PENDLETON CITIZENS v. Marockie

• Decision Date: 14 July 1998
• Docket Number: No. 25138, No. 25139.
• Citation: 507 S.E.2d 673,203 W.Va. 310
• Parties: PENDLETON CITIZENS FOR COMMNITY 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. PENDLETON CITIZENS FOR COMMNITY 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.
• Court: West Virginia Supreme Court

507 S.E.2d 673

203 W.Va. 310

PENDLETON CITIZENS FOR COMMNITY 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.

PENDLETON CITIZENS FOR COMMNITY 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.

Nos. 25138, 25139.

Supreme Court of Appeals of West Virginia.

Submitted June 9, 1998.

Decided July 14, 1998.

Robert M. Bastress, Esq., Morgantown, West Virginia, James B. Lees, Jr., Esq., Charleston, West Virginia, Attorneys for Appellees.

Howard E. Seufer, Jr., Esq., John R. Teare, Jr., Esq., Kimberly S. Croyle, Esq., Bowles Rice McDavid Graff & Love, PLLC, Attorneys for Appellant Pendleton County Board of Education.

Gregory W. Bailey, Esq., Charleston, West Virginia, Amicus Curiae, West Virginia Association of School Administrators.

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.

Darrell V. McGraw, Jr., Esq., Attorney General, Kelli D. Talbott, Esq., Senior Assistant Attorney General, Katherine A. Schultz, Esq., Senior Deputy Attorney General, Charleston, West Virginia, Attorneys for Appellants Henry Marockie, The West Virginia Board of Education, The West Virginia School Building Authority, and Clacy Williams.

Franklin D. Cleckley, Esq., Morgantown, West Virginia, Amicus Curiae, The Annenberg Rural Challenge. 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 program¹ 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,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.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 socioeconomic 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

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