Nos. 11-1224 and 11-1486 – Kanawha County Public Library Board, a public
corporation; West Virginia Board of Education, a public corporation; and Dr. Jorea
Marple, in her official capacity as Superintendent of Schools of the State of West Virginia
v. The Board of Education of the County of Kanawha
                                                                               FILED
                                                                              June 19, 2013

                                                                         RORY L. PERRY II, CLERK

                                                                       SUPREME COURT OF APPEALS

                                                                           OF WEST VIRGINIA

Benjamin, Chief Justice, dissenting:


              Because the majority opinion completely disregards a proper legislative

mandate, ignores the precedent of this Court, and has no basis in law or reason, I dissent.



              In the case of County of Kanawha v. W. Va. Bd. of Educ., 219 W. Va. 801,

639 S.E.2d 893 (2006), this Court found that the then-applicable statutory provision

charging the Kanawha County Board of Education with distributing a part of the

proceeds of its annual regular levies to the support of the Kanawha County Public Library

violated constitutional equal protection principles. Specifically, this Court held:

                      W. Va. Code § 18-9A-12 (1993), to the extent that it
              fails to provide that a county school board’s allocated state
              aid share shall be adjusted to account for the fact that a
              portion of the county school board’s local share is required by
              law to be used to support a non-school purpose, violates equal
              protection principles because it operates to treat county
              school boards required by law to provide financial support to
              non-school purposes less favorably than county school boards
              with no such requirement.

Syl. pt. 6, id. This holding was based entirely on the finding that the public library did not

serve a school purpose. We made this quite clear in that case by stating:

                     When we apply the strict scrutiny test to the present
              facts, we can find no compelling reason that justifies treating
              those school boards differently that are charged by law with

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              applying a portion of their local share to support a non-school
              purpose such as a public library. Clearly, the end result of
              such unequal treatment is that county school boards charged
              by law with diverting a portion of their local shares to support
              non-school purposes have less funds from regular tax levies
              to expend directly on public schools. Simply put, the more
              than 2.2 million dollars directed each year to the support of
              the library is money taken from the support of school children
              in the classrooms of Kanawha County schools. This, in turn,
              potentially impinges on a school board’s ability to provide a
              thorough and efficient education to its students.

Id., 219 at 807-808, 639 S.E.2d at 899-900 (italics added) (footnote omitted). We stayed

the effect of our decision in County of Kanawha until the beginning of the next fiscal year

to give the Legislature an opportunity to take corrective action by amending the

applicable statutes.



              The Legislature subsequently took the necessary corrective action by

amending the applicable statute to explicitly recognize that the public library serves a

legitimate school purpose. In W. Va. Code § 18-9A-11(f) (2008), the Legislature

provided:

              To the extent that public schools recognize and choose to
              avail the resources of public libraries toward developing
              within their students such legally recognized elements of a
              thorough and efficient education as literacy, interests in
              literature, knowledge of government and the world around
              them and preparation for advanced academic training, work
              and citizenship, public libraries serve a legitimate school
              purpose and may do so economically.

It is beyond dispute that the Kanawha County school board chooses to avail itself of the

resources of the public library in providing a thorough and efficient education to county


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public school students. The public library’s bookmobile regularly visits schools

throughout the county so that students can check out library books.1 In addition, the

public library has placed branches in several public school buildings. For example, the

Riverside Public Library housed in Riverside High School is staffed by employees of the

Kanawha County Public Library and contains 41,000 items including 23 computers.2

Because the school board avails itself of the public library and its resources, the public

library serves a legitimate school purpose. Therefore, the school board’s funding of the

library from the school board’s budget does not infringe upon the state constitutional

right to a thorough and efficient public education. Instead, funding the public library

actually furthers the provision of a thorough and efficient education to the county’s

public school students.



             Inexplicably, the majority opinion reaches the opposite conclusion by

finding that the school board’s support of the public library, which serves a school

purpose as explained above, improperly infringes upon the right of county students to a

thorough and efficient education. As a result of the holding of the majority opinion,

many valuable services offered by the public library now face an uncertain future. For

example, due to the loss of the school board’s funding for the 2013 and 2014 fiscal year,


1
 In March of this year, 2,440 people checked out 3,937 materials from the bookmobile.
Shay Maunz, People love the bookmobile: The mobile library’s future is in question, but
for now, avid readers are covered,” Charleston Daily Mail, April 10, 2013 at 1C.
2
 “Riverside: Not your average branch library,” @ The Library, a publication of the
Kanawha County Public Library System, Summer 2013 and www.kanawhalibrary.org.
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the library was forced to cancel the 2013 West Virginia Book Festival. This means fewer

books in the hands of young readers. Moreover, the library offers summer reading

programs to county students, providing educational opportunities to children who might

otherwise consume a steady diet of television and videogames while school is not in

session. It would be ironic if the library had to cancel these educational programs due to a

lack of funding from the school board, therefore robbing students of summer-time

educational opportunities.



              In sum, I am troubled by the school board’s miserly decision to stop

funding the public library. This decision can be characterized only as short-sighted in that

it sacrifices the long-term educational benefits of a sufficiently-funded public library

system in favor of the school board’s short-term benefit of immediate control of a few

more dollars of its budget. I am even more troubled, however, that a majority of this

Court permitted the school board to carry out its ill-conceived decision. This is especially

so in light of the fact that the result reached by the majority is directly contrary to an

explicit legislative mandate and precedent of this Court and is completely unsupported by

any previously recognized constitutional principle. Accordingly, I dissent.




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