The opinion
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2017 Term FILED
October 10, 2017
released at 3:00 p.m.
No. 17-0767 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
WEST VIRGINIA BOARD OF EDUCATION and
STEVEN L. PAINE, Ed.D., in his capacity as the
State Superintendent of Schools,
Respondents Below, Petitioners
v.
BOARD OF EDUCATION
OF THE COUNTY OF NICHOLAS, WEST VIRGINIA,
Petitioner Below, Respondent
Appeal from the Circuit Court of Kanawha County
The Honorable Louis H. Bloom, Judge
Civil Action No. 17-P-232
REVERSED
Submitted: October 3, 2017
Filed: October 10, 2017
fffPatrick Morrisey, Esq. Kenneth E. Webb, Jr., Esq.
Attorney General Rebecca M. Tinder, Esq.
Kelli D. Talbott, Esq. Bowles Rice, LLP
Senior Deputy Attorney General Charleston, West Virginia
Charleston, West Virginia Attorneys for Respondent
Attorneys for Petitioners
Robert M. Bastress, Esq.
Morgantown, West Virginia
and
Jeffrey G. Blaydes, Esq.
Carbone & Blaydes, P.L.L.C.
Charleston, West Virginia
Attorneys for Amici Curiae
Richwood High School Alumni
Association, American Federation of
Teachers-West Virginia, Sharon
Glasscock, Michael Fox, and Jocelyn
Swearingen
R. Booth Goodwin II, Esq.
W. Jeffrey Vollmer, Esq.
Goodwin & Goodwin, LLP
Charleston, West Virginia
Attorneys for Amicus Curiae
West Virginia School Board
Association
JUSTICE WORKMAN delivered the Opinion of the Court.
CHIEF JUSTICE LOUGHRY concurs and reserves the right to file a concurring opinion.
SYLLABUS BY THE COURT
1. “A de novo standard of review applies to a circuit court’s decision to
grant or deny a writ of mandamus.” Syl. Pt. 1, Harrison Cty. Comm’n v. Harrison Cty.
Assessor, 222 W.Va. 25, 658 S.E.2d 555 (2008).
2. “Interpreting a statute or an administrative rule or regulation presents
a purely legal question subject to de novo review.” Syl. Pt. 1, Appalachian Power Co. v.
State Tax Dep’t of W. Va., 195 W.Va. 573, 466 S.E.2d 424 (1995).
3. “To invoke mandamus the relator must show (1) a clear right to the
relief sought; (2) a legal duty on the part of the respondent to do the thing relator seeks;
and (3) the absence of another adequate remedy.” Syl. Pt. 2, Myers v. Barte, 167 W.Va.
194, 279 S.E.2d 406 (1981).
4. “Mandamus does not lie to control a board of education in the
exercise of its discretion, in the absence of caprice, passion, partiality, fraud, arbitrary
conduct, some ulterior motive, 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 (1950).
5. “The West Virginia Board of Education and the State Superintendent
of Schools, pursuant to their general supervisory powers over education in West Virginia
i
under W.Va. Const. art. XII, § 2, and their specific duties to establish, implement and
enforce high quality educational standards for all facets of education under the provisions
of Chapter 18 of the West Virginia Code, have a duty to ensure the complete executive
delivery and maintenance of a ‘thorough and efficient system of free schools’ in West
Virginia[.]” Syl. Pt. 1, in part, Pauley v. Bailey, 174 W. Va. 167, 324 S.E.2d 128 (1984).
6. “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, and any statutory provision that interferes with such rule-making is
unconstitutional.” Syl. Pt. 2, in part, W. Va. Bd. of Educ. v. Hechler, 180 W. Va. 451,
376 S.E.2d 839 (1988).
7. The West Virginia Board of Education is entitled to utilize its
discretion in approving or rejecting an amendment to a Comprehensive Educational
Facilities Plan submitted pursuant to West Virginia Code of State Regulations §§ 126
176-1 et seq. (2005) in aid of school closure or consolidation.
ii
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”), requiring the West Virginia Board of Education and Dr. Steven
L. Paine, in his capacity as State Superintendent of Schools (hereinafter collectively “the
WVBOE”), to approve the Board’s amended Consolidated Educational Facilities Plan
(“CEFP”). The amendment to the CEFP constitutes a necessary prerequisite to the
Board’s efforts to consolidate four Nicholas County schools and its Career and Technical
Education Center. The circuit court found that the WVBOE lacks the authority to reject a
county board’s CEFP and attendant consolidation plan if the county complies with the
requirements 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’ stated reasons 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 regarding school consolidation and closure.
Upon careful review of the briefs,1 the appendix record, the arguments of
the parties, and the applicable legal authority, we conclude that the WVBOE is vested
1
The Court wishes to acknowledge and express its appreciation for the
contributions of the amici curiae. Briefs were submitted on behalf of Richwood High
School Alumni Association, American Federation of Teachers-West Virginia, Sharon
Glasscock, Michael Fox, and Jocelyn Swearingen in support of the WVBOE’s position.
(continued . . .)
1
with constitutional, statutory, and regulatory authority to exercise its discretion in
accepting or rejecting an amended CEFP and attendant consolidation plan and that mere
procedural compliance with statutory and regulatory requirements does not entitle a
county board of education to approval of its proposed plan. We further find that the
reasons formally adopted by the WVBOE for rejection of the plan were neither arbitrary
nor capricious. Therefore, the circuit court erred in granting the writ of mandamus.
I. FACTS AND PROCEDURAL HISTORY
On June 23, 2016, Richwood Middle School, Richwood High School, and
Summersville Middle School were seriously damaged by flood waters. As a result of the
flooding, the President of the United States issued a natural disaster declaration, making
the schools eligible for Federal Emergency Management Agency (“FEMA”) funds.
Following the flood, the Board discovered that FEMA funds could not be used to rebuild
Richwood Middle School or Richwood High School in their existing locations because
they are located in the floodplain. These schools are therefore eligible for “directed
relocation funds” used for rebuilding outside of the floodplain. The Board was further
advised that FEMA “428” funds were available, which would enable it to consolidate all
of the pending FEMA funds and utilize them for projects other than “one-for-one”
Briefs were likewise submitted on behalf of the West Virginia School Board Association
in support of the Board’s position.
