," to be effective October 22, 1988. The rule was filed withthe respondent Secretary of State in order to be placed in the West Virginia State Register. Therespondent, however, refused to file the rule, basing his refusal on the Board's failure to comply withthe newly enacted provisions of the Administrative Procedures Act.

The petitioners seek a writ of mandamus compelling the respondent, the Secretary of State, to filerules approved by the Board in the state register. The petitioners also request that this Court declareportions of the newly enacted Administrative Procedures Act unconstitutional, namely, W.Va.Code,29A-3A-12 and -13 [1988]. This Court issued a rule, directed against the respondent, to show causewhy a writ of mandamus should not be awarded against him in this proceeding.

IIWe begin by discussing the constitutionally preferred status of public education in West Virginia.

"The provisions of Article XII, Section 1, et seq., as well as Article X, Section 5 of the West VirginiaConstitution, when construed in light of our prior cases, gives a constitutionally preferred status topublic education in this State." Syl. pt. 1, State ex rel. Board of Education v. Rockefeller, 167 W.Va.72, 281 S.E.2d 131 (1981).

Article XII, § 1 of the West Virginia Constitution states: "The legislature shall provide, bygeneral law, for a thorough and efficient system of free schools." Article XII, § 2 of the StateConstitution, however, provides in pertinent part: "The general supervision of the free schools ofthe State shall be vested in the West Virginia board of education which shall perform such duties asmay be prescribed by law." The petitioners contend that this general supervisory provision impliesrule-making power, and by enacting W.Va.Code, 29A-3A-12 and -13 [1988], the legislature has

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effectively diminished article XII, § 2 of the State Constitution.3 The Board's rule-making power isviewed by the respondent as being derived primarily from W.Va.Code, 18-2-5 [1983], which statesin part:

Subject to and in conformity with the constitution and laws of this State, the state board ofeducation shall determine the educational policies of the State and shall make rules for carryinginto effect the laws and policies of the State relating to education, including rules relating to thephysical welfare of pupils, the education of feeble-minded and physically disabled or crippledchildren of school age, school attendance, evening and continuation or part-time day schools,school extension work, the classification of schools, the issuing of certificates upon credentials,the distribution and care of free textbooks by the county boards of education, the general powersand duties of county boards of education, and of teachers, principals, supervisors andsuperintendents, and such other matters pertaining to the public schools of the State as may seemto the state board to be necessary and expedient. See [Pauley v. Bailey, 324 S.E.2d 128, 133-34(W.Va. 1984)]; Detch v. Board of Education, 145 W.Va. 722, 724, 117 S.E.2d 138, 140 (1960); State ex rel. Board of Governors v. Sims, 133 W.Va. 239, 250, 55 S.E.2d 505, 511 (1949). Referring to this statutory provision, this Court has stated that "[a]lthough this grant of

rule-making authority is tempered by a requirement that it be exercised in conformance with otherstatutory provisions, it is indicative of the broad power of the State Board of Education over countyboards of education, particularly in the area of state educational policy." [Bailey v. Truby, 321S.E.2d 302, 311-12 (W.Va. 1984)].

The Board has traditionally been exempt from legislative rule-making review pursuant toW.Va.Code, 29A-1-3 [1986]. The legislature, however, amended this provision in 1988 byremoving the Board's exemption, thus allowing enactment of W.Va.Code, 29A-3A-12 and -13,requiring the Board to submit its legislative rules to the legislature for approval.

In accordance with W.Va.Code, 18-2-5 [1983], the Board adopted a rule governing the designand operation of school buses. This rule is clearly within the purview of "general supervision" ofstate schools pursuant to art. XII, § 2 of the West Virginia Constitution. In Bailey v. Truby, ---W.Va. ----, 321 S.E.2d 302 (1984), we concluded that "any statutory provision that interferes withthe State Board of Education's 'general supervision of the free schools of the State' under article XII,§ 2 of the West Virginia Constitution is void." Id. at ----, 321 S.E.2d at 312. Rules proposed by theBoard, like the rule in this case, are integral to the day-to-day operation of schools. An attempt toimpede this process is not consistent with the general supervisory powers conferred upon the Boardby art. XII, § 2 of the State Constitution. It is not uncommon for a state board of education to governthese day-to-day operations of schools. "Since state legislators themselves cannot possibly assumeactual supervisory responsibility for public schools, the general supervision and administrativecontrol over a state's public school system is generally placed in the hands of a state board ofeducation." H. Hudgins & R. Vaca, Law and Education § 1.5, at 17-18 (2d ed. 1985). . . .

