West Virginia school consolidation bounces back into the court’s court

By Brad McElhinny in News
CHARLESTON, W.Va. — If the fight over whether the state school board is within its rights to reject the Nicholas County board’s decision to consolidate its schools winds up going all the way to the state Supreme Court, it won’t be the first time justices took on that issue.

In 1990, in a case that is cited as precedent for the Nicholas County dispute going on right now, the state Supreme Court weighed into whether the state board can overrule local boards.

In short: yes.

The longer answer: kind of.

“The closing or consolidation of county schools is a matter within the purview of the State Board’s general supervisory powers,” Justice Thomas Miller wrote in 1990.

“Accordingly, in furtherance of its mandatory duty to provide a thorough and efficient system of schools, we conclude that the State Board does have the authority to review and to approve or disapprove a county board’s school closure or consolidation plan.”

But get this: “The state board’s discretion is not unlimited, however.

“The West Virginia Board of Education will not overrule a county board of education on a school closing or consolidation matter, unless the proposal does not comply with the educational and facility standards established by the State Board or the county board has not complied with procedural requirements of 18-5-13, 18-5-13a, and State Board Policy.”

In other words, the Supreme Court has said, the state board can override the county board’s decision — but only if the county board hasn’t complied with stated requirements.

That’s at the heart of the Nicholas County case, where the county board wants to combine five schools at one campus in the Summersville area. The schools are Richwood High and Middle Schools, Summersville Middle, Nicholas County High School, and the county’s vocational school.

In a hearing before Kanawha Circuit Judge Duke Bloom last week, state board members unanimously acknowledged that in deciding on that plan, the Nicholas board lived by the letter — but perhaps not the spirit — of the rules requiring a public comment period.

The state board’s contention is that members of the Nicholas board turned a deaf ear to other possibilities, including a consolidated campus in Richwood. State board members concluded their county counterparts didn’t demonstrate enough interest in the concerns of Richwood.

It’s that gray area — the letter of the rules versus the spirit — where Judge Bloom will have to decide.

“Where is the authority of the state board of education to substitute their judgment?” Bloom asked more than once, in more than one way last week.

The state Constitution, referenced in the earlier Supreme Court decision, offers broad guidance.

Article XII, Section 2 of the West Virginia Constitution has this to say: “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.”

So the Court’s task in 1990 was to shed more light on what that means.

That case arose over consolidation issues in the South Charleston attendance area in Kanawha County.

The Kanawha County board had decided to close South Charleston Junior High. The state board and then Superintendent Hank Marockie, rejected the motion to approve the closure, in part on the grounds that the South Charleston building was underutilized.

The Kanawha board and a concerned citizen, South Charleston resident Thornton Cooper, filed separate lawsuits that were consolidated.

On Aug. 6, 1990, then-Kanawha Circuit Judge Patrick Casey ruled in favor of the county’s consolidation plan. Casey said the state board lacked the authority to overrule final acts by county school boards.

The Supreme Court disagreed: “Clearly, the county boards of education do not have unlimited power to make the final decisions with respect to school closings and consolidations.”

But Miller, writing for the court, went on to say the state board needs to abide by its own rules if it overrules a county decision.

“Where the State Board rejects, in whole or in part, a county board’s school closure or consolidation plan, it is required to state its reasons for doing so. The State Board need not make detailed findings of fact or conclusions of law, but must give some reason for its action so as to enable a reviewing court to determine if it has abused its discretion.”
The second time the state board rejected the Nicholas County decision, last Monday, vice president Dave Perry provided a detailed reason.

“I would move to reject Nicholas County’s proposed amendment to its CEFP [comprehensive educational facilities plan] inclusive of the closure of five schools because I believe sufficient alternatives and possibilities have not been explored to be assured this plan is in the best interest of the students of Nicholas County, and specifically of those in the current Richwood Middle and Richwood High School areas.”

He continued, “To date, I still have not seen evidence of meaningful dialogue between the citizens of the Richwood High School attendance area and the Nicholas County Board of Education concerning the future of the school system and the needs of their students. Sufficient FEMA [Federal Emergency Management Agency] funding options exist to allow Nicholas County to rebuild the damaged schools without removing both Richwood High School and Richwood Middle School from the Richwood High School attendance area.”

At last Tuesday’s hearing, Judge Bloom focused many of his own questions on determining whether state board members reached those conclusions through empirical methods, or by gut feeling. For example, looking over Perry’s wording, what constitutes “evidence of meaningful dialogue?” And what would be a sufficient exploration of alternatives?

