                                                                               FILED
No. 17-0767 – W. Va. Bd. of Educ. et al v. Bd. of Educ. of the             October 10, 2017
Cty. Of Nicholas, W. Va.                                                       released at 3:00 p.m.
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
LOUGHRY, C. J., concurring:                                                     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



                                            1

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
                                             2

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
                                     3

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
                                                 4

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.




                                            5