"General supervision" is not an axiomatic blend of words designed to fill the pages of our State

3The petitioners also contend that the newly enacted provision of W.Va.Code, 29A-3A-13(b) [1988]amounts to a "pocket veto" of Board rules because this subsection prohibits the Board from takingany action on a submitted rule until the legislature acts on it. Obviously, if the legislature fails to acton a submitted rule, the effect on the rule is tantamount to a veto by the legislature. The UnitedStates Supreme Court addressed the "legislative veto" in Immigration & Naturalization Service v.Chadha, 462 U.S. 919 (1983), holding that the Congress must abide by the authority it has delegatedto the Attorney General to suspend deportation of a particular alien until the delegation is altered orrevoked by legislative action. [Id.] We need not address this contention, however, because theadministrative authority at issue in Chadha emanated from a legislative delegation. In the case nowbefore us, we are holding that the Board's rule-making authority is constitutional.

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Constitution, but it is a meaningful concept to the governance of schools and education in this state. Decisions that pertain to education must be faced by those who possess expertise in the educationalarea. These issues are critical to the progress of schools in this state, and, ultimately, the welfare ofits citizens. In 1957, the citizens of this state conferred general supervisory powers over educationand one need not look further than art. XII, § 2 of the State Constitution to see that the "generalsupervision" of state schools is vested in the State Board of Education. Unlike most otheradministrative agencies which are constituents of the executive branch, the Board enjoys a specialstanding because such a constitutional provision exists.

The rule-making power prescribed by W.Va.Code, 18-2-5 [1983] is a provision that has aidedthe Board's general supervisory functions. The newly enacted provisions of the State AdministrativeProcedures Act, however, namely, W.Va.Code, 29A-3A-12 and -13 [1988], pose an interferencewith the Board's rule-making power, and consequently, the Board's general supervisory functions.

Therefore, we hold that rule-making by the State Board of Education is within the meaning of"general supervision" of state schools pursuant to art. XII, § 2 of the West Virginia Constitution, andany statutory provision that interferes with such rule-making is unconstitutional. Consequently,W.Va.Code, 29A-3A-12 and -13 [1988] are hereby declared to be unconstitutional.7

Article XII, § 1 of the State Constitution, granting the legislature the authority to establish "athorough and efficient system of free schools," does not entail the exclusive delegation ofrule-making functions that are part of the Board's general supervisory powers pursuant to art. XII,§ 2. An attempt to undertake the Board's general supervisory powers violates the provision of art.V, § 1 of the State Constitution which states: "The legislative, executive and judicial departmentsshall be separate and distinct, so that neither shall exercise the powers properly belonging to eitherof the others[.]" Hence, such an attempt is unconstitutional.

Consistent with the foregoing, a rule adopted by the State Board of Education, setting forthminimum requirements for the design and equipment of school buses, is within the meaning of"general supervision" of state schools pursuant to art. XII, § 2 of the West Virginia Constitution. W.Va.Code, 29A-3A-12 and -13 [1988] interfere with such "general supervision," and, therefore,are unconstitutional. . . .

VFor the foregoing reasons, the petitioners' request for a writ of mandamus is granted. The

respondent is hereby compelled to file rules approved by the State Board of Education in the stateregister. ...

WEST VIRGINIA BOARD OF EDUCATION v. BOARD OF EDUCATION OF THECOUNTY OF NICHOLAS,

239 W. Va. 705, 806 S.E.2d 136 (2017).

Workman, Justice,

This is an appeal from the August 18, 2017, order of the Circuit Court of Kanawha County,granting a writ of mandamus in favor of the Nicholas County Board of Education (“the Board”),

7. . . [We] note that this case is to be distinguished from Chico Dairy Co. v. West Virginia HumanRights Commission, 181 W.Va. 238 (1988). In that case, we held that the administrative agency,the West Virginia Human Rights Commission, derived its rule-making powers from a statute,specifically, W.Va.Code, 5-11-8(h) [1981], and not from the State Constitution. Here, in contrast,we hold that the administrative agency, the State Board of Education, is granted general supervisorypowers over state educational matters by the State Constitution. In this case, we are invalidatinglegislative provisions that interfere with the Board's exercise of general supervisory powers.

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requiring the West Virginia Board of Education and Dr. Steven L. Paine, in his capacity as StateSuperintendent of Schools (hereinafter collectively “the WVBOE”), to approve the Board's amendedConsolidated Educational Facilities Plan (“CEFP”). The amendment to the CEFP constitutes anecessary prerequisite to the Board's efforts to consolidate four Nicholas County schools and itsCareer and Technical Education Center. The circuit court found that the WVBOE lacks the authorityto reject a county board's CEFP and attendant consolidation plan if the county complies with therequirements of West Virginia Code § 18-5-13a (2002) and West Virginia Code of State Regulations§§ 126-176-1 et seq. (2005). The circuit court further found that the WVBOE members' statedreasons for rejecting the CEFP amendment and consolidation plan were “arbitrary and capricious”inasmuch as the reasons were not expressly contained in the WVBOE's promulgated rule regardingschool consolidation and closure.

