Pendleton Citizens etc. v. Marockie
Annotate this CaseJanuary 1998 Term
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No. 25138
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PENDLETON CITIZENS FOR COMMUNITY SCHOOLS,
a West Virginia Nonprofit Corporation; and
GLEN L. and JOLENE EYE; and CHRIS EYE, a juvenile by
his parent and next friend Jolene Eye, and
DARRELL E. NICHOLS and DIANE HINER and KRISTA HINER
by her parent and next friend Diane Hiner; and
DANNY L. and LINDA J. JUDY; and BRIAN JUDY by his
next parent and next friend Linda J. Judy, and
NORMAN and KAREN KILE; and NICHOLAS KILE by
his parent and next friend Karen Kile; and
CRAIG and PAULA KISAMORE, and APRIL and
JONATHAN KISAMORE by their parent and next friend
Paula Kisamore; and CHARLES M. and SHIRLEY LAMBORNE; and
MICHELLE and MICHAEL LAMBORNE by their parent and
next friend Shirley Lamborne; and LYSLE and KATHY SMITH; and
LINSLEY SMITH by her parent and next friend Kathy Smith,
Plaintiffs below, Appellees,
v.
HENRY MAROCKIE, State Superintendent of Schools;
THE WEST VIRGINIA BOARD OF EDUCATION;
THE WEST VIRGINIA SCHOOL BUILDING AUTHORITY;
CLACY WILLIAMS, Executive Director of the West
Virginia School Building Authority; and
THE PENDLETON COUNTY BOARD OF EDUCATION,
Defendants below, Appellants.
AND
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No. 25139
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PENDLETON CITIZENS FOR COMMUNITY SCHOOLS,
a West Virginia Nonprofit Corporation; and
GLEN L. and JOLENE EYE; and CHRIS EYE, a juvenile by
his parent and next friend Jolene Eye, and
DARRELL E. NICHOLS and DIANE HINER and KRISTA HINER
by her parent and next friend Diane Hiner; and
DANNY L. and LINDA J. JUDY; and BRIAN JUDY by his
next parent and next friend Linda J. Judy, and
NORMAN and KAREN KILE; and NICHOLAS KILE by
his parent and next friend Karen Kile; and
CRAIG and PAULA KISAMORE, and APRIL and
JONATHAN KISAMORE by their parent and next friend
Paula Kisamore; and CHARLES M. and SHIRLEY LAMBORNE; and
MICHELLE and MICHAEL LAMBORNE by their parent and
next friend Shirley Lamborne; and LYSLE and KATHY SMITH; and
LINSLEY SMITH by her parent and next friend Kathy Smith,
Plaintiffs below, Appellees,
v.
HENRY MAROCKIE, State Superintendent of Schools,
THE WEST VIRGINIA BOARD OF EDUCATION;
THE WEST VIRGINIA SCHOOL BUILDING AUTHORITY; and
CLACY WILLIAMS, Executive Director of the
West Virginia School Building Authority,
Defendants below, Appellants.
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Appeal from the Circuit Court of Kanawha County
Hon. Tod J. Kaufman, Judge
Civil Action No. 96-C-507
REVERSED
________________________________________________________
Submitted: June 9, 1998
Filed: July 14, 1998
Robert M. Bastress,
Esq. Darrell
V. McGraw, Jr., Esq.
Morgantown, West
Virginia Attorney
General
James B. Lees, Jr.,
Esq. Kelli
D. Talbott, Esq.
Charleston, West
Virginia Senior
Assistant Attorney General
Attorneys for
Appellees Katherine
A. Schultz, Esq.
Senior
Deputy Attorney General
Howard E. Seufer, Jr.,
Esq. Charleston,
West Virginia
John R. Teare, Jr.,
Esq. Attorneys
for Appellants Henry
Kimberly S. Croyle,
Esq.
