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Nicholas school consolidation case before Supreme Court Tuesday

The Nicholas County school consolidation case going before the West Virginia Supreme Court Tuesday continues a debate heard in disputes over Common Core education standards and standardized tests in recent years.

That debate concerns where the West Virginia Board of Education’s power over education ends in comparison to the state Legislature’s power.

The state constitution describes in broad language the two entities’ respective education roles, right next to each other at the start of Article XII:

“12-1. Education. The Legislature shall provide, by general law, for a thorough and efficient system of free schools. 12-2. Supervision of free schools. The 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 his Aug. 18 order reversing the state school board’s denial of the Nicholas County Board of Education’s consolidation plan, Kanawha County Circuit Court Judge Duke Bloom wrote that the “ultimate inquiry is how to reconcile the legislature’s authority and duty to provide for a ‘thorough and efficient’ school system, and the State Board’s authority to generally supervise the school system.”

He wrote that the constitution currently places “the authority to supervise the school system in the State Board, but limited that supervision to that which the Legislature might set forth by statute.”

“In other words, the very text of the Constitution dictates that the State Board may only perform duties that are set forth in statute,” Bloom continued in his order, which the state board is now appealing. “The State Board may not simply take actions that are beyond any statutory mandate or promulgated rule, including, as in this case, rejecting a county board’s school consolidation plan based upon factors not set forth in W.Va. Code 18-5-13a or rules promulgated pursuant thereto.”

The Nicholas board plans to consolidate Richwood, Summersville and Craigsville schools into a single campus near Summersville. Bloom wrote that the Legislature passed a law, 18-5-13a, saying if a county school board “follows the requirements set forth therein and any duly promulgated rules of the State Board, then it may make a final decision consolidating a school.”

The judge wrote that state lawmakers’ “power and duty to provide for a ‘thorough and efficient’ school system is limited only by constraints specifically set forth in the Constitution.”

Citing a previous Supreme Court case, Bloom wrote, “The legislature is specifically charged with providing, by statute, an economical school system, together with good physical facilities, that allow school children to maximize their learning potential — all of which is compatible with statutes governing school consolidations.”

State board’s rebuttal

In her appeal brief to the Supreme Court arguing Bloom was wrong, Senior Deputy Attorney General Kelli Talbott wrote that the state board’s disapproval was based on information the Nicholas board was required to provide, due to a rule the state board previously passed pursuant to 18-5-13a.

Whether the denial was actually based on that rule, Policy 6204, is contested in the filings before the Supreme Court, and the Nicholas board partly argues the state board had an ulterior motive of trying to please Gov. Jim Justice’s wish to stop schools from leaving Richwood.

But Talbott, representing the state board and state Schools Superintendent Steve Paine, whom the Nicholas board also sued after the state board rejected its consolidation plan over the summer, also argued in the appeal that the constitutional power granted to the state board made the rejection allowable anyway.

Bloom ruled the state board’s “authority over closure and consolidation matters is solely dependent upon a grant of authority by the West Virginia Legislature,” Talbott argued. She said that’s wrong.

“This [Supreme Court] has previously held that the ‘general supervision’ clause of the West Virginia Constitution is self-executing and is not dependent upon the enactment of legislation,” Talbott wrote. “Further, because it is self-executing, the Legislature cannot derogate the power derived therefrom. Therefore, the State Board’s authority over closure and consolidation matters is not limited or derogated by the legislative enactments.”

Talbott quoted a previous Supreme Court ruling saying, “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.’”

In another filing before the high court, she wrote that the court said the state board has the power to shoot down and change closure plans, even though the Legislature’s “school closure statutes did not expressly provide it.”

Referencing other past cases in her main appeal brief, she wrote that the high court has “determined that where a constitutional provision is self-executing, the Legislature cannot derogate the power derived therefrom and may only enact legislation in harmony,” and justices “held that to the extent that the Legislature passed statutes that purported to require legislative approval for State Board rules, such statutes usurped the State Board’s general supervisory authority and were unconstitutional.”

Unlike other state agencies, the rules and policies the state board passes don’t require the Legislature’s sign-off.

Policy 6204, titled “School Closings or Consolidations,” says county school boards must, before implementing any closure or consolidation, request an education facilities plan amendment from the state board for approval.

The policy says this amendment must “contain justification for the proposed consolidation or school closing. This justification must be supported by supplemental data and information pertinent to the following subjects: enrollment, facilities, finance, personnel, transportation, and educational programs.”

“In order to fulfill its constitutional mandate to ensure the delivery of a thorough and efficient education under Article XII, 1,” Talbott wrote, citing the line that explicitly references the Legislature, not the state board, “it logically follows that the State Board must conduct a critical analysis of the justification and the supportive information. Indeed, it runs counter to the very notion upon which the State Board is founded in the West Virginia Constitution, and against the plain language of Policy 6204, to impose the procedural straight-jacket on the State Board’s deliberations on school closure/consolidation plans that the Circuit Court imposed.”

In her other filing, Talbott quoted from a previous Supreme Court ruling that the state board has the constitutional responsibility “to ensure the complete executive delivery and maintenance of a ‘thorough and efficient system.’”

Talbott wrote that Bloom’s order confines the state board’s power “to that of a compliance officer who is bound to rubber stamp a county board’s plan as long as it conforms to procedural standards without regard to whether the plan is educationally sound.”

Nicholas’ response, School Board Association’s position

The Nicholas board’s written rebuttal to the state board’s appeal continually calls state board members’ reasons for rejecting the consolidation “subjective,” using the word as a criticism. On behalf of the Nicholas board, lawyers from the firm Bowles Rice wrote that these factors aren’t “set forth in Policy 6204.”

“A county board cannot possibly know what criteria they should examine and assess without a duly promulgated rule providing advance notice,” the Nicholas attorneys argue. “A county board is thus left to go through the lengthy process of consolidation, only to find that it did not meet the subjective, unpromulgated criteria of each individual State Board member. If the State Board wishes to impose additional requirements divined from the spirit of a policy, then it must promulgate a regulation.”

The Nicholas attorneys also wrote that the Supreme Court’s central holding in a 1990 case, over the state board’s denial of the Kanawha school board’s request to close South Charleston Junior High, was that “the State Board’s discretion is not unlimited because it must abide by the remedies and procedures it properly establishes to conduct its affairs.”

The West Virginia School Board Association, which represents county school board members, also filed a brief before the Supreme Court in favor of the Nicholas board.

“If the State Board’s actions are permitted to stand, then the legislatively-delegated authority of locally-elected county boards will be severely undermined,” says the brief signed by Booth Goodwin, a Justice opponent in the 2016 Democratic gubernatorial primary.

“Untold resources of county boards will be wasted as they labor in futility to satisfy unknown standards,” the brief states, “and the legally prescribed decision-making processes of county boards will be obliterated in favor of undefined and ever-shifting opinions held by State Board members.”

Reach Ryan Quinn at

ryan.quinn@wvgazettemail.com, facebook.com/ryanedwinquinn, 304-348-1254 or follow

@RyanEQuinn on Twitter.

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