Upon careful review[,] . . . we conclude that the WVBOE is vested with constitutional, statutory,and regulatory authority to exercise its discretion in accepting or rejecting an amended CEFP andattendant consolidation plan and that mere procedural compliance with statutory and regulatoryrequirements does not entitle a county board of education to approval of its proposed plan. Wefurther find that the reasons formally adopted by the WVBOE for rejection of the plan were neitherarbitrary nor capricious. Therefore, the circuit court erred in granting the writ of mandamus.

I. FACTS AND PROCEDURAL HISTORY[On June 23, 2016, serious flooding ravaged much of Southern West Virginia. The City of

Richwood in Nicholas County was particularly hit hard, including both its high school and middleschool. The President designated the area as a natural disaster, which made funds available from theFederal Emergency Management Agency (“FEMA”) that could be used to replace the schools. Following the flood, the Board learned that FEMA “428” funds were available, which would enableit to consolidate all of the pending FEMA funds and use them for projects other than “one-for-one”replacement. Nicholas County School Superintendent Donna Burge-Tetrick purportedly considerednumerous alternative site locations for Richwood Middle School and Richwood High School, noneof which she found suitable. She thus recommended to the Board that it consolidate RichwoodMiddle and Summersville Middle Schools and Nicholas County and Richwood High Schools, alongwith the Career and Technical Education Facility, to be located together on a consolidated campusnear Summersville.

The Board agreed and thus prepared a written closure and consolidation plan pursuant to WestVirginia Code § 18-5-13a and West Virginia Code of State Regulations § 126-176-1 et seq.,commonly referred to as “Policy 6204.” The statute and regulations, in part, require a county boardto collect data and information to be incorporated into a written consolidation plan. Policy 6204requires the written consolidation plan to include an executive summary containing information anddata, as more particularly described therein, pertaining to the following categories: enrollment,facilities, finance, personnel, transportation, and education programs. The Board then conductedPolicy 6204-mandated public hearings at the affected schools. After the hearings, the Board votedunanimously to move forward with consolidation. Pursuant to Policy 6204, the next step was torequest amendment of its CEFP from the WVBOE.

The Board's proposed amended CEFP was placed on the WVBOE's June 13, 2017, meetingagenda. During the meeting, Ms. Burge-Tetrick made a presentation on the merits of theconsolidation plan. Additional information was presented by State Superintendent Dr. Steven Paineand Scott Raines, the Director of School Planning from the School Building Authority. Otherinterested parties spoke in favor of and against the amendment, and members of the WVBOEquestioned the various speakers.

During his presentation, Dr. Paine stated that the Board had followed all of the necessaryprocedures to comply with Policy 6204. Dr. Paine further offered commentary regarding theconsolidation, stating that the Board was the most financially solvent of all the county systems, withthe greatest amount of carryover funds annually, and that the affected schools were performing well

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academically. He noted that the June 26, 2017, deadline for application for the FEMA “428” fundswas subject to an extension, which he was assured would be granted. He further noted that if the“428” funds were not pursued, other traditional FEMA funds would still be available without suchtime constraints. Dr. Paine also noted that he believed that an alternative plan existed which had notbeen considered by the Board, i.e. consolidation of only the Richwood schools and for them toremain in the Richwood attendance area, and consolidation of the Summersville schools, to remainin the Summersville area.

At the close of the meeting, WVBOE Vice President David Perry moved to reject the CEFPamendment due to his belief that “sufficient alternatives and possibilities have not been explored tobe assured this plan is in the best interest of the students of Nicholas County, specifically of thosein the current [Richwood schools] areas.” The CEFP amendment was then rejected on a vote of 7-1.

The Board thereafter sought a writ of mandamus from the Kanawha Circuit Court to compel theWVBOE to accept its proposed CEFP amendment, contending that the WVBOE acted arbitrarilyand capriciously in rejecting the amendment. The circuit court issued a rule to show cause, whichwas served upon the WVBOE along with the petition. The day before the rule to show cause hearing,the WVBOE convened an emergency meeting to reconsider the CEFP amendment. Afterpresentations and speakers both for and against consolidation, Mr. Perry again moved to reject theamendment, stating that he had “different reasons” for rejection. Mr. Perry stated that 1) he felt therewas a lack of “meaningful dialogue” between the Board and the Nicholas County citizens; 2) theBoard did not consider alternatives to consolidation including locations in the Richwood attendancearea, rather than simply the Richwood city limits; 3) there was equivalent declining population inNicholas County High School area, rather than just the Richwood High area; 4) utilization oftechnology would net the same personnel cost savings; and 5) the Richwood schools werecomparably educating students and out-performing other schools in the state on most metrics. TheWVBOE then again voted 6-1 to reject the amendment.