County boards across West Virginia are watching for the outcome, said Howard O’Cull, director of the West Virginia School Board Association. They want to know under what circumstances their decisions might be overturned.

“There is interest in, ‘If our board decides to consolidate or merge a school and we’ve followed all these rules and procedures, are we going to be subject to some guideline where we don’t know what those guidelines are?”

O’Cull said consolidation decisions are some of the most difficult for local boards. But because of shrinking populations and to try to stretch resources, much the work of consolidation in West Virginia has been done already.

“There’s not a school board in the world sitting up wondering which school to close. These are agonizing choices. It has to do with distance and economics.”

Because such decisions can be so painful, county board members would like to know the rules they’re expected to follow.

“You may put a year into the process and then find out that’s not the process,” O’Cull said. “Is this a one-time thing for one-time reason, or is this what we look forward to in the future? Other school boards are saying, ‘Will we be picked out because someone has this feeling about this particular consolidation? These things are all circulating around here.”
Delegate Paul Espinosa, the education chairman in the House of Delegates, has also been observing those broader issues.

Espinosa, R-Jefferson, said he believes most of the power should be in the control of locally-elected boards, although he does believe there’s a place for oversight by the state board.

“In listening to as much of the deliberations as I’ve heard and also listening to some of what transpired in the court case before Judge Bloom, I do have concerns where by all indications the local school boards are following the process,” Espinosa said in a telephone interview.

“When they follow the process but come to a different decision than what the state school board might have made I really do have some concerns that we’re perhaps undermining that local-decision making that I am an advocate for.”

Espinosa followed up the telephone conversation with a text to clarify his remarks:

“I would certainly acknowledge that the Legislature — not just the state BOE — sometimes struggles with the temptation to second-guess or to limit the discretion of our local school district leadership,” Espinosa wrote. “While most members express support for local decision making, that support sometimes wanes when legislators sense local officials may make decisions with which they don’t agree.

“But if we’re serious about local empowerment, we need to trust that our duly elected local leaders will be held accountable by their constituents.”

Tom Lange, the finance chairman of the state School Building Authority, expressed a similar concern during a Friday appearance on MetroNews’ “Talkline.”

“Who knows better what is best for the county than the elected officials? If you don’t like what they’re doing, vote them out,” Lange said.

“The state board has rules in place that county boards must follow. I believe they followed all the steps. There wasn’t any reason for the state board to deny what the county board decided to do.”

During that same segment, Richwood Mayor Bob Henry Baber contended the Nicholas County board came up short on due diligence in making its consolidation decision.

“They never vetted any sites in Richwood. The default position of the state has always been to consolidate,” Baber said.

Baber added, “All the data we submitted that the county board did not even look at says you cannot find a study that says smaller schools aren’t better. The data does not make the Nicholas County board of education’s case.”
During last week’s long hearing in his courtroom, Judge Bloom wrapped up matters with a lighthearted comment indicating his courtroom might not be the last stop for these questions.

“I have the feeling somebody is going to appeal whatever I do anyway,” the judge said.

If that’s the case, Thornton Cooper thinks he knows how it will go.

Cooper had been an activist, often fussing with the Kanawha County board, when he decided to jump in with local board members in 1990. He believed county board members had made a good-faith effort to study consolidation options and listened to the community. Besides, of all the possibilities, Cooper was wanting to be sure Dunbar Junior High stayed open.

He recalled telling some of the same board members he’d battled, “I’m going to go ahead and file a lawsuit. You all did what we said; you all decided which junior high to close. It’s gone up and let’s bring an end to it.” So Cooper, acting a a citizen, filed a lawsuit against the state school board.

In that case, the Supreme Court ruled against the county. Cooper believes that could happen again, as a matter of expedience. He thinks justices don’t want to oversee the decisions of 55 county boards; so they’re likely to give plenty of latitude to the single state board.

“The bottom line is this: It’s not just a question of jurisprudence,” Cooper said. “I don’t think the state Supreme Court wants to be the arbiter every time they decide about closing schools. What they want is to give discretion to the state board.

“It’s an uphill battle for the county board to overturn a state board decision. I don’t see that as changing. I don’t think the Supreme Court wants to take away the deference to the state board.”

In summary, Cooper suggested, “Unless they really mess up, they’re probably going with the state board.”