2
replacement.2 It is these “428” funds it seeks to use to build the proposed comprehensive
consolidated campus at issue.
Nicholas County School Board Superintendent Donna Burge-Tetrick
purportedly considered numerous alternative site locations for Richwood Middle School
and Richwood High School, none of which she found suitable. After purportedly
exploring these alternative locations, Ms. Burge-Tetrick recommended to the Board that
it consolidate Richwood Middle and Summersville Middle Schools and Nicholas County
and Richwood High Schools, along with the Career and Technical Education Facility, to
be located together on a consolidated campus.
2
The so-called “428” program pertains to a recent amendment to the Robert T.
Stafford Disaster Relief and Emergency Assistance Act:
On January 29, 2013, President Obama signed into law
the Sandy Recovery Improvement Act of 2013. This law
amends Title IV of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act (42 U.S.C. 5121 et seq.).
Specifically, the law adds section 428, which authorizes
alternative procedures for the Public Assistance (PA) program
under sections 403(a)(3)(A), 406, 407 and 502(a)(5) of the
Stafford Act.
https://www.fema.gov/alternative-procedures (last visited October 10, 2017).
The deadline for application for these “428” funds was on or about June 26, 2017;
FEMA granted a six-month extension. Only FEMA “428” funds are subject to this
deadline; traditional “one-for-one” replacement funds apparently have no such deadline.
In light of this deadline and to enable the Board to utilize the 428 funds should
circumstances warrant, this Court has acted in an expedited manner throughout to resolve
the issues presented.
3
In furtherance of this plan, the Board prepared a written closure and
consolidation plan pursuant to West Virginia Code § 18-5-13a and West Virginia Code of
State Regulations § 126-176-1 et seq., commonly and hereinafter referred to as “Policy
6204.” The statute and regulations, in part, require a county board to collect data and
information to be incorporated into a written consolidation plan. Policy 6204 requires the
written consolidation plan to include an executive summary containing information and
data, as more particularly described therein, pertaining to the following categories:
enrollment, facilities, finance, personnel, transportation, and education programs.3
As further required by the statute and Policy 6204, five public hearings
were held between February 24 and March 6, 2017, at the affected schools where
members of the public spoke both for and against consolidation. After the required
hearings, the Board voted unanimously to move forward with consolidation. Pursuant to
Policy 6204, the next step was to request amendment of its CEFP from the WVBOE.
3
Ms. Burge-Tetrick expressed during the various meetings and public hearings
that consolidation was justified in varying degrees by some of the following
considerations: declining population in Nicholas County, an approximate $350,000.00
savings (primarily in personnel and utilities), lesser duplication of services (i.e. the need
to staff low-enrollment classes in both schools), little appreciable increase in
transportation times, and increased classroom time for career and tech students who
would no longer have to travel to the Career and Technical Education Center.
4
The Board’s proposed amended CEFP was placed on the WVBOE’s June
13, 2017, meeting agenda.4 During the meeting, Ms. Burge-Tetrick made a presentation
on the merits of the consolidation plan. Additional information was presented by State
Superintendent Dr. Steven Paine and Scott Raines, the Director of School Planning from
the School Building Authority.5 Other interested parties spoke in favor of and against the
amendment. 6 Members of the WVBOE questioned the various speakers regarding a
multitude of issues bearing on the propriety of consolidation.
During his presentation, Dr. Paine stated that the Board had followed all of
the necessary procedures to comply with Policy 6204. Dr. Paine further offered
commentary regarding the consolidation, stating that the Board was the most financially
solvent of all the county systems, with the greatest amount of carryover funds annually,
4
After the Board voted in favor of consolidation but before the CEFP amendment
could be considered by the WVBOE, a preliminary injunction seeking to enjoin the
Board from pursuing consolidation was sought in the Circuit Court of Nicholas County.
The WVBOE held the Board’s request for CEFP amendment in abeyance pending the
outcome of that litigation. The injunction was denied in early June, after which the
WVBOE proceeded to place the Board’s CEFP amendment on the agenda for its June 13,
2017, meeting.
5
Mr. Raines indicated that Frank Blackwell, Executive Director of the School
Building Authority, asked him to develop an alternative plan; this plan involves
consolidation of Richwood Middle and High Schools and a separate consolidation of
Nicholas County High School and Summersville Middle School. The Board maintains
that this option was considered and rejected as not being in the students’ best interests.
6
The appendix record reveals that an architectural expert had identified what he
believed to be alternative, feasible properties near the old Richwood schools and prepared
a model school.
5
and that the affected schools were performing well academically. He noted that the June
26, 2017, deadline for application for the FEMA “428” funds was 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 such time
constraints. Notably, Dr. Paine also noted that he believed that an alternative plan existed
which had not been considered by the Board, i.e. consolidation of only the Richwood
schools, to remain in the Richwood attendance area, and consolidation of the
Summersville schools, to remain in the Summersville area.7
At the close of the meeting, WVBOE Vice President David Perry moved to
reject the CEFP amendment due to his belief that “sufficient alternatives and possibilities
have not been explored to be assured this plan is in the best interest of the students of
Nicholas County, specifically of those in the current [Richwood schools] areas.” The
CEFP amendment was then rejected on a vote of 7-1.8
The Board thereafter filed the instant action seeking a writ of mandamus to
compel the WVBOE to accept its proposed CEFP amendment, contending that the
7
This suggestion was also made multiple times at the public hearings, but was met
with comments by Ms. Burge-Tetrick indicating that such a configuration did not address
certain issues that wholesale consolidation did.
8
WVBOE member James Wilson was the recurrent vote against the motion to
reject; he expressed merely that he was not close to the issues in Nicholas County and
therefore would defer to its preferences.