Marockie, The West Virginia Board
Bowles Rice McDavid Graff & Love, PLLC
of Education, The West Virginia
Attorneys for Appellant
School Building Authority, and
Pendleton County Board of
Education Clacy
Williams
Gregory W. Bailey,
Esq. Franklin
D. Cleckley, Esq.
Charleston, West
Virginia Morgantown,
West Virginia
Amicus Curiae, West Virginia
Association Amicus Curiae, The Annenberg
of School
Administrators
Rural Challenge
M. E. "Mike" Mowery, Esq.
M. Christine F. Morris, Esq.
Michael R. Crane,
Esq.
Jennifer B. Walker, Esq.
Charleston, West Virginia
Amicus Curiae, The West
Virginia Legislature
JUSTICE STARCHER delivered the Opinion of the
Court.
SYLLABUS BY THE COURT
1. W.Va.Code,
18-9D-16 [1993] does not prohibit the School Building Authority from exercising discretion
in weighing and applying the factors listed in W.Va. Code, 18-9D-16 [1993], in
order to prioritize requests for funding.
2. "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. Syllabus Point 3, Pauley v. Kelly, 162 W.Va.
672, 255 S.E.2d 859 (1979).
3. "Because
education is a fundamental, constitutional right in this State, under our Equal Protection
Clause any discriminatory classification found in the State's educational financing system
cannot stand unless the State can demonstrate some compelling State interest to justify
the unequal classification." Syllabus Point 4, Pauley v. Kelly, 162 W.Va. 672,
255 S.E.2d 859 (1979).
4. "'[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
necessary to serve some compelling State interest. Furthermore, any denial or infringement
of the fundamental 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).
Starcher, Justice:
In the instant case, the Circuit Court of
Kanawha County ruled that the closing of a high school in Circleville, in Pendleton
County, violates both statutory law and our state constitutional right to education. We
conclude that the circuit court erred in both conclusions. Consequently, we reverse the
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 programSee footnote 1 1 in Circleville, Pendleton County, West
Virginia. In 1995, the Pendleton County Board of Education decided to require that
Pendleton County students in grades 7 - 12 who would have attended school in Circleville
would instead attend a new, county-wide consolidated high school being built in Franklin,
about 17 miles from Circleville. Franklin is the county seat, and has an existing high
school, with about 500 students in grades 7 - 12. The new consolidated high school would
have about 650 students.
The plaintiffs below and appellees before
this Court are high school students from Circleville School, their parents, and Pendleton
Citizens for Community Schools, an organization whose members want to preserve Circleville
High.
The defendants below and appellants before
this Court are the West Virginia Superintendent of Schools, the West Virginia Board of
Education ("State Board"), the West Virginia School Building Authority
("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 the SBA, which provides money to
counties for school construction,See footnote 2 2 ordinarily awards such money only 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 take all of a county's students at a certain grade level,
as is the case for the new consolidated high school in Pendleton County. Without such a
"single county high school waiver," the new high school would have to have 1,200
students -- 6 grades times 200 students per grade -- to achieve "economies of
scale." There are not 1,200 high school students in all of Pendleton County.
The appellees contend that this SBA
funding practice effectively forces county school boards in sparsely populated rural
counties to consolidate high schools, regardless of and to the overall educational
detriment of the children who have been attending smaller schools. Appellees also contend
that school boards, particularly in less prosperous, sparsely populated, rural counties,
cannot themselves ordinarily refurbish or replace smaller, non- consolidated high schools
like Circleville, without funding assistance from the SBA.
Thus, say appellees, the SBA's use of
"economies of scale" in evaluating requests for funding effectively forces the
closure of smaller community high schools that are otherwise efficient and effective in
the ways that matter most to their students and communities.See footnote 3 3
The appellees contend that the SBA's use
of "economies of scale" is contrary to the SBA's statutory direction under W.Va.
Code, 18-9D-16 [1993]. The appellees also contend that the SBA's practices are
unconstitutional, because they impair the appellees' state constitutional right to
educational services and opportunities, without a rational basis and without being
narrowly and necessarily 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 policies pursuant 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 obtain
maximum 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 smaller unconsolidated high schools, with the same allegedly unconstitutional
effects.