The following day, the circuit court held an evidentiary hearing. Each WVBOE member whovoted to reject the plan testified and explained their reasons for voting as they did. Recurrentconcerns throughout the testimony was the high number of impoverished students from theRichwood area and the research supporting the notion that such students perform better in smaller,community schools and the high performance levels of the Richwood schools. Over two-thirds ofthe Richwood Middle and High School qualify for free or reduced lunches, yet the High Schoolmaintains a 90% graduation rate and had twice in the preceding three years been ranked by the U.S.News and World report as one the best high schools in the country. Both the middle and highschools had a very high percentage of highly qualified teachers. The Middle Schools was the highestin the State.

The circuit court found that the WVBOE “did not follow its own rules and procedures set forthin Policy 6204” by rejecting the plan based on “factors” not contained in Policy 6204. The circuitcourt found the WVBOE members' reasons for rejection “arbitrary” and matters which “theLegislature did not intend them to consider[.]” The circuit court further found that the WVBOE'sonly role relative to consolidation is “to determine whether the county boards are following therequirements of” and/or “supervising compliance” with the statute. The court therefore awarded thewrit of mandamus, ordering the WVBOE to approve the Board's CEFP.]

III. DISCUSSIONThe issue presented herein is whether the WVBOE has authority to reject a CEFP amendment

attendant to a consolidation plan, where the local board has complied with the requirementscontained in West Virginia Code § 18-5-13a and West Virginia Code of State Regulations §§126-176-1 et seq. If the Court determines that the WVBOE has such authority, it must ascertainwhether such authority was exercised arbitrarily or capriciously in this case. We wish to make plain,however, as this Court has historically observed in cases of this nature, that the advisability, or lackthereof, of consolidation is not properly within this Court's purview. The wisdom, efficacy, and

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feasibility of school consolidation are matters reserved to the respective boards of education. SeeCity of Benwood v. Bd. of Educ., Cty. of Marshall, 212 W.Va. 436, 442, 573 S.E.2d 347, 353(2002)[.] . . .

A. Authority of WVBOE to Reject CEFP AmendmentThe circuit court found that the WVBOE has only such authority as is expressly granted by the

Legislature and that neither the statute nor regulations at issue provide for the WVBOE's exerciseof its discretion to reject a CEFP amendment and/or consolidation plan which is compliant therewith.The WVBOE contends that it has both a constitutional grant of supervisory authority over suchmatters and that the particular statute and regulation at issue are further designed to make suchmatters subject to its approval. We therefore begin our analysis by examining the circuit court'sdiscussion of the relative powers and duties of the Legislature, the WVBOE, and local boards ofeducation, inasmuch as it is this construct upon which the circuit court premised its ultimateconclusion in this matter.

1. Constitutional Authority of the WVBOEArticle XII, section 2 of the West Virginia Constitution provides that “[t]he general supervision

of the free schools of the State shall be vested in the West Virginia board of education which shallperform such duties as may be prescribed by law.” In reaching its conclusion that the WVBOE isconstrained in the exercise of its authority relative to consolidation, the circuit court began with athreshold conclusion that Article XII, section 2's wording that the WVBOE “shall perform suchduties as may be prescribed by law” serves to temper the WVBOE's constitutional charge. (Emphasisadded). The circuit court found support for this limitation by comparing the Legislature'sconcomitant constitutional obligation to provide for a “thorough and efficient system of free schools”as contained in Article XII, section 1 of the West Virginia Constitution.15 Concluding that suchobligation empowers the Legislature to statutorily restrict the WVBOE's exercise of its powers, thecircuit court stated that “the very text of the Constitution dictates that the State Board may onlyperform duties that are set forth in statute” and that the Constitution “limit[s] [the WVBOE's]supervision to that which the Legislature might set forth by statute.”