6
WVBOE acted arbitrarily and capriciously in rejecting the amendment. The circuit court
issued a rule to show cause, which was 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. After presentations and speakers both for
and against consolidation, Mr. Perry again moved to reject the amendment, stating that he
had “different reasons” for rejection. Mr. Perry stated that 1) he felt there was a lack of
“meaningful dialogue” between the Board and the Nicholas County citizens; 2) the Board
did not consider alternatives to consolidation including locations in the Richwood
attendance area, rather than simply the Richwood city limits; 3) there was equivalent
declining population in Nicholas County High School area, rather than just the Richwood
High area; 4) utilization of technology would net the same personnel cost savings; and 5)
the Richwood schools were comparably educating students and out-performing other
schools in the state on most metrics.9 The WVBOE then again voted 6-1 to reject the
amendment.
The following day, on July 11, 2017, an evidentiary hearing was held on
the rule to show cause. Each WVBOE member who voted to reject the plan was
questioned regarding the basis of his or her vote. WVBOE President Thomas Campbell
testified that he voted to reject due to several reasons including lack of community
9
Richwood High School was recognized in 2014 and 2016 by U.S. News and
World Report as one of the best high schools in the State. It had a 96% graduation rate;
Nicholas County High School had a 90% graduation rate for the 2015-16 school year.
Both have extremely high “highly qualified” teacher rates.
7
outreach, poor communication, and financial considerations. He further expressed
concern that consolidation of two high-performing schools would not necessarily
translate into a singular high-performing school. President Campbell emphasized the
WVBOE’s obligation to assess impact on the system as whole. Vice President Perry
testified consistent with the reasons articulated in his formal motion. Member Debra
Sullivan testified that she did not believe the Board considered the views of the citizens,
nor the impact of consolidation on extracurricular activities, and generally favored
smaller community schools which typically enhance parent involvement. Member Frank
Vitale testified he did not believe the Board did enough to solicit input from the
community. Member Jeff Flanagan testified he did not believe the Board provided
enough detail about potential sites or funding. Member Miller Hall testified he did not
believe the Board considered the impact of consolidation on student discipline. Member
Frank Rotruck testified he wanted the Board to consider other community school options.
A recurrent concern throughout the testimony was the high number of impoverished
students from the Richwood area and the research supporting the notion that such
students perform better in smaller, community schools.10
The circuit court found that the WVBOE “did not follow its own rules and
procedures set forth in Policy 6204” by rejecting the plan based on “factors” not
10
Seventy percent of Richwood Middle School students and sixty-eight percent of
Richwood High School students qualify for free or reduced lunch.
8
contained in Policy 6204. The circuit court found the WVBOE members’ reasons for
rejection “arbitrary” and matters which “the Legislature did not intend them to
consider[.]” The circuit court further found that the WVBOE’s rejection was “pre-textual
and an abuse of power,” relying on testimony regarding the Governor’s stated
preferences for a school in Richwood during his State of the State address.11 The circuit
court further found that the WVBOE’s only role relative to consolidation is “to determine
whether the county boards are following the requirements of” and/or “supervising
compliance” with the statute. Expressing that the county is in a better position to
determine its needs relative to consolidation, the circuit court found that the WVBOE
“does not have unfettered discretion to simply substitute its judgment for that of a local
county school board[.]”
The circuit court therefore awarded the writ of mandamus, ordering the
WVBOE to approve the Board’s CEFP amendment.12 This appeal followed.
11
The circuit court also referenced brief testimony to the effect that Vice President
Perry told a friend he would vote against consolidation because “that’s what the
Governor wants” as well as President Campbell’s testimony that he knew the Governor’s
“heart” was in community schools. There was no additional testimony or other evidence
that the Governor was in any way involved in the WVBOE’s deliberations.
12
The WVBOE sought a stay of the order pending this appeal, but the circuit court
refused unless the WVBOE posted a $130 million bond. Declining to post the bond, the
WVBOE conditionally approved the CEFP pursuant to the circuit court’s order, but
moved this Court for a stay without bond. This Court granted the stay without bond,
which the WVBOE construed as “invalidating” its conditional approval of the CEFP.
9
II. STANDARD OF REVIEW
“A de novo standard of review applies to a circuit court’s decision to grant
or deny a writ of mandamus.” Syl. Pt. 1, Harrison Cty. Comm’n v. Harrison Cty.
Assessor, 222 W.Va. 25, 658 S.E.2d 555 (2008). Moreover, “[i]nterpreting a statute or an
administrative rule or regulation presents a purely legal question subject to de novo
review.” Syl. Pt. 1, Appalachian Power Co. v. State Tax Dep’t of W. Va., 195 W.Va. 573,
466 S.E.2d 424 (1995).
Insofar as the underlying standard for the circuit court’s grant of the writ,
we have held: “To invoke mandamus the relator must show (1) a clear right to the relief
sought; (2) a legal duty on the part of the respondent to do the thing relator seeks; and (3)
the absence of another adequate remedy.” Syl. Pt. 2, Myers v. Barte, 167 W.Va. 194, 279
S.E.2d 406 (1981). However, we are mindful that “[m]andamus does not lie to control a
board of education in the exercise of its discretion, in the absence of caprice, passion,
partiality, fraud, arbitrary conduct, some ulterior motive, 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 (1950).13 With these considerations in mind, we turn to
the parties’ arguments.
13
Mandamus, rather than administrative appeal, is the proper vehicle through
which to challenge an adverse outcome regarding school closing or consolidation. See
State ex rel. W. Va. Bd. of Educ. v. Perry, 189 W. Va. 662, 434 S.E.2d 22 (1993) (finding
aggrieved parties to closure had no remedy under Administrative Procedures Act, W. Va.
(continued . . .)
10
III. DISCUSSION
The 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 requirements contained 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 ascertain whether 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 lack thereof, of consolidation is
not properly within this Court’s purview. The wisdom, efficacy, and feasibility of school
consolidation are matters reserved to the respective boards of education. See City of
Benwood v. Bd. of Educ., Cty. of Marshall, 212 W.Va. 436, 442, 573 S.E.2d 347, 353
(2002) (“[W]e note that our focus in this case was not on the merits of consolidation or
our beliefs as to whether or not consolidation is advisable for the schools of Marshall
County[.]”).14 This Court’s charge is solely to ascertain whether the WVBOE’s rejection
of the CEFP amendment was a proper use of its lawful authority.