In response to the
appellee's contentions, the appellants assert that the SBA and State Board policies do not
drive consolidation. Furthermore, the appellants say that -- assuming arguendo that
SBA and State Board policies do drive consolidation -- any such bias toward consolidation
is not contrary 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, the circuit 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 large catchment areas, and in some cases
consolidate county-wide, thus requiring students to spend inordinately long periods of
time commuting.
* * *
c. The long commutes interfere with
students' study time, their ability to participate in extracurricular activities, and
their educational achievement.
d. Larger schools mean
lower participation rates for students in extracurricular activities in the life of the
school.
e. Students who are bused
the longest distances generally live in the most rural areas of the county and generally
come from families with a lower socio-economic status than those who live nearer to the
consolidated school.
f. The level of parental
involvement, an important barometer of students' educational achievement, diminishes when
schools become larger and more distant.
g. Small community schools are more effective in blunting the effects of low socio-economic status 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- economic status has a significant
negative impact on the educational achievement of the lower SES students.
I. [sic] Closing community
schools and busing rural students to consolidated schools, especially when the bused
children from lower socio-economic backgrounds, create a significant risk of substantially
increasing the dropout rate among students.
j. Consolidation often
creates deep and long lasting divisions between the consolidated communities and adversely
affects parental involvement in the schools, dropout rates, student achievement levels,
and generally the quality of the educational experience.
k. Large schools are not
just dysfunctional for poor children; such schools dramatically compound the disadvantages
that poor children inevitably confront.
l. Despite the negative
correlation between school size and student achievement for students from low
socio-economic backgrounds, the SBA's school building program has disproportionately, at a
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 declaratory judgment stating as follows:
A. The decisions by the Pendleton County
and West Virginia State Boards of Education to close Circleville High School were
arbitrary and were in violation of Article XII, § 1 and Article III, § 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 school size or maximize school size to
qualify for school construction funds and the SBA's administration of the
economies of scale criterion violate Article XII, § 1 and Article III, § 10 of the 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 sparsely populated counties to retain
professional educators and service personnel in excess of the ratios funded by that
section in order to maintain community schools, the section fails to meet the obligations
imposed on the State by Article XII, § 1 and Article III, § 10 of the West Virginia
Constitution to provide a thorough and efficient education and to avoid discrimination in
the provision of such education.
Further, based on the
foregoing findings and conclusions, plaintiffs are entitled to the following injunciton
[sic]:
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 Franklin High
School.
B. The West Virginia
School Building Authority and its director are hereby enjoined from continuing to use and
rely upon a minimum school size or the maximization of school size within a county as a
criterion for funding and from using any set of criteria that fails to recognize the
educational value of community schools;
C. The West Virginia
Board of Education and the Superintendent of Schools are hereby enjoined from applying the
limits on the funding of professional educators and service personnel when such limits
would force a school closure that is educationally disadvantageous.
II.
Standard of Review
Initially, we must
acknowledge that the circuit court's findings as to factual matters (including the
findings quoted supra), are strongly contested by the appellants. Appellants ask us
to review these findings under a less deferential standard than we ordinarily do for a
circuit court's factual findings, because they are "constitutional facts." See
Appalachian Power v. Tax Dept., 195 W.Va. 573, 582, n. 5, 466 S.E.2d 424, 433 n. 5
(1995). However, because we do not address the circuit court's factual findings directly (see
III. infra), we need not decide what particular standard is appropriate for their
review. Matters of law, of course, we review de novo. Id.
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 lengthy arguments of the parties
and amici curiae are tangled with numerous references to contending numbers,
percentages, studies, tables, etc., etc., -- all attacking and defending the circuit
court's findings. This numbing thicket of figures contrasts oddly with the real issues in
this case -- issues that are 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 and
salaries promote and substantially contribute to the closing of smaller high school
programs like Circleville High, and drive the establishment of larger, consolidated high
schools; and (2) that such high school consolidations, including the Pendleton County high
school consolidation at issue in the instant case, have more of an adverse effect on the
children whose former school is being closed than on the other children closer to the
community where the consolidated school is located -- these effects being lengthy travel,
difficulties in full participation, etc. -- in short, all of the negative effects listed
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. We simply 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's decision: (1) Is the alleged
SBA/State Board "bias" in favor of consolidation, as exemplified in the
Circleville case, a violation of any statute? (2) Is the alleged SBA/State Board
"bias" in favor of consolidation, 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].
