Phillip Leon M. v. Greenbrier County Bd. of Educ.

• Decision Date: 13 December 1996
• Docket Number: No. 23349,23349
• Citation: 199 W.Va. 400,484 S.E.2d 909
• Court: West Virginia Supreme Court
• Parties: , 118 Ed. Law Rep. 518 PHILLIP LEON M., and Sharon C., as Next Friends of J.P.M., Petitioners Below, Appellees, v. GREENBRIER COUNTY BOARD OF EDUCATION, Stephen Baldwin, Superintendent; and Bruce Bowling, Jim Anderson, Sue King, Gordon Hanson and John Deitz, Individually and as Members of the Greenbrier County Board of Education, Respondents Below, Appellants.

Page 909

484 S.E.2d 909

199 W.Va. 400, 118 Ed. Law Rep. 518

PHILLIP LEON M., and Sharon C., as Next Friends of J.P.M. Petitioners Below, Appellees, v. GREENBRIER COUNTY BOARD OF EDUCATION, Stephen Baldwin Superintendent; and Bruce Bowling, Jim Anderson, Sue King Gordon Hanson and John Deitz, Individually and as Members of the Greenbrier County Board of Education, Respondents Below Appellants.

No. 23349.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 25, 1996.

Decided Dec. 13, 1996.

[199 W.Va. 401] Syllabus by the Court

1. A circuit court's interpretation of the West Virginia Constitution is reviewed de novo.

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 West Virginia Constitution in Article XII, Section 1 recognizes education as a fundamental right, under the equal protection clause, any denial of the right to an education cannot withstand strict scrutiny unless the State can demonstrate some compelling State interest to justify that denial.

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

5. " 'A writ of mandamus will not issue unless three elements coexist--(1) the existence of a clear right in the petitioner to the relief sought; (2) the existence of a legal duty on the part of respondent to do the thing which petitioner seeks to compel; and (3) the absence of another adequate remedy.' Syl. pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969)." Syllabus Point 1, Hickman v. Epstein, 192 W.Va. 42, 450 S.E.2d 406 (1994).

6. "Where a public official has deliberately and knowingly refused to exercise a clear, legal duty a presumption exists in favor of an award of attorneys' fees and expenses unless extraordinary circumstances indicate an award would be inappropriate, then attorneys' fees and expenses would be allowed. State of West Virginia ex rel. West Virginia Highlands Conservancy, Inc. v. West Virginia Division of Environmental Protection, 193 W.Va. 650, 654, 458 S.E.2d 88, 92 (1995)." Syllabus Point 10, W.Va. Educ. Ass'n v. Consol. Pub. Retir. Bd., 194 W.Va. 501, 460 S.E.2d 747 (1995).

Jesse O. Gullis, Jr., Lewisburg, for Appellants.

Eric M. Francis, Lewisburg, for Appellees.

Gregory W. Bailey, Charleston, for Amici Curiae, The West Virginia Association of School Administrators, and the Boards of Educations of Barbour, Boone, Gilmer, Jackson, Kanawha, McDowell, Pocahontas, Jodie M. Boylen, Assistant, Wood County Prosecutor's Office, Parkersburg, for Amicus Curiae, The Board of Education of the County of Wood.

[199 W.Va. 402] Roane, Taylor, Tucker, Wayne, Wetzel & Wyoming Counties.

RECHT, Judge, delivered the Opinion of the Court. ¹

The Greenbrier County Board of Education, et al. ² (hereinafter Board of Education) appeals an order of the Circuit Court of Greenbrier County requiring the Board of Education to provide some form of alternative education to J.P.M. ³ , who was expelled after bringing a firearm onto school property. Based on the constitutional guarantees of equal protection and "a thorough and efficient system of free schools" (W. Va. Const., art. III, § 10 and art. XII, § 1, respectively), the circuit court found that although J.P.M., through his behavior, had forfeited his right to attend a specific educational facility, J.P.M. did not totally forfeit his right to an education and services from the Board of Education. On appeal, the Board of Education argues that the circuit court erred in failing to find that J.P.M., by bringing a firearm to school, had forfeited his right to an education. Based on the fundamental right to an education, guaranteed by the West Virginia Constitution, we find that although J.P.M. by his action forfeited his right to attend a particular school, he did not completely forfeit his right to some form of an education by the Board of Education, and therefore, we affirm the decision of the circuit court.

