No. 17-0767 – W. Va. Bd. of Educ. et al v. Bd. of Educ. of the
Cty. Of Nicholas, W. Va.
LOUGHRY, C. J., concurring:

FILED
October 10, 2017
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA

I concur in the majority’s opinion in its entirety. It is clear that the West
Virginia Board of Education (“WVBOE”) is vested with constitutional, statutory, and
regulatory authority to exercise its discretion in accepting or rejecting an amended CEFP
and/or consolidation plan. The West Virginia Constitution and this Court’s precedent
make plain that
[t]he West Virginia Board of Education and the State
Superintendent of Schools, pursuant to their general
supervisory powers over education in West Virginia under
W.Va. Const. art. XII, § 2, and their specific duties to
establish, implement and enforce high quality educational
standards for all facets of education under the provisions of
Chapter 18 of the West Virginia Code, have a duty to ensure
the complete executive delivery and maintenance of a
“thorough and efficient system of free schools” in West
Virginia[.]
Syl. Pt. 1, in part, Pauley v. Bailey, 174 W. Va. 167, 324 S.E.2d 128 (1984) (emphasis
added).

Unquestionably, the “complete executive delivery and maintenance of a

‘thorough and efficient system of free schools’” necessarily entails oversight of and
ultimate responsibility for the number, adequacy, and viability of our schools.

The

WVBOE’s constitutional obligation is to all students in the State of West Virginia. To
fulfill that constitutional obligation, it must not be improperly hamstrung in the exercise
of its lawful authority to ensure that individual counties are both effectively serving its

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 student population and operating in accord with the best interests of the State’s
educational system as a whole.

While this proceeding necessarily required this Court to examine the
WVBOE’s stated reasons for rejection of the CEFP, our conclusion that its reasoning was
neither arbitrary nor unreasonable should not be construed as a tacit endorsement of any
plan or solution.

Although acknowledged in the majority’s opinion, it warrants

reiteration that it is not the charge of this Court to wade into the deeply emotional and
occasionally political issues that understandably surround school closure and
consolidation. Rather, those issues are left exclusively to the respective county and state
boards of education to utilize their collective wisdom and experience to determine what
best serves their students’ needs. Only when a board of education so wholly abdicates its
role such as to make its rationale arbitrary and unsupportable, may a court intervene. No
such circumstances exist here.

Nevertheless, the parties to and/or observers of this case may well declare a
“winner” and “loser.”

And while the Nicholas County Board of Education may

understandably view this decision as defeat, such a viewpoint is short-sighted. What the
decision of the WVBOE in rejecting the CEFP amendment suggests, when fairly
construed, is simply that there is more work to be done to determine the best solutions for
these schools. This is due in no small measure to the commendable success of the
Nicholas County schools.

According to information for the 2015-16 school year
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 contained in the appendix record, Richwood Middle School had a 100 percent highly
qualified teacher rate; Summersville Middle School had a 94.1 percent highly qualified
teacher rate; and Richwood High School and Nicholas County High School had a 96.1
percent and 90.1 percent graduation rate, respectively—higher than the statewide
graduation rate.

Moreover, their dropout rates were considerably lower than the

statewide rate. Because all of the schools involved—each individually and as part of the
Nicholas County school system—are so successful, the respective boards must proceed
with all diligence to ensure that such exemplary success is fostered, rather than
jeopardized.

This Court has observed that with respect to school closures and
consolidation, “a school board is required to investigate, to inquire, to study, to ponder
and to finally decide the question.” State ex rel. Jones v. Bd. of Educ. of Ritchie Cty., 178
W. Va. 378, 359 S.E.2d 606 (1987) (quoting Allen v. Uniontown Area Sch. Dist., 285
A.2d 543, 546 (1971)). And while it may not be “stymied at every turn by the differences
of opinions of others,” a local board must give careful consideration to the innumerable
factors bearing on the students’ fundamental right to education and the means by which it
delivers that fundamental right. Id; see also Syl. Pt. 3, Pauley v. Kelly, 162 W. Va. 672,
672, 255 S.E.2d 859, 861 (1979) (“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.”). While
the Nicholas County Board of Education has undertaken thoughtful analysis and
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 consideration of the consolidation issue, these unique circumstances and the
commendable success of these schools have been deemed by the WVBOE, in exercise of
its constitutional authority, to require more.

The WVBOE must likewise give commensurate, painstaking deliberation
to the issues touching not only the locally affected students, but the system as a whole.
The appendix record reflects that its members did precisely what the West Virginia
Constitution demands of them. Whether the WVBOE’s conclusion was right or wrong,
even a cursory review of its meeting minutes—and particularly the thorough circuit court
testimony—reveals that the WVBOE members individually and as a body carefully
reviewed the materials submitted by the Nicholas County Board of Education.

As

contemplated in its constitutional charge of “general supervision” over the State’s
schools, its members then applied their collective wisdom and experience to render
thoughtful assessment and opinions on the plan. See Article XII, section 2 of the West
Virginia Constitution (“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.”).

As the parties move forward, I trust that they will work cooperatively,
diligently, and with alacrity to ensure that the students of Nicholas County receive the
educational facilities, programs, and opportunities they deserve and to which they are
constitutionally entitled. As a reminder to all citizens of the State— inasmuch as each
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 has a role to play in our educational system—the “thorough and efficient” education to
which our children are entitled “develops, as best the state of education expertise allows,
the minds, bodies and social morality of its charges to prepare them for useful and happy
occupations, recreation and citizenship, and does so economically.” Pauley v. Kelly, 162
W. Va. 672, 705, 255 S.E.2d 859, 877 (1979). I am confident that the parties’ ardently
expressed concern for the children’s well-being will lead Nicholas County students to
precisely that end. Accordingly, I respectfully concur.

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