With that backdrop, the circuit court then found that the Legislature has expressly delegated thedecision to close or consolidate schools exclusively to local school boards and that the WVBOE'sactions are an unauthorized attempt to interfere with such exclusivity. Citing West Virginia Code§ 18-5-13(c) and (d), the circuit court found that these provisions clearly demonstrate theLegislature's intention that closure and consolidation matters remain at the local level because countyboards “are better able to determine the specific needs of their individual counties[.]” See W. Va.Code § 18-5-13(c) and (d) (2017) (“[E]ach county board may ... [c]lose any school ... [w]hich isunnecessary ... [and] [c]onsolidate schools[.]” The circuit court found that the local board “may makea final decision consolidating a school” and that the WVBOE's role is limited to reviewing orsupervising the county board's efforts for the sole purpose of determining whether it is following therequirements set forth in West Virginia Code § 18-5-13a.

Before reaching the more precise issue presented herein, we are compelled by the foregoing torenounce the lower court's deeply misguided construction of the WVBOE's constitutional grant ofauthority inasmuch as it is wholly at odds with this Court's precedent. This Court has held that

[t]he West Virginia Board of Education and the State Superintendent of Schools, pursuant to theirgeneral supervisory powers over education in West Virginia under W.Va. Const. art. XII, § 2, andtheir specific duties to establish, implement and enforce high quality educational standards forall facets of education under the provisions of Chapter 18 of the West Virginia Code, have a dutyto ensure the complete executive delivery and maintenance of a “thorough and efficient systemof free schools” in West Virginia[.]

Syl. Pt. 1, in part, Pauley v. Bailey, 174 W.Va. 167, 324 S.E.2d 128 (1984). More specifically, inWest Virginia Board of Education v. Hechler, 180 W.Va. 451, 455, 376 S.E.2d 839, 842-43 (1988),this Court elaborated on the sanctity of the constitutionally-granted general supervisory authority of

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the WVBOE, explaining that“[g]eneral supervision” is not an axiomatic blend of words designed to fill the pages of ourState Constitution, but it is a meaningful concept to the governance of schools and educationin this state. Decisions that pertain to education must be faced by those who possess expertisein the educational area. These issues are critical to the progress of schools in this state, and,ultimately, the welfare of its citizens. In 1957, the citizens of this state conferred generalsupervisory powers over education and one need not look further than art. XII, § 2 of the StateConstitution to see that the “general supervision” of state schools is vested in the State Boardof Education. Unlike most other administrative agencies which are constituents of the executivebranch, the Board enjoys a special standing because such a constitutional provision exists.

. . . Broadly stated, “[t]he State Board of Education, charged with the general supervision of ourstate's educational system, has a duty to ensure that the constitutionally mandated educational goalsof quality and equality are achieved.” Bailey v. Truby, 174 W.Va. 8, 16, 321 S.E.2d 302, 310 (1984).

As to the circuit court's belief that the “as may be prescribed by law” language of Article XII,section 2 renders the WVBOE powerless in absence of enabling legislation, this Court hasunequivocally held that legislative action that impedes the general supervisory powers of theWVBOE is patently unconstitutional. In Bailey, the Court discussed the expansiveness of the“general supervision” power granted under the Constitution, examining at length the KansasSupreme Court's analysis of the same issue as pertained to their similarly-worded Constitution. InState ex rel. Miller v. Board of Education, 212 Kan. 482, 511 P.2d 705 (1973), the Kansas SupremeCourt rejected an argument that the “as may be provided by law” language of its Constitutionrequired enabling legislation to effectuate the general supervisory powers granted to its state boardof education. The Bailey Court stated that it found this analysis persuasive, citing with approval theMiller court's holding that “ ‘the legislature may enact legislation to facilitate or assist in [the stateboard's constitutional supervisory powers], but whatever legislation is adopted must be in harmonywith and not in derogation of the provisions of the constitution.’ ” Id. at 15-16, 321 S.E.2d at 310(quoting Miller, 511 P.2d at 707, syl. pt. 7) (emphasis added). Accordingly, the Bailey Court likewiseconcluded that “constitutional grants of authority ... cannot be derogated or eliminated by legislativeor executive action. Therefore, any statutory provision that interferes with the State Board ofEducation's ‘general supervision of the free schools of the State’ ... is void.” [Id.] . . .

