White by White v. Linkinoggor, 17046

• Decision Date: 04 June 1986
• Docket Number: No. 17046,17046
• Citation: 344 S.E.2d 633,176 W.Va. 410
• Parties: Marvin WHITE, a minor, by his next friend, Debrah WHITE v. Jerry LINKINOGGOR, etc., et al.
• Court: West Virginia Supreme Court

Page 633

344 S.E.2d 633

176 W.Va. 410

Marvin WHITE, a minor, by his next friend, Debrah WHITE v. Jerry LINKINOGGOR, etc., et al.

No. 17046.

Supreme Court of Appeals of

West Virginia.

June 4, 1986.

Syllabus by the Court

Under West Virginia Constitution article XII, § 1 and West Virginia Code § 18-5-15 (1984 Replacement Vol.), the public schools of this State are presumptively open to all persons of proper age.

David B. McMahon, Legal Aid Society, Charleston, for appellant.

Richard Facemire, P.A., Clay, for appellees.

McGRAW, Justice:

This mandamus proceeding arose after the petitioner, sixteen year-old Marvin White, was refused admittance to Clay County High School on February 5, 1986. The respondents are Jerry Linkinoggor, principal of that school, James Dawson, Clay County Superintendent of Schools, and the members of the Clay County Board of Education. Based upon the following conclusions, we grant the writ.

Marvin White, the petitioner, attended elementary and junior high school in Clay County. His family moved to Calhoun County prior to his entry into high school. Marvin then began attending Calhoun County High School. The petition herein alleges that a number of incidents occurred where the one or both of the petitioner's parents threatened violence against or otherwise mistreated him. He left home on Sunday, February 4, 1986. At that time, he hitch-hiked and walked to the home of his brother and sister-in-law, Floyd and Debrah White, in Clay County. The following day, Debrah White took Marvin to Clay County High School to enroll him, and met with the principal of that school, the respondent Jerry Linkinoggor. The respondent principal told the petitioner and his sister-in-law that he could not be enrolled in school in Clay County until he furnished his health immunization records, his general school records, and a document evidencing that Debrah White was authorized to act as his guardian. A second request for admittance, after the petitioner and his sister-in-law consulted with a lawyer, resulted similarly. On this same date, the petitioner and his sister-in-law also went to the Department of Human Services and met with an employee of the Child Protective Services Division. It does not appear, however, that parental abuse and neglect proceedings were ever instituted.

On February 7, 1986, the petitioner, by his next friend, appeared before the Circuit Court of Clay County and petitioned the court for a writ of mandamus, and for a temporary injunction, both aimed at getting the petitioner promptly enrolled in Clay County High School. Without reaching the ultimate issue of the petitioner's right to admittance, the circuit court ruled that it would not entertain the action unless and until the petitioner's next friend, Debrah White, obtained legal custody of the petitioner.

On February 13, 1986, the petitioner, by his same next friend, sought relief by similar petitions filed with this Court. On the same date, we issued a rule to show cause, on the mandamus petition returnable March 4, 1986, and awarded a temporary injunction pending final determination in the mandamus proceeding. Subsequently, by supplemental petition, counsel for the petitioner informed this Court that the petitioner has returned to his parents' home in Calhoun County and is again attending school there. However, citing circumstances indicating a likelihood of recurrence of this issue in the instant case, as well as other instances of similar refusals to admit students into the Clay County school system, ¹ counsel for the petitioner urges that we address the question as presented in the initial petition. The question undisputably involves a most vital public function--education of our youth. Because it is foreseeable that it will arise again, we find the question remains justiciable for future guidance. See State ex rel. McGraw v. Willis, 174 W.Va. 118, 323 S.E.2d 600 (1984); State ex rel. M.C.H. v. Kinder, 173 W.Va. 387, 317 S.E.2d 150 (1984); State ex rel. White v. Narick, 170 W.Va. 195, 292 S.E.2d 54 (1982); Rissler v. Giardina, 169 W.Va. 558, 289 S.E.2d 180 (1982).

The right of access to public schools touches upon both constitutional and statutory guaranties. Under West Virginia Constitution article XII, § 1, education is "a fundamental, constitutional right in this State." Syl. pt. 3, Pauley v. Kelley, 162 W.Va. 672, 255 S.E.2d 859 (1979). By statute it is mandated that, "The public schools shall be open for the full instructional term to all persons who have attained the entrance age ... Provided, that persons over the age of twenty-one may enter only those programs or classes authorized...." West Virginia Code § 18-5-15 (1984 Replacement Vol.); see also West Virginia Code §§ 18-20-1 & 18-20-1a (1984 Replacement Vol. & Supp.1985). Additionally, the statutory requirement that all children attend school between the ages of six and sixteen manifests the long established public policy that every citizen should possess the skills provided by a basic education. See West Virginia Code § 18-8-1 et seq. (1984 Replacement Vol.). The petitioner, who is sixteen years old, is clearly within the class of persons entitled to the benefits of public education. Given his age, he is no longer subject to the compulsory school attendance provisions. Yet, by promptly presenting himself for enrollment in Clay County High School he demonstrated his genuine desire to continue, without missing a day, his high school education. His reward for such diligence during a period of family strife was to be summarily refused admittance.

In essence, the petitioner was given three reasons why he could not be admitted to Clay County High School--failure to present (1) inoculation records, (2) academic records, and (3) guardian papers. Although we shall address all three, the first two reasons warrant little discussion. It is reasonably apparent from the record that the central area of dispute in this case involves the guardianship issue.

West Virginia Code § 16-3-4 (Supp.1985), generally requires that all school children be immunized against specified communicable diseases. The petitioner concedes that when he presented himself to the principal of Clay County High School he did not have his immunization records in hand. However, this omission did not warrant refusal to provisionally admit the petitioner. The above-cited statutory provision requires immunization for "[a]ll children entering school for the first time in this state ..." Marvin White had, prior to moving to Calhoun County with his parents, attended Clay County schools for his elementary and junior high education. Since the requirement of this statute existed long before the petitioner first entered elementary school, the respondent principal could have relied, at least temporarily, upon the presumption that the law had been followed. In any event, if he had any doubt it would have been easy enough to telephone or write the Calhoun County High School to double check.

We find the respondents' second reason for excluding the petitioner from school even more devoid of merit than the first. The respondent principal told the petitioner that he must present his academic records from his former school before he could be admitted. There is no statutory authority for this asserted requirement. The respondents' brief defense in support of this point is that a student "must provide sufficient information to allow the school to obtain academic records in order to determine the student's level of academic performance." Our equally brief conclusion in this instance is--he did. The respondent principal was informed of where the petitioner had been attending school. Placing him in school for a brief period while his academic records were sent over from a neighboring county is not out of order. In essence, the petitioner was told that until the school knew exactly what level to place him in, they would not place him anywhere. ²

Schools exist for the benefit of the children. There is no legal basis for depriving them of valuable time in school due to a temporary lack of academic records.

The right to refuse to enroll the petitioner is most vigorously defended upon the third reason given, that is, absence of proof of lawful custody or guardianship. The respondents do acknowledge that it is not a requirement that a child be legally domiciled in the place were a school is located in order to attend that school. See Syl. pt. 3, Grand Lodge I.O.O.F. v. Board of Education, 90 W.Va. 8, 111 S.E. 309 (1922). The respondents further admit that all children in the State have the right to attend public...