W.Va. Code,
18-9D-16(d) [1993], in part, calls for the SBA to 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 a county's students. Appellees also complain that the SBA uses a numerical evaluation
and ranking system for evaluating requests for school construction funding, using assigned
scores for the above factors, that gives greater weight (a 1.5 multiplier) to the
"economies of scale" factor than to some other factors.See footnote 4 4
The appellees suggest that a prohibition
against giving such an emphasis to "economies of scale" may be inferred from the
lack of specific legislative authorization for such an emphasis. The appellees also argue
that the requirement in W.Va. Code, 18-9D- 16(d)(2) [1993] that the SBA consider
"similar schools that have achieved the most economical organization, faculty
organization and 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.
Reading the statute, we conclude that to
find in this statutory language a prohibition against the SBA's giving emphasis or greater
weight to "economies of scale" is a stretch, to say the least. Our law does not
support making such a stretch. In the absence of statutory, constitutional, public policy
or similar direction and guidance to the contrary, an agency's reasonable interpretation
and construction of its authorizing and directive statutes, while certainly not
dispositive, should be given substantial weight. See Appalachian Power, supra,
195 W.Va. at 582, 466 S.E.2d at 433 (1995).
We conclude that W.Va. Code,
18-9D-16 [1993] does not prohibit the School Building Authority from 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
on the SBA's weighing of the "economies of scale" factor must fail.See footnote 5 5
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 Equal Protection Clause any discriminatory classification found in the
State's educational financing system cannot stand unless the State can demonstrate some
compelling State interest to justify the 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 necessary to serve some
compelling State interest. Furthermore, any denial or infringement of the fundamental
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 attended smaller, more local community high
schools like Circleville do not do as well in or are not as well served by larger
consolidated high schools, and that this disparity is associated with a child's residence
or wealth, the question then is whether such a disparity implicates and violates our state
constitutional guarantee of the right of education?
This Court has not shied from finding that
distinctions and disparities based on wealth or residence may lead to finding a violation
of the constitutional right to education. See Pauley v. Kelly, 162 W.Va. 672, 259 S.E.2d 859 (1979) (disparities between richer and poorer counties). See also Randolph County
Board of Education v. Adams, 196 W.Va. 9, 467 S.E.2d 150 (1995) (free textbooks); State ex
rel. Board of Educ. for the County of Randolph v. Bailey, 192 W.Va. 534, 453 S.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 daily bus rides to a
school where they and their families are less able to be involved in a wide range of
educational and extra-curricular learning activities. Appellees say that modern facilities
and equipment do not and cannot make up for the loss of the more fundamental, human-scale
educational virtues of the smaller school that is closed as part of consolidation. In sum,
appellees asserted and the circuit court found that the closing of Circleville High would
on balance be educationally injurious to the appellees, in a disparate and discriminatory
fashion associated with their residence and wealth.
Did the circuit court properly find such
discriminatory and disparate injuries to the appellees?
The appellants assert and the appellees do
not disagree that no jurisdiction has found that school consolidation and/or a state
policy of incentives to consolidate result in disparities and adverse effects that
implicate a constitutional right to educational services and opportunities.
If required to decide the instant case on
this issue, despite the circuit court's findings to the contrary, we would be inclined to
say that the appellees did not prove their case on this issue. We make this observation
because the record reflects that there has been substantial high school consolidation in
West Virginia in the past 20 years -- yet the appellees' evidence that tended to show
overall disparities and discriminatory adverse effects from such consolidation was less
than overwhelming.