Code § 29A-1-2(b)); see also Syl. Pt. 4, Dillon v. Bd. of Educ. of Cty. Of Wyoming, 177
W. Va. 145, 351 S.E.2d 58 (1986) (“Mandamus will lie to control a board of education in
the exercise of its discretion upon a showing of caprice, passion, partiality, fraud,
arbitrary conduct, some ulterior motive, or misapprehension of the law.”).
14
See also Bd. of Educ. of Cty. of Kanawha v. W. Va. Bd. of Educ., 184 W.Va. 1,
5, 399 S.E.2d 31, 35 (1990) (“Indeed, the merits of neither the County Board’s nor the
State Board’s decision are supposed to be in issue in this appeal.”) (hereinafter “Kanawha
County Board”); State ex rel. Jones v. Bd. of Educ. of Ritchie Cty., 178 W.Va. 378, 380,
(continued . . .)
11
A. Authority of WVBOE to Reject CEFP Amendment
The 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 exercise of 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 such matters and that the particular
statute and regulation at issue are further designed to make such matters subject to its
approval. We therefore begin our analysis by examining the circuit court’s discussion of
the relative powers and duties of the Legislature, the WVBOE, and local boards of
education, inasmuch as it is this construct upon which the circuit court premised its
ultimate conclusion in this matter.
1. Constitutional Authority of the WVBOE
Article 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 shall perform such duties as may be prescribed by law.” In
reaching its conclusion that the WVBOE is constrained in the exercise of its authority
relative to consolidation, the circuit court began with a threshold conclusion that Article
XII, section 2’s wording that the WVBOE “shall perform such duties as may be
prescribed by law” serves to temper the WVBOE’s constitutional charge. (Emphasis
359 S.E.2d 606, 608 (1987) (“[W]e are not concerned with the wisdom of the Board’s
decision to reorganize the Ritchie County schools or with the merits of the plan itself.”).
12
added). The circuit court found support for this limitation by comparing the Legislature’s
concomitant 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 such obligation empowers the Legislature to statutorily restrict the
WVBOE’s exercise of its powers, the circuit court stated that “the very text of the
Constitution dictates that the State Board may only perform 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 the decision to close or consolidate schools exclusively to local
school boards and that the WVBOE’s actions 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 the Legislature’s intention that closure
and consolidation matters remain at the local level because county boards “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 is
unnecessary . . . [and] [c]onsolidate schools[.]” The circuit court found that the local
board “may make a final decision consolidating a school” and that the WVBOE’s role is
limited to reviewing or supervising the county board’s efforts for the sole purpose of
15
See W. Va. Const. art. XII, § 1 (“The legislature shall provide, by general law,
for a thorough and efficient system of free schools.”).
13
determining whether it is following the requirements set forth in West Virginia Code §
18-5-13a.
Before reaching the more precise issue presented herein, we are compelled
by the foregoing to renounce the lower court’s deeply misguided construction of the
WVBOE’s constitutional grant of authority 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 their general
supervisory powers over education in West Virginia under
W.Va. Const. art. XII, § 2, and their specific duties to
establish, implement and enforce high quality educational
standards for all facets of education under the provisions of
Chapter 18 of the West Virginia Code, have a duty to ensure
the complete executive delivery and maintenance of a
“thorough and efficient system of 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, in West 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 the WVBOE, explaining that
“[g]eneral supervision” is not an axiomatic blend of
words designed to fill the pages of our State 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
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 general
supervisory powers over education and one need not look
further than art. XII, § 2 of the State Constitution to see that
14
the “general supervision” of state schools is vested in the
State Board of Education. Unlike most other administrative
agencies which are constituents of the executive branch, the
Board enjoys a special standing because such a constitutional
provision exists.
(footnote omitted). Broadly stated, “[t]he State Board of Education, charged with the
general supervision of our state’s educational system, has a duty to ensure that the
constitutionally mandated educational goals of 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 has unequivocally held that legislative action that impedes the
general supervisory powers of the WVBOE is patently unconstitutional. In Bailey, the
Court discussed the expansiveness of the “general supervision” power granted under the
Constitution, examining at length the Kansas Supreme Court’s analysis of the same issue
as pertained to their similarly-worded Constitution. In State ex rel. Miller v. Board of
Education, 511 P.2d 705 (Kan. 1973), the Kansas Supreme Court rejected an argument
that the “as may be provided by law” language of its Constitution required enabling
legislation to effectuate the general supervisory powers granted to its state board of
education. The Bailey Court stated that it found this analysis persuasive, citing with
approval the Miller court’s holding that “‘the legislature may enact legislation to
facilitate or assist in [the state board’s constitutional supervisory powers], but whatever
legislation is adopted must be in harmony with and not in derogation of the provisions of
15
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 likewise concluded that
“constitutional grants of authority . . . cannot be derogated or eliminated by legislative or
executive action. Therefore, any statutory provision that interferes with the State Board
of Education’s ‘general supervision of the free schools of the State’ . . . is void.” Id. at
18, 321 S.E.2d at 312. See also Powers v. State, 318 P.3d 300, 308 (Wyo. 2014) (“The
majority of courts that have addressed similar language in their constitutions have
concluded that the phrase ‘as prescribed by law’ does not permit the legislature to abolish
or transfer, either directly or indirectly, the inherent powers of a constitutionally created
office.”).