Similarly, this Court has further found that the WVBOE's general supervisory powers necessarilyrequire rule-making to govern the day-to-day operation of schools and that the Legislature's chargeto provide a thorough and efficient system of free schools “does not entail the exclusive delegationof rule-making functions that are part of the Board's general supervisory powers[.]” Hechler, 180W.Va. at 455, 376 S.E.2d at 844. The Hechler Court noted that the WVBOE is statutorily recognizedas having the authority to “make rules for carrying into effect the laws and policies of the Staterelating to education,” as contained in West Virginia Code § 18-2-5 and that such rule-making powerwas found to be “a provision that has aided the Board's general supervisory functions.”16 Id. at454-55, 455, 376 S.E.2d at 841, 843 (emphasis added). The Hechler Court therefore found that any“attempt to impede” the WVBOE's supervisory power constitutes a violation of the separation ofpowers provision of the West Virginia Constitution.17 Id. at 454, 456, 376 S.E.2d at 842-43.Accordingly, we held, in part, in syllabus point two that “[r]ule-making by the State Board ofEducation is within the meaning of ‘general supervision’ of state schools pursuant to art. XII, § 2 ofthe West Virginia Constitution, and any statutory provision that interferes with such rule-making isunconstitutional[.]” Id. See also Detch v. Bd. of Educ. of Cty. of Greenbrier, 145 W.Va. 722, 728-29,117 S.E.2d 138, 142 (1960) (noting that Legislature's obligation to provide thorough and efficientsystem is effectuated through statutory rule-making provision).

Furthermore, the circuit court's conclusion that the Legislature has effectively subordinated theWVBOE's supervisory powers to the edict of the local board where consolidation is concerned fullydisregards this Court's admonition that “[i]n contrast to th[e] expansive interpretation of the power

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and authority of the State Board of Education, this Court has traditionally construed the power andauthority of the county boards of education in a very narrow fashion.” Bailey, 174 W.Va. at 14, 321S.E.2d at 309. More importantly, the circuit court's conclusion ignores this Court's prior rejectionof an identical claim that a statutory delegation of authority to a local board operates to neutralizeany attempt by the WVBOE to weigh in on and promulgate rules relative to the “delegated” matter.

In Bailey, in addition to discussing the self-executing effect of the WVBOE's constitutionalsupervision powers, the Court more specifically addressed the propriety of a rule promulgated by theWVBOE requiring a 2.0 grade point average to participate in extracurricular activities. The KanawhaCounty Board of Education argued that West Virginia Code § 18-2-25, providing that county boards“shall exercise the control, supervision and regulation of all interscholastic events and otherextracurricular activities ...” rendered the WVBOE rule an “invalid interference with their ownexclusive right to control, supervise, and regulate extracurricular activities [.]” Id. at 13-14, 321S.E.2d at 308. Rejecting this claim of exclusivity, the Bailey Court observed generally that “ ‘“[s]chool districts ... [have] been said to be corporations of the most limited power known to thelaw.” ’ ” Bailey, 174 W.Va. at 15, 321 S.E.2d at 309 (quoting Brown v. Bd. of Educ., 106 W.Va. 476,485, 146 S.E. 389, 392 (1929) (Maxwell, J., concurring on rehearing)). . . .

To whatever extent the foregoing does not clearly reflect this Court's veneration of the extensivesweep of the WVBOE's constitutional supervisory authority, we have succinctly stated: “Clearly,then, the State Board is empowered to take whatever steps are necessary to fulfill its obligation toachieve ‘the constitutionally mandated educational goals of quality and equality[.]’ ” KanawhaCounty Board, 184 W.Va. at 5, 399 S.E.2d at 35 (1990) (quoting Bailey, 174 W.Va. at 16, 321S.E.2d at 310) (emphasis added).

2. Statutory Authority of WVBOE Relative to Consolidation. . . School closings and consolidations are governed by West Virginia Code § 18-5-13a.

Subsection (a) of that statute states that “prior to any final decision of a county board on any proposalto close or consolidate any school,” it must perform certain tasks, in pertinent part as follows:

(1) Prepare and reduce to writing its reasons and supporting data regarding the school closingor consolidation ...(2) Provide notice for a public hearing....(3) Conduct a public hearing ... [and](4) Receive findings and recommendations from any local school improvement councilrepresenting an affected school relating to the proposed closure or consolidation prior to or at thepublic hearing.

W. Va. Code § 18-5-13a(a) (emphasis added). West Virginia Code § 18-5-13a(a)(1)(C) provides thatthe written reasons must “[c]omply with the rule promulgated pursuant to subsection (b) of thissection,” i.e. Policy 6204. Critically, subsection (b) directs the WVBOE topromulgate a rule ... detailing the type of supporting data a county board shall include as part of itswritten statement of reason required by this section for school closing or consolidation. The rule shallrequire at least the following data:

(1) The transportation time of the affected students; and(2) Any data required by the state board to amend a county's comprehensive educational facilitiesplan.