Nevertheless, the circuit court found and
there was expert opinion evidence before the court that there are such disparities and
adverse effects. We determine that we need not decide whether the adverse effects and
disparities alleged by the appellees and found by the circuit court exist, or rise to the
level of implicating our state constitutional guarantee of education.
Rather, if we further assume arguendo that
the appellees sufficiently proved that the SBA/State Board policies generally and in the
instant case create or contribute to adverse educational effects and disparities, based on
wealth and residence, that are of constitutional significance -- then the issue that
immediately follows is whether the challenged actions that create or contribute to such
alleged effects and disparities are -- under a strict scrutiny review -- necessary,
reasonable, least restrictive and narrowly tailored to advance a compelling state
interest. Syllabus Point 2, Cathe A. v. Doddridge County Bd. of Educ., 200 W.Va. 521, 490 S.E.2d 340 (1997).
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) to a school
board's decision to entirely deny state-funded educational services and opportunities to a
child who had been suspended under the Safe Schools Act.
We ratified the circuit court's requiring
the local school board to provide the less restrictive alternative; and we found that a
blanket statewide policy that school boards had no responsibility with respect to offering
alternative state-funded educational services and opportunities to such suspended students
was not the least restrictive narrowly tailored feasible alternative necessary to advance
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) -- the appellants advanced several reasons for such a policy, including: (1) the
need to spend limited state educational funds economically; (2) the need to see that all
students have access to enhanced curricular offerings; (3) the need have modern, safe
physical facilities; and (4) the need to balance competing local and regional needs,
interests and resources to achieve greater statewide equality and adequacy of educational
opportunity. No one disputes that these are compelling state interests.
In the instant case, the circuit court
concluded that none of these (or any other) compelling state interests were served in a
necessary, feasible, least restrictive and narrowly tailored fashion, generally or in the
Circleville case, by the appellants' allegedly pro- consolidation bias in the distribution
of state funds for school building and personnel salaries.See footnote 6 6 The circuit court concluded generally
that the state'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 close Circleville High be set aside and
that the State Board void its approval of the closing of the Circleville School. The
circuit court also ordered the SBA and State Board to modify their policies governing
salaries and economies of scale to eliminate any pro- consolidation bias.
Following such actions pursuant to the
circuit court's order, appellees apparently believe that upon evaluating the Circleville
situation -- using a case-by-case, child-centered basis, unaffected by the alleged bias
toward consolidation -- the SBA would and should fund the physical rehabilitation of the
Circleville School, and presumably the County Board would choose to keep it open as a high
school, unconstrained by State Board salary limitations.
However, the circuit court's order did not
with any degree of specificity identify or evaluate the nature or costs (financial and
otherwise) of statewide policies by the SBA and State Board that would not give preference
to "economies of scale" -- or more particularly, of policies that would if
applied fund the continued existence of Circleville High. On a statewide basis or in the
Circleville case, there was no meaningful comparison by the court of any alternatives with
the policies and plans used and approved by the appellants SBA and State Board.See footnote 7 7 The circuit court's
pronouncements as to the 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 less injurious, less discriminatory,
less restrictive, more narrowly tailored and feasible alternative(s) to the 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 a an allegedly discriminatory
impairment of the constitutional right to education must identify and evaluate in a
reviewable fashion the nature, effects and costs of feasible, less discriminatory, more
narrowly tailored and less restrictive alternatives to the approach allegedly causing the
impairment, that would also advance the relevant compelling state interests -- because
such a requirement might not be possible, practical and/or necessary in all cases.
But if a court does not -- to a
meaningfully reviewable degree -- identify, evaluate and compare the apparent costs,
effects, feasibility, restrictiveness and narrowness of tailoring of alternatives to the
approach that is complained of, then in the absence of other clear evidence of viable less
restrictive and more narrowly tailored alternatives, a reviewing court may be more likely
to conclude that the lower court did not have a sufficient factual or legal basis to
fairly determine whether the complained-of approach is too restrictive, or not as narrowly
tailored as reasonably possible. "[A court] 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 of power." Note, The
Less Restrictive Alternative in Constitutional Adjudication: An Analysis, A Justification,
and Some Criteria, 27 Vand.L.Rev. 971, 1035 (1974).