Similarly, this Court has further found that the WVBOE’s general
supervisory powers necessarily require rule-making to govern the day-to-day operation of
schools and that the Legislature’s charge to provide a thorough and efficient system of
free schools “does not entail the exclusive delegation of rule-making functions that are
part of the Board’s general supervisory powers[.]” Hechler, 180 W. Va. at 455, 376
S.E.2d at 844. The Hechler Court noted that the WVBOE is statutorily recognized as
having the authority to “make rules for carrying into effect the laws and policies of the
State relating to education,” as contained in West Virginia Code § 18-2-5 and that such
rule-making power was found to be “a provision that has aided the Board’s general
16
supervisory functions.” 16 Id. at 454-55, 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 of powers 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 of Education is
within the meaning of ‘general supervision’ of state schools pursuant to art. XII, § 2 of
the West Virginia Constitution, and any statutory provision that interferes with such rule-
making is unconstitutional[.]” 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 efficient system is effectuated through statutory rule-making
provision).
Furthermore, the circuit court’s conclusion that the Legislature has
effectively subordinated the WVBOE’s supervisory powers to the edict of the local board
where consolidation is concerned fully disregards this Court’s admonition that “[i]n
contrast to th[e] expansive interpretation of the power and authority of the State Board of
16
The WVBOE’s rule-making authority is now worded as follows: “Subject to
and in conformity with the Constitution and laws of this state, the State Board of
Education shall exercise general supervision of the public schools of the state, and shall
promulgate rules . . . for carrying into effect the laws and policies of the state relating to
education. . . .” W. Va. Code § 18-2-5(a) (2015).
17
Article V, section 1 of the West Virginia Constitution states, in part: “The
legislative, executive and judicial departments shall be separate and distinct, so that
neither shall exercise the powers properly belonging to either of the others[.]”
17
Education, this Court has traditionally construed the power and authority of the county
boards of education in a very narrow fashion.” Bailey, 174 W.Va. at 14, 321 S.E.2d at
309. More importantly, the circuit court’s conclusion ignores this Court’s prior rejection
of an identical claim that a statutory delegation of authority to a local board operates to
neutralize any 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 constitutional supervision powers, the Court more specifically addressed the
propriety of a rule promulgated by the WVBOE requiring a 2.0 grade point average to
participate in extracurricular activities. The Kanawha County 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 other extracurricular
activities . . .” rendered the WVBOE rule an “invalid interference with their own
exclusive right to control, supervise, and regulate extracurricular activities[.]” Id. at 13
14, 321 S.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 the law.”’” 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)). The Court reasoned that
[t]he Legislature, in enacting West Virginia Code § 18-2-25
(1984 Replacement Vol.), could not have ignored the
pervasive supervisory authority of the State Board of
18
Education over county boards of education. Therefore, it is
unlikely that it intended to vest the exclusive control,
supervision, and regulation of extracurricular activities with
county boards of education. Instead, it is more likely that, as
with other county board of education activities, the legislative
grant of authority found in West Virginia Code § 18-2-25
(1984 Replacement Vol.) was made implicitly subject to the
general supervisory authority of the State Board of Education.
Id. at 18, 321 S.E.2d at 312 (emphasis added).
To whatever extent the foregoing does not clearly reflect this Court’s
veneration of the extensive sweep 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 to achieve ‘the constitutionally mandated
educational goals of quality and equality[.]’” Kanawha County Board, 184 W.Va. at 5,
399 S.E.2d at 35 (1990) (quoting Bailey, 174 W.Va. at 16, 321 S.E.2d at 310) (emphasis
added).
2. Statutory Authority of WVBOE Relative to Consolidation
Having concluded that the WVBOE’s constitutional supervisory powers are
both broad and impervious to legislative impairment, we turn now to the more specific
issue of whether the school consolidation statute implicated herein attempts to restrict the
WVBOE’s general supervisory powers or otherwise speaks to any limitations on the
WVBOE’s role regarding consolidation and/or consideration of a CEFP amendment. As
indicated above, the circuit court found, and the Board argues, that the WVBOE is
obligated to accept a CEFP amendment which is administratively “in compliance” with
19
West Virginia Code § 18-5-13a and the promulgated regulations known as “Policy
6204.” It is undisputed in this case that the Board complied fully with the requirements
contained in the statute and Policy 6204 prior to seeking the WVBOE’s approval of its
CEFP amendment and attendant consolidation plan.
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 proposal to 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 closing or consolidation . . .
(2) Provide notice for a public hearing. . . .
(3) Conduct a public hearing . . . [and]
(4) Receive findings and recommendations from any local
school improvement council representing an affected school
relating to the proposed closure or consolidation prior to or at
the public hearing.
W. Va. Code § 18-5-13a(a) (emphasis added). West Virginia Code § 18-5-13a(a)(1)(C)
provides that the written reasons must “[c]omply with the rule promulgated pursuant to
subsection (b) of this section,” i.e. Policy 6204. Critically, subsection (b) directs the
WVBOE to
promulgate a rule . . . detailing the type of supporting data a
county board shall include as part of its written statement of
reason required by this section for school closing or
consolidation. The rule shall require at least the following
data:
20
(1) The transportation time of the affected students; and
(2) Any data required by the state board to amend a county’s
comprehensive educational facilities plan.
W. Va. Code § 18-5-13a(b) (emphasis added). The statute further directs the WVBOE to
promulgate a rule that “establishes the procedure to be followed by county boards when
conducting a public hearing 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 as pertains to the power of the WVBOE to approve or reject a CEFP
amendment. 184 W.Va. 1, 399 S.E.2d 31. In Kanawha County Board, as in this case, the
county board challenged the WVBOE’s rejection of its consolidation plan. This Court
recognized the general authority granted under West Virginia Code § 18-5-13 to county
boards to close or consolidate schools, but noted that such authority was made subject to
“the rules and regulations of the state board.” Id. at 2-3, 399 S.E.2d at 32-33 (quoting W.
Va. Code § 18-5-13a). The Court then concluded—in sharp contrast to the circuit court’s
conclusion herein—that “[c]learly, the county boards of education do not have unlimited
power to make the final decisions with respect to school closings and consolidation.” Id.
at 3, 399 S.E.2d at 33.
18
See Jones, 178 W.Va. at 381, 359 S.E.2d at 609 (“The obvious intent of the
[public hearing requirements] of the statute is to insure that the public is aware of and has
an opportunity to contribute to the county board’s decision regarding consolidating or
closing schools.”).