W. Va. Code § 18-5-13a(b) (emphasis added). The statute further directs the WVBOE to promulgatea rule that “establishes the procedure to be followed by county boards when conducting a publichearing on the issues of school consolidation and closing.” W. Va. Code § 18-5-13a(c).18

This Court has had occasion to examine the operation of West Virginia Code § 18-5-13a aspertains to the power of the WVBOE to approve or reject a CEFP amendment. 184 W.Va. 1, 399S.E.2d 31. In Kanawha County Board, as in this case, the county board challenged the WVBOE'srejection of its consolidation plan. This Court recognized the general authority granted under WestVirginia Code § 18-5-13 to county boards to close or consolidate schools, but noted that such

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authority was made subject to “the rules and regulations of the state board.” Id. at 2-3, 399 S.E.2dat 32-33 (quoting W. Va. Code § 18-5-13a). The Court then concluded—in sharp contrast to thecircuit court's conclusion herein—that “[c]learly, the county boards of education do not haveunlimited power to make the final decisions with respect to school closings and consolidation.” Id.at 3, 399 S.E.2d at 33.

Critical to our analysis, however, is this Court's determination in Kanawha County Board thatcounty boards' consolidation decisions are both constitutionally and statutorily made subject to theWVBOE's approval. Id. . . . [T]he statute itself appears to acknowledge and pay deference to theWVBOE's expansive rule-making authority in exercise of its supervisory powers. This isundoubtedly because of the Legislature's awareness that “[a]n attempt to undertake the Board'sgeneral supervisory powers violates the [separation of powers] provision of art. V, § 1 of the stateConstitution[.]” Hechler, 180 W.Va. at 455-56, 376 S.E.2d at 843.

B. Whether Rejection of CEFP Amendment was Arbitrary or CapriciousHaving determined that the Constitution provides general supervisory authority and the statute

itself in no way restricts the WVBOE's role relative to consolidation, we turn then to the regulationpromulgated by the WVBOE for closer examination. To that end, the circuit court found, and theBoard argues, that the WVBOE failed to restrict its consideration of the CEFP to the “factors” and“criteria” contained within Policy 6204; therefore, its actions were necessarily arbitrary andcapricious.19 The Board argues that none of the reasons for rejection articulated during the formalmotion or in subsequent member testimony are mentioned specifically in the six categories ofinformation outlined in Policy 6204. Accordingly the circuit court concluded that the WVBOE’srejection of the CEFP is therefore arbitrary because it involves matters “the Legislature did notintend them to consider[.]”

The WVBOE, however, argues that the language of Policy 6204 clearly contemplates submissionof the plan for its consideration on the merits and consequent approval or rejection. Moreover, theWVBOE argues that all of the reasons proffered for rejection of the plan pertain to “educationalpolicy” concerns and therefore relate in some manner to the areas outlined in Policy 6204, if notexpressly, at least implicitly. Accordingly, a closer look at the language of Policy 6204 is necessaryto determine if the WVBOE acted arbitrarily or capriciously.

1. CEFP Amendment Considerations pursuant to Policy 6204As indicated above, West Virginia Code § 18-5-13a(b) directs the WVBOE to promulgate a rule

which “detail[s] the type of supporting data a county board shall include as part of its writtenstatement of reason[.]” The rule promulgated by the WVBOE is contained at West Virginia Codeof State Regulations §§ 126-176-1 et seq. and, as previously stated, is known as Policy 6204. ...

Critically, after the vote and prior to implementation of any consolidation, section 2.6 states that“the county must file a request for an amendment of it's [sic] CEFP with the WVBE for approval[.]”(emphasis added). The request must “contain justification for the proposed consolidation” which“must be supported by supplemental data and information pertinent to the following subjects:enrollment, facilities, finance, personnel, transportation, and educational programs[.]” W. Va. C.S.R.§ 126-176-2.6.3 (emphasis added). Of no small moment is the fact that a prior version of Policy 6200(the Handbook on Planning School Facilities) expressly provided that the WVBOE

will not overrule a county board of education on a school closing or consolidation matter,unless the proposal does not comply with the educational and facility standards established bythe State Board or the county board has not complied with procedural requirements of 18-5-13,18-5-13a, and State Board Policy.

W. Va. C.S.R. § 126-182-1 (1985) (emphasis in original). That provision was deleted from Policy6200 in 1991 and has remained absent from Policy 6200 and 6204 to date.

Under any reasonable reading of Policy 6204, it plainly contemplates the WVBOE's discretionaryapproval of a CEFP amendment and attendant consolidation plan. First, Policy 6204 expresslyprovides that both the written consolidation plan and the CEFP amendment are subject to approval

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by the WVBOE and must contain a “justification” for the closure. There is simply nothing in thestatute or Policy which suggests that once a local board jumps through the hoops ofinformation-gathering for purposes of the written plan and CEFP amendment, the blessing of theWVBOE is guaranteed. In fact, the WVBOE's removal of the provision from the Handbook onPlanning School Facilities stating that it would not overrule a county board's closure orconsolidation decision absent procedural irregularities clearly demonstrates the WVBOE's intentionto utilize its broad discretion in approving or rejecting such a plan.23 Under any common-sensereading of Policy 6204, subjective assessment of the merits of the plan by the WVBOE isunderstood. . . .