In the instant case, there is no
reasonably detailed identification, evaluation or comparison by the circuit 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 narrowly tailored and less restrictive
alternatives to those policies -- that are themselves not educationally injurious and
discriminatory in other ways of arguably equal importance.
Therefore, we will not sustain the circuit
court's conclusion that the SBA/State Board approach to 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
was therefore 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 appealed from in the
instant case.
IV.
Conclusion
For the foregoing reasons, the order of
the circuit court is reversed.
Reversed.
Footnote: 1 1 The Circleville
School contains kindergarten through grade 12. The Pendleton County Board of Education,
with funding from the West Virginia School Building Authority, plans to close the
Circleville School, send grades 7-12 to a new consolidated high school in Franklin, and
build a new regional elementary school in Circleville. Appellees did not contest the
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 President Franklin Roosevelt, and is listed on the
National Register of Historic Places.
Circleville School's problems include: widespread fire code
violations, including inadequately sized stairwells; an antiquated electrical system;
inadequate lighting; inadequate and severely warped flooring that is in need of repair or
replacement, including cracked floor joists which provide structural support for the
building; cracks in a boiler room floor which allow rain water to percolate up through the
floor, causing damage to and shutdown of the electric motors that run the circulating
pumps on the boilers; inadequate windows in need of total replacement; exterior facade
that is rotting and can be easily knocked or pulled off the building; serious deficiencies
related to Americans with Disabilities Act requirements; the presence of asbestos
throughout the building; lack of appropriate space for new or existing programs; severe
water damage to plaster and electrical wiring caused by roof leaks and plumbing failures;
extensive damage to drywall; dangerously exposed lighting fixtures and
hooks on the gymnasium stage; rotting wooden structures in the gymnasium;
deficient roofing in need of repair or replacement; and lack of a sprinkler system.
In order to renovate the Circleville School building to current
health and safety codes for student occupation, the evidence was that one would
essentially have to gut the building, leaving the outside walls standing, and start over.
The appellants estimated that full repairs would cost more than $2,000,000; the appellees
estimated a lesser figure. The circuit court made no specific findings on this issue other
than to state that rehabilitation was feasible.
Footnote: 2 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 Constitution to 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).
Footnote: 3 3 Although there was a substantial history of contention in the Pendleton County School Board about closing Circleville School, we omit that factual recital. We have recognized the substantial deference that must be given to local school boards in their decisions to close schools. See McComas v. Board of Educ. of Fayette Co., 197 W.Va. 188, 475 S.E.2d 280 (1996). In the instant case, the appellees argue and the circuit court found that in order to obtain SBA and State Board funding, a local school board has little choice in whether or not to consolidate.
Footnote: 4 4 The SBA also gives greater weight (a 1.5 multiplier) to student health and safety, curriculum improvement, and innovations in education.
Footnote: 5 5 The appellees offer no argument that the State Board of Education's ratios used in funding for school personnel are contrary to any statutory provisions. Indeed, these ratios are established at W.Va.Code 19-9A-5a (1990), and the circuit court's ruling found that they were unconstitutional insofar as they forced consolidation.
Footnote: 6 6 The circuit court also concluded that there was no "rational basis" for the SBA/State Board policies that allegedly skew decisions by local school boards toward consolidation. The record belies this conclusion. The "rational basis" test is one of the more forgiving legal standards, and the evidence put on by the appellants, articulating their reasons for adopting those policies, met this test.
Footnote: 7 7 The appellants presented substantial evidence as to the history of the SBA's statewide funding of new school construction and school rehabilitation, demonstrating a facially coherent and balanced program, with objective and reasoned criteria. In the case of Franklin County, the appellants provided substantial evidence of a comprehensive political and policy debate, an exploring and weighing of alternatives, and a lengthy planning process -- all addressing a spectrum of diverse educational needs, including the replacing of the Franklin High facilities.
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