21
Critical to our analysis, however, is this Court’s determination in Kanawha
County Board that county boards’ consolidation decisions are both constitutionally and
statutorily made subject to the WVBOE’s approval. Id. The Court discussed its holdings
in Bailey and Hechler, relative to attempted legislative interference in the WVBOE’s
constitutional powers, and concluded that our precedent has made plain that “by virtue of
its constitutional grant of general supervisory powers, the State Board enjoys a special
standing in relation to other administrative agencies.” Id. at 4, 399 S.E.2d at 34. The
Court then concluded, unequivocally, that “the State Board does have the authority to
review and to approve or disapprove a county board’s school closure or consolidation
plan” in exercise of its “discretion.” Id. at 5, 399 S.E.2d at 35. See also Perry, 189
W.Va. at 667, 434 S.E.2d at 27 (finding WVBOE has authority to modify local board
closure plan “even though the school closure statutes . . . did not expressly so provide.”).
As indicated above, the circuit court found that the Legislature “saw fit that
the State Board . . . should review, or in other words supervise, school consolidations to
determine whether the county boards are following the requirements set forth in W. Va.
Code § 18-3-13a [sic].” However, we find nothing in West Virginia Code § 18-5-13a
which states or even suggests that the WVBOE’s role relative to consolidation is to act as
a mere compliance officer. See Powers, 318 P.3d at 321 (finding legislation
unconstitutional where it “relegates [constitutional officer] to the role of general observer
with limited and discrete powers and duties”). Rather, we find that the statute merely sets
22
forth minimum procedural requirements for the county board before proceeding with
closure or consolidation.
To that end, we decline the circuit court and Board’s invitation to take sides
in an artificial conflict between the Legislature and WVBOE; in reality no such conflict
exists. The WVBOE’s general supervision powers are in no way at odds with the closure
and consolidation statute. In fact, the statute expressly delegates to and empowers the
WVBOE to promulgate a rule to govern this process. Therefore, far from the fictitious
“stand-off” the circuit court urges as between the Legislature and WVBOE’s respective
constitutional charges, the statute itself appears to acknowledge and pay deference to the
WVBOE’s expansive rule-making authority in exercise of its supervisory powers. This is
undoubtedly because of the Legislature’s awareness that “[a]n attempt to undertake the
Board’s general supervisory powers violates the [separation of powers] provision of art.
V, § 1 of the state Constitution[.]” Hechler, 180 W.Va. at 455-56, 376 S.E.2d at 843.
B. Whether Rejection of CEFP Amendment was Arbitrary or Capricious
Having 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 regulation promulgated by the WVBOE for closer
examination. To that end, the circuit court found, and the Board 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 and
23
capricious.19 The Board argues that none of the reasons for rejection articulated during
the formal motion or in subsequent member testimony are mentioned specifically in the
six categories of information outlined in Policy 6204.20 Accordingly, the circuit court
concluded that the WVBOE’s rejection of the CEFP is therefore arbitrary because it
involves matters “the Legislature did not intend them to consider[.]”
19
See Section III(B)(2), infra.
20
As indicated hereinabove, Vice President Perry’s motion to reject the CEFP
amendment was based upon the Board’s failure to explore other alternatives. His motion
at the second hearing was based upon additional factors including lack of meaningful
dialogue with the community, declining population in Nicholas County High School area,
potential utilization of technology, and student achievement. These reasons were
officially proffered in support of the WVBOE’s rejection of the amendment as required
by syllabus point 4 of Kanawha County Board:
Where the West Virginia Board of Education rejects,
in whole or in part, a county board of education’s school
closure or consolidation plan, it is required to state its reasons
for doing so. The State Board need not make detailed
findings of fact or conclusions of law, but must give some
reasons for its action so as to enable a reviewing court to
determine if it has abused its discretion.
184 W.Va. 1, 399 S.E.2d 31.
The circuit court subsequently took testimony from each WVBOE member who
voted to reject the amendment, which testimony elaborated on the reasons each member
personally voted to reject. We question the propriety of the circuit court’s intrusion into
the individual members’ deliberative processes and the relevancy of that testimony to the
formally-articulated bases for the WVBOE’s rejection of the amendment as a body. “It
has long been admonished that ‘court’s [sic] may not accept . . . post hoc rationalizations
for agency action.’” Webb v. W. Va. Bd. of Med., 212 W.Va. 149, 158, 569 S.E.2d 225,
234 (2002) (quoting Burlington Truck Lines, Inc. v. U. S., 371 U.S. 156, 168-69 (1962).
However, given that the members’ testimony was largely concordant with the reasons
provided by the body, we decline to delve deeper into any restrictions on the evidence
which the circuit court should have considered in evaluating whether the WVBOE’s
action was arbitrary and capricious.
24
The WVBOE, however, argues that the language of Policy 6204 clearly
contemplates submission of the plan for its consideration on the merits and consequent
approval or rejection. Moreover, the WVBOE argues that all of the reasons proffered for
rejection of the plan pertain to “educational policy” concerns and therefore relate in some
manner to the areas outlined in Policy 6204, if not expressly, at least implicitly.
Accordingly, a closer look at the language of Policy 6204 is necessary to determine if the
WVBOE acted arbitrarily or capriciously.
1. CEFP Amendment Considerations pursuant to Policy 6204
As 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 written statement of reason[.]” The rule promulgated by the
WVBOE is contained at West Virginia Code of State Regulations §§ 126-176-1 et seq.
and, as previously stated, is known as Policy 6204. Policy 6204 is explicitly designated a
“Procedural Rule” and states that it sets the requirements for the local board “in
proceeding with a potential school closing or consolidation[.]” W. Va. C.S.R. § 126-176
1.1. Notably, West Virginia Code § 29A-1-2(h) (2015) defines a procedural rule as one
which “fixes rules of procedure, practice or evidence for dealings with or proceedings
before an agency, including forms prescribed by the agency.” (emphasis added).