Finally, as a practical matter, this Court can discern no other reason for submission of thesupporting data to the WVBOE than for its consideration in approving or rejecting the plan. Underthe circuit court's reasoning, a county board could theoretically prepare a plan that was neitherfiscally nor educationally sound, yet insofar as the county board thoroughly and properly assembledsupporting documentation for such a plan, the WVBOE would be bound to approve theconsolidation. We are unpersuaded by the Board's argument that to the extent that the reasons forrejection could in some measure be tied to one of the six enumerated categories of supporting dataand information, rejection may be proper. Such a standard is plainly susceptible to semantical gamesdesigned to pigeon-hole the entire universe of potential reasons for rejection of verysituation-specific plans into blunt categories which are by no means intended to be comprehensivestandards for the evaluation of the propriety of school closure or consolidation. The criticallyimportant decision-making involved in protecting our children's fundamental right to education isantithetical to such gamesmanship. The WVBOE's constitutional duty to the “complete executivedelivery and maintenance of a thorough and efficient” educational system demands more. Syl. Pt.1, Pauley, 174 W. Va. 167, 324 S.E.2d 128. Therefore, the West Virginia Board of Education isentitled to utilize its discretion in approving or rejecting an amendment to a ComprehensiveEducational Facilities Plan submitted pursuant to West Virginia Code of State Regulations §§126-176-1 et seq. (2005) in aid of school closure or consolidation.

2. Arbitrariness or Capriciousness of the WVBOE's Reasons for RejectionNotwithstanding the constitutional, statutory, and regulatory authority we find hereinabove, by

no means does this Court suggest that the WVBOE's discretion in this regard without limitation. Asindicated above, mandamus will lie to “control a board of education in the exercise of its discretion”where there is a showing of “caprice, passion, partiality, fraud, arbitrary conduct, some ulteriormotive, or misapprehension of law upon the part of such board.” Syl. Pt. 1, State ex rel. Payne v. Bd.of Educ. of Jefferson Cty., 135 W.Va. 349, 63 S.E.2d 579 (1951). See also Syl. Pt. 1, Detch, 145 W.Va. 722, 117 S.E.2d 138 (“The determination of the educational policies of the public schools of theState is vested in The West Virginia Board of Education, and, unless unreasonable or arbitrary, itsactions relating to such policies will not be controlled by the courts.” (emphasis added)). Therefore,although we reject the basis for the circuit court's conclusion that the WVBOE acted arbitrarily andcapriciously, we nonetheless find it prudent to utilize our plenary powers to examine the reasonsstated.24

As indicated above, multiple members of the WVBOE expressed concern that the public hearingsconducted were perfunctory and failed to address issues and concerns raised. Certain membersexpressed their view, with the support of educational research, that community schools better serveimpoverished students, of which Richwood has a high number. Certain members expressed concernthat the Board had not adequately addressed or considered the impact of consolidation on disciplineand extracurricular activities, as pertains to the well-being of the student body and educationalenvironment. Nearly all members expressed concern that alternatives which would better addressthe foregoing issues were not sufficiently demonstrated to have been considered by the Board. Nearlyall members expressed that all of the affected schools were doing well academically and financiallyand that, typically, consolidation is utilized to improve upon either or both. The common theme in

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the members' testimony was that they were concerned about consolidation given Richwood's highnumber of impoverished families and the ample research suggesting that such students do not thrivein a larger school setting. President Campbell and Member Debra Sullivan gave thoughtful andextensive testimony explaining that educational research is now trending away from consolidationin favor of community schools as being optimal, particularly for impoverished students, where theschools at issue are performing so well academically and financially, as these schools are.

Without passing on the relative merits of any of the WVBOE members' testimony, we find thatthe thoughtful and well-supported rationales offered by the WVBOE members objectively pertainto the feasibility, desirability, and efficacy of consolidation. Accordingly, we find no basis uponwhich to cast their reasoning as arbitrary or capricious; rather, their reasoning was unified,well-expressed, and, above all, plainly germane to the wisdom of consolidation and the well-beingof the student population. We therefore find that the circuit court erred in concluding that theWVBOE's rejection of the CEFP amendment was arbitrary and/or capricious. . . .

IV. CONCLUSIONFor the reasons set forth hereinabove, we reverse the August 18, 2017, order of the Circuit Court

of Kanawha County, West Virginia.

[A concurring opinion by Chief Justice Loughry is omitted.]

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