Cathe A. v. Doddridge County Bd. of Educ.

• Decision Date: 03 July 1997
• Docket Number: No. 23350,23350
• Citation: 490 S.E.2d 340,200 W.Va. 521
• Parties: , 120 Ed. Law Rep. 1212 CATHE A., Guardian of C.E.A., an infant under the age of 18 years, Petitioner Below, Appellee, v. DODDRIDGE COUNTY BOARD OF EDUCATION, Ronald K. Nichols, Superintendent; and William J. Curran, Martha M. Devericks, James J. Dukate, Clifford L. Willis and Monzel Rex Zickefoose, Individually and as a Member of the Doddridge County Board of Education, Respondents Below, Doddridge County Board of Education, Appellant.
• Court: West Virginia Supreme Court

Page 340

490 S.E.2d 340

200 W.Va. 521, 120 Ed. Law Rep. 1212

CATHE A., Guardian of C.E.A., an infant under the age of 18

years, Petitioner Below, Appellee, v. DODDRIDGE COUNTY BOARD OF EDUCATION, Ronald K. Nichols,

Superintendent; and William J. Curran, Martha M. Devericks,

James J. Dukate, Clifford L. Willis and Monzel Rex

Zickefoose, Individually and as a Member of the Doddridge

County Board of Education, Respondents Below,

Doddridge County Board of Education, Appellant.

No. 23350.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 25, 1996.

Resubmitted Feb. 25, 1997.

Decided July 3, 1997.

Syllabus by the Court

1. "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).

2. "[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.

3. Because the State has a compelling interest in providing a safe and secure environment to the school children of this State pursuant to W.Va. Const. art. XII, section 1, and because expulsion from school for as much as 12 months pursuant to the provisions of the Productive and Safe Schools Act, W.Va.Code, 18A-5-1a(g)[1995] is a reasonably necessary and narrowly tailored method to further that interest, the mandatory suspension period of the Act is not facially unconstitutional.

4. For a child who is not permitted to attend regular school pursuant to the provisions of the Productive and Safe Schools Act, W.Va.Code, 18A-5-1a(g) [1995], the extent and details of the State's constitutional responsibility to provide other state-funded educational opportunities and services to the child must be determined on a case-by-case basis, based on the unique circumstances of the individual child. A primary consideration in making such a determination must be the protection of school children, teachers and other school personnel; another legitimate concern is the need to effectively deter other children from engaging in prohibited conduct. W.Va. Const. art. XII, section 1.

5. In extreme circumstances and under a strong showing of necessity in a particular case, strict scrutiny and narrow tailoring could permit the effective temporary denial of all state-funded educational opportunities and services to a child removed from regular school under the Productive and Safe Schools Act, W.Va.Code, 18A-5-1a(g) [1995], particularly when the safety of others is threatened by the dangerous actions of a child and where a child is unwilling or unable to utilize educational opportunities and services that are consistent with protecting the safety of others. W.Va. Const. art. XII, section 1.

6. To the extent that the opinion in Phillip Leon M. v. Greenbrier County Board of Education, 199 W.Va. 400, 484 S.E.2d 909 (1996) implies that in every case in which a student is expelled from school for one year for possessing a firearm or other deadly weapon on school property pursuant to the provisions of the Productive and Safe Schools Act, W.Va.Code, 18A-5-1a(g) [1995] the State must provide an alternative education, that opinion is hereby modified. W.Va. Const. art. XII, section 1.

7. Where the State is able to safely provide reasonable basic educational opportunities and services to a child who has been removed from regular school under the provisions of the Productive and Safe Schools Act, W.Va.Code, 18A-5-1a(g) [1995], there is no compelling state interest in a policy of providing the opportunities and services only if the child's parents are able and willing to reimburse the State for the cost. W.Va. Const. art. XII, section 1.

8. A policy to the effect that the State has no responsibility to provide any state-funded educational opportunities and services to any children who are expelled under the Productive and Safe Schools Act, W.Va.Code, 18A-5-1a(g) [1995] is constitutionally infirm, because the State has not shown that applying such a limitation to all such children under all circumstances is reasonably necessary and narrowly tailored to further the compelling state interest in safe and secure schools. W.Va. Const. art. XII, section 1.

Matthew W. Alexander, West Union, R. Clarke VanDervort, Payne, Loeb and Ray, Charleston, Michael A. Kawash, Robinson & McElwee, South Charleston, for Appellee.

Bethann R. Lloyd, Harry M. Rubenstein, Kay Casto Chaney Love & Wise, Morgantown, for Appellant.

Deborah L. McHenry, Managing Deputy Attorney General, Charleston, for the Attorney General, State of West Virginia.

Henry D. Hager, II, Alison Patient, Michael Crane, Charleston, for Amici Curiae West Virginia Legislature.

Darrell V. McGraw, Attorney General, Kelli D. Talbott, Senior Assistant Attorney General, Cynthia E. Evans, Special Assistant Attorney General, Charleston, for West Virginia, Dept. of Education and West Virginia Superintendent of Schools.

STARCHER, Justice:

The first issue which we address in this appeal by the Doddridge County Board of Education is whether the Productive and Safe Schools Act of 1995, which requires that children who bring dangerous weapons to school be removed from school for up to 12 months, violates the provisions of the West Virginia Constitution which make education a fundamental, constitutional right. Because the Act is narrowly tailored to serve a compelling state interest in safe and secure schools, we hold that the Safe Schools Act is facially constitutional.

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

I. Facts and Background

During the 1994-95 school year, C.E.A. ¹ attended Doddridge High School. Because of his disruptive conduct, he received discipline on nine occasions, ranging from warnings to suspension from school. On April 15, 1995, C.E.A. was found on school property with a heavy lock blade knife with a blade approximately three and one-half inches in length.

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

Following C.E.A.'s immediate suspension, the Doddridge County Board of Education conducted a hearing on June 1, 1995. By a letter dated June 8, 1995, the Doddridge County Superintendent of Schools informed C.E.A. that as a result of the application of the Productive and Safe Schools Act, W.Va.Code, 18A-5-1a(g) [1995] ("the Safe Schools Act" or "the Act"), ² the Board of Education was expelling C.E.A. for a period of 12 consecutive months, ending May 8, 1996.

On October 10, 1995, C.E.A. (by his mother Cathe A.) filed a petition for writ of mandamus in the Circuit Court of Doddridge County seeking to compel the Board of Education either to readmit C.E.A. to regular school classes or alternatively to provide him with other state-funded educational services.

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

On November 1, 1995, the circuit court issued a written order making findings of fact and conclusions of law. The order stated in part:

The Doddridge County Board of Education has the legal duty under Article 12, Section 1 of the West Virginia Constitution, and under the principles of equal protection entailed in Article 3 of the State's Constitution, to provide C.E.A., from public funds, educational services and resources appropriate to his age, needs and academic status as a regular education student under expulsion.

The circuit court's order further stated:

A student's right to attend school facilities or to be present on school premises is not identical to a student's right to an education.... Forced ignorance, by failing for 12 months to provide a student with a publicly funded education, is not a rational or appropriate remedy for student misconduct regardless of the severity of such conduct.... [T]he principle of equal protection ... which requires local school boards to provide appropriate education services, at public expense, to students expelled from school is more compelling than an interpretation which would inevitably generate profoundly disparate results among expelled students depending on the financial means of their families.... [E]ducational services and resources [for C.E.A.] may be formulated and structured, in part,...