Section two of Policy 6204 is entitled “County Procedures” and provides
that “[t]he county board must prepare and reduce to writing, reasons and supporting data
25
concerning proposed school closings or consolidations to be submitted to the [WVBOE]
for approval in accordance with this policy and the West Virginia Code.” W. Va. C.S.R.
§ 126-176-2.1 (emphasis added). Section 2.2 further provides that the written
consolidation plan must provide an executive summary including “items” thereafter listed
concerning the following six topics: enrollment, facilities, finance, personnel,
transportation, and educational program[s].21 W. Va. C.S.R. § 126-176-2.2. The Policy
likewise sets forth the procedures to be utilized in conducting the public hearings
required. W. Va. C.S.R. §§ 126-176-2.3 through 2.4. Following the hearings, the local
board must take a formal vote on the closure or consolidation. W. Va. C.S.R. § 126-176
2.4.4.
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
21
The types of information specifically described in the list of six topics include
such matters as: trends in student population and attendance area, enrollment projections,
census data, maps, physical appraisal of targeted schools, utilization factors, accessibility,
anticipated costs or savings for the affected schools, renovation costs, effects on
personnel, negative variances from transportation standards, and projected educational
program improvement for exceptional students, distance learning, and vocational and
special education students. W. Va. C.S.R. §§ 126-176-2.2.1 through 2.2.6.
26
(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
by the 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 Policy 6200 in 1991 and has remained absent from Policy 6200 and 6204 to date.22
Under any reasonable reading of Policy 6204, it plainly contemplates the
WVBOE’s discretionary approval of a CEFP amendment and attendant consolidation
plan. First, Policy 6204 expressly provides that both the written consolidation plan and
the CEFP amendment are subject to approval by the WVBOE and must contain a
22
Significantly, this provision was contained in Policy 6200 at the time of this
Court’s decision in Kanawha County Board. In fact, it was the language of this provision
regarding compliance with procedural requirements and WVBOE regulations which was
mirrored in the Court’s holding. In particular, syllabus point one of Kanawha County
Board provides that decisions on closure or consolidation “may be rejected where they
fail to comply with statutory provisions or West Virginia Board of Education
regulations.” 184 W.Va. 1, 399 S.E.2d 31, syl. pt. 1. The Board argues that this
language indicates that a consolidation plan may therefore only be rejected for statutory
or regulatory non-compliance. As discussed more fully infra, there is nothing in the
statute or regulations suggesting that the WVBOE’s rejection of a consolidation plan is
limited to only those reasons, nor does the syllabus point itself indicate as much.
Focusing primarily on the subordination of the county board to the WVBOE, the
Kanawha County Board case simply did not explore the parameters of the WVBOE’s
discretion relative to Policy 6200 or 6204 because of the existence of the above-quoted,
self-limiting language.
27
“justification” for the closure. There is simply nothing in the statute or Policy which
suggests that once a local board jumps through the hoops of information-gathering for
purposes of the written plan and CEFP amendment, the blessing of the WVBOE is
guaranteed. In fact, the WVBOE’s removal of the provision from the Handbook on
Planning School Facilities stating that it would not overrule a county board’s closure or
consolidation decision absent procedural irregularities clearly demonstrates the
WVBOE’s intention to utilize its broad discretion in approving or rejecting such a plan.23
Under any common-sense reading of Policy 6204, subjective assessment of the merits of
the plan by the WVBOE is understood.
More importantly, we find the circuit court and Board’s characterization of
the six categories enumerated in Policy 6204 as “criteria” or “factors” to be wildly
inaccurate. Section 2.6 of Policy 6204 requires that the request for CEFP amendment
must be accompanied by a 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 education programs[.]” W.
Va. C.S.R. § 126-176-2.6.3 (emphasis added). West Virginia Code § 18-5-13a(b)
23
Accordingly, the Board’s suggestion that it was effectively blind-sided by the
far afield considerations of the WVBOE is meritless. Removal of this language signals to
even a layperson that the WVBOE no longer intended to be constrained by this provision
and could “overrule” a plan even if it met procedural requirements. Further, the Board’s
dismissive treatment of the significance of this amendment is particularly disingenuous
given its insistence that only an amendment of Policy 6204 would enable the WVBOE to
expand the outer perimeter of matters which it may consider relative to consolidation.
28
similarly states that the content of a rule promulgated by the WVBOE must “detail[] the
type of supporting data a county board shall include as part of its written statement of
reason required by this section for school closing or consolidation.” (emphasis added).
Therefore, the six “criteria” or “factors” that the circuit court found binding
on the WVBOE are merely categories of “supporting data” as per the language of the
statute and Policy 6204. None of these categories or the specific supporting data
described thereunder contains any “criteria” or objective benchmarks which, once met,
would suggest subsequent approval was implicit. Moreover, nothing in Policy 6204 so
much as suggests that the WVBOE’s approval or rejection of a CEFP amendment is
limited to issues arising from these categories of data.
In fact, the entire process effectively requires the WVBOE to engage in a
holistic effort to subjectively assess whether the information collected pursuant to the
statute and Policy 6204 actually justifies consolidation or closure. The vast amount of
“supporting data” required under Policy 6204 is not self-justifying; rather, it begs for
analysis. The completion and delivery of the written plan and supporting data are simply
procedural requirements—as per Policy 6204 itself—which provide an administrative
process for submission of a consolidation plan, which procedure culminates in the
WVBOE’s review necessary for approval of the county board’s plan. The necessity of
detailed procedural requirements to guide county boards through this important process is
obvious. See Pell v. Bd. of Educ. of Monroe Cty., 188 W.Va. 718, 72 n.2, 426 S.E.2d
29
510, 513 n.2 (1992) (“[A]pproving a plan of closure or consolidation is not something
that can be accomplished overnight, but is a protracted ordeal so as to ensure a more
contemplative analysis before such a major decision is made.”). Nevertheless, the detail
provided in outlining the process, information, and administrative requirements necessary
to effectuate consolidation does not serve to extend Policy 6204 beyond its intended
reach of simply governing procedure.