I. FACTS AND BACKGROUND

On November 4, 1994, J.P.M. was found during regular school hours with a firearm in his possession on the grounds of Eastern Greenbrier Junior High School. At that time, J.P.M. was a fifteen-year old ninth grade pupil at the junior high school. On November 14, 1994, J.P.M. was expelled from November 16, 1994 through November 15, 1995, or 180 school days, two full semesters. ⁴

Because of the incident, a juvenile petition was filed against J.P.M. charging him with three counts of delinquency under W. Va.Code 49-5-7 (1982). On January 20, 1995, J.P.M. admitted to one act of delinquency, a violation of W. Va.Code 61-7-8 (1989) (prohibiting the possession of deadly weapons by minors) ⁵ and the other two counts were dismissed.

According to the record, J.P.M. was adjudged a juvenile delinquent and placed in [O]ne, it's in the best interest of this juvenile to attend school, and it is necessary to accomplish his rehabilitation needs; two, the State of West Virginia, through its Commissioner of Corrections, has taken the position that he is not a suitable candidate for probation unless there is mandatory school attendance; and three, the law requires him to attend school.

[199 W.Va. 403] the care and custody of the West Virginia Commissioner of Corrections for a one-year period, but his sentence was suspended provided he attends school regularly. According to the circuit judge, the reasons for J.P.M.'s suspended sentence include:

Having received conflicting plans/punishments from the criminal justice system (attend school regularly) and the Board of Education (no school for a year), on July 7, 1995, J.P.M. filed an amended petition for a writ of mandamus seeking some regular form of education from the Board of Education. The petition alleges that the Board of Education "acted arbitrarily and capriciously by terminating, abrogating and abandoning their constitutional responsibility to educate J.P.M." The relief sought included: (1) providing an education for J.P.M.; (2) liability for any costs incurred or to be incurred by the Petitioners for providing an education independent of the Board of Education; (3) court costs; (4) attorney's fees; and (5) other "fit and proper" relief.

After receiving the Board of Education's response and holding hearings, on August 24, 1995, the circuit court entered an order requiring the Board of Education to provide educational services to J.P.M. as of Monday August 28, 1995. The circuit court found that J.P.M. has a constitutional right to an education, and by his actions, while he had "forfeited his right to attend a specific educational facility, said juvenile did not forfeit his right to educational facilities and services within Greenbrier County." The Board of Education was ordered "to provide educational services to said juvenile, J.P.M., including but not limited to home bound instruction, within the discretion of the Respondents." The circuit court denied J.P.M.'s request for reimbursement of educational costs and specifically found that the Board of Education was not responsible for "the costs of educational services at a private institution." Certain "reasonable" attorney's fees were awarded and a stay pending appeal to this Court was denied. ⁶

The Board of Education appealed to this Court maintaining: First, that because the Board of Education did not have a duty to provide an education to an expelled student, at least one of the elements necessary for writ of mandamus was lacking; and, Second that the Board of Education is not required by the West Virginia Constitution "to provide an alternative education to an expelled student." Because these two contentions are based on the same premise, namely, that by his acts, a pupil can forfeit all rights to a state provided education, the heart of our opinion centers on the right of a misbehaving pupil to an education in West Virginia.

II. DISCUSSION

A. Standard of Review

A circuit court's interpretation of the West Virginia Constitution is reviewed de novo. See Syl. pt. 1, Appalachian Power Co. v. State Tax Dept. of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995) ("Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review"). The de novo review we apply today is that same review applied to a circuit court's conclusions of law and interpretations of statutes and rules. See State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d 162 (1996).

In this case, J.P.M. sought relief through a petition of a writ of mandamus, which was granted by the circuit court. Our standard of appellate review of a circuit court's decision to grant relief through an extraordinary writ of mandamus is de novo. See Syl. pt. 1, Staten v. Dean, 195 W.Va. 57, 464 S.E.2d 576 (1995)(granting relief through an extraordinary writ of mandamus is reviewed de novo ); State ex rel. Cooper v. Caperton, supra; Syl. pt....