Finally, as a practical matter, this Court can discern no other reason for
submission of the supporting data to the WVBOE than for its consideration in approving
or rejecting the plan. Under the circuit court’s reasoning, a county board could
theoretically prepare a plan that was neither fiscally nor educationally sound, yet insofar
as the county board thoroughly and properly assembled supporting documentation for
such a plan, the WVBOE would be bound to approve the consolidation. We are
unpersuaded by the Board’s argument that to the extent that the reasons for rejection
could in some measure be tied to one of the six enumerated categories of supporting data
and information, rejection may be proper. Such a standard is plainly susceptible to
semantical games designed to pigeon-hole the entire universe of potential reasons for
rejection of very situation-specific plans into blunt categories which are by no means
intended to be comprehensive standards for the evaluation of the propriety of school
closure or consolidation. The critically important decision-making involved in protecting
our children’s fundamental right to education is antithetical to such gamesmanship. The
WVBOE’s constitutional duty to the “complete executive delivery and maintenance of a
30
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 is entitled to
utilize its discretion in approving or rejecting an amendment to a Comprehensive
Educational 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 Rejection
Notwithstanding 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. As indicated 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 ulterior motive, 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 (1950). 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 the State is vested in The West Virginia Board of Education, and, unless
unreasonable or arbitrary, its actions relating to such policies will not be controlled by
the courts.” (emphasis added)). Therefore, although we reject the basis for the circuit
31
court’s conclusion that the WVBOE acted arbitrarily and capriciously, we nonetheless
find it prudent to utilize our plenary powers to examine the reasons stated.24
As indicated above, multiple members of the WVBOE expressed concern
that the public hearings conducted were perfunctory and failed to address issues and
concerns raised. Certain members expressed their view, with the support of educational
research, that community schools better serve impoverished students, of which Richwood
has a high number. Certain members expressed concern that the Board had not
adequately addressed or considered the impact of consolidation on discipline and
extracurricular activities, as pertains to the well-being of the student body and
educational environment. Nearly all members expressed concern that alternatives which
would better address the foregoing issues were not sufficiently demonstrated to have been
considered by the Board. Nearly all members expressed that all of the affected schools
were doing well academically and financially and that, typically, consolidation is utilized
to improve upon either or both. The common theme in the members’ testimony was that
they were concerned about consolidation given Richwood’s high number of
impoverished families and the ample research suggesting that such students do not thrive
in a larger school setting. President Campbell and Member Debra Sullivan gave
24
As detailed in n.11, supra, the circuit court made passing reference to the
Governor’s stated preference for the schools to remain in Richwood which it found
“lend[ed] support to the . . . theory [that] WVBE members constructed arbitrary and pre-
textual justifications to deny the . . . CEFP amendment.” However, we find no evidence
whatsoever that the Governor interfered in the WVBOE’s deliberate process, such as to
render their reasons for rejection “pretextual.”
32
thoughtful and extensive testimony explaining that educational research is now trending
away from consolidation in favor of community schools as being optimal, particularly for
impoverished students, where the schools 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 that the thoughtful and well-supported rationales offered by the
WVBOE members objectively pertain to the feasibility, desirability, and efficacy of
consolidation. Accordingly, we find no basis upon which 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-being of the student
population. We therefore find that the circuit court erred in concluding that the
WVBOE’s rejection of the CEFP amendment was arbitrary and/or capricious. 25
25
The WVBOE tangentially argues a jurisdictional issue that we may dispense
with in short order. Specifically, the WVBOE maintains that the circuit court lacked
personal jurisdiction over it because it was not properly served with process. While the
WVBOE was served in accordance with the manner provided in West Virginia Rule of
Civil Procedure 4, no summons was issued; therefore it claims that the circuit court never
obtained jurisdiction over it. It takes the position that by virtue of the applicability of the
Rules of Civil Procedure to extraordinary writs, a “rule to show cause” no longer exists
and all extraordinary remedies must be served in accordance with the Rules of Civil
Procedure, including but not limited to the issuance of a summons.
While the Rules of Civil Procedure are made expressly applicable to extraordinary
writs by virtue of the Court’s 1998 enactment of Rule 71B of the Rules of Civil
Procedure, there is no merit to the WVBOE’s contention that Rule 4 supplants the
statutory procedure for extraordinary writs. The WVBOE apparently overlooks West
Virginia Rule of Civil Procedure 4.1(a) which was enacted at the same time the Rules
(continued . . .)
33
As this Court aptly stated in Jones, “neither we nor the circuit court can
substitute our judgment on this issue for that of the professional educators and
administrators charged with the promulgation and implementation of state educational
policy.” 178 W. Va. at 380, 359 S.E.2d at 608. Moreover,
it is not this Court’s duty to legislate; nor were we elected to
make political decisions based upon what we believe to be the
expedient answer to this situation. Instead, we are charged
with the task of interpreting the Constitution and the laws of
this State as they exist. A judicial system that substitutes its
beliefs for the constitutional principles of its people is a
mockery of justice.
Meadows on Behalf of Prof’l Emps. of W. Va. Educ. Ass’n v. Hey, 184 W.Va. 75, 77, 399
S.E.2d 657, 659 (1990). While this Court is sensitive to the deeply-held beliefs and
difficult decisions faced by all parties to this situation, we are duty-bound to faithfully
apply this Court’s precedent to resolve these complex issues of constitutional magnitude.
were made applicable to extraordinary writs. Rule 4.1(a) provides, in part, that
“[w]henever an order of court provides for service of a rule, or order in lieu of summons
or a rule, upon a party, service shall be made in the manner provided in Rule 4(d), unless
the order prescribes a different mode of service.” (emphasis added). Rule 4(d) merely
outlines the various methods of service. Therefore, Rule 4.1 was plainly enacted to “fill
the gap” for service of process of an extraordinary writ and by no means necessitates the
issuance of a summons to properly effect service of a rule to show cause. As such,
WVBOE’s argument in this regard is entirely without merit.
34
IV. CONCLUSION
For the reasons set forth hereinabove, we reverse the August 18, 2017,
order of the Circuit Court of Kanawha County, West Virginia.
Reversed.
35